### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 40836

BRUCE M. ANDERSON,

Plaintiff

- Appellee

v. ROGELIO VALDEZ, In his Individual and Official Capacities,

Defendant

- Appellant

Appeal s from the United States District Court for the Southern District of Texas USDC No. 2: 14

- CV

- 426

Before JONES, WIENER, and HIGGINSON, Circuit Judges

. WIENER, Circuit Judge * Plaintiff

- Appellee Bruce M. Anderson brought this action against Defendant

- Appellant , Chief Justice Rogelio Valdez of the Texas Thirteenth Court of Appeals (“Thirteenth Court”) , asserting an individual and official capacity claim under 42 U.S.C. § 1983. An derson alleges that, after he sent a letter to the Texas Supreme Court and filed a disciplinary complaint with the State Commission on Judicial Conduct describing what he believed to be

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47. 5.4. United States Court of Appeals Fifth Circui t 

### FILED November 9, 2016 Lyle W. Cayce Clerk Case: 15-40836 Document: 00513754297 Page: 1 Date Filed: 11/09/2016No. 15

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2 malfeasance by Chief Justice Valdez , Valdez prevented another justice on the Thirteenth Court from hiring Anderson as a “briefing attorney,” viz. , a law
clerk

. He further alleges that, in so doing , Valdez retaliated against him for exercising his right to free speech under the First Amendment. Valdez moved to dismiss, assert ing that Anderson had failed to state a claim and that Valdez
is entitled to qualified immunity. The d istrict court denied the motion, and Valdez timely filed an interlocutory appeal pursuant to the collateral
order doctrine.
I. F ACTS & P ROCEEDINGS A. F ACTS And erson, who ha s been licensed to practice law in the state of Texas since 1984, served as an assistant district attorney in Hidalgo County before being hired as a briefing attorney at the Thirteenth Court in 1988. Anderson alleges that, “ [b] ecause of [his] productivity and success,” 1 he was later promoted to the position of senior briefing attorney and then to that of research attorney. In 1996, J. Bonner Dorsey, another justice on the Thirteenth Court, hired Anderson as a staff attorney. Justice D orsey retired in 2002, after which Anderson left the court to serve as an assistant district attorney, this time in Nueces County.
E arly in 2007, Rose Vela, yet another justice of the Thirteenth Court, hired Anderson as her briefing attorney. He remained in that position until
she retired in late 2012. Anderson alleges that, a s Justice Vela’s briefing attorney, his “ job duties included researching and writing memoranda on appeals and original proceedings pending before the Thirteenth Court,

1 The facts

— and quoted language

— constitute Anderson’s allegations. In this posture, we assume that those allegations are true. Case: 15-40836 Document: 00513754297 Page: 2 Date Filed: 11/09/2016No. 15

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3 participating i n case conferences, making recommendations to Justice Vela regarding pending motions, and performing routine administrative duties. ” He expressly alleges that his “official duties” did not include reporting judicial malfeasance by a justice on that court to the Texas Supreme Court or to the State Commission on Judicial Conduct. According to Anderson, “ [i] n early 2012, Justice Vela asked Anderson to come into her office for a meeting. ” “ During this meeting, [she] told Anderson
that she ha d concerns about th e conduct of

. . . [Chief Justice] Valdez

. ” Specifically, “ Vela told Anderson that she had examined the [Thirteenth] Court ’ s financial records con cerning its Filing Fee Fund and

. . . Valdez ’ s campaign finance records, and concluded that

. . . V aldez had b een obtaining double reimbursements from both the [Thirteenth] Court ’ s Filing Fee Fund and his political campaign for the same travel expenses. ” She explained that “[t] hese records demonstrated that, on ten different occasions, [Valdez] posted the same travel expenses to both his political campaign and the [Thirteenth] Court ’ s Filing Fee Fund. ” “ Because of Anderson ’ s experience in criminal law,
Justice V ela asked Anderson whether, in Anderson ’ s personal opinion, Valdez ’ s conduct violated any [Texas] laws. ” He told her that he believed it had. Vela, however, “ did not report, nor ask Anderson to report, [Valdez] to the authorities. ”
But Anderson alleges that he “ was distur bed by the possibility that [Valdez, the chief justice,] had violate d Texa s law,” so he sent a letter “on his own initiative” to Wallace Jefferson, then the chief justice of the Texas Supreme Court, in late 2012. Anderson asserts that, in that letter, he told Chief Justice Jefferson “ that he had ‘ concerns [about] the possi ble viola tion of the Texas Penal Code by

. . . Valdez ’

. . . . and that

. . . he ‘did not know who else to report it to.’” He asked Chief Justice Jefferson to provide him with the name of Case: 15-40836 Document: 00513754297 Page: 3 Date Filed: 11/09/2016No. 15

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4 the individual or entity “responsible for investigating such allegat ions” and “ to keep the letter confidential because [he] was concerned that he would be retaliated against if anyone at the Thirteenth Court

. . . learned that he ‘ was revealing possible damaging information about

. . . Valdez ’ s handling of the
court ’ s fina nces. ’” About one week later, Jennifer L. Cafferty, general counsel to the Texas Supreme Court, responded to Anderson’s letter to Chief Justice Jefferson ,

“ inform [ing] him that his concerns about

. . . Valdez may be reported to the State Commission on Judicial Conduct and/or local law enforcement. ” A week or so after that, “ Anderson sent a letter to the State Commission on Judicial Conduct.” The letter to the Commission was “nearly identical” to that he had

sent to Chief Justice Jefferson . The commissio n responded a few weeks later,

“ indicat [ing] that it would commence an investigation into the allegations contained in Anderson ’ s letter ” (that is, the disciplinary complaint). In early 2013, Royce LeMoine, an investigator with the Commission,
contacted Vela , who had since retired as a justice, “ to inquire whether she had information relating to [Valdez ’s ] charging duplicate expenses to both the taxpayer

- funded account of the Thirteenth Court and his political campaign fund. ” Vela responded to LeMoine soo n after and “ provided him with various documents supporting her belief that [Valdez] had obtained double
reimbursements. ” The Commission “then referred the matter” to the district attorney in Travis County “for potential prosecution.” (As of early 2015, th e Commission’s investigation was still “ongoing.”)
E arly in 2014, Anderson applied to Justice Gregory T. Perkes, also on the Thirteenth Court, to serve as his senior briefing attorney. On May 2, 201 4 , Anderson intervi ewed with Perkes. Anderson alleges that Perkes told him that

“ he was the most qualified of all the applicants ” and that “‘the job [was his] if Case: 15-40836 Document: 00513754297 Page: 4 Date Filed: 11/09/2016No. 15

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5 [he] want[ed] it.’” Anderson says that he “quickly replied , ” telling Perkes that he would “take it.” Anderson stresses that “ Perkes and [he] then agreed that [he] would start on May 12 ” and also agreed on his compensation. He also indicates that, s oon after ward , Perkes e

- mailed the other justices “ to inf orm them of his hiring decision, stating ‘ I am hiring Bruce Anderson as my Senior Staff Attorney. ’” Anderson asserts that “ the [Thirteenth] Court ’ s practice and procedure

. . . allow [ed] each justice to mak [e] all [their own] hiring decisions
related to their individual chambers ” and there had been no “other occasion
when one [ justice] was permitted to i nterfere with anoth er [justice]’s hiring decisions.” Anderson further asserts that, despite this, “[ Valdez ] told all of the [j]ustices not to allow Anderson to work for Justice Perkes.” He said that he
did so “ because Anderson had filed a complaint against [him] with the State Commission on Judicial Conduct.” After Valdez became aware that “Perkes had hired Anderson,” Valdez “began searching for excuses to interfere with Anderson ’ s hiring. ” This included “ ask [ing] a [Thirteenth Court] employee to
research [ the] opinions” Anderson had written “ while he worked for the Thirteenth Court ” and to “ look into the other applicants for the position ” with Perkes. “ Valdez [also] convened a meeting, wherein he asked all six justices on the Thirteenth Court of Appeals to vote on whether Anderson should b e permitted to work for Justice Perkes .” Anderson contends that, o n May 8, several days before Anderson was to

start working for Perkes , he “ received a call from an agent of th e Thirteenth Court , who informed him that despi te his acceptance of Justice Perkes ’s offer on May 2, [he] di d not have a job with the Court.” Although “[t] he agent did not provide any reason

. . . , [i]t [was] clear” that Valdez “ had knowledge that Anderson [had] filed a complaint against [him] with the State Commission on Case: 15-40836 Document: 00513754297 Page: 5 Date Filed: 11/09/2016No. 15

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6 Judicial Conduct and that [Valdez] interfered in Anderson ’ s hiring because of
the [disciplinary] complaint. ” In an e

