[00:00:00] Speaker 02:
Our last case this morning is 23-7060 of Ott v. Doak, Ms.

[00:00:07] Speaker 02:
Levine.

[00:00:09] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:11] Speaker 00:
My name is Allison Levine.

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I'm representing Ken Doak, the appellant in this matter.

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As you're aware, this is an employment case.

[00:00:21] Speaker 00:
It's arising from the termination of Mr. Avant by Commissioner Ken Doak.

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It's a First Amendment perceived speech retaliation claim.

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Commissioner Doak did seek qualified immunity when he filed his motion for summary judgment, and qualified immunity was denied by the district court.

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There are many issues with the district court's denial of qualified immunity, but the most crucial, the most pressing is the district court's finding that it was clearly established law that Commissioner Doak was required to conduct an investigation into the speech in question or into the absence thereof before terminating Mr. Avant.

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And the district court made that finding even though it also found that Commissioner Goak terminated Mr. Avant pursuant to a facially neutral policy.

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The district court relied heavily on the Waters v. Churchill case.

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for the proposition that Commissioner Doe was required to conduct an investigation.

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And I think the district court went beyond saying reasonable investigation to at one point saying an objectively formal investigation.

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There's several issues with this.

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The court relied on the Waters case for its modified Garcetti-Pickering analysis, for its modified qualified immunity analysis, and also for its application of the Heffernan defense.

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Two things.

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First is the clearly established prong.

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When we're looking at whether law is clearly established, we're asking whether the matter of issue has been decided, whether it's beyond a doubt that a government official in that situation would know that conduct is illegal.

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If that's in question, the law has not been clearly established.

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Waters was a plurality opinion.

[00:02:51] Speaker 01:
Let me just ask.

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This is a threshold.

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I know you want to get into Waters.

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But as far as what the district court did with Waters, there's this whole layer of the Garcetti-Pickering factors or elements.

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Yes.

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Five elements.

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And you mentioned that.

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And there's also this Heffernan defense.

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And you mentioned that the district court alluded to Waters and investigation in conjunction with the Heffernan defense.

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Yes.

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Correct.

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Would you also agree that to the extent the court discussed Waters

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in connection with the five elements.

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Wasn't that discussion in connection with element two?

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Yes.

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That is, whether the speech was on a matter of public concern.

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Yes, that is correct.

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And the court didn't discuss waters on the other elements.

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It's just element two and the Heffernan defense.

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Yes, that's correct.

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Okay.

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But also on the second prong of qualified immunity.

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So the district court came back in... I understand.

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Yes.

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So we have the five elements on the first prong and we have the five elements on the second prong.

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On the second prong.

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But in both it's the second element.

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Yes, the public concern element.

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Okay.

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Yes, Your Honor.

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As I was saying, in terms of whether that reasonableness requirement was clearly established, Waters is a plurality opinion.

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You were earlier talking about the investigation requirement, which is under Waters.

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But Meth versus Hines clearly establishes the reasonableness requirement, doesn't it?

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It does, but not in terms that case

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is speaking in terms of qualified immunity in general.

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That's the modified qualified immunity test.

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So I think we're looking at two

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two different aspects of what is reasonable here.

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Just in general, with qualified immunity, we're asking whether the conduct of a government official was reasonable in light of law that was clearly established at the time.

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So we're looking at that regardless.

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I think the Garcetti

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hickering factors and Waters is addressing something else entirely.

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That's going to the intent of speech and the intent of an employer in making a decision.

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So I think the reasonableness test that

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that Waters has talked about is similar, but I think the way that the district court has applied this is just in an entirely different realm.

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I don't think that that was the intent.

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I don't think that was a proper application, but I think before we even get to that, it was reasonableness even clearly established.

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And I think that's outside of the bounds of what we're talking about with Hines.

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So I think it's a more specific question in waters.

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As I was saying, the

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The plurality opinion in Waters is what the district court relied on.

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And the reasonableness of belief test was not condoned by a majority of the court, no matter how you get there.

