FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RON HUPPERT; JAVIER SALGADO, 

Plaintiffs-Appellants,

v. No. 06-17362

CITY OF PITTSBURG; AARON BAKER;  D.C. No.

WILLIAM ZBACNIK; MICHAEL CV-05-01433-JL

BARBANICA; WILLIAM BRIAN

ADDINGTON; WAYNE DERBY,

Defendants-Appellees. 

RON HUPPERT; JAVIER SALGADO, 

Plaintiffs-Appellants,

No. 07-16600 v.

D.C. No. CITY OF PITTSBURG; AARON BAKER; 

W CV-05-01433-JL ILLIAM ZBACNIK; MICHAEL

BARBANICA; WILLIAM BRIAN OPINION

ADDINGTON; WAYNE DERBY,

Defendants-Appellees. 

Appeal from the United States District Court

for the Northern District of California

James Larson, Magistrate Judge, Presiding

Argued and Submitted

July 18, 2008—San Francisco, California

Filed July 21, 2009

9317
Before: William A. Fletcher and Richard C. Tallman,

Circuit Judges, and William O. Bertelsman,* District Judge.

Opinion by Judge Tallman;

Dissent by Judge William A. Fletcher

*The Honorable William O. Bertelsman, Senior United States District

Judge for the Eastern District of Kentucky, sitting by designation. 

9318 HUPPERT v. CITY OF PITTSBURG
COUNSEL

Russell A. Robinson, San Francisco, California, for the appellants.

Joseph M. Quinn, MEYERS NAVE RIBACK SILVER &

WILSON, San Francisco, California, for the appellees.

OPINION

TALLMAN, Circuit Judge:

We examine the question whether a state police officer’s

speech, in different forms, is protected under the First

HUPPERT v. CITY OF PITTSBURG 9321
Amendment from retaliatory actions taken by that officer’s

superiors. Plaintiffs Ron Huppert and Javier Salgado appeal

the district court’s grant of summary judgment in favor of the

Appellees, the City of Pittsburg and individual police officers

within the Pittsburg Police Department (“PPD”), dismissing

their claims under 42 U.S.C. § 1983.

We hold that the speech at issue was given pursuant to

Huppert and Salgado’s job duties, and therefore affirm the

district court’s grant of summary judgment. Additionally, Salgado appeals the district court’s dismissal on summary judgment of his § 1983 claim brought under the Fourth, Sixth, and

Fourteenth Amendments. We affirm the district court on this

claim as well. Finally, both Huppert and Salgado appeal the

district court’s grant of costs to the Appellees solely on the

ground that the Appellees failed to timely file their bill of

costs. This argument is meritless, so we also affirm the district

court’s award of fees.

I

Huppert joined the PPD on January 25, 1991, where he

worked primarily as a patrol officer and an inspector. In 1995,

he was assigned to work a twenty-four hour shift at the Pittsburg Seafood Festival. He requested a shift modification,

which was subsequently denied by the PPD. He consulted

with a labor attorney, who, unbeknownst to Huppert, contacted the PPD. After Huppert returned to work, Lieutenant

Aaron Baker (“Baker”)—who is now Chief of Police for the

PPD—expressed unhappiness with Huppert and asked Huppert to sign a letter in which he acknowledged (non-existent)

sick-leave abuse. When Huppert refused to sign the letter and

requested review of all his “sick-leave slips,” the matter was

“apparently dropped.”

In 1996, after being promoted to Inspector, Huppert was

assigned to investigate a vehicular manslaughter case. He

reported that one of his supervisors, Sergeant Keeler

9322 HUPPERT v. CITY OF PITTSBURG
(“Keeler”), a personal friend of Baker, had pursued a carjacking suspect, reaching speeds of up to 100 m.p.h. without

using his emergency lights or siren. An innocent third party

perished in the resulting crash. In his report about the incident, Huppert discussed his “concerns about Keeler’s conduct

during the pursuit,” and Keeler’s use of racial slurs. Now a

Commander, Baker charged Huppert with “failure to report

and subversive conduct” for not having previously reported

this misconduct—which Baker referred to as a “letter of

advisement.” The charge was later reduced to a “warning.” 

Between 1997 and 1998, while still employed as a Pittsburg

police officer, Huppert was selected by the Contra Costa

County District Attorney’s Office to assist in investigating

corruption at the Pittsburg Public Works Yard. Huppert states

that “[f]rom that time on, my superiors [at the PPD] treated

me with scorn and as an outcast.” Then, in 1998 Huppert took

the sergeant’s exam. He finished first on the written section

of the exam, and during the oral portion of the exam, he was

questioned “mostly” about his goatee. The following day

Baker informed him that he would not be promoted because

he had decided to keep his goatee.

Sometime prior to 2001, Huppert began working with the

FBI on an investigation into suspected corruption within the

PPD. While he does not disclose what assistance he gave to

the FBI, he does claim that this work was “outside [his] duties

as a member of the PPD.” Then, in January 2001, his superior, William Zbacnik, informed Huppert that he would be

transferred to “Code Enforcement,” also known as the “Strategic Operations Bureau.” He was officially transferred in

June 2001, and was sent to a building known within the PPD

as the “Penal Colony,” because “disaffected and/or disfavored

officers were assigned there.” Huppert’s new supervisor, William Hendricks (“Hendricks”), informed him that he had been

sent to the “Penal Colony” because Baker wanted Hendricks

to find a way to fire him. Huppert’s new office at the “Penal

Colony” was a “tiny converted bathroom without computer

HUPPERT v. CITY OF PITTSBURG 9323
access,” and even though he was assigned to investigate gangrelated activity, the building was not equipped with the proper

secured areas needed for his investigations. During the sixmonth period between January and June 2001, Huppert was

not permitted to work overtime.

Salgado joined the force in 1995 and was, for the majority

of his tenure, a detective. In September 2001, he was assigned

to the “Strategic Operations Bureau” as Huppert’s partner.

Baker assigned both of them to investigate suspected corruption at the local City-owned golf course, but told them not to

inform Hendricks of this assignment. The investigation “revealed improper conduct by members of the PPD, including

gambling, accepting free golf, and possible illegal drug activity.” After only two interviews, Baker commanded that Huppert and Salgado cease the investigation. Once they informed

Hendricks, he encouraged them to continue investigating and

informed Baker that Huppert and Salgado were still looking

into corruption at the golf course. Hendricks also informed the

FBI that he believed there was a major gambling operation

on-going at the golf course. 

Huppert claims that while Baker told them not to memorialize their findings, they drafted a report at the conclusion of

their inquiry and directed it to Baker and the Pittsburg City

Manager. The report “included a finding that defendant Zbacnik had accepted thousands of dollars in gratuities and other

illegal perks.” However, following the report, Baker took no

action against Zbacnik, and instead deemed Zbacnik’s actions

a “training issue.”

In 2002, Huppert and Salgado’s office was moved from the

“Penal Colony” back to the main Civic Center. They were not

initially given an office, and when they finally received one,

it was “an old storage room.” 

Huppert states that Hendricks was “forced out” in December of 2002, and Michael Barbanica (“Barbanica”) took his

9324 HUPPERT v. CITY OF PITTSBURG
place. In January 2003, Barbanica and defendant William

“Brian” Addington (“Addington”) falsely accused Huppert

and Salgado of engaging in an improper pursuit. Both Huppert and Salgado claim that they were in no way involved in

the pursuit. Though Barbanica initially claimed that an “anonymous concerned citizen” had reported that Huppert and Salgado were involved, he later admitted that he had lied. He

agreed that Zbacnik had been behind his false accusations. 

It was normal practice at the PPD that when a supervisor

was absent, the next senior officer was normally designated

as acting unit supervisor. In late 2003 and early 2004, the

practice was changed in the Code Enforcement Unit, where

Huppert and Salgado were the next senior officers under their

supervisor, Sergeant Reposa. Because of the change in practice, Huppert and Salgado were required to report to the

Investigations Unit Supervisor, and were hence prevented

from exercising any supervisory authority and earning out-ofclass pay. 

Salgado claims that in late 2003 and early 2004, Addington

began an investigation of Officer Jim Hartley for allegedly

falsifying reports. It was obvious to Salgado that “Addington

disliked Hartley and was seeking to terminate him.” Addington sought to have Salgado claim first-hand knowledge of

events which Salgado had not actually witnessed, but Salgado

refused to do so.

Huppert and Salgado allege that in February 2004, defendant Wayne Derby (“Derby”) became their supervisor. Derby

informed them that he was Chief Baker’s “ ‘hatchet man’ ”

and that Baker saw them as “malcontents.” He subsequently

took away their undercover vehicle and replaced it with an

easily recognizable, though unmarked, Ford Taurus. They

claim this hindered their work as gang detectives. 

Huppert then states that in March 2004, he was subpoenaed

to testify before a Contra Costa County grand jury that was

HUPPERT v. CITY OF PITTSBURG 9325
“probing corruption in the PPD.” Other officers, including

Baker, were also subpoenaed to testify, and the subpoenas

were received at the PPD for delivery to the individual officers. Huppert’s receipt of this subpoena was “recorded in a

subpoena log posted in the [PPD] break room.” Huppert states

that Baker openly discussed his testimony, and told Huppert

he knew Huppert had testified before the grand jury as well.

Baker also identified officers who he thought would be “bad

witnesses” for the department, which Huppert understood to

indicate Baker’s belief that they were “malcontents.”

Sometime after his grand jury testimony, Derby informed

Huppert that his position as a gang investigator was being

eliminated and he was transferred to a position investigating

fraud and forgeries. Addington became his supervisor, and he

was assigned to investigate fraud claims, which Huppert

claims are less desirable than “person crimes.” After the transfer, Addington changed the way in which fraud cases were

handled within the PPD, requiring Huppert to generate reports

in order to close each case. Huppert believes this increase in

workload was initiated simply as a method of harassment.