- mail, Valdez told staff at the Thirteenth Court to “ call [him] to address [ his ] decision on [Anderson]. ” The following day, May 9, “ Justice Perkes texted former Justice Vela, ‘ [Valdez] went to war over Bruce [Anderson] and all of the rest of the justices cowtowed to [his] wishes. ’ ” When Vela asked the reason, “ Justice Perkes responded that ‘ the only thing I
can t hink of is that he got wind of [Anderson] and the investigation. ’”
B. P ROCEEDINGS Anderson filed this suit against Valdez in his individual and official capacities under 42 U.S.C. § 1983, alleging that he violated Anderson’s right to free speech. Anderson spe cifically alleged that Valdez’s refusal to allow
Perkes to hire him constituted retaliation for the complaints he had made to the Texas Supreme Court and the State Commission on Judicial Conduct. Valdez then moved to dismiss. Anderson responded in oppositi on and also requested leave to amend his complaint. Valdez opposed the request. The district court granted Anderson leave to amend and denied Valdez’s motion to dismiss as moot. Valdez then moved to dismiss the amended complaint, and Anderson again respond ed in opposition. The district court granted Valdez’s motion as to Anderson’s request for declaratory relief, but otherwise denied it on its merits. Valdez timely filed a notice of interlocutory appeal.
II. A NALYSIS A. J URISDICTION Valdez contends that, in resolving his motion to dismiss, the district court erred in determining that Anderson had stated a claim against him and that he could not avail himself of a qualified immunity defense. We have jurisdiction over an interlocutory appeal of a district court ’s denial of qualified Case: 15-40836 Document: 00513754297 Page: 6 Date Filed: 11/09/2016No. 15

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7 immunity pursuant to the collateral order doctrine

. 2 We have pendant appellate jurisdiction “ in rare and unique circumstances where a final appealable order is ‘inextricably intertwined’ with an unappealable order or where review of the unappealable order is necessary to ensure meaningful review of the appealable order.” 3 Because the district court’s determination regarding Valdez’s defense depended on its determination that Anderson had adequately stated a claim for retaliation, we e xercise jurisdiction over both.
B. S TANDARD OF R EVIEW We review a district court’s ruling on a motion to dismiss de novo ,

“ accepting all well

- pleaded facts as true and viewing those facts in the light most favorable to the plaintiffs. ” 4 T o prevail against a d efendant’s motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff’s complaint

“ must contain sufficient factual matter, [if] accepted as true, to ‘ state a claim to relief that is plausible on its face. ’” 5 “ A claim has facial plausibil ity when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liab le for the misconduct alleged.” 6 “ Threadbare recitals of the elements of a cause of actio n, supported by mere conclusory [ sic ] statements, do not suffice. ” 7 Although a complaint “ does not need detailed factual allegations ,” the “allegations must be enough to raise a right to relief

2 See Zarnow v. City of Wichita Falls, Tex. , 500 F.3d 401, 406 (5th Cir . 2007) (“ Denial of

. . . qualified immunity grounds typically falls within the collateral order doctrine, an exception to the final judgmen t rule.”).

3 Thornton v. Gen. Motors Corp. , 136 F.3d 450, 453 (5th Cir. 1998).

4 Dorsey v. Portfolio Equities, Inc. , 54 0 F.3d 333, 338 (5th Cir. 2008) (internal quotat ion marks omitted).

5 Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009 ) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)).

6 Id.

7 Id. Case: 15-40836 Document: 00513754297 Page: 7 Date Filed: 11/09/2016No. 15

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8 above the speculative level. ” 8 “[C] onclus [ional ] allegations or legal conclusions masquerading as fa ctual conclusions will not suffice to prevent a motion to
dismiss. ” 9 Further, “[w] hen reviewing a denial of qualified immunity on an interlocutory appeal, we are restricted to determinations ‘ of question[s] of law ’
and ‘ legal issues, ’ and we do not conside r ‘ the correctness of the plain tiff’s version of the facts.’” 10 “ Only these issues of law qualify as appealable ‘ final
decisi ons’ before a final judgment.” 11 C. C LAIM As a preliminary matter, Valdez suggests that Anderson ’s c laim is subject to a heightened plea ding standard because Valdez’s Rule 12(b)(6 ) motion to dismiss asserts a defense of qualified immunity. But , as Anderson correctly notes, Valdez misconstrues this court’s precedent in Shultea v. Wood

. 12 We explained in Shultea that when, as here, a qualifie d immunity defense is asserted in a n answer or motion to dismiss, “ the district

cou rt must”

— as always

— do no more than determine whether the plaintiff has

“ file [d] a short and plain statement of his complaint, a statement that rests on
more than conclusions alone. ” 13 In so doing, we expressly require d the district
court to apply “ Rule 8(a)(2) ’ s ‘ short and plain ’ standard ” to the complaint

. 14 After applying this genera l pleading standard to the complaint , “ the court may

8 Twombly , 550 U.S. at 555 (citation omitted).

9 Beavers v. Metro. Life Ins. Co. , 566 F.3d 436, 439 (5th Cir. 2009 ) (quoting Fernandez

Montes v. Allied Pilots Ass ’ n , 987 F.2d 278 (5th Cir. 1993)).

10 Atteberry v. Nocona Gen. Hosp. , 430 F .3d 245, 251

– 52 (5th Cir. 2005) (second alteration in original) (quoting Mitchell v. Forsyth , 472 U.S. 511, 528 (1985)).

11 Id. at 252.

12 Shultea v. Wood , 47 F.3d 1427 (5th Cir. 1995).

13 Id. at 1433.

14 Id. Case: 15-40836 Document: 00513754297 Page: 8 Date Filed: 11/09/2016No. 15

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9 [ then ] , in its discretion , insist that a plaintiff file a reply tailored to [the defendant’s] answer [or motion to dismiss] pleading the defense of qualified immunity. ” 15 Even i f the district court does s o insist, Shultea requires it to apply the Rule 8(e)(1)’s standard to the reply, emphasizing that it is “[t] he only

. . . R ule that governs the content of

. . . replies .” Unlike Rule 8(a)(2), Rule 8(e)(1) “ demands that ‘ [e]ach averment of a pleading shall be simple, concise,
and direct. ’” 16 Shultea further clarifies that the heightened pleading standard derived from Rule 9 does not apply to the complaint or to any reply merely
because an answer or motion to dismiss asserts a defense of qualified immunity

. 17 W e therefore apply the general pleading standard derived from
Rule 8 (a)(2) in considering whether a plaintiff has stated a retaliation claim. 18
In a pplying that general pleading standard, we consider whether Anderson has, in f act, stated such a claim. “ To e stablish a § 1983 claim for employment retaliation related to speech, a plaintiff

- employee must show: (1 ) he suffered an adver se employment action; (2 ) he spoke as a citize n on a matter of public concern; (3 ) his interest in the speech outweighs the

govern ment ’ s interest in the efficient provision of public services ; and (4 ) the speech precipitated the adverse employment action. ” 19

15 Id. at 1433

– 34 (emphasis added)

.

16 Id. at 1433 (quoting F ED

. R. C IV

. P. 8( e)(1))

.

17 Id. at 1434. Stated differently, even though the complaint and any reply are subject to distinct st andards, neither standard is altered when a defendant files a responsive pleading asserting a qualified immunity defense.

18 See Cox v. Kaelin, 577 F. App ’ x 306, 312

– 13 (5th Cir. 2014 ) (unpublished) ( “ Regarding [the defendant’s] claimed defense of qualifie d immunity, he argues that a heightened pleading standard applies when the defense of qualified immunity is asserted, relying on Schultea v. Wood

. [His] argument, however, misreads this Court ’ s opinion in that

case. ” (citation omitted) )

.

19 Nixon v. City of Houston , 51 1 F.3d 494, 497 (5th Cir. 2007) (citations omitted) (internal quotation marks omitted). Case: 15-40836 Document: 00513754297 Page: 9 Date Filed: 11/09/2016No. 15

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10 We begin by addressing the fourth element , viz. , whether Anderson’s speech precipitated the adverse employment action . We then proceed to the
second and third elements , viz. , whether Anderson spoke as a citizen on a matter of public concern and

— if so

— whether his interest in that speech
outwei ghed the government’s interest. We nee d not address the first element,
viz. , whether Ande rson suffered an adverse employment action , because Valdez does not contest it

. 20
1. F OURTH E LEMENT Valdez argues that Anderson has not satisfied the fourth element of his retaliation claim because he failed to allege that Valdez knew Anderson had
written a le tter to the Texas Supreme Court or had filed a disciplinary complaint with the State Commission on Judicial Conduct which discussed Valdez’s purported malfeasance. Yet, e ven a cursory reading of the complaint demonstrates that Anderson has adequately alleg e d that Valdez knew of Anderson’s letter and complaint. In fact, Anderson expressly allege d that Valdez “ had knowledge that Anderson filed a complaint against [Valdez] with the State Commission on Judicial Conduct

. . . .” He further pleaded that, according to Justice Perkes, “ because Anderson had filed a complaint against [Valdez] with the State Commission on Judicial Conduct, [Valdez] told all of the Justices not to allow Anderson to work for [ Perkes ].” 21 He also alleged that, even though ea ch justice was entitled to hire his or her own staff, Valdez

20 In any event, “[a] dverse employment actions are discharges, demotions, refusals to hire, refusals to promote, and reprimands. ” Breaux v. City of Garland , 20 5 F.3d 150, 157 (5th Cir. 2000) (quoting Pierce v. Tex. Dep ’ t of Criminal Justice, Institutional Div. , 37 F.3d 1146, 1149 (5th Cir. 1994) )

. The action here qualifies because Valdez blocked Anderson’s being hired.