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The plurality opinion was drafted by O'Connor and joined by Rehnquist and

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Ginsburg and Souter.

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And Mr. Hammons hopefully will tell me if I'm wrong about this, but I thought in his supplemental brief in the first sentence in the first paragraph on page five, Mr. Hammons actually agrees with you that Waters itself doesn't clearly establish the investigation requirement, but then he says that post Waters there are seven federal circuits that have interpreted Waters

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to conclude that there is an investigation requirement.

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So what he's arguing, I think, at least in his supplemental brief on 5 and 6, is that there is a clearly established requirement of an investigation to satisfy Macbeth v. Himes based on the consensus of out-of-circuit authority.

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Do you agree or disagree with that?

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I think that those circuits have interpreted

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waters to have that requirement, but the cases to which the Abilites sided were not perceived speech cases, and they were certainly not cases where termination pursuant to a neutral policy, where we're bringing in the Heffernan defense

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that wasn't applicable.

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So I think when we're talking about in terms of clearly established law, there's nothing for Commissioner Doak to look to in those cases from other circuits that say this applies in a case of perceived speech and it applies when a neutral policy is at issue.

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So I think that's the distinction there.

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So when we have this plurality opinion that the district courts relied on, the majority of the justices did not agree with using the reasonableness test.

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We have two concurring opinions, but honestly, the majority of the court, five justices, say that the reasonable test should not be used.

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And that was for two completely different reasons.

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You have the concurring opinion from Scalia with Kennedy and Thomas joining

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saying that the reasonableness test goes too far, that it's expanding First Amendment rights and that it's limiting employers in their ability to basically effectively manage their operations.

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And then you have the dissent, Stevens and Blockman, saying that it's too lenient.

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And government officials should essentially have their ducks in a row and there should be no kind of out that the reasonableness test requires.

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So that's the majority.

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Souter attempts to argue that the plurality opinion using the reasonableness test is the rule of law from the case, but his logic in that is flawed and circular.

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I mean, Souter himself was a part of the plurality.

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Then he writes a concurring opinion that basically says,

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ditto to the plurality, and then adds one slight little addition, just the requirement that the employer, he proposes once they've conducted a reasonable investigation, that they need to prove that they had a reasonable belief based on the outcome of that investigation.

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But we can't get to a majority with Souter.

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He says that a majority of the court would, that it would satisfy the Marx test because a majority of the court would agree that an employer who passes the reasonableness test would have no liability for a First Amendment claim.

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and that a different majority would agree with the statement that an employer who fails the reasonableness test would be liable for a First Amendment violation.

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And logically, that should be two sides of the exact same coin.

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If A is true, then B is true.

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But it's not, because the court is just that divided on that issue.

[00:11:58] Speaker 01:
So I'm interested in shifting to another topic, but if you want to say anything more about auditors.

[00:12:08] Speaker 00:
Oh, no, sir.

[00:12:08] Speaker 00:
Go right ahead.

[00:12:09] Speaker 01:
OK.

[00:12:11] Speaker 01:
This is a question about the third element.

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of the Garcetti Pickering Test that balances the speakers and the government's interests.

[00:12:20] Speaker 00:
Yes.

[00:12:21] Speaker 01:
So why would Commissioner Doak have an interest in taking adverse action against Mr. Rabant for speech that didn't happen?

[00:12:32] Speaker 00:
Well, it was Commissioner Doak's belief that the speech did happen.

[00:12:36] Speaker 00:
It was brought to him by private citizens.

[00:12:40] Speaker 01:
Oh, no, I know he thought it did.

[00:12:43] Speaker 01:
Yes.

[00:12:45] Speaker 01:
Given that it didn't happen, what is his interest in firing Mr. Avant?

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Well, of course, he made that decision believing that it did happen.

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If it didn't, in fact, happen, I think it's enough that

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Citizens came to him and made a complaint about an employee's behavior.

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And this is where we run into the neutral, facially neutral policy.

