FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAULA LAUREN GIBSON and 

ANNETTE D. GOODE-PARKER,

Plaintiffs-Appellants, No. 07-56124

v. D.C. No.

OFFICE OF THE ATTORNEY GENERAL, CV-07-00838-FMC

STATE OF CALIFORNIA; BILL 

ORDER AND LOCKYER; RICHARD M. FRANK;

AMENDED JAMES THOMAS GREENE; KATHLEEN OPINION FOOTE; LOUIS MAURO; JACOB

APPLESMITH; and BARBARA MOTZ,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

Florence-Marie Cooper, District Judge, Presiding

Argued and Submitted

November 17, 2008—Pasadena, California

Filed January 27, 2009

Amended March 18, 2009

Before: Susan P. Graber and Richard R. Clifton,

Circuit Judges, and Edward C. Reed,* District Judge.

Opinion by Judge Graber;

Partial Concurrence and Partial Dissent by Judge Clifton

*The Honorable Edward C. Reed, Jr., Senior United States District

Judge for the District of Nevada, sitting by designation. 

3429
COUNSEL

Paula Lauren Gibson, Los Angeles, California, in propria persona, for the plaintiffs-appellants. 

Stephanie L. Quinn, Randolph Cregger & Chalfant LLP, Sacramento, California, for the defendants-appellees. 

ORDER

The opinion filed on January 27, 2009, slip opinion page

909, and published at 2009 WL 174915, is replaced by the

amended opinion filed concurrently with this order. 

With this amendment, the panel has voted to deny the petition for rehearing. Judges Graber and Clifton have voted to

deny the petition for rehearing en banc, and Judge Reed has

so recommended. 

The full court has been advised of the petition for rehearing

en banc, and no judge of the court has requested a vote on it.

The petition for rehearing and petition for rehearing en

banc are DENIED. No further petitions will be entertained.

GIBSON v. OFFICE OF THE ATTORNEY GENERAL 3433
OPINION

GRABER, Circuit Judge: 

Plaintiffs Paula Lauren Gibson and Annette D. GoodeParker work for the Office of the Attorney General of the

State of California (“OAG”) as a lawyer and a paralegal,

respectively. In violation of an internal policy of the OAG,

Gibson represented Goode-Parker in a private legal malpractice case without first having obtained permission from the

OAG. The OAG informed Gibson that she would be fired if

she continued the private representation. Plaintiffs then filed

this action against the OAG and individual decision-makers,

alleging a violation of their First Amendment rights and a

breach of contract. We hold that the district court properly

dismissed the action under Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim, but erred in awarding

attorney fees to Defendants. 

FACTUAL BACKGROUND

A. First Amendment Claim

Gibson works as a Deputy Attorney General in the Antitrust Law Section of the OAG. Goode-Parker is employed as

a Senior Legal Analyst in the same section. On June 25, 2003,

Gibson filed a private legal malpractice action on behalf of

Goode-Parker against a California divorce lawyer in the Los

Angeles Superior Court. The malpractice claim related to the

divorce lawyer’s representation of Goode-Parker in a divorce

proceeding. Although the OAG requires its lawyers to obtain

permission in advance to engage in the private practice of

law, Gibson did not seek permission to represent GoodeParker until nearly a year after filing the malpractice case.

Defendant Kathleen Foote, Senior Assistant Attorney General

for the Antitrust Law Section, ultimately denied Gibson’s

request on the ground that the existence of a separate, pending

3434 GIBSON v. OFFICE OF THE ATTORNEY GENERAL
claim by the divorce lawyer against Gibson with the State

Board of Control created a conflict of interest. 

Gibson filed a grievance concerning the denial of her

request to represent Goode-Parker. Gibson argued that the

OAG’s policy of requiring advance permission for engaging

in the private practice of law violates the First Amendment.

Four months later, without any formal action in response to

Gibson’s grievance, Gibson was informed that she would be

terminated from her employment with the OAG if she did not

withdraw from representing Goode-Parker in the malpractice

action. 

Immediately thereafter, Defendant James Thomas Greene,

the Chief Assistant Attorney General for the Public Rights

Division, reviewed and denied Gibson’s grievance. He noted

in his denial that it is difficult for a deputy attorney general

to engage in the private practice of law and not come into

conflict with the OAG’s interests or those of a client. He also

noted that the prior-approval process is necessary to prevent

conflicts between a public employee’s official duties and his

or her outside activities, and he opined that the process is not

an unconstitutional prior restraint. 