21 Anderson also alleges: “O n May 9, 201 4, Justice Perkes texted former Justice Vela,

“ Roy [Valdez] went to war over Bruce [Anderson] and all of the rest of the justices cowtowed to Roy ’ s wishes. ” (alterations in original). Taken as true, this merely suggests that Perkes assumed that Valdez knew about Anderson’s letter and complaint on May 9, 2014. Case: 15-40836 Document: 00513754297 Page: 10 Date Filed: 11/09/2016No. 15

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11 interfered with Perkes’ s decision to do so and that this was Valdez’s decision
alone. When all of t hese contentions are accepted as true , they clearly
demonstrate that Chief Justice Valdez knew o f the disciplinary complaint. Anderson is not required to allege how Valdez knew, only that he knew. 22 Despite this, Valdez also contends that when Anderson’s allegations that the letter and disciplinary complaint were confidential are taken as true, they foreclose the possibility that Valdez could have known about them. In particular, Valdez states that, by “admit[ing] that [Anderson] asked Chief
Justice Jefferson to keep his letter confidential and fail[ing] to allege that his letter was known to anyone o ther than Chief Justice Jefferson and [the Texas] Supreme Court’s General Counsel,” he consequentially admits that Valdez did not know about the letter. Valdez further asserts that “the mere possibility
that

. . . [he] could [have] learn[ed] of Anderson’s [disciplinary] complaint to the State Commission on Judicial Conduct is not sufficient to nudge Anderson’s allegations over the line from possibility to plausibility.” Anderson, of course, disputes all of this.
Valdez misses the mark. W ith regard to the le tter, Anderson’s allegation
is that he asked Chief Justice Jefferson to keep the letter confidential, not that Chief Justice Jefferson actually did so

. In fact, Anderson alleged that Chief Justice Jefferson did not answer the letter himself , establishing t hat the letter had not remained confidential

. With regard to the disciplinary complaint, Valdez contends that Texas law requires the Commiss ion on Judicial Conduct to keep such complaints confidential. But this misstates that law. Although “ the papers filed with and proceedings before the c ommission are confidential prior to the filing of formal

22 See Cox , 577 F. App ’ x at 312 (“[The employee] pleads that his [speech] was ‘ known, ’ and thus it is plausible that his [speech] mot ivated his eventual termination.”). Case: 15-40836 Document: 00513754297 Page: 11 Date Filed: 11/09/2016No. 15

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12 charges,” this is subject to specified exceptions. 23 One such exception states:

“ O n the filing of a written request by a judge, the commission may rel ease to the person designated in the request, including the judge, the number, nature, and disposition of a complaint filed against the judge with the
commission

. . . .” 24 “ [T] he commission may ”

— but is not required to

— “ refuse to
releas e the identity of a c omplainant” if such a request is made. 25 Likewise,

“ the commission may ”

— but is not required to

— “ keep the complainant ’s identity confidential” if the complainant so requests. 26 At most, this establishes

a process that the State Commission on Judicial Conduct is instructed to follow, not the process that it did follow. As with the letter, Anderson has not allege d that the State Commission on Judicial Conduct did, in fact, keep the complaint confidential

. 27 Anderson was not required to allege how Valdez knew of the letter and complaint, 28 only that Valdez knew. Having done so, he has sufficiently pleaded that his letter and his disciplinary complaint precipitated Valdez’s allegedly untoward conduct.
2. S ECOND & T HIRD E LEMENTS Valdez next asserts that Anders on is unable to satisfy the second and
third elements of his retaliation claim , viz. , whether Anderson spoke as a

23 T EX

. G OV ’ T C ODE A NN

. § 33.03 2 (a)

.

24 Id. § 33.032 (e )

.

25 Id. (emphasis added).

26 Id. § 33.0321 (emphasis added).

27 Even if Anderson had alleged that the State Commission on Judicial Conduct kept the complaint confidential, Anderson also alleges that others

— including Vela, Perkes , Cafferty, Lemoine, and the Travis County District Attorney’s Office

— were aware of it . Valez may have become aware of it from any of them, as well.

28 See Cox , 577 F. App ’ x at 312 (“[The employee] pleads that his [speech] was ‘ known, ’ and thus it is plaus ible that his [speech] mot ivated his eventual termination.”). Case: 15-40836 Document: 00513754297 Page: 12 Date Filed: 11/09/2016No. 15

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13 citizen on a matter of public concern and

— if so

— whether his interest in that speech outweighed the government’s interest. Valdez claims that , by sending
the letter and filing the complaint , Anderson was acting pursuant to his offici al duties as a public employee , so his speech was unprotected. Valdez suggests more specifically that Anderson’s ethical duties as a lawyer

— including his duty to repo rt malfeasance

— were incorporated into his official duties as a public employee. Anderson disputes this.
In Pickering v. Board of Education , the Supreme Court noted that “[t]he problem in any case is to arrive at a balance between the interests of the [pub lic employee], as a citizen, in commenting upon matters of public concern and the interest of the [public employer], as an employer, in promoting the efficiency of the public services it performs through its employees.” 29 Before balancing those interests, however, it is necessary to engage in a threshold inquiry regarding
whether the public employee spoke as a c itizen at all. This question is resolved with reference to Garcetti v. Ceballos , 30 in which the Supreme Court adjured
that , “ when public employees [speak] pursuant to their official duties, [they] are not speaking as citizens

. . . .” 31 Such “[j]ob

- required speech is not protected,” even when it irrefutably addresses a matter of public concern. 32 Garcetti begins by recognizing that “public employees do not surrender all their First Amendment rights by reason of their employment.” 33 It then

29 391 U.S. 563, 568 (1968).

30 547 U.S.410, 419 (2006)

.

31 Id. at 421.

32 Williams v. Dallas Indep. Sch. Dist. , 48 0 F.3d 689, 692

– 93 (5th Cir. 2007) (“ Pickering , however, is no w inapposite. The Supreme Court’ s recent pronouncement in Garcetti v. Ceballos added a threshold layer to the Pickering balancing test. Under Garcetti , we must shift our focus from the content of the speech to the role the speaker occupied when he said it. ” (citation omitte d)).

33 Garcetti , 547 U.S. at 417. Case: 15-40836 Document: 00513754297 Page: 13 Date Filed: 11/09/2016No. 15

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14 explains that there are “two inquiries to guide interpretation of the constitutional protections accorded to public employee speech” 34 : (1) “w hether the employee spoke as a citizen on a matter of public concern ” 35 and , if so, (2) “whether the [public employer] had an adequate justification for treating the employee differently from any other member of the general public.” 36 Garcetti notes that the “overarching objectives” of these inquiries “are evident.” 37 “ W hen a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” 38 This is because t he public employer , like any principal, has an in terest in controlling the activities of its agents. Those activities include the employee’s speech. A public employer necessarily has an interest in (1) requiring speech by its employees that
enables “ the efficient provision of public services , ” and (2) pr ohibiting speech that does not, including that which “ contravene[ s ] [the public employer’s ] policies or impair [s] the proper performance of [its] functions.” 39 Even if the employer has such an interest, however, that interest must still be balanced against the employee’s own interests: “ [A] citizen who works for the government is nonetheless a citizen , ” and “[t]he First Amendment limits the

34 Id . at 418 (citing Pickering , 391 U.S. at 574).

35 Id

.

36 Id

.

37 Id.

38 Id.

39 Id . at 419. The latter justification appears to prevent confusion over whether a public employee who routinely speaks on behalf of the government is, in fact, speaking on behalf of the governme nt or on his or her own behalf. As discussed infra , Garcetti expounds on this. Case: 15-40836 Document: 00513754297 Page: 14 Date Filed: 11/09/2016No. 15

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15 ability of a public employer

. . . to restrict, incidentally or intentionally, the liberties employees enjoy in their c apacities as private citizens.” 40 Garcetti holds that, “[w]ith these principles in mind,” an employer may
restrict the employee’s speech only when it is made “pursuant to [the employee’s] official duties .” 41 Such a limit, it noted, is justified by the

emp loyer’s interest in disciplining, viz. , controlling , its employees. 42 Stated differently, Garcetti decided that, with regard to speech made pursuant to a public employee’s official duties , the public employer’s interest automatically outweighs the employee’ s , which is therefore unprotected. Garcetti itself noted that the scope of its holding is not limitless. For instance, a public employee does not speak pursuant to his official duties merely because he speaks while at work. 43 Likewise, a public employee does not speak pursuant to his official duties merely because he speaks about work. To the contrary, Garcetti reiterated that “[t] he First Amendment protects some [speech] related to the speaker ’ s job. ” 44 Still further, Garcetti noted that a public employee does not speak pursuant to his official duties when his speech is analogous to that of a citizen’s speech

. In particular, Garcetti stated that “[w] hen a public employee speaks pursuant to employment responsibilities

. . . there [will be] no relevant analogue to speech by citizens

40 Id.

41 Id . at 420

– 21 (emphasis added)

.