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Because the county had a policy that stated employees needed to maintain harmonious relationships with the public and with each other.

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And what Commissioner Doak and what his deputy Burgess were hearing was complaints

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that Mr. Obama was not complying with that policy.

[00:13:41] Speaker 01:
Well, OK.

[00:13:42] Speaker 01:
Slightly different question.

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How could Commissioner Doak show actual disruption from speech that never happened?

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I think the way that he would show, I think it's enough that he shows potential disruption.

[00:14:02] Speaker 00:
And when there's disruption between colleagues, again, one of the complaints Mr. Yvonne was... Well, don't the cases say that after passage of a certain amount of time, he's supposed to show actual disruption?

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Yes, and that's in cases of actual speech.

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There's nothing on that subject in terms of perceived speech.

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And I think it's absolutely true that

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allegations of gossip can cause just as much problems as actual gossip.

[00:14:41] Speaker 01:
Let me move to yet one more related question.

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Correct me if I'm wrong, but as I understand your argument, the employee here, Mr. Avant, has no interest in perceived speech because he didn't.

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Correct.

[00:14:57] Speaker 01:
But wouldn't that mean an employee could never prevail?

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in a perceived speech case, because if he has no interest, he's either going to lose.

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I actually think this case is really unique in the fact that Mr. Avant did not just say, I did not make these statements.

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He actually testified that he had

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no interest in making them.

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He used that term, that he had no interest in making those statements.

[00:15:33] Speaker 01:
OK, one last question, because I know you're over time.

[00:15:36] Speaker 01:
But did Mr. Bond argue and did the district court address whether the third factor, the third element, was clearly established?

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Violation clearly established law.

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I don't believe that they did, that it did.

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I believe the district court's opinion was quite deficient in the other areas of the Garcetti-Pickering analysis.

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The other four, we conceded the first factor.

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And I think the district court opinion thoroughly addressed the public concern factor.

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But the remaining three,

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I don't think there was any discussion on whether that was established or not.

[00:16:27] Speaker 00:
Thank you.

[00:16:44] Speaker 02:
Are you ready?

[00:16:45] Speaker 02:
May proceed, yes.

[00:16:46] Speaker 02:
Sorry about that.

[00:16:48] Speaker 02:
Thank you, Your Honor.

[00:16:49] Speaker 02:
Members of the Court, my name is Mark Hammons.

[00:17:01] Speaker 02:
My name is Mark Hammons, and I represent the appellate Gary Avant in this case.

[00:17:08] Speaker 02:
I would point out that Mr. Avant certainly has an interest in not being punished for perceived speech.

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particularly when the perceived speech would, by its nature, be something on a public interest.

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In this particular case, the subject of the perceived speech was derived from Mr. Doak's affidavit that he filed in support of summary judgment based on facts he had disclosed previously in discovery.

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When we asked him what the reasons for the action were for the first time,

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When he filed a motion for summary judgment, he said, well, I thought Gary Avant was telling people that I had illegally, and he used the term illegally, built a private fence on private property using county money, an accusation that virtually by definition is a matter of public interest.

[00:18:03] Speaker 02:
It's a claim of crime by a public official, one of the areas that almost inherently

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is a matter of public concern.

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So they interjected that argument.

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Now, Mr. Aventz said, no, I didn't say those things.

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But that was the reason.

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And under Heffernan, that's what's controlling.

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That was the reason why they fired him.

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It wasn't simply a reason.

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They said it was the primary or predominant reason for that action.

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So going into the issues on the appeal, I would like to point out that I think there are two of the matters that are briefed that are not properly before the court.

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The question of amending the complaint is a procedural matter.

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It's not within the pending jurisdiction of this court.

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Pending jurisdiction means that the determination of one issue inherently resolves the other issue.

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And that clearly does not.

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As a matter of fact,

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The pleadings will be refined by the final pretrial order.

[00:19:04] Speaker 02:
That's, I think, a spurious issue, no matter how it's viewed.