Gibson appealed the denial of her grievance, and Defendant

Richard M. Frank, Chief Deputy Attorney General, upheld the

denial. He agreed with Greene’s conclusions that the OAG’s

pre-approval requirement is not an unconstitutional prior

restraint and that Gibson’s involvement in the malpractice

action created a conflict of interest. Gibson appealed Frank’s

decision to the Department of Personnel Administration. Her

appeal was denied. 

Around the same time that Gibson submitted her grievance

and appeals, she requested and received permission to represent herself in connection with two additional legal matters

related to the underlying malpractice case involving the

divorce lawyer. First, she received permission to appeal a

GIBSON v. OFFICE OF THE ATTORNEY GENERAL 3435
sanctions order that had been issued against her in that action,

subject to certain limitations, including that (1) the representation be confined to specific issues, (2) OAG resources not be

used and Gibson’s affiliation with the OAG not be invoked,

and (3) any criticisms of Gibson’s performance by the appellate court made in the course of the appeal be reported

promptly to the OAG. 

Gibson also was given permission to file a malicious prosecution action against the divorce lawyer. The conditions

placed on Gibson by the OAG were that (1) she would not

disparage the OAG or its policies; (2) she would not use

office time, materials, staff, or equipment; (3) she would not

invoke the OAG or her title in her representation, and (4) she

would report to Greene any criticisms or concerns expressed

by the court during the case. 

B. Contract Claim

In July 2001, Gibson entered into a written agreement with

the OAG, which provided that Gibson would transfer to the

Antitrust Law Section from the Health, Education, and Welfare Section. The agreement was a response to Gibson’s complaints of disability discrimination and denial of reasonable

accommodations, which she had made to the State Personnel

Board and Department of Fair Employment and Housing.

Goode-Parker provided many of the reasonable accommodation services required by Gibson. Goode-Parker alleges that

she had an oral agreement with OAG that mirrored Gibson’s

written agreement. 

Plaintiffs assert that their respective agreements provided

that (1) transfer to the Antitrust Law Section would take place

in order for Plaintiffs to make a “fresh start,” (2) the reasonable accommodations previously provided would continue,

(3) all other conditions of employment would remain the

same, and (4) attorney fees for enforcement of the agreements

would be available. Plaintiffs allege that these agreements

3436 GIBSON v. OFFICE OF THE ATTORNEY GENERAL
were breached by the OAG’s denying Gibson certain overtime assistance, not making Goode-Parker’s reasonable

accommodation assistance a priority over her other work, and

denying Plaintiffs flexible work hours. 

PROCEDURAL BACKGROUND

Plaintiffs filed suit against the OAG and a number of

employees within the OAG. Plaintiffs claimed a breach of

contract by Defendants and, under 42 U.S.C. § 1983, a violation of Plaintiffs’ First Amendment rights. Defendants filed a

motion to dismiss, arguing that they were entitled to qualified

immunity because Plaintiffs failed to allege that they had

engaged in any protected First Amendment activity. The district court agreed with Defendants, but gave Plaintiffs an

opportunity to file an amended complaint to address the protected activity at issue and the adverse employment actions

taken. With regard to the contract claim, the district court held

that Plaintiffs failed to allege conduct that was inconsistent

with the terms of the transfer agreement. The district court

also held that, even if Plaintiffs had alleged breach of a particular contractual term, they failed to allege any foreseeable

contract damages. As a result, the district court dismissed

Plaintiffs’ contract claim with prejudice but allowed Plaintiffs

to file an amended complaint with regard to their § 1983

claims. 

Plaintiffs did not file an amended pleading. Accordingly,

Defendants asked the district court to dismiss the entire

action, and the district court did so. Plaintiffs timely appealed.

When the district court issued its order granting attorney fees

of $21,803.52 to Defendants, Plaintiffs timely appealed that

decision as well. We consolidated the appeals.

STANDARDS OF REVIEW

We review de novo a dismissal under Rule 12(b)(6) of the

Federal Rules of Civil Procedure for failure to state a claim.