Additionally, Addington would criticize the completed reports

over minor mistakes, “such as the letter ‘M’ (for ‘Male’)

being in the wrong font.” Addington also refused to permit

Huppert to wear a uniform shirt with an outdated embroidered

badge when other officers were allowed to do so. He would

call Huppert to come to his office claiming he had Huppert’s

“pink slip,” but would then admit he was just “kidding.”

Finally, Addington attempted to replace Huppert’s “superlative” yearly evaluation, originally conducted by Sergeant

Stroup, with an evaluation completed by Addington. After

Huppert and the Patrol Officers’ Association filed a grievance

against the PPD and Addington, Baker restored Stroup’s original evaluation to Huppert’s file. Huppert took a temporary

disability leave in 2003, and then retired on disability in 2004.

In May 2004, Salgado was placed on administrative leave

pending an investigation into whether he had falsified police

9326 HUPPERT v. CITY OF PITTSBURG
reports in Health and Safety Code section 11550 cases. While

he admits that he did “cut and paste” when drafting his arrest

reports, he claims this was “an accepted practice at the time

in the PPD,” and that he actually ensured that the proper individual results were accurately recorded. In fact, he insists this

practice was “encouraged by [his] supervisors,” and he had

seen other officers using his prefabricated reports.

In July 2004, Salgado received a Notice of Proposed Disciplinary Action, which suggested his termination. Two days

before Salgado’s Skelly1 hearing, a newspaper reporter notified him that Baker was planning to terminate him from the

PPD and the District Attorney would institute a criminal prosecution against him. A newspaper article stating the same was

published on the day of the hearing. On the advice of counsel,

Salgado did not appear at the Skelly hearing, and Baker terminated his employment three days later. However, apparently

Baker had a change of heart, and Salgado was reinstated. 

Barbanica informed Salgado that if he were to resign, the

criminal charges would be dropped. Salgado reviewed his

personnel file and found that it had been purged of all positive

references and performance reviews. Notably absent was his

2001 Officer of the Year award. Salgado refused to resign and

was officially terminated on August 24, 2004. 

Huppert and Salgado filed this civil rights action in the

Northern District of California on April 7, 2005. The defendants moved for summary judgment, which the court granted

on November 15, 2007.2 The district court held, primarily

under Garcetti v. Ceballos, 547 U.S. 410 (2006), that because

each alleged incident of speech by either Huppert or Salgado

was not made as a private citizen, the speech was not pro1

Skelly v. State Personnel Board, 15 Cal. 3d 194, 215 (1975), grants

notice and a right to be heard to all California public employees before

imposing discipline. 

2

Judgment was entered on November 17, 2007. 

HUPPERT v. CITY OF PITTSBURG 9327
tected from retaliation by the First Amendment. Hence, they

had no claim under § 1983. It also granted summary judgment

to the defendants on Salgado’s claims and awarded costs to

the defendants. Huppert and Salgado timely appealed.

II 

We review a district court’s grant of summary judgment de

novo. Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 896

(9th Cir. 2008). In determining whether summary judgment

was appropriate, we view the evidence in the light most favorable to Huppert and Salgado, the non-moving parties. Id. A

grant of summary judgment is inappropriate if there is “any

genuine issue of material fact or the district court incorrectly

applied the substantive law.” Blankenhorn v. City of Orange,

485 F.3d 463, 470 (9th Cir. 2007).

On Huppert and Salgado’s appeal regarding the award of

costs, we review for clear error the district court’s findings of

fact with respect to the timeliness of the cost application.

Chevron USA Inc. v. Bronster, 363 F.3d 846, 855 (9th Cir.

2004), rev’d on other grounds sub nom., Lingle v. Chevron

U.S.A., Inc., 544 U.S. 528 (2005). We review for abuse of discretion the district court’s refusal to strike. Idaho Potato

Comm’n v. G & T Terminal Packaging, Inc., 425 F.3d 708,

723 (9th Cir. 2005). 

III 

Three issues are before us on appeal. First, whether the district court improperly dismissed on summary judgment Huppert and Salgado’s § 1983 claims for violations of the First

Amendment. Second, whether the presiding judge also erred

by granting summary judgment on Salgado’s claim alleging

violations of the Fourth, Sixth, and Fourteenth Amendments.

Finally, whether the district court incorrectly awarded costs to

the Appellees.

9328 HUPPERT v. CITY OF PITTSBURG
A

[1] The Supreme Court has clearly stated that public

employees do not shed their First Amendment rights simply

because they are employed by the government. The First

Amendment shields a public employee if he speaks as a citizen on a matter of public concern. See, e.g., Ceballos, 547

U.S. at 417; Rankin v. McPherson, 483 U.S. 378, 384 (1987);

Connick v. Myers, 461 U.S. 138, 142-143 (1983); Pickering

v. Bd. of Educ. of Twp. High School Dist. 205, Will Cty., 391

U.S. 563, 569-70 (1968). While this protection is applicable

to such individuals, “when public employees make statements

pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer

discipline.” Ceballos, 547 U.S. at 421. “The problem in any

case is to arrive at a balance between the interests of the [public employee], as a citizen, in commenting upon matters of

public concern and the interest of the State, as an employer,

in promoting the efficiency of the public services it performs

through its employees.” Pickering, 391 U.S. at 568.

[2] Recently, in Eng v. Cooley, 552 F.3d 1062 (9th Cir.

2009), we distilled the Supreme Court’s prior holdings on this

issue into “a sequential five-step” inquiry:

(1) whether the plaintiff spoke on a matter of public

concern; (2) whether the plaintiff spoke as a private

citizen or public employee; (3) whether the plaintiff ’s protected speech was a substantial or motivating factor in the adverse employment action; (4)

whether the state had an adequate justification for

treating the employee differently from other members of the general public; and (5) whether the state

would have taken the adverse employment action

even absent the protected speech.

Id. at 1070. We reaffirmed this test in Robinson v. York, 566

F.3d 817, 822 (9th Cir. 2009), where we again considered

HUPPERT v. CITY OF PITTSBURG 9329
whether the district court had improperly denied qualified

immunity in a § 1983 retaliation case. 

[3] Our sister circuits and the Supreme Court have said that

the question whether the plaintiff acted pursuant to his or her

job duties is antecedent to a determination whether the plaintiff spoke regarding a matter of public concern. See, e.g.,

Chaklos v. Stevens, 560 F.3d 705, 711-12 (7th Cir. 2009)

(“[Ceballos] requires a threshold determination regarding

whether the public employee spoke in his capacity as a private

citizen or as an employee.”); Davis v. McKinney, 518 F.3d

304, 312 (5th Cir. 2008) (“it is clear that [Ceballos] added a

threshold layer to our previous analysis”); Boyce v. Andrew,

510 F.3d 1333, 1343 (11th Cir. 2007) (stating that it must

decide “at the outset (1) if the government employee spoke as

an employee or citizen . . .”); Weisbarth v. Geauga Park Dist.,

499 F.3d 538, 545 (6th Cir. 2007) (“the threshold inquiry [is]

whether the speech was, in fact, made pursuant to the employee’s official duties”); Williams v. Dallas Ind. Sch. Dist., 480

F.3d 689, 692 (5th Cir. 2007) (“[t]he Supreme Court’s recent

pronouncement in Garcetti v. Ceballos added a threshold

layer . . .”). While we also believe that this should be the

threshold inquiry, we are bound by our precedent to follow

the test set forth in Eng. 

[4] Where applicable below, we will move through the

sequential Eng factors. The first two prongs of this inquiry

address whether the speech should be protected under the

First Amendment, while the last three address whether that

protected speech caused some retaliatory response. However,

because these are sequential steps, as explained in Eng, failure

to meet one necessarily concludes our inquiry.

Huppert and Salgado point to four incidents where they

believe their protected speech led to retaliatory action by the

Appellees: (1) Huppert’s assistance to the Contra Costa

County District Attorney’s Office in 1997 and 1998 investigating corruption at the PPD; (2) Huppert and Salgado’s

9330 HUPPERT v. CITY OF PITTSBURG
report and memoranda regarding their golf-course investigation; (3) Huppert’s cooperation with the FBI in its investigation of corruption within the PPD; and (4) Huppert’s

testimony before the Contra Costa County grand jury investigating potential corruption within the PPD. We discuss each

in turn.

1

Huppert’s first claim of retaliation stems from his cooperation with the Contra Costa County District Attorney’s Office

in 1997 and 1998 during its investigation of the Public Works

Department. He claims that during this time he was not working as a police officer, but instead as an assistant to the District Attorney. Then, after his superiors at the PPD discovered

his involvement with the criminal investigation, he was

“treated with scorn and as an outcast.” Also as a result of this

involvement, he claims that he was passed over for a promotion, transferred to the Penal Colony, and that his assistance

led to additional acts of retaliation.3 Though he provides no

evidence that any speech occurred—i.e., he points to no

record of a report, discussion with superiors, letters to politicians, etc.—we read the facts in his favor and assume that he

engaged in some form of speech.

Under the Eng test, we first consider whether his investigation involved a matter of public concern. “[S]peech involves

a matter of public concern when it fairly can be said to relate

to ‘any matter of political, social, or other concern to the community.’ ” Gibson v. Office of Atty. Gen., State of Cal., 561

3The City counters that this claim is time-barred under the applicable

statute of limitation. While Huppert’s assistance to the District Attorney’s

office took place in 1997 and 1998, the claimed retaliatory actions

occurred over a long period of time. Additionally, none of these alleged

actions were discrete, see Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 110, 114 (2002), and instead indicate a potential continuing practice

within the PPD, id. at 111-12. We therefore disregard the City’s argument

that the statute of limitation bars this portion of Huppert’s claim. 

HUPPERT v. CITY OF PITTSBURG 9331
F.3d 920, 925 (9th Cir. 2009) (quoting Connick, 461 U.S. at

146 (1983)). “Analysis of public concern is not an exact science.” Weeks v. Bayer, 246 F.3d 1231, 1234 (9th Cir. 2001).

