Eng v. Cooley, No. 07-56055.
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | Michael Daly Hawkins |
| Citation | 552 F.3d 1062 |
| Decision Date | 14 January 2009 |
| Docket Number | No. 07-56055. |
| Parties | David ENG, Plaintiff-Appellee, v. Steve COOLEY, District Attorney; Steven Sowders, Head Deputy District Attorney; Curt Livesay, former Chief Deputy District Attorney; Anthony Patchett, former Special Assistant to the District Attorney; and Curtis A. Hazell, Assistant District Attorney; in their individual capacities, Defendants-Appellants. |
v.
Steve COOLEY, District Attorney; Steven Sowders, Head Deputy District Attorney; Curt Livesay, former Chief Deputy District Attorney; Anthony Patchett, former Special Assistant to the District Attorney; and Curtis A. Hazell, Assistant District Attorney; in their individual capacities, Defendants-Appellants.
[552 F.3d 1063]
Jin Suk Choi, Franscell, Strickland, Roberts & Lawrence, P.C., Glendale, CA, for the defendants-appellants.
D. Jay Ritt, Bensinger, Ritt, Tai & Thvedt, LLP, Pasadena, CA, for the plaintiff-appellee.
Appeal from the United States District Court for the Central District of California; Otis D. Wright, II, District Judge, Presiding. D.C. No. CV-05-02686-ODW.
Before: RICHARD D. CUDAHY,* HARRY PREGERSON, and HAWKINS, Circuit Judges.
MICHAEL DALY HAWKINS, Circuit Judge:
We must determine whether Steve Cooley, Steven Sowders, Curt Livesay, Anthony Patchett, and Curtis Hazell (collectively, the "Defendants") are entitled in their
individual capacities to qualified immunity in this § 1983 First Amendment retaliation case.1 Resolving this question involves, in part, David Eng's claim that he was retaliated against by the Defendants for an interview given by his lawyer on his behalf to the press. Concluding that we lack jurisdiction to address whether Eng has third party standing to vindicate the constitutional rights of his lawyer, but that he may nevertheless claim a personal First Amendment interest in his lawyer's advocacy on his behalf, we affirm the district court's partial denial of qualified immunity.
"Assuming that [Eng]'s version of the material facts is correct, as we must in the context of an interlocutory appeal of a qualified immunity decision," CarePartners, LLC v. Lashway, 545 F.3d 867, 878 (9th Cir.2008), the record establishes the following.
A. Factual Background
Eng, a Los Angeles County Deputy District Attorney, was assigned to the Belmont Task Force ("Task Force") to investigate allegations of fraud and environmental crimes related to the planning and construction of the Los Angeles Unified School District's Belmont Learning Complex ("Belmont"). The Task Force was established by newly-elected District Attorney Steve Cooley, who had campaigned on a promise to reform the Belmont project. The Task Force was headed by Special Assistant Anthony Patchett, who emphasized from the beginning that the Task Force would deliver "slam dunk" indictments against prominent individuals involved with the Belmont project.
Following an extensive seven-month investigation, the Task Force concluded that the building site was and had always been environmentally safe and that no indictments should issue. Hours before the Task Force presented its findings and recommendations to Cooley and his executive staff, Eng briefed Patchett about the report. Patchett threatened Eng with "severe [personal] consequences" if the Task Force did not say what Patchett believed Cooley "wanted to hear." Eng nevertheless presented his report recommending that no criminal charges be brought. Following Eng's discussion of the Task Force's findings, Patchett made his own presentation opposing Eng's report and distributed proposed indictments against several prominent individuals. Cooley's executive staff considered both recommendations and declined to adopt Patchett's.
In the same meeting, the Task Force also discussed a Los Angeles Times article reporting that the Los Angeles Unified School District's (the "School District") lease-purchase agreements used to finance the Belmont project were being canceled and that the School District would have to refinance the project at a substantially higher interest rate. According to Eng, the agreements were cancelled because Patchett had improperly leaked to the IRS that the School District had committed fraud in purchasing the Belmont property.
Eng argued that the lease-purchase agreements had been legal and that Patchett's contrary report to the IRS was "wrong and should be rectified." Cooley, who had become angry with Eng, told him to "shut up."