42 Id. at 421 (“ We hold that when public employees make statements pu rsuant to their official duties

. . . the Constitution does not insulate their communications from employer discipline

. ”); Discipline , M ERRIAM

- W EBSTER , http://www.merriam

webster.com/dictionary/discipline ( defining “discipline” as “ control gained by enforcing obedience or order ” or “ a rule or system of rules governing conduct or activity ”).

43 Id. at 420

– 21. While such speech might very well relate to the employee’s official duties, it is not necessarily made pursuant to those duties.

44 Id. at 421. Case: 15-40836 Document: 00513754297 Page: 15 Date Filed: 11/09/2016No. 15

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16 who are not [public] employees. ” 45 Accordingly, when there is an analogue to speech by citizens who are not public employees, the employee does not speak pursuant to his official duties , but as a citizen

. 46 Speech made “ outside the course of performing [the public employee’s] official duties

. . . is the kind of activity engaged in by citizens ” and, therefore, not subject to the threshold inquiry in Garcetti

. 47 Therefore, “[w] hen an employee speaks as a cit izen , . . . the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences ” under Pickering

. 48 “ When, however, the employee is simply performing his or her job duties, there is no warrant f or a simil ar degree of scrutiny,” and Garcetti may supplant analysis
under Pickering

. 49 For this reason, Garcetti ’s scope is obviously not as broad as Valdez suggests. Instead, Garcetti merely allows the public employer to control an employee’s speech if made pursuant to the employee’s official duties

. 50 That is

45 Id. at 424.

46 In Reilly v. City of Atl antic City , the Third Circuit explained that, when an individual’s official duties as a public employee overlap with his duties as a citizen, the individual speaks as a citizen. 532 F.3d 216, 231 (3d Cir. 2008) (“ That an employee’ s off icial responsibilities provided the initial impetus to [speak] is immaterial to his/her independent obligation as a citizen

. . . . When a government employee testifies truthfully, s/he is not

‘ simply pe rforming his or her job duties,’ rather, the employee is acting as a citizen .” (quoting Garcetti , 547 U.S. at 423)). In Lane v. Franks , the Supreme Court “ resolve [d] discord ” between the Eleventh and Third Circuits in favor of Reilly

. Lane v. Franks , 134 S. Ct. 2369, 2377 (2014).

47 Garcetti , 547 U.S. at 423

.

48 Id.

49 Id.

50 Whether a public employee spoke pursuant to his job duties, viz. , as a public employee or as a citizen, is a threshold inquiry. In considering it, we do not also consider whether the employee spoke on a matter of public concern. Williams v. Dallas Indep. Sch. Dist. , 480 F.3d 689, 693 (5th Cir. 2007). Case: 15-40836 Document: 00513754297 Page: 16 Date Filed: 11/09/2016No. 15

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17 to say, s peech is within an employer’s control if it is made pursuant to the employee’s official duties

. Garcetti repeatedly used the “speech made pursuant to the employee’s official duties” formulatio n

. 51 Even though Garcetti itself “did not explicate what it means to speak ‘pursuant to’ one ’ s ‘official duties,’” 52 it did clearly
establish what it does not mean: “ The [public employee’s speech] concerned the subject matter of [his] employment, but this

. . . is nondispositive. The First Amendment protects some expressions related to the speaker ’ s job. ” 53 This was reaffirmed, not disrupted , by Lane v. Franks

. 54

51 See , e.g. Garcetti , 547 U.S. at 413 (“The question presented by the instant case is whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee ’ s official duties .” (emphasis added)); id. at 421 (“The controlling factor in [the public employee’s] case is that his [speech was] made pursuant to his duties

. . . . ” (emphasis added)); id. (“We hold that when public employees make stateme nts 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.” (emphasis added)); id. at 423 (“The court [below] suggest ed it would be inconsistent to compel public employers to tolerate certain employee speech made publicly but not speech made pursuant to an employee ’ s assigned duties . This objection misconceives the theoretical underpinnings of our decisions.” (citation o mitted) (emphasis added)); id. at 424 (“When a public employee speaks pursuant to employment responsibilities , however, there is no relevant analogue to speech by citizens who are not government employees.” (emphasis added)); id

. (“It relates only to the e xpressions an employee makes pursuant to his or her official responsibilities , not to statements or complaints

. . . that are made outside the duties of employment.” (emphasis added)); id. (“Proper application of our precedents thus leads to the conclusion that the First Amendment does not prohibit managerial discipline based on an employee ’ s expressions made pursuant to official responsibilities .” (emphasis added)); id. at 426 (“Our precedents do not support the existence of a constitutional cause of actio n behind every statement a public employee makes in the course of doing his or her job .” (emphasis added)).

52 Williams , 480 F.3d at 692.

53 Garcetti , 547 U.S. at 421.

54 Lane v. Franks , 134 S. Ct. 2369, 2379 (2014) (“But Garcetti said nothing about speech that simply relates to public employment or concerns information learned in the course of public employment. [It] made explicit that its holding did not turn on the fact that the [speech] at issue ‘concerned the subject matter of [public employee’s] employment,’ because ‘[t]he First Amendment protects some expressions related to the speaker ’ s job.’

. . . “ The critical question under Garcetti is whether the speech at issue is itself ordinarily Case: 15-40836 Document: 00513754297 Page: 17 Date Filed: 11/09/2016No. 15

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18 In Williams v. Dal las Independent School District , we explained that a public employee’s speech i s made pursuant to his official duties when that speech is “ made in the course of performing his employment , ” whether or not that speech was specifically “demanded of him.” 55 We did not, as the dissent suggests , expand this to include speech that merely related to the public employee’s official duties , muddying the instruction in Garcetti

. In Williams , we began with a broad inquiry: “[W]e must determine the extent to which, under Garcetti , a public employee is protected by the First Amendment if his spee ch is not necessarily required by his job duties but
nevertheles s is related to his job duties.” 56 Yet, w e eventually adopted a much narrower holding: “ We thus hold that ” the public employee ’s speech was made

“ in the course of performing his job

. . . . ” 57 (Th is formulation is used in Garcetti , as well. 58 ) It is therefore clear “[u] nder Garcetti and Williams , . . . that [a public employee’s speech] is not protected by the First Amendment [if] it was
made

. . . during the course of performing his job. ” 59 When t he Supreme Court revisited Garcetti in Lane , it reiterated that “[t] he critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee ’ s duties, not whether it merely

within the scope of an employee ’ s duti es, not whether it merely concerns those duties.” (quoting Garcetti , 547 U.S. at 421)).

55 Williams , 480 F.3d at 694.

56 Id. at 693 (emphasis added).

57 Id. at 694 (emphasis added); see Nixon v. City of Houston , 511 F.3d 494, 498 (5th Cir. 2007) (noting that, in Williams , we “ultimately concluded that ‘[a]ctivities undertaken in the course of performing one ’ s job are activities pursuant to official duties’” (quoting Williams , 430 F.3d at 694)).

58 Garcetti , 547 U .S. at 423.

59 Nixon v. City of Houston , 511 F.3d 494, 498 (5th Cir. 2007); see Davis v. McKinney , 518 F.3d 304, 313 (5th Cir. 2008) (reiterating that “[a]ctivities undertaken in the course of performing one ’ s job are activities pursuant to official duties

. . . .”). Case: 15-40836 Document: 00513754297 Page: 18 Date Filed: 11/09/2016No. 15

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19 concerns [ read: relates to] those duties. ” 60 Although Lane added “ordinarily” to the formulation used in Garcetti and Williams , we have since noted that,

“ whatever change in the jurisprudence ‘ordinary’ may augur, we are unable to discern any change in Garcetti ’ s rule from Lane

. . . , for any change resulting from Lane cannot be said to have been ‘ clearly established .’” 61 In some instances, state law is “ relevant insofar as it describes the plaintiff ’ s position, including his duties and the way he is hired, supervised and fired. ” 62 We believe it offers some insight here, as well. Texas , for instance, has adopted the Restatement (Third) of Agency , which explains that “[a] n employee acts within the scope of employment when performing work assigned by the employer or engaging in a cour se of conduct subject to the employer ’ s control

. ” 63 It l ikewise provides that “ [a] n employee ’ s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer

. ” 64 When an employee was not actually “performing work assigned by the employer,” he
nonetheless m ight have act ed within the s cope of his employment

— or

60 Lane v. Franks , 134 S. Ct. 2369, 2379 (2014) (emphasis added)

.

61 Gibson v. Kilpatrick , 773 F.3d 661, 669 (5th Cir. 2014).

62 Calderon v. Martin Cnty. , 639 F.2d 271, 273 (5th Cir. 1981); see Muhammad v. Dallas Cnty. Cmty. Su pervision & Corr. Dep ’ t , 479 F.3d 377, 380 (5th Cir. 2007).