GIBSON v. OFFICE OF THE ATTORNEY GENERAL 3437
Monterey Plaza Hotel Ltd. v. Local 483 of Hotel Employees

Union, 215 F.3d 923, 926 (9th Cir. 2000). 

We review a district court’s award of attorney fees for

abuse of discretion. Hall v. Bolger, 768 F.2d 1148, 1150 (9th

Cir. 1985). But we review de novo the legal standards used

by the district court in awarding fees. Miller v. Los Angeles

County Bd. of Educ., 827 F.2d 617, 619 (9th Cir. 1987). 

DISCUSSION

A. Neither Goode-Parker’s private malpractice action nor

Gibson’s representation of her was constitutionally protected speech.

[1] In evaluating a First Amendment retaliation claim, this

Court uses “a sequential five-step series of questions.” Eng v.

Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). Those questions

are as follows: “(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. The pivotal element in this case is

the first one: whether Plaintiffs spoke on a matter of public

concern. 

[2] Unlike the determination regarding whether the plaintiff

spoke as a private citizen or as a public employee, which presents a mixed question of fact and law, Posey v. Lake Pend

Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1123 (9th Cir.

2008), the “public concern inquiry is purely a question of law,

which we review de novo.” Eng, 552 F.3d at 1070. Moreover,

the facts regarding the public concern inquiry are undisputed

here. See Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001)

3438 GIBSON v. OFFICE OF THE ATTORNEY GENERAL
(per curiam) (holding that, in the absence of disputed facts,

qualified immunity is a question of law). The question presented here is, therefore, a legal one: whether Plaintiffs’ private malpractice suit is an issue of public concern. 

[3] The Supreme Court has held that speech 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.” Connick v. Myers, 461 U.S. 138, 146 (1983). We

have explained further that “[s]peech by public employees

may be characterized as not of ‘public concern’ when it is

clear that such speech deals with individual personnel disputes and grievances and that the information would be of no

relevance to the public’s evaluation of the performance of

governmental agencies.” McKinley v. City of Eloy, 705 F.2d

1110, 1114 (9th Cir. 1983). In previous cases, we have held

that issues of public concern include, for example, speech

about police officers’ wages and relationships with city officials, id., safety and emergency policies at a public school district, Posey, 546 F.3d at 1124, sexual abuse of public

employees while on the job, Freitag v. Ayers, 468 F.3d 528,

545 (9th Cir. 2006), discharges of raw sewage into the environment and exposure of public employees to dangerous contaminants, Coszalter v. City of Salem, 320 F.3d 968, 974 (9th

Cir. 2003), mismanagement and corruption in county government, Johnson v. Multnomah County, 48 F.3d 420, 427 (9th

Cir. 1995), leaks to the IRS about school property purchase

arrangements leading to additional, more expensive public

school financing, Eng, 552 F.3d at 1072-73, and retaliatory

prosecution of a government employee, id. at 1073. 

[4] Filing a legal malpractice claim against a private lawyer

in connection with a private divorce matter is not an “issue of

public concern.” The malpractice action did not involve any

suggestion of government malfeasance; nor did it purport to

inform the public about the operation of government; nor was

it relevant to the public’s evaluation of a governmental agency’s performance; nor did it challenge the conduct of any govGIBSON v. OFFICE OF THE ATTORNEY GENERAL 3439
ernment official or agency, but only that of Goode-Parker’s

former divorce lawyer. In short, the malpractice action itself,

along with Gibson’s involvement in it, was a private matter

between Goode-Parker and her former divorce lawyer. The

mere fact that the action potentially could have affected the

divorce lawyer’s bar disciplinary record does not transform

the litigation into a matter of political, social, or other concern

to the public at large. The action remained an individual

grievance that did not bear on the public’s evaluation of the

performance of a public agency.1

[5] Because Plaintiffs’ speech here, filing a private malpractice action, does not qualify as an “issue of public concern,” it is not constitutionally protected speech in the context

of public employment. In the absence of a violation of their

constitutional rights, Plaintiffs’ 42 U.S.C. § 1983 claim

against Defendants on First Amendment grounds must fail.

Therefore, we hold that Defendants did not violate Plaintiffs’

constitutional rights when they denied Gibson permission to

represent Goode-Parker in her private malpractice action.

B. The OAG’s policy regarding outside litigation by its

employees does not constitute an improper prior

restraint. 