Over the next several months, Cooley and members of his staff met frequently to discuss "a method of forcing David Eng out of the District Attorney's Office." First, a few months after the presentation, John Zajeck (who replaced Patchett as head of the Task Force) informed Eng that he was under investigation for sexual harassment of a Task Force law clerk with whom Eng had previously engaged in a consensual "private relationship." The relationship was not unusual and was not in violation of any office policy.
Patchett and Zajeck had approached the law clerk earlier to inquire about the relationship. She told the pair that Eng had not sexually harassed her, nor had she told anyone he had. After learning that Zajeck had initiated a sexual harassment investigation against Eng, moreover, she expressly advised the department that Eng had not sexually harassed her. The investigation nevertheless proceeded without the law clerk's knowledge or participation. Eng was told to work from home until further notice and not permitted to return to work until the following month.
Next, in what Eng asserts was a "clear demotion," Cooley reassigned him to the Pomona Juvenile Division, even though Eng was a senior attorney in the office, and the Juvenile Division is "considered to be the first stop for beginning attorneys." (Eng had served in the Juvenile Division in the mid-1980s.) Eng was also interviewed by three District Attorney investigators regarding the alleged sexual harassment charge. During the interview, the investigators falsely claimed that the law clerk had not disavowed the alleged harassment. No harassment charges were ever brought against Eng.
About five months later, Eng was suspended with pay and instructed not to return to work without further notice, at which time he retained attorney Mark Geragos. Eng was subsequently served with a Notice of Intent to Suspend, which stated that misdemeanor charges had been filed against him for using an office computer to access private information. Head Deputy Steven Sowders subsequently informed Eng that he was being suspended without pay. Eng and Geragos argued that, because the allegations were baseless, his suspension should be with pay. That request was denied. Sowders terminated Eng's pay and benefits and also refused to allow him to "cash out" his vacation time, as was ordinarily allowed.
When the misdemeanor charges against Eng went to trial some two months later, they were dismissed when the only potential witness against Eng invoked his Fifth Amendment right to remain silent, evidently having misused office computers himself. Sowders still refused to allow Eng to return to work. Eng and Geragos appealed to the County Civil Service Commission, which ordered that Eng be allowed to return to work and that his lost pay and benefits be restored. Sowders refused to follow the order and extended Eng's suspension without pay for an additional thirty days.
Around the same time, the Los Angeles Times published a prominent article on Eng's case, titled "D.A. Accused of Payback Prosecution." The article, which included an interview with Geragos, detailed Eng's allegations that he had been prosecuted because he refused to file criminal charges against individuals involved in the Belmont School project, and because he complained that it was improper for members of the Task Force to contact the IRS.
Shortly after the article went to press, Sowders informed Eng and Geragos that Eng would "never be allowed to come back" to the District Attorney's Office and that "they would come up with additional things to charge Eng with so that he would remain on suspension or be terminated." Ironically, the day after the article was published, the District Attorney's office released the final Belmont Report, which mirrored the conclusions originally presented by Eng.
Two weeks after the Los Angeles Times article appeared, Sowders met with Eng and served him with a second Notice of Intent to Suspend, realleging the same facts as in the original notice and recounting additional allegations "stemm[ing] from acts which purportedly occurred years prior." During the meeting, Sowders asked Eng why he had allowed Geragos to give an interview to the Los Angeles Times. In a subsequent meeting among Eng, Geragos, Sowders, and Chief Deputy District Attorney Curt Livesay, Sowders offered to "resolve matters" if Eng agreed to "tell the Los Angeles Times that Geragos's comments were unauthorized and inaccurate, and if he would publicly apologize to Cooley."
Without agreeing to the retraction, Eng returned to work one week later at the Padrinos Juvenile Court. The following week, however, the District Attorney's office issued a second Notice of Suspension without Pay, evidently again ignoring the Civil Service Commission's order and the dismissal of the criminal charges against Eng. In a second hearing before the Civil Service Commission, the Commission resolved all outstanding allegations in Eng's favor, including the sexual harassment charges. Eng later returned to work once again but discovered that he was not receiving full benefits. He has since been passed over for promotion.
B. Procedural Background
Eng filed suit under 42 U.S.C. § 1983 asserting, in addition to a range of state law claims, that the Defendants had retaliated against him for exercising his First Amendment right to comment on the Belmont School Project and the leaks to the IRS, and to speak through his attorney to the press, in violation of the First and Fourteenth Amendments.
Following discovery, the Defendants moved for summary judgment, asserting in part qualified immunity from...
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