“When the employee addresses issues about which information is needed or appropriate to enable the members of society

to make informed decisions about the operation of their government, that speech falls squarely within the boundaries of

public concern.” Id. (internal quotation marks and citations

omitted). We have said that “[u]nlawful conduct by a government employee or illegal activity within a government agency

is a matter of public concern.” Thomas v. City of Beaverton,

379 F.3d 802, 809 (9th Cir. 2004). Furthermore, “misuse of

public funds, wastefulness, and inefficiency in managing and

operating government entities are matters of inherent public

concern.” Johnson v. Multnomah County, 48 F.3d 420, 425

(9th Cir. 1995). It is clear to us that an investigation into corruption and misconduct at the local Public Works Department

—typically a municipal department created to provide multiple public services to community members—is a matter of

public concern. Cf. Robinson, 566 F.3d at 823.

However, it is less apparent that Huppert meets the second

prong of the Eng test. As explained in Eng, “the plaintiff

bears the burden of showing the speech was spoken in the

capacity of a private citizen and not a public employee.” 552

F.3d at 1071 (citing Ceballos, 547 U.S. at 421-22). While the

Supreme Court did not delineate a “comprehensive framework” for determining when speech is pursuant to an employee’s job function, it provided guidance for lower courts to

follow when making such a decision. Ceballos, 547 U.S. at

424.

[5] Ceballos said that speech which “owes its existence to

an employee’s professional responsibilities” is not protected

by the First Amendment. Id. at 421. Additionally, if the public

employee was paid for the speech—e.g., drafting a memorandum, creating a report, advising a supervisor—then that compensation might be indicative of the nature of the speech. Id.

9332 HUPPERT v. CITY OF PITTSBURG
at 422. An adverse employment action for this type of speech

“does not infringe any liberties the employee might have

enjoyed as a private citizen. It simply reflects the exercise of

employer control over what the employer itself has commissioned or created.” Id. at 421-22. Our inquiry should be practical and look beyond the job description to the duties the

employee actually performs. Id. at 424. Speech which has “no

official significance” and bears “similarities to [actions taken]

by numerous citizens everyday” falls outside the ambit of an

employee’s job duties and would be protected by the First

Amendment. Id. at 422.

Only twice since Ceballos have we had the opportunity to

determine whether an employee’s speech was pursuant to his

official duties.4 First, in Freitag v. Ayers, 468 F.3d 528 (9th

Cir. 2006), we examined multiple different complaints by

Freitag, a female prison guard, regarding sexual harassment

by male prisoners. We held that Freitag’s reports of sexual

harassment, complaints to her superiors within the prison system, and documentation of the prison system’s response to her

complaints were all examples of unprotected speech.5Id. at

544, 546. On the other hand, with regard to her communication outside the prison system to her state senator and the

appointed inspector general, “we [found] it clear that [those]

4

In his dissent, Judge Fletcher also points to Eng and Robinson as cases

where “we have addressed whether a government employee’s speech was

made pursuant to his or her official duties.” Dissent, at 9354, 9356, 9357.

However, neither Eng nor Robinson actually decided the scope of the

plaintiff ’s job duties. In both, we were unable to review the question

because the district court had determined that genuine issues of material

fact were present and had denied qualified immunity. Eng, 552 F.3d at

1073; Robinson, 566 F.3d at 823-24; see also Johnson v. Jones, 515 U.S.

304, 319-20 (1995) (holding that appellate courts generally lack the ability

to review a district court’s finding of a genuine issue of fact). 

5We remanded for additional fact-finding on the question whether pursuing a complaint all the way up the chain of command within the California Department of Corrections and Rehabilitation is within the duties of

a prison guard. Freitag, 511 F.3d at 546. 

HUPPERT v. CITY OF PITTSBURG 9333
communications [we]re protected under the First Amendment.” Id. at 545. We held that “her right to complain both to

an elected public official and to an independent state agency

is guaranteed to any citizen in a democratic society regardless

of his status as a public employee.” Id.

Then, in Marable v. Nitchman, 511 F.3d 924 (9th Cir.

2007), we concluded that a complaint by Marable, an engineer for the Washington State Ferries (“WSF”), alleging highlevel corruption and mismanagement of funds was outside a

ferry-worker’s job duties. We applied the requisite “practical

inquiry” to whether Marable’s complaints concerning corrupt

overpayment schemes was speech pursuant to his job duties,

and found it was not. Id. at 932 (“Functionally . . . it cannot

be disputed that his job was to do the tasks of a Chief Engineer on his ferry, and such tasks did not include pointing to

corrupt actions of higher level officials whom he purportedly

thought were abusing the public trust and converting public

funds to their own use by overpayment schemes.”). We noted

that “[h]e was not responsible for attempting to ensure that his

superiors abstained from allegedly corrupt financial

schemes.” Id. at 933. In total, we found four instances of Marable’s protected speech: (1) complaints to the former chief

executive officer of the WSF, (2) conversations with the

Department of Transportation auditor, (3) a complaint to the

State Executive Ethics Board, and (4) two phone calls to

Nitchman, the WSF Maintenance Director. Id. at 929. 

[6] Our sister circuits have also weighed in, providing additional analysis to guide our decision. First, in Morales v.

Jones, 494 F.3d 590 (7th Cir. 2007), the Seventh Circuit held

that a police officer’s conversations with superiors and assistant district attorneys discussing an arrest was obviously part

of the officer’s duties. Id. at 597. On the other hand, the court

concluded that being deposed as a witness in a separate

§ 1983 action for retaliation by the police chief against

another police officer was clearly not part of an officer’s job.

Id. at 595, 598. The Fifth Circuit has determined that one indi9334 HUPPERT v. CITY OF PITTSBURG
cator might be whether an individual complains “up the chain

of command” or instead relays “his concerns to persons outside the work place.” Davis v. McKinney, 518 F.3d 304, 313

(5th Cir. 2008). And, the Seventh Circuit again considered the

question in 2008 in Tamayo v. Blagojevich, 526 F.3d 1074

(7th Cir. 2008). However, this time it found that the speech

was not protected, because reporting misconduct and wrongdoing at a legislative hearing was part of the plaintiff ’s job

as “an employee with significant and comprehensive responsibility for policy information and implementation.” Id. at

1092. 

[7] This brings us back to any statements Huppert may

have made during the investigation at the Public Works yard.

Huppert argues that he was not acting as a police officer during his cooperation with the District Attorney’s office.

Instead, he claims he was an “assistant to the District Attorney.” However, in his deposition, Huppert concedes that he

was asked to participate in the investigation, and subsequently

assigned to do so, by the police department. While his investigative work might have been supervised by the District Attorney’s office, his six-month assignment was at the direction of

his superiors and, as a police officer, in his official capacity

as a peace officer.

2

Second, both Huppert and Salgado argue they were retaliated against after they completed their investigation into

improper conduct at the Pittsburg Golf Course.6 Here they

claim that their charge was to investigate corruption and gambling by PPD officers at the city golf course. Together, they

produced an investigative report detailing their findings,

which included information about waiver of fees for PPD

employees, gambling in the golf course’s sports bar by mem6This is the only First Amendment retaliation claim on which Salgado

joins. 

HUPPERT v. CITY OF PITTSBURG 9335
bers of the PPD, and other improper conduct. The report also

included a list of PPD officers who took advantage of free

golf. They claim this report is protected speech which ultimately led their superiors to take multiple retaliatory actions

against them.

[8] Their argument is remarkably similar to Huppert’s contention regarding the Public Works yard. As we have already

noted, an investigation into corruption at a public department

is most certainly a matter of public concern. The same is true

for corruption within or concerning the police force. See

Thomas, 379 F.3d at 809; Johnson, 48 F.3d at 425; McKinley

v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983) (“the

competency of the police force is surely a matter of great public concern”). However, it is more difficult to determine

whether Huppert and Salgado were speaking as public

employees or private citizens. 

Huppert and Salgado argue that they were not acting pursuant to their job duties because, while Baker had originally

assigned them to conduct the inquiry, he then ordered them to

discontinue their investigation after only two interviews.

However, their immediate supervisor, Hendricks, told them to

continue the investigation and encouraged them to report the

results. They followed Hendricks’s direction and completed

their investigation, which culminated in a memorandum

directed to Chief Baker and the City Manager.

[9] This is one of the clearest examples of speech pursuant

to one’s job duties. Though Huppert and Salgado would have

us believe that they acted outside the chain-of-command by

continuing their investigation in direct contravention to

Baker’s demand that they cease, Hendricks ordered them to

continue. Furthermore, Hendricks informed Baker that Huppert and Salgado would be probing deeper into misconduct at

the Golf Course. “When [they] went to work and performed

the tasks [they were] paid to perform, [Huppert and Salgado]

acted as . . . government employee[s]. The fact that [their]

9336 HUPPERT v. CITY OF PITTSBURG
duties sometimes required [them] to speak or write does not

mean [their] supervisors were prohibited from evaluating

[their] performance.” Ceballos, 547 U.S. at 422. Therefore,

we find that Huppert and Salgado’s report, created after their

investigation into misconduct at the Golf Course, was also not

protected speech.

3

[10] Huppert’s third claim is that he was the subject of

retaliatory action following his cooperation with the FBI,

which began sometime in 2001. From his declaration, it

appears he assisted in their investigation probing corruption at

the PPD, which he claims was “outside [his] duties as a member of the PPD.” In his declaration, Huppert states that he

“met with Investigator Leary, Deputy District Attorney

Sepulveda, and Special Agent Joe Davidson of the FBI.” He

claims that this communication took place entirely “on [his]

personal time.” This claim differs from his first two retaliation

arguments because there is no evidence that he was following

the direct orders of his superiors at the time he participated in

the investigation. Yet, while Huppert again satisfies the first

prong of the Eng test, he fails at the second.

The California courts have repeatedly articulated the duties

of a police officer within the state. As the oft-quoted passage

in Christal v. Police Commission of City and County of San

Francisco, 92 P.2d 416, 419 (Cal. Ct. App. 1939), states:

The duties of police officers are many and varied.