[00:19:11] Speaker 02:
The other thing, though, is the Heffernan defense, which is raised.

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That is an affirmative defense, which depends on elements different than those.

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contained within qualified immunity.

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It's the existence of a neutral policy that is equally or uniformly applied, both matters which were contested in the summary judgment, and which meets constitutional standards, which is a more difficult but legal issue.

[00:19:39] Speaker 02:
But the point is that defense would not determine the qualified immunity defense, nor would qualified immunity determine the Heffernan defense.

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There is no pendant jurisdiction over that.

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We think the court was correct and should be affirmed.

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But frankly, that's not within the scope of this appeal.

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The scope of this appeal is whether or not there is a public interest.

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And Mr. Avant was fired for speaking out on matters of public concern.

[00:20:13] Speaker 02:
The court raised the issue of disruption.

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You can have disruption based on a misunderstanding about what was said, but there's no evidence of any disruption in this case.

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We asked Mr. Doak about that.

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We put it in our summary judgment motion.

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Mr. Doak said there was no disruption he was aware of.

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And he's the county commissioner.

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He's the one who's claiming disruption.

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Who would know if it occurred?

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His assistant, Mr. Burgess, who's

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one of the principal players in this, said he didn't know of any disruption from the perceived speech.

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The court was clearly correct that there was no evidence of any disruption.

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The matter is, as a matter of fact, that the court mentioned as having been raised by them related to something that was not part of the perceived speech.

[00:21:02] Speaker 02:
It was complaints about insurance and pay wages that are not considered as part of the disruption

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because the disruption inquiry focuses solely on the content of the speech at issue, not whether there's disruption from something else.

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That might go into a different factor, but it doesn't go into the disruption factor.

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Honestly, in going through this, it appeared that what we're attempting to do is re-litigate the underlying facts and say,

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except Mr. Doak's version of what occurred.

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and ignore what the court said and found.

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And they've raised the blatant contradiction basis for that, which frankly, on the Roosevelt versus Hennix, shouldn't be raised.

[00:21:52] Speaker 02:
There's a duty of candor that exception only applies in the face of objective evidence, usually a video or an audio or photographs, something that irrefutably established the fact.

[00:22:07] Speaker 02:
Here they're just saying, well, we've got different people saying different things, and that rises to the level of a blatant contradiction.

[00:22:16] Speaker 02:
It does.

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There's no case law that says that.

[00:22:21] Speaker 02:
The central issue, the one that would be most significant,

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And it is a question of law, is the impact of the Waters case.

[00:22:30] Speaker 02:
Now, they don't want to accept Justice Souter's analysis of the reasonableness factor as being the holding of a majority of the court.

[00:22:41] Speaker 02:
He analyzed under Marx those factors and came to a conclusion which no circuit has rejected.

[00:22:50] Speaker 03:
Nobody has... Well, you know, Judge White relied on an investigation requirement.

[00:22:55] Speaker 02:
That's different, Your Honor, and I agree that is a different matter.

[00:22:59] Speaker 03:
And then in your panel briefing, you had relied on waters.

[00:23:05] Speaker 03:
Yes, Your Honor.

[00:23:07] Speaker 03:
We ordered a supplemental brief on an issue that nobody had addressed, and I think the order was pretty narrow.

[00:23:15] Speaker 03:
How can a plurality opinion constitute clearly established authority, which had been your argument to that point.

[00:23:25] Speaker 03:
They file their brief, and then you file your brief, and on page five, jigs up.

[00:23:32] Speaker 03:
It doesn't, which had been the whole argument to this point.

[00:23:38] Speaker 03:
And then, being the wonderful lawyer you are, you take the opportunity to brief something that nobody had asked you to brief.

[00:23:47] Speaker 03:
Even though Waters is not clearly a stainless authority, for the first time,

[00:23:53] Speaker 03:
I never made this argument at Judge White.

[00:23:55] Speaker 03:
I never made this argument at the panel briefing for the first time.