Plaintiffs also argue more generally that the OAG’s policy

regarding outside litigation by its public lawyers who wish to

represent themselves or others in private litigation, which

Defendants applied to Gibson here, constitutes an improper

prior restraint on their speech by “chilling” the speech of others who are not before the court. We are not persuaded. 

“[T]he State has interests as an employer in regulating the

1The purpose of Goode-Parker’s malpractice action was to receive monetary damages, not to file a public complaint with the California state bar

association. We need not and do not decide whether filing a public complaint with a state bar association constitutes an issue of public concern.

3440 GIBSON v. OFFICE OF THE ATTORNEY GENERAL
speech of its employees that differ significantly from those it

possesses in connection with regulation of the speech of the

citizenry in general.” Pickering v. Bd. of Educ., 391 U.S. 563,

568 (1968). “When employee expression cannot be fairly considered as relating to any matter of political, social, or other

concern to the community, government officials should enjoy

wide latitude in managing their offices, without intrusive

oversight by the judiciary in the name of the First Amendment.” Connick, 461 U.S. at 146. 

[6] We have not addressed precisely whether a public

employer’s policy regulating its employees’ outside employment activities is a prior restraint on the employees’ speech,

but our decision in Hudson v. Craven, 403 F.3d 691 (9th Cir.

2005), provides some guidance to us. In that case, the plaintiff

served as an instructor at a community college. Id. at 693. She

organized an unofficial field trip for her students to attend a

protest against the World Trade Organization despite being

warned not to do so by college officials. Id. at 694. She then

sued various college administrators when her employment

contract was not renewed after the protest. Id. at 695. We held

that the plaintiff’s rights to free speech and association were

at issue. Id. at 696. Using the balancing test established in

Pickering, 391 U.S. at 568, we held further that the professor’s protest activities were a matter of public concern but that

“the legitimate administrative interests” of the college

strongly outweighed the plaintiff’s First Amendment freedoms. Hudson, 403 F.3d at 699. 

[7] Similarly, Plaintiffs’ argument that the OAG’s policy is

an unconstitutional prior restraint on their speech must fail.

The first Pickering inquiry explores whether the speech that

led to the adverse employment action relates to a matter of

public concern, and the second inquiry questions whether,

using a balancing test, the public employer can demonstrate

that its legitimate interests outweigh the employee’s First

Amendment rights. Hudson, 403 F.3d at 696. As we have discussed already, Goode-Parker’s private malpractice action is

GIBSON v. OFFICE OF THE ATTORNEY GENERAL 3441
not a matter of public concern and, therefore, is not entitled

to free speech protections. But even if we were to credit Plaintiffs’ assertion that they spoke on an issue of public concern,

thereby meeting the threshold for protected speech, the

OAG’s policy is constitutionally sound under the second

Pickering prong. 

[8] The Court of Appeals for the District of Columbia is the

only federal circuit court that has faced this precise issue previously. In Williams v. IRS, 919 F.2d 745 (D.C. Cir. 1990)

(per curiam), the court upheld a policy that prohibited an

Internal Revenue Service (“IRS”) lawyer from engaging in

the outside practice of law. In that case, the plaintiff was a

senior tax lawyer employed by the IRS. Id. at 745. He filed

a class action lawsuit against a church’s board of directors for

an accounting of trust funds. Id. The IRS maintained a policy

requiring its employees to obtain written permission from the

agency before engaging in any outside employment or business activities. Id. Because the plaintiff had failed to seek

such permission, the agency suspended him for five days.

Id. at 746. Noting that “the government may limit the exercise

of a citizen’s first amendment rights where government regulations are aimed to address legitimate concerns,” the court

upheld the agency’s policy and the sanctions imposed on the

plaintiff. Id. The court held that the policy of requiring prior

written permission was proper because it was tailored to the

government’s interests in operating efficiently and in avoiding

the appearance of impropriety. Id. at 747. The policy did not

prohibit all outside activities. Rather, it allowed the agency to

determine whether (1) there is an apparent conflict of interest,

(2) tax issues are involved, (3) official information would be

used improperly, or (4) the expenditure of time would

adversely affect the employee’s performance of his or her

official duties. Id. 