Such officers are the guardians of the peace and

security of the community, and the efficiency of our

whole system, designed for the purpose of maintaining law and order, depends upon the extent to which

such officers perform their duties and are faithful to

the trust reposed in them. Among the duties of police

officers are those of preventing the commission of

crime, of assisting in its detection, and of disclosing

HUPPERT v. CITY OF PITTSBURG 9337
all information known to them which may lead to the

apprehension and punishment of those who have

transgressed our laws. When police officers acquire

knowledge of facts which will tend to incriminate

any person, it is their duty to disclose such facts to

their superiors and to testify freely concerning such

facts when called upon to do so before any duly constituted court or grand jury. It is for the performance

of these duties that police officers are commissioned

and paid by the community . . . .

See also Riverside County Sheriff’s Dep’t v. Zigman, 169 Cal.

App. 4th 763, 768 (2008); Titus v. Civil Serv. Comm’n, 181

Cal. Rptr. 699, 702-03 (1982); Szmaciarz v. State Pers. Bd.,

79 Cal. App. 3d 904, 915 (1978); see also Frazee v. Civil

Serv. Bd. of City of Oakland, 338 P.2d 943, 945 (Cal. Ct. App.

1959). 

[11] Though Huppert argues that he was repeatedly

informed by the FBI that his investigatory work was outside

his duties as a police officer, this is not enough to overcome

California’s jurisprudence defining such duties. It is clear that

in California a police officer’s official duties include investigating corruption, so as to “prevent[ ] the commission of

crime, . . . [and] assist[ ]in its detection.” Christal, 92 P.2d at

419. While we do not know the contents of any speech that

Huppert made, we do know that such conversations with the

FBI would have been to “disclos[e] all information known to

[Huppert]” regarding the alleged acts of corruption within the

PPD. This obviously encompasses his duty to uphold the law

specifically entrusted to California’s peace officers. 

4

[12] Huppert’s fourth and final cause of action hinges on

alleged retaliation following his testimony before the county

grand jury, which was also investigating corruption at the

PPD. Again, under Christal and its progeny, it is manifest that

9338 HUPPERT v. CITY OF PITTSBURG
California expects such testimony from its police officers. As

the California Court of Appeal made clear: “When police officers acquire knowledge of facts which will tend to incriminate

any person, it is their duty to disclose such facts to their superiors and to testify freely concerning such facts when called

upon to do so before any duly constituted court or grand

jury.” Id. (emphasis added). Testifying before a grand jury

charged with investigating corruption is one part of an officer’s job. As the Supreme Court explicitly stated,

“[r]estricting speech that owes its existence to a public

employee’s professional responsibilities does not infringe any

liberties the employee might have enjoyed as a private citizen.

It simply reflects the exercise of employer control over what

the employer itself has commissioned or created.” Ceballos,

547 U.S. at 421-22; see also Deprado v. City of Miami, 446

F.Supp. 2d 1344, 1346 (S.D. Fla. 2006) (“In accordance with

the Police Department’s regulations, and the Plaintiff ’s obligations as a State-certified law enforcement officer, Plaintiff ’s subpoenaed grand jury testimony occurred pursuant to

his official duties as a police officer for the City of Miami

Police Department, and was not speech as a private citizen.”).

Therefore, any speech Huppert gave during his grand jury testimony was “pursuant to his duties as a [police officer],” and

that speech is not protected by the First Amendment. Id. at

421. 

We decline to follow the Third Circuit’s decision in Reilly

v. Atlantic City, 532 F.3d 216 (3d Cir. 2008). There, the Third

Circuit considered whether a police officer’s truthful trial testimony was protected speech. Reilly, an Atlantic City police

officer, was called to testify for the prosecution in a trial

against another police officer for allegedly running a prostitution ring and other misconduct. Id. at 220. Reilly had received

inside information regarding the accused through his work as

an investigator at the police department. Id. The Third Circuit

found that testimony at trial was protected because “[i]t is axiomatic that ‘every citizen . . . owes to his society the duty of

giving testimony to aid in the enforcement of law.’ ” Id. at

HUPPERT v. CITY OF PITTSBURG 9339
228 (quoting Piemonte v. United States, 367 U.S. 556, 559 n.2

(1961)). Because “offering truthful testimony is the responsibility of every citizen, . . . [w]hen a government employee testifies truthfully, [he] is not simply performing his or her job

duties; rather, [he] is acting as a citizen and is bound by the

dictates of the court and the rules of evidence.” Id. at 231. 

The court admitted that it was answering the question of

“whether truthful trial testimony arising out of the employee’s

official responsibilities constitutes protected speech.” Id. at

230 (emphasis added). It went on to concede that “Reilly’s

trial testimony [ ] appears to have stemmed from his official

duties in the investigation.” Id. at 231. However, instead of

finding that this was obviously speech pursuant to Reilly’s job

duties, the court took a swift turn to conclude that truthful testimony is never part of a police officer’s duties. Id. This is in

sharp contradiction to the Supreme Court’s holding in Ceballos, which drew a distinct line between speech pursuant to

one’s job duties and speech in a private capacity. By first

finding that Reilly’s speech was pursuant to his job duties, but

subsequently concluding that it was protected by the First

Amendment, the Reilly court impermissibly began chipping

away at the plain holding in Ceballos.

Judge Fletcher’s dissent relies on two other cases to show

that a police officer’s grand jury testimony should be protected as a matter of law. The first, Morales, is clearly distinguishable on the facts. 494 F.3d 590. The second, Evans v.

Housing Authority of Benicia, No. 2:07-cv-0391, 2008 WL

4177729 (E.D. Cal. 2008), is merely unbinding precedent

which does not interpret the obligation of a California police

officer to testify regarding crime.

First, in Morales, the Seventh Circuit found that “[b]eing

deposed in a civil suit pursuant to a subpoena was unquestionably not one of Morales’ job duties.” 494 F.3d at 598. The

court noted that though Morales had gained information for

the civil suit while working as a police officer, and had even

9340 HUPPERT v. CITY OF PITTSBURG
testified regarding actual speech he made pursuant to his job

duties, any retaliation taken because he testified in this deposition was impermissible. Id. This holding is understandable.

Morales’ statements were made in a civil suit brought by

another officer against the Chief of Police and the Deputy

Chief. California’s courts have never said that it expects its

police officers to assist other officers in their individual civil

suits against present or former employers. Testimony related

to the discovery and cessation of crime, however, is an obligation. That was not the question posed to the Seventh Circuit,

and Judge Fletcher reads that court’s holding too broadly. 

Also, in Evans, Evans was the former accountant and bookkeeper for the Benicia Housing Authority (“BHA”), which is

an “independent public agency created to provide low-cost

housing to the city.” 2008 WL 4177729, at *1. Evans realized

that his former boss, Peterson—the then manager and Executive Director of the BHA—was operating on reduced work

hours and failing to collect rent or assess late fees to delinquent tenants. Id, at *2. In October 2004, a grand jury was

convened to investigate operations at the BHA. Id. Peterson

first testified before the grand jury regarding overall business

practices within the BHA, and then when Evans testified in

late November, he explained “tenant rent account irregularities and Peterson’s reduced work hours.” Id. Following

Evan’s testimony, Peterson placed Evans on administrative

leave and, ultimately, terminated him.

The district court held that “Evans’ statements to the Grand

Jury concerning the tenant rent account irregularities and

Peterson’s reduced working hours . . . [were] not made pursuant to Evans’ official job duties.” Id. at 7. Hence, under

Ceballos, the statements were protected by the First Amendment and any retaliatory action taken violated Evans’ constitutional rights. 

In addition to the reality that Evans cannot and does not

bind us, it is so factually distinguishable as to be irrelevant to

HUPPERT v. CITY OF PITTSBURG 9341
our discussion here. Evans was an accountant working for the

city’s independent housing authority. The California courts

have never explicitly, or even impliedly, stated that one duty

of an accountant at a public agency is to testify before grand

juries. It comports with our understanding of Ceballos that

such testimony would be outside the practical duties of a

bookkeeper. However, this says nothing about whether California expects its police officers to testify about alleged criminal conduct. Judge Fletcher’s reliance on this case is

unavailing and unpersuasive here, merely discussed because

the court chose to protect the speech of a person testifying

before a grand jury. The question is not whether such testimony occurred, but instead whether the obligation to provide

that testimony “owes its existence to an employee’s professional responsibilities.” Ceballos, 547 U.S. at 421. 

[13] Our holding does not imply that a police officer might

never be protected if he speaks on issues such as corruption,

for we recognize that “[e]xposing governmental inefficiency

and misconduct is a matter of considerable significance.”

Ceballos, 547 U.S. at 425. Even though we find that, under

California law, testimony such as Huppert’s is within the

duties of a police officer, speech outside one’s official duties

remains protected by the First Amendment. See id. at 422

(noting that a letter to the newspaper is similar to speech

undertaken by citizens on a daily basis); Freitag, 468 F.3d at

545 (holding that complaints to an elected official and independent reviewing officer are outside a prison guard’s work

duties).

5

There exist other avenues of recourse available to protect

an officer who exposes misconduct within the police department and is subsequently subjected to retaliation. States,

including California, have created “whistle-blower” statutes

for this exact purpose, and our holding today does not impact

those statutes. See, e.g., Cal. Gov. Code § 8547-8547.12. As

9342 HUPPERT v. CITY OF PITTSBURG
the majority in Ceballos explicitly stated, “[t]he dictates of

sound judgment are reinforced by the powerful network of

legislative enactments—such as whistle-blower protection

laws and labor codes—available to those who seek to expose

wrongdoing.” 547 U.S. at 425. 

Our conclusion today enforces these statutes and empowers

a state to choose the appropriate remedy for an individual who

speaks on this type of issue and is then subjected to retaliation. Further, it is these statutes that protect officers from the

“Catch 22”—i.e., either not complying with a subpoena and

being found in contempt of court, or testifying only to then be

the subject of retaliation—that concerns Judge Fletcher. Yet,

under Ceballos, these individuals are not entitled to the protections of the Civil Rights Act or the remedies accompanying

a victorious § 1983 suit when speaking pursuant to their official duties.