63 R ESTATEMENT (T HIRD ) OF A GENCY § 7.07 (2006) (emphasis added); see Bohnsack v. Varco , L.P., 668 F.3d 262, 273 (5th Cir. 2012).

64 R ESTATEMENT (T HIRD ) OF A GENCY § 7.07. The Restatement of Employmen t Law notes that the “general test of employee status” requires, in part, that “the employer controls the manner and means by which the individual renders services, or the employer otherwise effectively prevents the individual from rendering those services [independently].” R ESTATEMENT OF E MPLOYMENT L AW § 1.01. “Under that test, it is generally the case that a principal with the right or ability to control how an agent ’ s work is performed is an ‘employer’ and the agent is an ‘employee.’” Id. , cmt. d. Case: 15-40836 Document: 00513754297 Page: 19 Date Filed: 11/09/2016No. 15

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20 pursuant to his official duties

— if he was “engaging in a course of conduct subject to the employer’s con trol.” 65
A public employee, therefore, might speak pursuant to his official duties
when he does so in a course of conduct subject to the employer’s control, even if the employer has not a ctually directed him to speak, not to speak, or how to speak. If the employer was entitled to exercise such control, the speech is made pursuant to the employee’s official duties; if the employer was not entitled to exercise such control, the speech is not made pursuant to the employee’s official
duties. Whether the employe r was entitled to control the employee’s speech determines whether that speech was made pursuant to the employee’s official duties.
The circumstances in Garcetti itself illustrate this focus on whether the employer was entitled to exercise control

. There, an employer disciplined an employee for speech made pursuant to the employee’s official duties as a prosecutor. The speech, a memorandum, was made for the benefit of the employer. It was, in essence, the employer’s speech, not the employee’s own. The emplo yer , not the employee , was entitled to control it

. Just as the employer had directed the employee to create it, the employer could also direct the employee to alter or discard it. If the employee refused, the employer was
entitled to discipline him. “ Restricting 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. ” 66 Instead, “[i] t simply reflects the exercise of employer control over wha t the employer itself has
commissioned or created .” 67

65 R EST ATEMENT (T HIRD ) OF A GENCY § 7.07.

66 Garcetti , 547 U.S. at 421

– 22.

67 Id. Case: 15-40836 Document: 00513754297 Page: 20 Date Filed: 11/09/2016No. 15

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21 As Garcetti explained, “ [t] he controlling factor

. . . is that [the public employee’s] expressions were made pursuant to his duties as a [prosecutor] .” 68 “[The employee] wrote his disposition memo because that is part of what
he

. . . was employed to do.” 69 “ W hen [the public employee] went to work and performed the tasks he was paid to perform, [h e] acted as a [public] employee, ” not as a private citizen. 70 “ That consideration

— the fact that [the employee]

sp oke as a prosecutor fulfilling a responsibility [ read : duty] to advise [his employer] about how best to proceed with a pending case

— distinguishes [his] case from those in which the First Amendment provides protection against discipline .” 71 The duties were created by and owed to the employer. Only a prosecutor , acting on behalf of his employer, could have created, altered, or destroyed the memorandum ; a citizen could not have done so

. In contrast to the employer in Garcetti , Valdez had no “ heightened
inter est [ ] in controlling [ Anderson’s ] speech

. ” 72 Anderson’s speech was not an “[o]fficial communication [ ] [that had] of ficial consequences,” requiring anyone at the Thirteenth Court to ensure that it was “ accurate, demonstrate [ d ] sound judgment, and promote [ d ] the employer’s mission.” 73 Instead, it was “the kind of activity engaged in by citizens ”

— including licensed lawyers

— “ who do not

68 Id. at 421.

69 Id.

70 Id. at 422.

71 Id . at 421 (emphasis added). That Garcetti refers to an “ official duty ” suggests it should be read to mean, not all duties, but those duties derived from the office (that is, the position) itself, not some extrinsic duty.

72 Id. at 422.

73 Id. at 422

– 23. Case: 15-40836 Document: 00513754297 Page: 21 Date Filed: 11/09/2016No. 15

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22 work for the government.” 74 A ll lawyers, not just lawyers who are public employees, have a duty to report malfeasance. Most notably, Garcetti expressly applies “ only to the expressions an employee makes pursuant to his or her official responsibilities [ read : duties] , not to statements or complaints (such as those at issue in cases like Pickering
and Connick ) that are made outside the duties of employment [ read : pursuant to his or her duties as a citizen ].” 75 Such speech is never made pursuant to an employee’s official duties. In such instances, Garceetti is inapplicable. Garcetti emphasizes that “[e]xposing governmental ine fficiency and misconduct is a matter of considerable significance.” 76 “The dictates of sound judgment are reinforced by

. . . whistle

- blower protection laws

. . . .” 77 And, further, there are “additional safeguards in the form of, for example, rules of
condu ct” for public employees who are also lawyers. 78 “ T hese imperatives, as well as [other] obligations arising from any other applicable

. . . mandates of the criminal and civil laws, protect employees and provide checks on [public employers] who would order unlawful or otherwise inappropriate actions.” 79 This is to repeat the obvious: An employer is entitled to exercise control over an employee’s speech only if it is lawful and appropriate for it to do so. If it is not lawful and appropriate for the employer to exercise control, the employee is, quite simply, not speaking pursuant to his official duties. The mandates of

74 Id.

75 Id . at 423 (emphasis added) (citing Pickering v. Bd. of Ed. , 391 U.S. 563, 574 (1968); Connick v. Myers , 461 U.S. 138, 146 (1983)).

76 Id . at 425.

77 Id

.

78 Id

.

79 Id . at 425

– 26. Case: 15-40836 Document: 00513754297 Page: 22 Date Filed: 11/09/2016No. 15

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23 those criminal and civil law s do not protect employees from discipline arising from their failure to perform unlawful or othe rwise inappropriate duties;
instead , they protect employees from the very existence of those duties to begin
with. Such a duty is not a duty at all. 80 For instance, in Garcetti the public employer had permissibly disciplined its employee for speech because that speech was made pursuant to lawful and appropriate official duties. Stated differently, it was lawful and appropriate for the employer to control the employee’s speech through that official duty. In holding that speech made pursuant to public employee s’ official duties is not protected, Garcetti did not
alter , but embraced, the clearly established law regarding speech concerning malfeasance. In the context of Garcetti ’s clear instruction, Anderson’s letter and disciplinary complaint were not created p ursuant to his official duties. It is

80 See R ESTATEMENT (T HIRD ) O F A GENCY § 8.09, cmt. c (“An agent ’ s duty to comply with instructions is not absolute. An agent has no duty to comply with instructions that may subject the agent to criminal, civil, or adminis trative sanctions or that exceed legal limits on the principal ’ s right to direct action taken by the agent. Thus, an agent has no duty to comply with a directive to commit a crime or an act the agent has reason to know will be tortious. An agent who is a m ember of a profession does not have a duty to follow instructions given by the principal that expose the agent to discipline for violating professional rules.

. . . A contract provision in which an agent promises to perform an unlawful act is unenforceable .”); R ESTATEMENT (T HIRD ) OF THE L AW G OVERNING L AWYERS § 23, cmt. c (2000) (“A contract by an agent to help the principal to perform an unlawful act is unenforceable

. . . . The rule has special force when applied to lawyers. Lawyers who exercise their skil l and knowledge so as to deprive others of their rights or to obstruct the legal system subvert the justifications of their calling.”); see also W ILLISTON ON C ONTRACTS § 19:40 (4th ed. 2010 ) (“[A] promise to do an illegal thing for a legal consideration is unenforceable, and it is equally improper to promise to do a legal thing for an illegal consideration. If the agreement is bilateral and the promise on either side is unlawful, both promises are unenforceable, for one promise is itself unlawful and the ot her is given for unlawful consideration. ” (footnotes omitted)); R ESTATEMENT (S ECOND ) OF C ONTRACTS § 178(a) (1981) (“A promise or other term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable or the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms.”); id. § 179(a) (“A public policy against the enforcement of promises or other terms may be derived by the court from (a) legi slation relevant to such a policy, or (b) the need to protect some aspect of the public welfare

. . . .”). Case: 15-40836 Document: 00513754297 Page: 23 Date Filed: 11/09/2016No. 15

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24 useful to note that Anderson’s supervisor, Vela, did not ask him, much less require him , to send the letter or to file the discipl inary complaint

. Anderson expressly alleged that he did so “ on his own initiative. ” He also allege d that he
asked Chief Justice Jefferson to “keep t he letter confidential” so that no one

“ at the Thirteenth Court ” would know about it. If Anderson , as Vela’s briefing attorney , had a n official duty to send the letter or to file the complaint, then why he would have purposely concealed his doing so from her ? 81 As the Supreme Court stated in Connick , “[m] atters of public concern are
those which can ‘ be fairly considered as relating to any matter of political, social, or other concern to the commu nity. ’” 82 “ Speech which discloses any evidence of corruption, impropriety, or other malfeasance on the part of

. . . officials, in terms of content, clearly concerns matters of public import. ” 83 And, as the Supreme Court explained in Pickering , “ statements b y public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors. ” 84
We are convinced that Anderson sufficiently pleaded each of the elements of his retaliation claim. His speech, which was not made pursuant to his official duties as a public employee, was protected. Next, we must consider
whether his right to protection for such speech was clearly established.