[00:23:58] Speaker 03:
I'm going to argue to you, Court of Appeals judges, that there are these seven out of circuit opinions that Judge White had no opportunity to address.

[00:24:09] Speaker 03:
She didn't have any opportunity to address.

[00:24:10] Speaker 03:
And we really didn't invite you to address that.

[00:24:13] Speaker 02:
I agree.

[00:24:14] Speaker 02:
I did take advantage of the opportunity to point out, though, that that is something that does appear to be clearly established now.

[00:24:21] Speaker 02:
But I would say at the trial court level, we didn't focus on the investigation under Waters as being necessary to the determination of reasonableness.

[00:24:32] Speaker 02:
We do agree that the presence or absence of an investigation is a factor that the court can consider.

[00:24:39] Speaker 02:
And absent other evidence of reasonableness,

[00:24:42] Speaker 02:
which then the best decision requires the government official to have in this case.

[00:24:51] Speaker 02:
They have to meet that prima facie burden.

[00:24:54] Speaker 02:
Well, an investigation is one way to do that.

[00:24:57] Speaker 02:
We did not argue that it was the only way to do it.

[00:25:00] Speaker 03:
Well, Judge, I'm not trying to argue with you or anything, but I just want to probe this.

[00:25:09] Speaker 03:
So Judge White says that there is an investigation requirement.

[00:25:13] Speaker 03:
There was no investigation by Commissioner Doak.

[00:25:17] Speaker 03:
And then they argue, well, there's no clearly established requirement for an investigation.

[00:25:23] Speaker 03:
You say, yeah, there is, under Waters.

[00:25:26] Speaker 03:
And then you

[00:25:28] Speaker 03:
repudiate that.

[00:25:30] Speaker 02:
No, I agree, Your Honor.

[00:25:33] Speaker 02:
We argued initially that the waters plurality, which does commend an investigation as a method for doing it, was the basis for that.

[00:25:42] Speaker 02:
Judge White did rely on that and on a Fifth Circuit opinion, which is one of the other six that had adopted that.

[00:25:50] Speaker 02:
What we had argued was that under Macbeth, you had to show the crime and face the case and they hadn't done that.

[00:25:58] Speaker 02:
He did not address the other portion of that.

[00:26:00] Speaker 02:
He simply said, there is no investigation, but the fact of the matter is, there is no other evidence.

[00:26:07] Speaker 02:
In their briefing,

[00:26:09] Speaker 02:
The appellants are suggesting that Macbeth doesn't apply, that you don't have a burden to establish a prima facie case of reasonableness, and that Waters doesn't require you to establish a prima facie case of reasonableness.

[00:26:26] Speaker 02:
And on that point, Waters is clear.

[00:26:29] Speaker 02:
Souter's analysis under Marx is correct.

[00:26:33] Speaker 02:
Reasonableness is required in investigation under the plurality

[00:26:39] Speaker 02:
would not be required except for acceptance by the majority of circuit courts.

[00:26:46] Speaker 02:
So I agree with all of that.

[00:26:47] Speaker 02:
But to an extent, it's beside the point, because it boils down to, did they meet their burden of a prima facie case of reasonableness in making the decision?

[00:27:00] Speaker 02:
And he said they did not.

[00:27:01] Speaker 02:
He focused on the investigation.

[00:27:04] Speaker 02:
But he focused on the investigation because they didn't give him any other evidence.

[00:27:09] Speaker 02:
which would be a basis to find the prima facie case of objective reason.

[00:27:16] Speaker 02:
So we could say that Waters' plurality doesn't establish it, and the court can decide whether or not to look at the weighted circuit authority admittedly raised light in this.

[00:27:31] Speaker 02:
But it wouldn't make a difference unless they first of all

[00:27:35] Speaker 02:
met the Macbeth standard of a prima facie showing of reasonableness, and they just didn't do that.

[00:27:45] Speaker 02:
But even without the plurality holding, this court has recognized the significance of an adequate investigation in analogous situations involving the termination of employees.