B

In addition to his First Amendment claims, Salgado also

appeals the district court’s grant of summary judgment on his

§ 1983 claim for violations of his rights under the Fourth,

Sixth, and Fourteenth Amendments. As with Huppert’s claims

regarding retaliation from his cooperation with the FBI, Salgado fails to identify concrete claims, bolster those claims

with facts, or cite legal authority pertaining to the claims.

These claims are therefore abandoned. See Fed. R. App. P.

28(a)(9)(A); Xin Liu, 347 F.3d at 1138.

C

Finally, Huppert and Salgado contend that the district court

improperly awarded costs to the Appellees. They do not challenge the court’s determination that the Appellees were the

prevailing party; instead they argue that the Appellees failed

to timely file their costs, rendering an award inappropriate.

Local Rule section 54-1(a) states: “No later than 14 days after

HUPPERT v. CITY OF PITTSBURG 9343
entry of judgment or order under which costs may be claimed,

a prevailing party claiming taxable costs must serve and file

a bill of costs . . . .” While the district court issued its summary judgment ruling on November 15, 2006, the final order

was not docketed until November 17, 2006. The Appellees

filed their bill of costs on November 30, 2006, within the

fourteen-day time period required by the Local Rules.

IV

We affirm the district court’s grant of summary judgment

on all claims and the award of costs.

AFFIRMED.

W. FLETCHER, Circuit Judge, dissenting: 

I respectfully dissent.

Former police officers Ron Huppert and Javier Salgado

(“Plaintiffs”) sued their former employer, the City of Pittsburg, California, and several individual members of the Pittsburg Police Department (“PPD”) (collectively, “Defendants”)

under 42 U.S.C. § 1983 and several provisions of California

law. Their § 1983 suit was primarily based on the contention

that Defendants unlawfully retaliated against them for engaging in speech protected under the First Amendment. Huppert

contends that he engaged in constitutionally protected speech

on four occasions. Salgado contends that he engaged in constitutionally protected speech on the third of these occasions.

Plaintiffs contend that Defendants unlawfully retaliated

against them for this speech. The district court granted summary judgment against Plaintiffs on their First Amendment

claims based on Garcetti v. Ceballos, 547 U.S. 410 (2006).

The majority concludes that Huppert and Salgado’s speech

on these four occasions was not protected under the First

9344 HUPPERT v. CITY OF PITTSBURG
Amendment. I agree with the majority with respect to Huppert’s speech on the first occasion. But I disagree with the

majority with respect to Huppert’s speech on the second,

third, and fourth occasions and Salgado’s speech on the third

occasion.

I. Factual Background

The majority opinion provides a somewhat truncated narrative of the evidence before the district court. I provide a more

extended, free-standing narrative of that evidence, laying the

full foundation for Huppert and Salgado’s First Amendment

claims. I could have made my narrative shorter by adding discrete pieces of information to supplement the majority’s narrative in various places, but the result would have been

choppy and awkward. My narrative is necessarily somewhat

redundant, but it is intended to make the reader’s ultimate task

easier. My narrative relies only on evidence in the record that

is properly cognizable on summary judgment.

In his sworn declaration, Plaintiff Huppert states that he

joined the PPD in 1991. In 1995, when he was a patrol officer, he was assigned to work a continuous 24-hour shift at the

Pittsburg Seafood Festival. He requested a modification of the

shift to allow breaks during the 24-hour period. After the

request was denied, he consulted a labor attorney. Without

Huppert’s knowledge, the attorney contacted the PPD. Defendant Aaron Baker was then a Lieutenant in the PPD. ThenLieutenant Baker was “unhappy” with Huppert as a result of

his complaint about his 24-hour shift. At Baker’s direction,

Huppert was presented with a letter asking him to acknowledge his sick leave abuse. Huppert refused to sign the letter

and demanded to see his “sick leave slips” for the relevant

period. Huppert states that the matter was then “apparently

dropped.” 

Huppert states that in 1996, after he had been promoted to

Inspector, he was assigned to investigate a vehicular manHUPPERT v. CITY OF PITTSBURG 9345
slaughter case. One of Huppert’s supervisors, Sergeant

Keeler, had been pursuing a carjacking suspect at speeds of

up to 100 m.p.h. without using his siren or emergency lights.

During the chase, the suspect struck and killed an innocent

third person. Huppert reported his “concerns about Keeler’s

conduct during the pursuit.” He also reported Keeler’s use of

“racial slurs, including ‘nigger’ and ‘gorilla’ with reference to

African-Americans.” Keeler was a personal friend of Baker.

Now a Commander, Baker charged Huppert with misconduct

for not having previously reported Keeler’s use of racial slurs

and sent him a “warning” letter. (In his sworn declaration,

Baker calls it a “letter of advisement.”) Huppert states that

even though Keeler’s use of racial slurs was verified by

another officer, Baker concluded that Huppert’s report was

“unfounded.” 

Huppert states that in 1997 and 1998, he was selected by

the Contra Costa County District Attorney to assist with an

investigation into corruption at the public works yard. “From

that time on, my superiors treated me with scorn and as an

outcast.” 

Huppert states that in 1998 he took the sergeant’s exam. He

finished first on the written portion. During the oral portion

of the exam, he was questioned “mostly” about his goatee. He

was not promoted to sergeant. The day after the oral examination, Baker told him that he had been passed over because of

the goatee.

Huppert states that sometime prior to 2001 he began cooperating with the FBI in an investigation of corruption in the

PPD. Huppert characterizes this cooperation as being “outside

[his] duties as a member of the PPD.” Defendant Baker had

been promoted to Chief of Police in September 1998. Huppert

states that Baker learned of his cooperation with the FBI and

in 2001 had him transferred from Investigations to Code

Enforcement. Commander William Hendricks was in charge

of this unit. Hendricks states in his sworn declaration that the

9346 HUPPERT v. CITY OF PITTSBURG
Code Enforcement unit “was known as the ‘Penal Colony’

because disaffected and/or disfavored officers were assigned

there.” He states, “Chief Aaron Baker expressly ordered me

to terminate plaintiff Huppert or force him to take a position

outside the Department; then-Lieutenant William Zbacnik

was present during this conversation.” Huppert states in his

declaration that Hendricks told him that Baker had “told him

to see that I left or find a way to fire me.” 

Huppert states that Defendant Zbacnik told him that he was

not allowed to work overtime for the six-month period

between January and June 2001. Huppert was physically

transferred from the newly rebuilt Pittsburg Civic Center to a

building where the “Penal Colony” worked. Huppert’s office

in the Penal Colony was a “tiny converted bathroom without

computer access.” Even though Huppert was assigned to

investigate gangs, the Penal Colony building did not have “a

secured area that a Gang and Intelligence office would need.”

Plaintiff Salgado states in his sworn declaration that in September 2001 he was assigned to the Code Enforcement unit

and became Huppert’s partner. Both Huppert and Salgado

state that the City Manager then asked them to “investigate

possible corruption at the City-owned golf course.” They state

that Baker told them not to inform their superior, Hendricks,

of the investigation. Their investigation “revealed improper

conduct by members of the PPD, including gambling, accepting free golf, and possible illegal drug activity.” Hendricks

states in his declaration that after two interviews and only one

day of investigating, Baker ordered Huppert and Salgado to

stop the investigation. 

Hendricks states, “I tried to protect [Huppert and Salgado]

from any retaliation. I went to the FBI with what I believed

to be a major gambling operation, and told Baker that I had

referred the matter to the FBI. I learned from my discussions

with Chief Baker and others that Zbacnik, Lt. Robert Gomez,

and other people under Zbacnik’s command were involved in

HUPPERT v. CITY OF PITTSBURG 9347
illegal activity at the Golf Course. I told Baker that he may

be violating the law by trying to bury the investigation by

Huppert and Salgado. Baker threatened me with my career if

I continued to press the matter.” 

Huppert states that he and Salgado continued to investigate

“with the knowledge and encouragement of Hendricks.” Hendricks states that Baker ordered them not to write a report, but

Huppert states that he nonetheless reported their “initial findings” in an “ ‘abridged’ memo.” Huppert states that his report

included “a finding that defendant Zbacnik had accepted thousands of dollars in gratuities and other illegal perks.” However, Baker took “no action” against Zbacnik,” calling

Zbacnik’s actions a “ ‘training issue.’ ” Huppert states that he

and Salgado informed only Baker and the City Manager of

their findings. However, he stated that Ray Giacamelli, a

member of the PPD and a personal friend of Zbacnik, told

Huppert and Salgado that “we were sticking our noses where

they did not belong and that we were ‘going to go down.’ ”

Huppert and Salgado reported the threat to Baker, but Baker

said that “no investigation was warranted.” 

Huppert and Salgado state that in May 2002 the Code and

Enforcement unit was moved back to the main Civic Center

building. They were not given an office initially, but were

eventually assigned one in “an old storage room.” 

Huppert states that in December 2002, Hendricks was

“forced out.” Defendant Michael Barbanica became the new

supervisor of their unit. In January 2003, Barbanica and

Defendant William “Brian” Addington falsely accused Huppert and Salgado of having engaged in an improper pursuit.

Huppert and Salgado state that neither of them had been

involved in the pursuit in question. Barbanica initially said

that an “ ‘anonymous concerned citizen’ ” had called to complain about Huppert and Salgado’s alleged pursuit, but Barbanica later admitted that he had made this up. 

9348 HUPPERT v. CITY OF PITTSBURG
Huppert and Salgado state that in late 2003 and early 2004

their supervisor was Sergeant Reposa. When Reposa was

absent, neither Huppert nor Salgado was permitted to serve as

acting supervisor, even though that would have been the normal practice. Huppert and Salgado were thereby denied the

opportunity to earn “out-of-class pay.” 