81 As a lawyer herself, Vela was subject to the same duty to file a disciplinary complaint, yet she did not. At least circumstantially, this may sugge st that she believed she had no such duty and that, in fact, no such duty existed.

82 Branton v. City of Dallas , 27 2 F.3d 730, 739 (5th Cir. 2001) (quoting Connick , 461 U.S. at 146).

83 Conaway v. Smith , 853 F.2d 789, 796 (10th Cir. 1988); see Branton , 272 F.3d at 739.

84 Pickering , 391 U.S. at 574. Case: 15-40836 Document: 00513754297 Page: 24 Date Filed: 11/09/2016No. 15

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25 D. Q UALIFIED I MMUNITY D EFENSE Valdez urges that , even if Anderson stated a retaliation claim, he (Valdez) is entitled t o qualified immunity because neither Garcetti nor other relevant contemporary cases clearly established that speech made pursuant to

a professional (h ere, ethical) duty is not speech made pursuant to an official duty. Anderson counters that Garcetti did nothing more than create a limited presumption that speech made by a public employee pursuant to an official duty is unprotected; it did not disrupt the presumption that speech made by a public employee is presumptively protected, including speech made pursuant
to a n ethical duty.
A person may assert a § 1983 claim against anyone who “ under color of any statute, ordinance, regulation, custom, or usage, o f any State ” violates that person’s rights under the Constitution

. 85 To state such a claim, such person

“ must (1 ) allege a violation of a right secured by the Constitution or laws of the United States and (2 ) demonstrate that the alleged deprivation was committed by a person acting under color of state law. ” 86 That said, “[t] he doctrine of qualified immunity protects government officials from civil damages liability when their actions could reasonably have been believed to be legal. ” 87 “ This immunity protec ts ‘ all but the plainly incompetent or thos e who knowingly violate the law.’” 88 Accordingly, we “do not deny immunity unless ‘ existing precedent must have placed the statutory or constituti onal question beyond

85 42 U.S.C. § 1983.

86 Whitley v. Hanna , 72 6 F.3d 631, 638 (5th Cir. 2013) (quoting James v. Collin Cnty. , 535 F.3d 365, 373 (5th Cir. 2008); see Moore v. Willis Indep. Sch. Dist. , 233 F.3d 871, 874 (5th Cir. 2000)).

87 Morgan v. Swanson , 65 9 F.3d 359, 370 (5th Cir. 2011).

88 Id. at 371 (quoting Malley v. Briggs , 475 U.S. 335, 341 (1986) ). Case: 15-40836 Document: 00513754297 Page: 25 Date Filed: 11/09/2016No. 15

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26 debate .’” 89 “ The basic steps of [this court’s] q ualified

- immunity inquiry are
well

- known: a plaintiff seeking to defeat qualified immunity must show:

‘ (1 ) that the official violated a statutory or constitutional right, and (2 ) that the right was “ clearly established ” at the time of the challenged conduc t. ’” 90 This court, like the district court, has “ discretion to decide which of the two prongs of the qualified

- immunity analysis to tackle first. ” 91 “The contours of the right must be sufficiently clear that a reasonable official would understand that what h e is doing violates that right.” 92 “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre

- existing law the unlawfulness m ust be apparent.” 93 “T he central concept is that of ‘ fair warning ’ : The law can be clearly established

‘ despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue v iolated constitutional rights.’” 94 “ That this court has not previously considered an identical fact pattern does not mean that a litigant ’ s rights were not clearly established. ” 95 But the right also should not be defined “at a high level of generality.” 96 And, even in the context of

89 Id. (quoting Ashcroft v. al

- Kidd , 563 U.S. 731 (2011)).

90 Id. (quoting Ashcroft , 563 U.S. at 735 )

.

91 Ashcroft
, 563 U.S. at 735; s ee Pearson v. Callahan , 555 U.S. 223, 236 (2009).

92 Anderson v. Creighton , 483 U.S. 635, 640 (1987).

93 Id. (citations omitted).

94 Kinney v. Weaver , 36 7 F.3d 337, 350 (5th Cir. 2004) (quoting Hope v. Pelzer , 536 U.S. 730, 740 (2002)).

95 Juarez v. Aguilar , 666 F.3d 325, 336 (5th Cir. 2011).

96 Mullenix v. Luna , 136 S. Ct. 305, 308 (2015 ) (quoting Ashcroft , 563 U.S. at 742). Case: 15-40836 Document: 00513754297 Page: 26 Date Filed: 11/09/2016No. 15

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27 qualified immunity, “the facts alleged” must be “[t]aken in the light most favorable to the party asserting the injury.” 97 By at least 2014, it was clear ly established that an employee’s speech made “externally” concerning “an event that was not within [his or her] job requirements” was entitled to First Amendment protection. 98 Taking Anderson’s allegations as true, as we must at this sta g e of the litigatio n, Anderson alleges exactly what Cutler requires. First , Anderson alleges that he reported his concerns about Justice Valdez externally, viz. , to the State Commission on Judicial Conduct. 99 Second , Anderson alleges that his complaint to the judicial conduc t commission was outside of his job duties. Accepting Anderson’s allegations as true, Cutler decides this appeal

. That is not to say that, by 2014, our law applying Garcetti spoke loudly regarding every factual circumstance. Indeed, just after Anderson spoke, the Supreme Court clarified Garcetti in Lane . In Lane , the plaintiff alleged that he was retaliated against for giving testimony to a federal grand jury investigating an other employee. 100 The Eleventh Circuit concluded that, under

97 Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014).

98 Cutler v. Stephen F. Austin State Univ. , 767 F.3d 462, 472

– 73 ( 5th Cir. 2014) (finding that by 2010, the combination of Garcetti , Williams , Davis , and Charles v. Grief , 522 F.3d 508 (5th Cir. 2008), had resulted in clearly established law).

99 Even if Anderson’s complaint to Chief Justice Jefferson was arguably a complaint up the chain of command, Anderson’s complaint to the State Commission on Judicial Conduct was a complaint out of the chain of command. And, Anderson alleges that it was the

c omp laint to the State Judicial Conduct Commission that precipitated Valdez’s alleged retaliation pleading: “Defendant had knowledge that Anderson filed a complaint against Defendant with the State Commission on Judicial Conduct and that Defendant interfere d in Anderson’s hiring because of the complaint. Specifically, on May 12, 2014, Justice Perkes told Anderson that, because Anderson had filed a complaint against Defendant with the State Commission on Judicial Conduct, Defendant told all of the Justices no t to allow Anderson to work for Justice Perkes.” Accordingly, Anderson alleges that he was retaliated against for complaints made outside his chain of command.

100 134 S. Ct. at 2375

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28 Garcetti , the plaintiff testified as an employee, not as a citizen, because he testified to an event that he learned on the job. 101 The Supreme Court reversed,

not ing that “ the Eleventh Circuit read Garcetti far too broadly .” 102 In doing so, the Court clarified that public employees’ speech is not protected by the First Amendment when they speak in the course of their “ordinary” job duties. 103 Nonetheless, the Supreme Court ruled that qualified immunity was proper because the E leventh C ircuit’s case law concerning whether an employee’s sworn testimony was protected by the First Amendment was deeply conflicted. 104 Thus, Lane plainly demonstrates that, following Garcetti , some First Amendment retaliation cases would still result in findings of qualified immunity. That is, Garcetti did not plainly establish all First Amendment retaliation law. Nonetheless, Cutler makes it apparent that Garcetti , and this court’s jurisprude nce interpreting it, clearly established some law. The question is how much. Based on the allegations at issue here, Howell v. Town of Ball answers that question. 105 There, the plaintiff alleged that he had been fired from his job as a town police officer fo r cooperating with an FBI investigation into public corruption. 106 The plaintiff “emphasize[d] that, under the Supreme Court’s
recent decision in Lane , the relevant question [was] whether the speech at

101 Id. at 2376

– 77.

102 Id. at 2379.

103 Id. at 2378.

104 Id. at 2381.

105 827 F.3d 515 (5th Cir. 2016).