[9] The policy at issue here is very similar to the one examined in Williams. The OAG’s policy reads in pertinent part:

3442 GIBSON v. OFFICE OF THE ATTORNEY GENERAL
No lawyer employed by the Department of Justice

shall engage in the private practice of the law, provided, however, that he may handle personal and

family legal matters in which there is no conflict

with his duties as a[n] employee of the state, after

first obtaining approval of the Attorney General.

Lawyers, upon becoming members of the Department of Justice, with the approval of the Attorney

General, will be given a reasonable time within

which to close pending legal matters. 

Like the policy in Williams, which required an employee to

obtain written permission from the agency before engaging in

outside employment or business activities, 919 F.2d at 745,

the OAG’s policy here does not unduly restrict the constitutional rights of a state-employed lawyer. The policy does not

prohibit all outside practice of law. The requirement to seek

written permission before engaging in outside representation

allows the OAG to assess whether the requested outside

employment creates any conflict of interest or impedes any

other legitimate interest of the state. There is a close and rational relationship between the policy and legitimate governmental interests: The OAG has a legitimate interest in

regulating practice-related conduct of its lawyers to avoid any

conflict of interest and to avoid any potential prejudice to the

OAG and its clients, as well as a legitimate interest in ensuring that its employees are devoting their full attention to the

business of the OAG. Further, the OAG’s policy is even more

permissive than the policy upheld in Williams in that the

OAG’s policy requires pre-approval only for the private practice of law, not for all outside employment and business activities. 

[10] Because the OAG’s policy serves legitimate government interests and does not unduly restrict its employees’

constitutional rights, we hold that the policy is not an

improper prior restraint on speech. 

GIBSON v. OFFICE OF THE ATTORNEY GENERAL 3443
C. Plaintiffs fail to state a contract claim.

Plaintiffs allege that the OAG breached two contracts: (1)

Gibson’s written transfer agreement transferring her to the

Antitrust Law Section along with Goode-Parker’s analogous

oral agreement, and (2) the Memorandum of Understanding

(“MOU”) between the OAG and Plaintiffs’ labor unions. 

The transfer agreement between Gibson and the OAG provides for her to move from the Health, Education, and Welfare Section of the OAG to the Antitrust Law Section. The

agreement provides that, “by this Agreement, the Parties

intend to fully and completely resolve any and all remaining

disputes between them . . . and to create the fresh start desired

by all.” The agreement lists a number of reasonable accommodations to be provided to Gibson, including voice-activated

software, a digital voice recorder, an ergonomic chair, and a

paralegal to assist her on complex cases. The parties to the

agreement reserved “the right to re-evaluate these accommodations from time to time based on changing circumstances

and information.” The agreement further represents that the

parties discharge each other from any and all claims, that they

have not initiated any legal or administrative proceeding

against each other, with an exception not relevant here, and

that they indemnify each other with regard to attorney fees in

connection with the agreement. 

Plaintiffs asserted in their complaint that the OAG breached

the transfer agreement because the OAG denied Gibson the

overtime assistance of Goode-Parker, the OAG did not prioritize Goode-Parker’s reasonable accommodation assistance

over her other work, Plaintiffs were micro-managed and distrusted by their superiors, and Plaintiffs were not assigned significant cases because of their complaints. None of Plaintiffs’

complaints are inconsistent with the terms of the transfer

agreement. The alleged denials of overtime paralegal support

from Goode-Parker and failure to prioritize that assistance

over Goode-Parker’s other work are not denials of any

3444 GIBSON v. OFFICE OF THE ATTORNEY GENERAL
accommodations specifically set forth in the transfer agreement. The same is true for the allegations of being micromanaged by superiors and not being assigned significant

cases: Even if Plaintiffs’ allegations are true, they are not

breaches of any provision in the transfer agreement. 

With regard to the MOU, Plaintiffs allege that they were

denied certain employment benefits, including flexible work

hours. Even if Plaintiffs’ allegations are true, however, they

cannot form the basis of a breach of contract claim. Under

California law, a “civil service employee . . . cannot state such

a cause of action” as the terms and conditions of civil service

employees are fixed by statute, not by contract. Shoemaker v.

Myers, 801 P.2d 1054, 1068 (Cal. 1990); see also Kim v.

Regents of Univ. of Cal., 95 Cal. Rptr. 2d 10, 12 (Ct. App.