Huppert and Salgado state that in February 2004, Defendant Wayne Derby became their supervisor. Derby informed

them that he was Baker’s “ ‘hatchet man’ ” and that Baker

saw them as “malcontents.” Derby took away the unmarked

undercover car that Salgado had previously driven and

replaced it with a Ford Taurus that, while unmarked, was

“easily recognizable as a police vehicle.” Driving the Taurus

“hindered” Huppert and Salgado’s “ability to function as gang

detectives.” 

Huppert states that in March 2004 he was subpoenaed to

testify before a civil grand jury that was “probing corruption

in the PPD.” Huppert had been contacted about the probe several years earlier by Senior Investigator Tom Leary of the

Contra Costa County District Attorney’s Office. On what he

describes as his “personal time,” Huppert had met with Leary,

Deputy District Attorney Sepulveda, and FBI Special Agent

Joe Davidson. Huppert states that Davidson told him that his

“actions in connection with the probe were as an individual

and not in my capacity as a member of the PPD.” Grand jury

subpoenas were delivered to the PPD for service on about a

dozen individual officers. Huppert was served with his subpoena in front of other PPD officers, and the subpoena was

recorded in a log posted in the break room. Huppert states that

Baker told him that he knew he had testified before the grand

jury. However, Baker states in his declaration that “I was not

aware that Huppert ever testified before the Grand Jury

regarding these issues.” Baker states further, “I have never

been informed of the substance of such testimony by Huppert.” 

HUPPERT v. CITY OF PITTSBURG 9349
Huppert states that after he testified before the grand jury,

Defendant Derby informed him that his position as gang

investigator was being “eliminated.” Huppert was transferred

to the Investigations unit where his supervisor was Defendant

Addington. Although detectives junior to Huppert were

assigned to “person crimes,” Huppert was assigned to fraud,

which was regarded as a less desirable assignment. After

Huppert was assigned to fraud, Addington changed the procedure so that all fraud cases originating with the Patrol Bureau

came to Huppert. Previously, fraud cases originating with the

Patrol Bureau could be closed at that level. Under the new

procedure, Huppert was required to close those cases and to

write reports for all of them. Huppert states that the change

was a “purposeless increase in workload intended to harass

me.” 

Huppert states that Addington engaged in numerous acts to

make his work life difficult. For example, he sent reports back

to Huppert “because of ‘flaws’ such as the letter ‘M’ (for

‘Male’) being in the wrong font”; he refused to allow Huppert

to wear a uniform shirt with an out-of-date embroidered

badge when other officers were permitted to do so; and he

told Huppert to come see him because he had his “ ‘pink

slip,’ ” and then said he was kidding. Further, Addington

attempted to replace a “superlative” yearly evaluation of Huppert by Sergeant Stroup that was already in his personnel file

with an evaluation of his own, even though Addington had

not been Huppert’s supervisor at the time in question. After

Huppert and the Patrol Officers’ Association filed a grievance

against the PPD and Addington, Baker restored Stroup’s evaluation to Huppert’s file.

Beginning in April 2005, Huppert retired on disability due

to a knee injury. He states in his declaration that elective surgery on his knee “might” have enabled him to return to active

police work. “However, given the persistent and pervasive

discrimination and harassment I suffered, the fact that my

long-time partner, Salgado, was terminated after he began his

9350 HUPPERT v. CITY OF PITTSBURG
association with me, and the other means by which the defendants in this action sought to destroy my career and the

careers of other good officers, I accepted the disability retirement and elected not to undergo surgery.” (In the district

court, Huppert claimed racial discrimination in violation of

state law, and his reference to “discrimination” in the justquoted sentence is a reference to that claim. Huppert has not

appealed the district court’s summary judgment ruling on his

state-law discrimination claim.)

Salgado states that in late 2003 and early 2004, Addington

began investigating PPD Officer Jim Hartley for alleged falsification of reports. It was “apparent” to Salgado that “Addington disliked Hartley and was seeking to terminate him.”

Addington attempted to persuade Salgado to “claim first-hand

knowledge of incidents I had not witnessed.” Salgado refused.

Salgado states that in May 2004 he was placed on administrative leave pending an investigation into whether he had falsified reports in California Health and Safety Code § 11550

(“driving under the influence”) cases. Salgado states in his

declaration that he “did ‘cut and paste’ when writing such

reports,” but that this was “an accepted practice at the time in

the PPD.” He states that “the individual test results for each

suspect were accurately recorded.” Salgado states further that

“cutting and pasting . . . was actually encouraged by some

supervisors.” “On several occasions defendants Barbanica and

Addington asked me to provide officers with one of my preformatted reports, and during the investigation of my reports

I saw reports written by officers Raman, Albanese, and Wentz

using my template. . . . A number of the questioned reports

that led to my termination were in fact reviewed and approved

by defendants Addington and Barbanica, both of whom were

also present at some of the arrests in question.” 

Salgado states that in July 2004 he was given a Notice of

Proposed Disciplinary Action proposing his termination from

the PPD. Two days before his scheduled hearing under Skelly

HUPPERT v. CITY OF PITTSBURG 9351
v. State Personnel Board, 15 Cal. 3d 194 (1975), Salgado

received a telephone call from a newspaper reporter who told

him that Baker was planning to terminate him and that the

District Attorney would bring a criminal prosecution. A newspaper article to that effect appeared on the day scheduled for

the hearing. On advice of counsel, Salgado did not appear.

Baker, performing as Acting City Manager, terminated Salgado’s employment three days later. Shortly thereafter, Baker

reinstated Salgado. Defendant Barbanica then informed Salgado that if he resigned, all criminal charges would be

dropped. Salgado learned, however, that his personnel file

was being “purged of all positive references.” Salgado looked

at his file and discovered that all of his good performance

reviews had been removed, including his 2001 Officer of the

Year award. Salgado did not resign and was formally terminated in late August 2004.

Defendant Addington testified in his deposition that one of

the two Deputy District Attorneys to whom he spoke was

reluctant to file criminal charges against Salgado. Addington

testified that after he made “my own pitch” to the Deputy

criminal charges were filed. Salgado pleaded no contest to

five felony counts of falsifying reports in violation of California Penal Code § 118.5.

Except as noted during the course of the foregoing narrative, Defendants do not contest the factual accuracy of Huppert, Salgado, and Hendricks’ sworn declarations.

II. Legal Background

For nearly four decades, we determined whether a public

employee’s speech was protected under the First Amendment

by following the analysis in Pickering v. Board of Education,

391 U.S. 563 (1968). In Pickering, a public school teacher

had sent a letter to the editor of the local newspaper criticizing

the board of education and superintendent of schools for their

handling of school funding. See id. at 564. The teacher was

9352 HUPPERT v. CITY OF PITTSBURG
fired in retaliation for the letter. He brought suit, claiming that

the First Amendment protected his speech. The Supreme

Court agreed, stating that speech deserves First Amendment

protection when it addresses “a matter of legitimate public

concern.” Id. at 571.

The Supreme Court’s recent decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), has made it more difficult for government employees to establish that their speech is protected

under the First Amendment. Ceballos, a deputy district attorney, concluded that an affidavit used to obtain a search warrant in a pending criminal case contained “serious

misrepresentations.” Id. at 414. He stated this in a “disposition

memorandum” to his supervisors, who allegedly retaliated

against him because of the memorandum. Id. at 414-15.

Ceballos brought suit under § 1983, claiming that his speech

was protected under the First Amendment. The Court disagreed, holding that “when public employees make statements

pursuant to their official duties, the . . . First Amendment . . .

does not insulate their communications from employer discipline. Ceballos wrote his disposition memo because that is

part of what he, as a calendar deputy, was employed to do.”

Id. at 421. 

The Court wrote that “the parties in this case do not dispute

that Ceballos wrote his disposition memo pursuant to his

employment duties. We thus have no occasion to articulate a

comprehensive framework for defining the scope of an

employee’s duties in cases where there is room for serious

debate.” Id. at 424. However, the Court did provide a few

guidelines. It explicitly rejected the “suggestion that employers can restrict employees’ rights by creating excessively

broad job descriptions.” Id. Rather, the Court stated that “[t]he

proper inquiry is a practical one[,]” as “[f]ormal job descriptions often bear little resemblance to the duties an employee

actually is expected to perform.” Id. at 424-25. The Court also

noted that speaking in the workplace, rather than in public,

does not necessarily mean that the speech was made pursuant

HUPPERT v. CITY OF PITTSBURG 9353
to official duties. See id. at 420-21. Furthermore, whether the

speech concerns “the subject matter of [the speaker’s]

employment . . . is nondispositive.” Id. at 421.

In four cases decided after Ceballos, we have addressed

whether a government employee’s speech was made pursuant

to his or her official duties. The first case is Freitag v. Ayers,

468 F.3d 528 (9th Cir. 2006), in which Freitag, a correctional

officer at Pelican Bay Prison, complained that inmates were

sexually harassing her and undermining her ability to impose

discipline by repeatedly masturbating in front of her. Freitag

first complained to her supervisors about the sexual harassment. She complained to them again after they repeatedly

refused to take disciplinary action against the offending prisoners. For example, one of Freitag’s supervisors threw away

the form on which she had reported masturbation, saying that

she was the only person who had a problem with this inmate

and that “it’s only sex.” Id. at 533.

When Freitag’s immediate supervisors continued to ignore

and belittle her complaints, she wrote to the head of the California prison system, the Director of the California Department of Corrections and Rehabilitation (“CDCR”). After her

supervisors retaliated against her for having written to the

Director, Freitag contacted a state senator and California’s

Office of the Inspector General (“Inspector General”), an

independent agency that oversees the CDCR. Freitag’s supervisors further retaliated against her for having contacted the

state senator and the Inspector General.

We were unsure, based on the record before us, whether

Freitag’s letter to the Director of the CDCR was protected

speech under the First Amendment. We remanded for a factual determination of the scope of Freitag’s “official duties,”

stating that “[w]e are unsure whether prison guards are

expected to air complaints . . . all the way up to the Director.”