106 Id. at 519. Case: 15-40836 Document: 00513754297 Page: 28 Date Filed: 11/09/2016No. 15

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29 issue [was] ordinarily within the scope of an employee’s duties.” 107 And, what job duties were “ordinary” was critical to the court’s holding. The plaintiff “offered evidence that his involvement in the FBI investigation was outside the ordinary scope [of] his professional duties.” 108 The defendants pointed to the “general” duty of all police officers to “detect and prevent crime.” 109 We found that the defendants’ evidence was inadequate because broad general duties “fail to describe with sufficient detail the day

- to

- day duties of a public employee’s job.” 110 That is , i n assessing the summary judg ment evidence presented by both sides, we concluded that , although the defendants may have asserted that the plaintiff spoke pursuant to his “general” job duties, their evidence could not demonstrate that he spoke within his “or dinary” job duties. 111 Nonetheless, we determined that the individual defendants were entitled to qualified immunity. 112 In doing so, we noted that “the Supreme Court did not emphasize that only speech made in furtherance of an employee’s ‘ordinary’ job duties is not protected until nearly three years after [plaintiff] was discharged.” 113 In support of that proposition, we cited Gibson ’s
observation that , “although Lane ’s insertion of the qualifier ‘ordinary’ did not

107 Id. at 523.

108 Id.

109 Id. at 524.

110 Id.

111 Id.

112 Id. at 525

– 26.

113 Id. at 525. Case: 15-40836 Document: 00513754297 Page: 29 Date Filed: 11/09/2016No. 15

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30 meaningfully alter Garcetti ’s original test, it does provide additional guidance regarding what speech falls within an employee’s official duties.” 114 Reading Howell in the framework of Cutler properly synthesizes Lane ’s effect on Garcetti . Namely, Garcetti and our court’s pre

- Lane ju risprudence established that when employees speak outside of their chain of command and outside of their job duties they are entitled to First Amendment protection. 115
Lane and Howell , however, indicate that some cases are too difficult to be determined purs uant to that rule. Even though in some cases employees might have a general employment duty to speak, that duty is not part of their “ordinary” official duties, so their speech pursuant to that general duty is protected by the First Amendment. Equally clea r, however, is that neither Lane nor Howell meaningfully altered the analysis required by Garcetti and Cutler when an employee’s allegations do not concern the distinction between “ordinary” and “non

ordinary” job duties. 116 Here, there is not

— and at the mot i on to dismiss stage there can never
be

— a meaningful factual dispute that implicates Lane ’s ordinariness rule

. 117 Anderson alleges that his speech to the State Commission on Judicial Conduct

114 Id. (citing Gibson , 773 F.3d at 668).

115 See Cutler , 767 F.3d at 472

– 73.

116 See Gibson , 773 F.3d at 668

– 69; see also Hardesty v. Cochran , 621 F. App’x 771, 780

– 81 (5th Cir. 2015) (unpublished) (“The Supreme Court’s recent decision in Lane . . . did not alter First Amendment jurisprudence in any way that would render the currently applicable law not clearly established under these f acts.” (internal citation omitted)).

117 In addition to the ordinariness rule, Lane found that qualified immunity was proper because of conflicted eleventh circuit case law concerning First Amendment protection for sworn testimony. Cutler resolves the need to engage in such an inquiry here because Cutler found that by 2010 this circuit case law had clearly established the contours of the First Amendment protections provided by Garcetti , at least with respect to the violations that Anderson alleges. Case: 15-40836 Document: 00513754297 Page: 30 Date Filed: 11/09/2016No. 15

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31 was made outside of his chain of command and outside of his job dut ies. Perhaps at the summary judgment or trial phase facts will come to light that implicate Lane . U ntil then, however, the ordinariness rule simply does not implicate the right at issue here. Accordingly, under Cutler , Anderson has pleaded the violation of a clearly established right. Qualifie d immunity thus does not apply

— at least, not yet. III. C ONCLUSION For the forgoing reasons, we AFFIRM the holding of the district court and REMAND for further proceedings on Anderson’s claim against Valdez in
his individua l and official capacities

. Case: 15-40836 Document: 00513754297 Page: 31 Date Filed: 11/09/2016No. 15

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32 J ONES, Circuit Judge, dissenting: I agree with the majority that even after Garcetti v. Ceballos , 547 U.S. 410, 126 S. Ct. 1951 (2006)
, Anderson has plausibly alleged a violation of his First Amendment rights. Unfortunately, that is the end of our agreement, because I disagree with the majority’s reasoning to this conclusion
and would grant qualified immunity.
A. First Amendment Retaliation In the course of discussing Anderson’s First Amendment retaliation
claim , th e majority has made two errors. The first error constitutes dicta that need not be followed hereafter: the majority irrelevantly invoke the Restatement of Agency and state law of agency to “ e xplain ” the scope of a public employee’s official duties. The second error is in the implication that any “whistleblower” speech by a public employee, even when made pursuant to his offi cial duties, takes the employee’ s retaliation claim out of Garcetti ’s threshold inquiry. After explaining these mistakes, I write why, under a proper Garcetti analysis, Anderson has stated a claim for relief. One paragraph of th e majority opinion begins by stat ing, “ In so me circumstances, state law is relevant insofar as i t describes the plaintiff ’ s position, including his duties and the way he i s hired, supervised, and fired.” (The majority reinforce this idea in a lengthy footnote citing agency and contract law hornbooks.) Garcetti , to the contrary, describes the inquiry
de fining the scope of an employee’s duties as “a practical one,” such that formal job descriptions will not suff ice to insulate employers. 547 U.S. at 424

– 25,
126 S. Ct. at 1961

– 62. It stands to reason that reference to treatises untethered to a particu lar public employee ’ s workplace will also yield little insight. In any event, the majority cites these reference s bu t does absolutely nothing with them in further analysis of Anderson’ s duties. Th ese are dicta, pure and simple. Case: 15-40836 Document: 00513754297 Page: 32 Date Filed: 11/09/2016No. 15

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33 Much more helpful than tre atises in illuminating the practical scope of Garcetti are our court ’ s decisions that evaluated whether employees ’ official duties comprehended the speech for which they clai med First Amendment protection. Thus, in Williams v. Dallas Independent School Di strict , 480 F.3d 689 (5th Cir. 2007) , this court concluded that a high school athletic director’ s communications to the principal expressing concern about the use of fund s appropriated for athletic activities were made “ in the course of performing ” his job duties sufficiently to preclude First Amendment protection. See id. at 693

– 94. In Davis v. McKinney , 518 F.3d 304 (5th Cir. 2008)
, the question was whether any of several complaints made by a former auditor of a state university “up the chain of command” and to the FBI and EEOC about internal audit problems, staffing issues and potent ial racial discrimination were “in the course of performing” the auditor’ s job duties. See id. at 312

– 16. The focus was on the relation between the job duties and the speech, not on
whether (as the majority states here) “ the employer had an int erest in controlling” the speech, or on an auditor’ s professional ethics, or alleged
whistleblower status. Davis ultimately fou nd some of the communications protected by the First Amendment, while others were not. Id. at 315

– 16. S ee also Nixon v. City of Hous.
, 511 F.3d 494, 498 (5th Cir. 2007) (holding that a police officer ’ s volunteered media statement critical of the Houston Police Department’s high

- speed chase policy nevertheless was made “ pursuant to his official duties and during the course of performing his job.” ) The majority’s second implication, that any “whistleblower”

- type speech is constitutionally protected, is not benign. The maj ority asserts that an employee “ is not speaking pursuant to his official duties” and therefore gains First Amendment protection whenever he exposes unlawful, inappropriate or inefficient government conduct. Purporting to draw support from Garcetti for Case: 15-40836 Document: 00513754297 Page: 33 Date Filed: 11/09/2016No. 15

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34 this point, the majo rity refer to the Supreme Court’ s penultimate paragraphs, which begin by statin g, “ Exposing governmental inefficiency and misconduct
is a matte r of considerable significance.” 547 U.S. at 425 , 126 S. Ct. at 1962. The maj ority misconstrue the Court’ s discussion

— which merely enumerates various limitations on public officials and concomitant p rotections of public employees

— as an invitation to lower courts to distinguish “lawful and appropriate” e mployer control of the employee’s speech from that which is “unlawful and inappropriate.” This is not what the Court says. The Court finishes its discourse by rejecting “ the notion that the First Amendment shields from discipline the expressions employees make pursuant to thei r professional duties. Our precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.” Id

. (emphasis added). The majority’s gratuitous focus on (a) t h e nature of the speech and (b) the government employer’ s “ interest in control ” muddle Garcetti ’s clear threshold line that holds speech und ertaken pursuant to an employee’ s job duties is categorically unpr otected by the First Amendment. The maj ority asser t generally that it “was lawful and appropriate” for the District Attorney ’ s office
in Garcetti to “control” attorney Ceballos’ s speech pursuant to his official duties, but this is semantics. Ceballos was reporting about police misconduct, specifically, m isrepresentation s made in a warrant affidavit; his opinion was overruled by his superiors who continued the criminal prosecution. The Supreme Court explicitly did not rule on the merits of Ceballos’ s internal memos and held simply that because they were a uthored pursuant to his offic i al duties, they receive no First Amendment protection. Yet , under the majority’s misplaced analysis, Ceballos’ s memos might just as easily be characterized as those of a “whistleblower” exposing both police and Case: 15-40836 Document: 00513754297 Page: 34 Date Filed: 11/09/2016No. 15