[00:27:57] Speaker 02:
That's one of the tests for pretext.

[00:28:00] Speaker 02:
If you don't ask somebody whether they did it and what they did,

[00:28:04] Speaker 02:
And then it's hard to say that it's an undisputed fact that you made a reasonable decision on that subject.

[00:28:12] Speaker 03:
Well, it's a little bit of a stretch, isn't it, to find a clearly established requirement based on McDonnell Douglas under Title VII?

[00:28:26] Speaker 03:
I mean, you're borrowing doctrines from a completely distinct area.

[00:28:33] Speaker 02:
Well, not completely distinct, because the analysis that's used in those cases is very similar.

[00:28:39] Speaker 02:
And it's just like in the Stevens versus Ortiz case that we cited, which indicated that yes, a plurality opinion can clearly stand against the law.

[00:28:49] Speaker 02:
That actually is the habeas corpus decision, but it uses the same standard as is used in qualified immunity.

[00:28:56] Speaker 02:
So there is a lot of analogy.

[00:28:58] Speaker 02:
course, regularly apply.

[00:29:01] Speaker 02:
But again, the point is that it was clearly established by 10th Circuit Law that when you are relying on a subjective component such as intent, you have the burden

[00:29:14] Speaker 02:
of establishing a primary-facing case of objective reasonableness, and they didn't do that.

[00:29:20] Speaker 02:
He focused on the investigation, but that doesn't change the fact that his finding was that they had not met their burden of showing it was objectively reasonable.

[00:29:32] Speaker 01:
Mr. Hammons, how can you overcome qualified immunity when you haven't shown that element three of the Dark 7 hickory test

[00:29:45] Speaker 01:
was clearly established as a matter of law.

[00:29:48] Speaker 02:
Are you talking the disruption factor?

[00:29:50] Speaker 02:
No.

[00:29:52] Speaker 01:
Well, I'm talking about the balancing of interest factor.

[00:29:56] Speaker 02:
Yes, which is usually characterized as disruption, because if there's no adverse impact on the government, then there's nothing to balance on that.

[00:30:08] Speaker 02:
But I think that is clearly established.

[00:30:09] Speaker 02:
I think the analysis exists, and it's been well-defined,

[00:30:13] Speaker 02:
within the case law.

[00:30:15] Speaker 01:
But did the district court even address that issue?

[00:30:18] Speaker 01:
Yes, they did.

[00:30:20] Speaker 01:
They talked about... On the clearly established prong of qualified immunity?

[00:30:25] Speaker 02:
I don't know that he said for the purpose of the clearly established prong.

[00:30:30] Speaker 02:
What the court said was that the evidence that they presented did not show evidence of disruption.

[00:30:39] Speaker 02:
that would outweigh the value of the purported speech.

[00:30:46] Speaker 02:
And frankly, there just was no evidence of destruction.

[00:30:49] Speaker 02:
The government does have the burden of showing that it has an interest that outweighs the interest in the speech.

[00:30:57] Speaker 02:
In this case, we

[00:30:58] Speaker 02:
evaluate the speech as it was perceived.

[00:31:02] Speaker 02:
It's speech on a core issue, and that is criminality or corruption within the operation of the government.

[00:31:10] Speaker 02:
One of the central things where there's always been a great public interest, one, by the way, that often outweighs personal interest or personal motivations under Deutch v. Jordan, I believe is the case that talks about that,

[00:31:26] Speaker 02:
When the court analyzed that and said it didn't outweigh it, I think that is addressing the element.

[00:31:34] Speaker 02:
I may not have said for qualified immunity purposes, but I don't think the analysis is that different between perceived speech and actual speech because the issue is actual destruction.

[00:31:52] Speaker 02:
If there's nothing further, we would ask that the court approve.

[00:31:55] Speaker 02:
Thank you, counsel.

[00:31:56] Speaker 02:
We appreciate both of your arguments.

[00:31:57] Speaker 02:
You're excused.

[00:31:58] Speaker 02:
The case is submitted.