Id. at 546. However, we were certain that Freitag had not spoken “pursuant to [her] official duties,” and that she was pro9354 HUPPERT v. CITY OF PITTSBURG
tected by the First Amendment, when she contacted the state

senator and the Inspector General. Id. at 545. We wrote:

Freitag acted as a citizen when she wrote letters to

Senator Polanco and communicated with the Inspector General regarding her complaints of sexual

harassment. Her right to complain both to an elected

public official and to an independent state agency is

guaranteed to any citizen in a democratic society

regardless of his status as a public employee. Under

Ceballos, Freitag does not lose her right to speak as

a citizen simply because she initiated the communications while at work or because they concerned the

subject matter of her employment.

Id. (citations omitted); see also Fuerst v. Clarke, 454 F.3d 770

(7th Cir. 2006) (holding that plaintiff deputy sheriff’s adverse

comments on the sheriff’s decision to hire a public relations

officer were not made pursuant to his official duties).

The second case is Marable v. Nitchman, 511 F.3d 924 (9th

Cir. 2007), in which Marable, a Chief Engineer in charge of

the engine department of a ferry operated by the Washington

State Ferries (“WSF”), complained of corrupt financial practices by WSF managers. He complained in two telephone

calls to the Maintenance Director of the WSF; in two conversations with a Washington Department of Transportation

auditor; in a conversation with a former CEO of the WSF; and

in a complaint to the Washington Executive Ethics Board. See

id. at 929. Marable’s superiors retaliated against him for having made these complaints. 

We held that Marable’s complaints were protected by the

First Amendment. We wrote:

At the outset, we think it worth noting that an

employee’s charge of high level corruption in a government agency has all of the hallmarks that we norHUPPERT v. CITY OF PITTSBURG 9355
mally associate with constitutionally protected

speech. The matter challenged was a matter of

intense public interest, had it become known, and

criticisms of a government lie at or near the core of

what the First Amendment aims to protect.

Id. at 932. We concluded that Marable’s speech, including his

speech within the WSF hierarchy, was protected because it

was not made pursuant to his official duties:

The Supreme Court has observed that the inquiry

into whether employee speech is pursuant to

employment duties is a practical one. . . . Functionally, . . . it cannot be disputed that [Marable’s] job

was to do the tasks of a Chief Engineer on his ferry,

and such tasks did not include pointing to corrupt

actions of higher level officials whom he purportedly

thought were abusing the public trust and converting

public funds to their own use by overpayment

schemes.

Id.

The third case is Eng v. Cooley, 552 F.3d 1062 (9th Cir.

2009), in which Eng, a Los Angeles County Deputy District

Attorney, presented a report to his supervisors recommending

that no criminal charges be brought against persons involved

in the planning and construction of the local school district’s

Belmont Learning Complex. 552 F.3d at 1064. Eng’s report

conflicted with the report of Anthony Patchett, the leader of

the Belmont Task Force, and with the political agenda of

Eng’s boss, the recently-elected District Attorney, who had

campaigned on a promise to reform the Belmont project. Id.

The Task Force adopted Eng’s report. Id. At the meeting of

the Task Force adopting his report, Eng argued that the

financing for the Belmont project fell through because Patchett “had improperly leaked to the IRS that the School District had committed fraud in purchasing the Belmont

9356 HUPPERT v. CITY OF PITTSBURG
property.” Id. Thereafter, Eng’s supervisors purportedly retaliated against him by falsely accusing him of sexual harassment and suspending him for improper use of an office

computer, a trumped up charge. Id. at 1065-66. The Los Angeles Times later published an article on Eng’s case that

included statements from Mark Geragos, Eng’s attorney. Id.

at 1065. 

In reviewing Eng’s First Amendment retaliation claim, we

stated that “ ‘the question of the scope and content of a plaintiff ’s job responsibilities is a question of fact.’ ” Id. at 1071

(citation omitted). “In evaluating whether a plaintiff spoke as

a private citizen, we must therefore assume the truth of the

facts as alleged by the plaintiff with respect to employment

responsibilities.” Id. We concluded that while Eng had a duty

to submit his report, “Eng’s version of the facts plausibly

indicates that he had no official duty to complain about [Patchett’s] leak to the IRS or to authorize Geragos to speak to the

press.” Id. at 1073. We held that Eng properly stated a First

Amendment retaliation claim. Id. at 1074. 

The fourth case is Robinson v. York, 566 F.3d 817 (9th Cir.

2009). Robinson, a sergeant in the Los Angeles County Office

of Public Safety, testified in a class action lawsuit alleging

discrimination by his employer and filed several misconduct

reports pertaining to problematic behavior, some of which he

observed while off duty. Id. at 820-21. The reports described,

for example, officers who appeared to be consuming alcohol

while on duty and instances of potential battery or excessive

force. Id. Robinson alleged that his supervisors discouraged

him from filing so many reports and indicated that filing

fewer reports would improve his chances of being promoted

to lieutenant. Id. at 821. Robinson thereafter performed very

well on an examination for promotion to lieutenant but was

not promoted. Id. He filed suit under the First Amendment. Id.

In determining whether Robinson’s reports were filed pursuant to his official duties, we stated that the “scope of RobinHUPPERT v. CITY OF PITTSBURG 9357
son’s duties is a question of fact. [W]hen there are genuine

and material disputes as to the scope and content of the plaintiff ’s job responsibilities, the court must reserve judgment . . .

until after the fact finding process. “ Id. at 823-24 (internal

quotation marks and citations omitted; bracket and ellipses in

original). We concluded that we must “assume the resolution

of this dispute in the non-moving party’s favor.” Id. at 824

(citing Eng, 552 F.3d at 1067). 

The lesson from the Supreme Court’s decision in Ceballos,

and from the four cases we have decided since then, is clear.

If a public employee’s speech is made pursuant to his or her

official duties, it is not protected under the First Amendment.

However, if there is a genuine issue of material fact as to

whether speech was made pursuant to a plaintiff ’s official

duties, that issue may not be treated as a question of law to

be resolved at summary judgment. Rather, it must be treated

as a question of fact to be resolved in a fact-finding proceeding.

In Freitag, we were uncertain whether Freitag had a duty

to report her complaints to the Director of the CDCR. 468

F.3d at 546. Rather than deciding the scope of Freitag’s duties

as a question of law, we remanded for a factual determination.

Id. It was only because there was no dispute that Freitag’s

speech to a state senator and the Inspector General was not

made pursuant to her official duties that we did not require a

factual determination on that issue. Likewise, in Marable it

was only because the speech by Marable to high level officials regarding corruption in his department indisputably fell

outside of his duties as an engineer on a ferry that we did not

require a factual determination on that issue. The plaintiff in

Eng “plausibly” did not have a duty to complain about his coworker’s leak to the IRS or to authorize his lawyer to speak

to the press. 552 F.3d at 1073. That was enough to survive

summary judgment and to require a factual determination at

trial. Finally, because the duties of the plaintiff in Robinson

were disputed, we permitted the First Amendment claim to

9358 HUPPERT v. CITY OF PITTSBURG
proceed, stating that we “must reserve judgment . . . until

after the fact finding process.” 566 F.3d at 824 (emphasis

added, internal quotation marks omitted, ellipsis in original).

Requiring factual determinations by a jury, or by a judge

after a bench trial, when there is a genuine factual dispute

about the scope of a plaintiff ’s official duties makes sense as

a matter of institutional competence. In many instances, a

judge can have only an imperfect understanding of the precise

duties associated with a public sector job when all he or she

knows is a job title. The duties of jobs with the same title

often vary substantially depending on the agency and job

location. The duties associated with a particular job may

change over time. And the actual duties of an employee may

vary substantially from the formal, publicly released job

description. Thus, for a judge to conclude as a matter of law

what is, and is not, included in a public employee’s official

duties is a very hazardous enterprise.

III. Plaintiffs’ Protected Speech

Plaintiffs contend that they engaged in protected speech on

four occasions: (1) Huppert’s speech during his investigation

into corruption at the public works yard in 1997 and 1998; (2)

Huppert’s speech during his cooperation with the FBI in its

investigation into corruption in the police department sometime prior to 2001; (3) Huppert and Salgado’s speech during

their investigation into police corruption at the city-owned

golf course beginning in late 2001; and (4) Huppert’s subpoenaed speech to the grand jury in 2004 during its investigation

into corruption in the police department.

I agree with the majority that the district court’s summary

judgment with respect to Huppert’s speech on the first occasion should be affirmed. In my view, Huppert has provided

insufficient evidence that his speech on that occasion was not

uttered pursuant to his official duties to survive summary

judgment.

HUPPERT v. CITY OF PITTSBURG 9359
However, I disagree with the majority with respect to Huppert’s speech on the second, third, and fourth occasions, and

with respect to Salgado’s speech on the third occasion. In my

view, there is a genuine issue of material fact whether Plaintiffs’ speech on the second and third occasions was uttered

pursuant to their official duties and, therefore, whether it was

protected under the First Amendment. Further, in my view,

Huppert’s speech on the fourth occasion was protected, as a

matter of law, under the First Amendment.

A. Huppert’s Speech During the FBI Investigation into

Corruption in the Pittsburg Police Department

Huppert states in his declaration that sometime prior to

2001 he began cooperating with the FBI in its investigation of

corruption in the Pittsburg Police Department (“PPD”). Huppert specifically states that his cooperation was “outside [his]

duties as a member of the PPD.” Huppert states that in 2001,

when Police Chief Baker learned of his cooperation with the

FBI, he retaliated by transferring Huppert to the Code

Enforcement unit of the PPD, otherwise known as the Penal

Colony.

In my view, Huppert has created a genuine issue of material fact as to the scope of his official duties. Huppert has specifically, and not implausibly, stated that his speech during his

cooperation with the FBI’s investigation into corruption in the

PPD was not part of his official duties as a member of the

PPD. I therefore conclude that the scope of Huppert’s official

duties, and the motivation for Baker’s assignment of Huppert

to the Penal Colony, are questions of fact to be resolved by

a jury, not an issue of law to be resolved on summary judgment. 