2000) (“[O]ur Supreme Court has made it clear that civil service employees cannot state a cause of action for breach of

contract or breach of the implied covenant of good faith and

fair dealing.”); Miller v. State, 557 P.2d 970, 973 (Cal. 1977)

(“Nor is any vested contractual right conferred on the public

employee because he occupies a civil service position since it

is equally well settled that the terms and conditions of civil

service employment are fixed by statute and not by contract.”

(brackets and internal quotation marks omitted)). 

[11] Finally, Plaintiffs’ contractual claims must fail because

Plaintiffs have failed to allege any foreseeable contract damages. The only alleged damages are for emotional and physical distress, neither of which is recoverable on a California

contract claim. Applied Equip. Corp. v. Litton Saudi Arabia

Ltd., 869 P.2d 454, 460 (Cal. 1994); Sawyer v. Bank of Am.,

145 Cal. Rptr. 623, 625 (Ct. App. 1978). 

[12] In summary, because there was no breach of any contractual agreement between Plaintiffs and Defendants and

because, even if there were, Plaintiffs failed to allege foreseeable damages, Plaintiffs failed to state a contract claim. 

GIBSON v. OFFICE OF THE ATTORNEY GENERAL 3445
D. Defendants are not entitled to attorney fees.

The district court, holding that Plaintiffs’ action was “frivolous” or “meritless,” see Galen v. County of Los Angeles, 477

F.3d 652, 666 (9th Cir. 2007), awarded attorney fees to

Defendants pursuant to 42 U.S.C. § 1988. We hold that the

district court erred in so characterizing Plaintiffs’ claims. 

[13] “A case may be deemed frivolous only when the

‘result is obvious or the . . . arguments of error are wholly

without merit.’ ” Karam v. City of Burbank, 352 F.3d 1188,

1195 (9th Cir. 2003) (quoting McConnell v. Critchlow, 661

F.2d 116, 118 (9th Cir. 1981)). A losing § 1983 claim is without merit only if it is “groundless or without foundation.”

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421

(1978). 

[14] Plaintiffs’ argument that the OAG’s policy is a prior

restraint on speech lies at the heart of their action. Although

we agree with the approach taken by the Williams case, no

similar precedent in our circuit would have signaled to Plaintiffs that they should not bring this claim at all. Because Plaintiffs raised a question that was not answered clearly by our

precedent, we hold that their claim was not frivolous and,

accordingly, that Defendants are not entitled to any attorney

fees. 

DISMISSAL OF ACTION AFFIRMED; FEE AWARD

VACATED. The parties shall bear their own costs on appeal.

CLIFTON, Circuit Judge, concurring in part and dissenting in

part: 

I fully join most of the majority opinion. My only disagreement concerns the award of attorneys’ fees. I share the view

3446 GIBSON v. OFFICE OF THE ATTORNEY GENERAL
of the district court that the lawsuit filed by Plaintiffs was, in

substantial part, frivolous and would thus affirm the award. 

A legal proposition can be frivolous even though this court

has not previously rejected it. The contention that the First

Amendment guarantees a lawyer employed by the government the right to file and pursue a private legal malpractice

action on behalf of another person is such a proposition.

Plaintiffs cite no authority supporting that proposition or any

reasonable analogy. We might not have gone down this trail

before, but it was not a hard trail to blaze. 

The majority opinion justifies its reversal of the fee award

by observing, at 3446, that our circuit did not have precedent

similar to the D.C. Circuit’s per curiam decision in Williams

v. IRS, 919 F.2d 745 (D.C. Cir. 1990). But our court did have

ample precedent on the question of whether Plaintiffs’ speech

here was constitutionally protected, and we had no difficulty

concluding that it was not. See majority opinion at 3438-40.

We reached the Williams issue as an alternative ground for

decision, by assuming that the speech in question was constitutionally protected, though we had already held to the contrary. See majority opinion at 3442 (“even if we were to credit

Plaintiffs’ assertion that they spoke on an issue of public concern, thereby meeting the threshold for protected speech”).

Plaintiffs’ First Amendment claim was plainly without merit,

separate and apart from the Williams issue. 

The district court did not abuse its discretion in finding that

claim frivolous. On that element, I respectfully dissent.

GIBSON v. OFFICE OF THE ATTORNEY GENERAL 3447