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35 prosecutorial misconduct. The majority, therefore, have smuggled back into Garcetti ’s threshold issue of job duties an evaluation of the speech itself based on the employer ’ s “ interest in controlling ” the employee speech, or
whistleblower revelations. Despite my disa greement with the majority ’ s reasoning, I concur that Anderson stated a claim for First Amendment retaliation. The fact that his boss, Justice Vela , conveyed the incr iminating information to Anderson means that the speech “related ” to his job duties, but Anderson pleads that he did not write the letters under her supervision or on her orde rs or even with her knowledge

. 1 Cf . Lane v. Franks , 134 S. Ct. 2369, 2379 (2014) (First Amendment retaliation claim could proceed under Garcetti where employee’s testimony in criminal court related to and “concern[ed] information learned in
the c ourse of” his employment duties , but the speech itself , rather than falling within those duties, was an obligation of every citizen). A careful analysis o f Ander son’ s job duties indicates that his complaints about Chie f Justice Valdez were not made “pursuant to his duties” or “ in the course of performing ” his work as a briefing attorney to Justice Vela. A judge’s briefing attorney is paid by the court but is normally accountable to the judge (or judges) for whom he directly works. The relation between a judge and a law clerk is both sensitive and confidential. Further, the scope of the clerk’s duties fo r “his” judge varies widely within the judiciary, in part because a judge takes advantage of each briefing attorney’s particular experience and expertise. It is hardly unusual for a briefing clerk’s duties to

1 Contrary to what both Chief Justice Valdez and the majority assert , Anderson’s professional duties as an attorney neither add to nor detract from this analysis

. Arguably such considerati ons might be relevant under the Pickering balance, but Chief Justice Valdez did not challenge the district court’s application of the Pickering balance and thus we ha ve no occasion or need to address that waived argument. Case: 15-40836 Document: 00513754297 Page: 35 Date Filed: 11/09/2016No. 15

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36 range beyond writing legal memoranda, conducti ng research on pending cases, and advising on motions before the court. Anderson accordingly became responsible for advising Justice Vela when she inquired of him about the legality of the chief justice’s travel reimbursements. Based on their confidentia l relationship, Anderson would also have had the duty to inform Justice Vela if he had independently discovered possible malfeasance within the judiciary. Justice Vela in either case shouldered a duty to pursue the allegations, but Anderson’s official wor k ended with rendering his confidential advice to Justice Vela; the justice asked no more of him. Reporting “up the chain” to Chief Justice Jefferson and the State Commission on Judicial Conduct fell outside Anderson’s employment duties. 2
For these reaso ns, it is consistent with Garcetti , Williams , and Davis to conclude that, under the facts pled, Anderson was not employed to investigate and report judicial malfeasance beyond his response to Justice Vela’s inquiry. Further, his complaints “up the chain” reflect protected speech as a citizen on a matter of pu blic concern.
B. Qualified Immunity On t he question of qualified immuni ty, t he majority are rightly concerned that a judicial officer should not be able to shield himself from the

2 Garcetti does not accord any special First Amendment shield to publicly employed professiona ls by virtue of their ethical codes. Nor, as Chief Justice Valdez suggests, are ethical codes a Garcetti

- fashioned sword. He argues that Anderson is a licensed Texas attorney bound by the Texas Disciplinary Rules of Professional Conduct. See Tex. Loc. G ov’t Code § 81.072(d); In re Meador , 968 S.W.2d 346, 350 (Tex. 1998). Chief Justice Valdez contends that it is at least arguable that following the Disciplinary Rules is part of a briefing clerk’s official duties. If Anderson was obliged by the Rules, and thus his employment duties, to report on alleged misconduct, then his speech was not entitled to constitutional protection. The district court aptly summarized its rejection of this argument: “In no way does Garcetti permit an employer to take refuge under the broad net of its employees’ professional ethical obligations that happen to implicate speech on matters of public concern, and that apply to all members of the profession regardless of whether they are publicly employed.” Case: 15-40836 Document: 00513754297 Page: 36 Date Filed: 11/09/2016No. 15

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37 consequences of actionable retaliation if the law clearly held that a law clerk was speaking “as a citizen” when he reported the alleged judicial misconduct
to the chief justice of the Texas Supreme Court and the State Commission on Judicial Conduct

. But in this case , as in all qualified immunity cases, the law must have been “clear ly established” at the time of the official’s conduct under factually analogous circumstances. See Brosseau v. Haugen , 543 U.S. 194,
198

– 201, 125 S. Ct. 596, 599

– 600 (2004) (per curiam) . Only the “plainly incompetent” public officials or those who “know ingly violate the law” are denied the protection of qualified immunity. Anderson v. Creighton , 483 U.S. 635, 638, 107 S. Ct. 3034, 3038 (1987) (quoting Malley v. Briggs , 475 U.S. 335,
341 , 106 S. Ct. 1092, 1096 (1986)). The majority correctly note that post

- Garcetti and before Chief Justice Valdez acted against Anderson, our court’s decisions distinguished between a public employee’s speech within the chain of command of his office (speech that is constitutionally unprotected) and speech “as a citi zen,” which is directed
outside to third

- party responders like the EEOC (and may be constitutionally protected). See , e.g. , Davis, 518 F.3d at 315

– 16 (holding some complaints
within the UT System to be unprotected while those to the EEOC were
accorded constitutional protection). 3 B ased on my view that Anderson’ s employment was centered on his duty to “his” judge, Anderson necessarily

3 I assume arguendo , as the Supreme Court has assumed arguendo , that a right may be clearly established by circuit precedent alone even though Supreme Court precedent has not clearly established the right. See Taylor v. Barkes , 135 S. Ct. 2042, 2044

– 45 (2015) (per curiam) (twice noting that “[n]o decision of this Court” was similar to Taylor before “[a]ssuming for the sake of argument that a right can be ‘clearly established’ by circuit precedent despite disagreement in the courts of appeals”); Reichle v. Howards , 132 S. Ct. 2088, 2093

– 94 (2012) (noting “[t]his Court has never held that there is such a right [ ‘ to be free from a retaliatory arrest that is otherwise supported by probable cause ’ ] ” before “[a]ssuming arguendo that controlling Court o f Appeals’ authority could be a dispositive source of clearly established law ” ). Case: 15-40836 Document: 00513754297 Page: 37 Date Filed: 11/09/2016No. 15

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38 went outside his “chain of command” when he reported about Chief Justice
Valdez on his own to the State Commission on Ju dicial Conduct

. This logic

s uggests an argument for denying qualified immunity. Nevertheless, the issue is more complex than the majority’s analysis acknowledges because, under the Texas Constitution, the Commission includes members of the pu blic, 4 but its proposed sanctions against a judge are ultimately reviewable by the Texas Supreme Court. 5 The Texas judiciary may
thus be cons idered its own self

- regulator. In this situation, Chief Justice Valdez’s argument is far from frivolous that Ande rson’s complaint went up the “chain of command” within the judiciary. Consequently, the ultimate constitutional status of Anderson’s speech, and thus his right to a First Amendment shield against employment consequences, are debatable.
Debatable consti tutional violations demand qualified immunity for public officials, even when this court is bound to conclude that a violation in fact
occurred. See, e.g. , Morgan v. Swanson , 659 F.3d 359, 389

– 90 (5th Cir. 2011) (en banc) (holding “[t]he defendants in th is case are entitled to qualified immunity because existing precedent failed to place the constitutionality of their conduct ‘beyond debate’”); Noyola v. Tex. Dep’t of Human Res. , 846 F.2d 1021, 1026 (5th Cir. 1988) (granting qualified immunity because “ne ither the ‘contours’ of Noyola’s rights were so clearly outlined nor was the ‘unlawfulness’ of terminating Noyola so ‘apparent’ that Appellants should

4 See Tex. Const. art. V, § 1

- a(2) (stating that the thirteen

- member Commission shall be comprised of: one court of appeals justice; one district judge; two members of the sta te bar who have practiced law for ten consecutive years; five citizens who are not licensed to practice law not public employee s ; one justice of the peace; one municipal court judge; one county court at law judge; and on e constitutional county court judge)

.

5 See id. art. V, § 1

- a(9) (“A Justice, Judge, Master, or Magistrate may appeal a decision of the review tribunal [ ‘order[ing] public censure, retirement or removal’] to the Supreme Court under the substantial evidence rule.”). Case: 15-40836 Document: 00513754297 Page: 38 Date Filed: 11/09/2016No. 15

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39 forfeit their qualified immunity” (quoting Anderson , 483 U.S. at 640, 107 S. Ct. at 3039)). For these reasons, even if Anderson’s allegations are proven to be true, I conclude that Chief Justice Valdez visited unconstitutional retaliation upon Anderson but the law was not “clearly established” such that any “reasonable [judicial] official would understand ” that Anderson’s speech was constitutionally protected because it occurred outside the law clerk’s “chain of command.” See Anderson , 483 U.S. at 640, 107 S. Ct. at 3039. I respectfully dissent. Case: 15-40836 Document: 00513754297 Page: 39 Date Filed: 11/09/2016