B. Huppert and Salgado’s Speech During the

Investigation into Police Corruption at the City-Owned

Golf Course

Huppert and Salgado state in their declarations that the City

Manager asked them to conduct the investigation into police

9360 HUPPERT v. CITY OF PITTSBURG
corruption at the city-owned golf course. Commander Hendricks, states in his declaration that Police Chief Baker told

Huppert and Salgado to stop their investigation after only one

day. Hendricks states that Baker explicitly ordered Huppert

and Salgado not to write a report. Huppert states that, in direct

disobedience to Baker’s order, he and Salgado continued their

investigation and that he wrote a report of their “initial findings.” Huppert and Salgado state that they were retaliated

against for this speech.

Huppert and Salgado contend that because they continued

their investigation, and because Huppert wrote the report in

direct contravention of orders from Police Chief Baker, the

speech contained in the report was not made pursuant to their

official duties. I recognize that Huppert and Salgado continued their investigation with the knowledge and encouragement of Commander Hendricks. But any encouragement from

Hendricks conflicted with the direct order of Police Chief

Baker. In my view, a direct order from the Chief of Police is

a more authoritative source for determining the scope of a

police officer’s official duties than the encouragement of a

lower-ranking officer in the department to disobey that order.

At most, Hendricks’ encouragement of Huppert and Salgado

creates a factual question as to the scope of their official

duties. This is precisely the type of question that we saved for

fact-finding proceedings in Freitag, Eng, and Robinson. Huppert and Salgado’s version of the facts “plausibly indicates

that [they] had no official duty” to prepare the report on their

public golf course corruption investigation. Eng, 552 F.3d at

1073. Consequently, we must “assume the resolution of this

dispute in the non-moving part[ies’] favor.” Robinson, 2009

U.S. App. LEXIS 8844 at *11. 

Police Chief Baker, who is a defendant in this suit, may be

able to provide evidence that would help a jury determine the

scope of Huppert and Salgado’s official duties. For example,

Baker could testify that in directing them not to prepare the

report, he was defining the contours of their official duties. If

HUPPERT v. CITY OF PITTSBURG 9361
this is so, Huppert was not acting pursuant to his official

duties when he wrote the report, and his (and Salgado’s)

speech is protected under the First Amendment. On the other

hand, Baker could testify that writing the report was part of

their official duties, and that Baker was directing them not to

perform their duty. If this is so, Baker may have been behaving improperly by attempting to cover up corruption in his

police force, but Huppert and Salgado were acting pursuant to

their official duties in preparing the report, and their speech

was not protected.

C. Subpoenaed Testimony Before the Grand Jury

Investigating Corruption in the Pittsburg Police

Department

Huppert was subpoenaed to appear before a civil grand jury

investigating corruption in the Pittsburg Police Department.

He appeared before the grand jury in compliance with the

subpoena. We do not know his actual testimony, but we know

that he testified concerning corruption in the PPD. Huppert

states that after he testified he was subjected to various retaliatory actions.

The majority relies on Christal v. Police Commission of

San Francisco, 92 P.2d 416, 419 (Cal. Ct. App. 1939), to conclude that police officers in California have an official duty to

testify pursuant to a subpoena before grand juries investigating corruption in their department. Christal states, “When

police officers acquire knowledge of facts which will tend to

incriminate any person, it is their duty to disclose such facts

to their superiors and to testify freely concerning such facts

when called upon to do so before any duly constituted court

or grand jury.” I do not regard Christal as relevant to the

question before us. In my view, if a public employee is subpoenaed to testify before a grand jury, he or she has a duty as

a citizen that is independent of any duty he or she might also

have as an employee. In testifying pursuant to a subpoena, the

9362 HUPPERT v. CITY OF PITTSBURG
employee is therefore not performing an official duty within

the meaning of Ceballos.

The majority’s conclusion that Huppert’s subpoenaed

speech before the grand jury is not protected under the First

Amendment conflicts with two recent decisions by our sister

circuits. In Morales v. Jones, 494 F.3d 590 (7th Cir. 2007),

Milwaukee police officer Morales testified in a deposition

pursuant to a subpoena. The substance of his testimony concerned evidence that the Chief and Deputy Chief of Police

had harbored a fugitive, the brother of the Deputy Chief, and

that the Chief had retaliated against another officer in another

matter. Morales claimed in a § 1983 suit that the Chief of

Police and the Deputy Chief retaliated against him for his

deposition testimony. The Seventh Circuit held that Morales’

speech during the deposition was protected under the First

Amendment. The court wrote,

Being deposed in a civil suit pursuant to a subpoena

was unquestionably not one of Morales’ job duties

because it was not part of what he was employed to

do. Nonetheless, Morales testified about speech he

made pursuant to his official duties and we must

determine whether that fact renders his deposition

unprotected. We hold that it does not. . . . 

Id. at 598.

In Reilly v. Atlantic City, 532 F.3d 216, 220 (3d Cir. 2008),

Atlantic City police officer Reilly testified in a criminal trial

against a fellow officer accused of corruption. A high-ranking

Atlantic City police officer who was a friend of the allegedly

corrupt officer had been a suspect but had not been charged.

Reilly claimed in a § 1983 suit that the Chief of Police and the

high-ranking officer retaliated against him for his trial testimony. The Third Circuit held that Reilly’s testimony was protected under the First Amendment. The court wrote:

HUPPERT v. CITY OF PITTSBURG 9363
[T]he act of offering truthful testimony is the responsibility of every citizen, and the First Amendment

protection associated with fulfilling that duty of citizenship is not vitiated by one’s status as a public

employee. That an employee’s official responsibilities provided the initial impetus to appear in court is

immaterial to his/her independent obligation as a citizen to testify truthfully.

Id. at 231.

A recent district court decision in our own circuit is even

more directly on point. In Evans v. Housing Authority of Benicia, 2008 WL 4177729 (E.D. Cal. Sept. 8, 2008), Evans was

an accountant for the Benicia Housing Authority (“BHA”).

Evans observed that Peterson, one of his supervisors, was

working “reduced hours” and was not collecting certain past

due rents. Evans reported his observations to the Chairperson

of the BHA. He later testified about his observations before

a civil grand jury investigating the BHA. 

The court held that Evans’ testimony before the grand jury

was protected, both as to the hours worked by Peterson and

to her failure to collect rents. The court wrote:

Testifying before the Grand Jury was not in any way

part of Evans’ official job duties. It was clearly not

within the scope of Evans’ official job duties to testify before the Grand Jury about Peterson’s alleged

failure to collect past due rents . . . . Nor was it

within the scope of Evans’s duties to testify before

the Grand Jury about Peterson’s reduced work hours.

Rather, it was Evans’ duty as a citizen to expose

such official malfeasance to broader scrutiny.

Id. But see Deprado v. City of Miami, 446 F. Supp. 2d 1344,

1346 (S.D. Fla. 2006) (holding that “[i]n accordance with the

[Miami] Police Department’s regulations, and the Plaintiff ’s

9364 HUPPERT v. CITY OF PITTSBURG
obligations as a State-certified law enforcement officer,”

grand jury testimony by a Miami police officer was not protected speech under the First Amendment).

Morales, Reilly, and Evans hold that where there is an independent legal duty to speak (in our case, to testify before the

grand jury pursuant to a subpoena), the employee has First

Amendment protection for truthful speech uttered in performance of that independent legal duty. The fact that the

employer may require its employees to obey a law that exists

independent of the employment relationship does not allow

the employer to retaliate against an employee for obeying that

law.

This holding comports with sound policy. There are strong

reasons to avoid holding that police officers have an official

duty, within the meaning of Ceballos, to testify before a grand

jury pursuant to a subpoena about corruption among their fellow officers. Such a holding would result in a Catch 22. If a

police officer were subpoenaed to testify, he or she would

have two choices. One choice would be to testify before the

grand jury. In that event, the officer could lawfully be fired

in retaliation for his or her testimony. The other choice would

be to refuse to testify. In that event, the officer would face

contempt (and possibly other adverse consequences) for failing to comply with a subpoena.

The subject of Huppert’s testimony before the grand jury

was, in the words of our decision in Marable, “high level corruption in a government agency,” which “has all the hallmarks that we normally associate with constitutionally

protected speech.” 511 F.3d at 932. When he appeared before

the grand jury, Huppert acted “as a citizen,” exercising a right

“guaranteed to any citizen in a democratic society regardless

of his status as a public employee.” Freitag, 468 F.3d at 545.

He also appeared pursuant to his duty as a citizen, independent from his duty as a public employee, to comply with the

subpoena. That Huppert’s speech concerned “the subject matHUPPERT v. CITY OF PITTSBURG 9365
ter of [his] employment . . . is nondispositive.” Ceballos, 547

U.S. at 421. Sound policy counsels us not to conclude that his

speech was made pursuant to his official duties. So do Morales and Reilly, the only opinions by courts of appeals on this

issue. I think we are fully justified in following these cases

and holding that when an officer testifies before a grand jury

pursuant to a subpoena concerning corruption of his or her

fellow officers, the officer is not performing an official duty

within the meaning of Ceballos.

Conclusion

The majority holds that Huppert’s speech during the FBI

investigation into corruption in the Pittsburg Police Department, and Huppert and Salgado’s speech during the investigation into police corruption at the city-owned golf course, were

not protected under the First Amendment. In so holding, the

majority fails to follow our binding circuit precedent in four

cases decided after the Supreme Court’s decision in Ceballos

— Freitag, Marable, Eng, and Robinson. 

The majority also holds that Huppert’s subpoenaed speech

to the grand jury investigating corruption in the Pittsburg

Police Department was not protected by the First Amendment. In so holding, the majority creates a circuit split with

the Seventh Circuit’s decision in Morales and the Third Circuit’s decision in Reilly.

I respectfully dissent. 

9366 HUPPERT v. CITY OF PITTSBURG