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

Appeals 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. Anderson 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 5TH CIR. 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 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 9, 2016

Lyle W. Cayce

Clerk

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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, asserting that Anderson had failed to state a claim and that Valdez

is entitled to qualified immunity. The district court denied the motion, and

Valdez timely filed an interlocutory appeal pursuant to the collateral

order doctrine.

I.

FACTS & PROCEEDINGS

A. FACTS

Anderson, who has 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 Dorsey retired in 2002, after which

Anderson left the court to serve as an assistant district attorney, this time in 

Nueces County. 

Early 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, as 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. 

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participating in 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 had concerns about the conduct of . . . [Chief Justice] Valdez.” 

Specifically, “Vela told Anderson that she had examined the [Thirteenth] 

Court’s financial records concerning its Filing Fee Fund and . . . Valdez’s 

campaign finance records, and concluded that . . . Valdez had been 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 Vela 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 disturbed by the possibility that 

[Valdez, the chief justice,] had violated Texas 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 possible violation 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 

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the individual or entity “responsible for investigating such allegations” 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 finances.’”

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 commission 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 soon 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, the 

Commission’s investigation was still “ongoing.”)

Early in 2014, Anderson applied to Justice Gregory T. Perkes, also on 

the Thirteenth Court, to serve as his senior briefing attorney. On May 2, 2014, 

Anderson interviewed 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 

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[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, soon afterward, Perkes e-mailed the other justices “to inform 

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 interfere with another [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 be 

permitted to work for Justice Perkes.”

Anderson contends that, on May 8, several days before Anderson was to 

start working for Perkes, he “received a call from an agent of the Thirteenth 

Court, who informed him that despite his acceptance of Justice Perkes’s offer 

on May 2, [he] did 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 

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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 think of is that he got wind of [Anderson] and the investigation.’”

B. PROCEEDINGS

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 specifically 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 opposition 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 responded 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.

ANALYSIS

A. JURISDICTION

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 

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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 exercise jurisdiction over both.

B. STANDARD OF REVIEW

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 To prevail against a defendant’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 plausibility when the 

plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.”6 “Threadbare 

recitals of the elements of a cause of action, 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 judgment rule.”). 

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

4 Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (internal 

quotation 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.

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above the speculative level.”8 “[C]onclus[ional] allegations or legal conclusions 

masquerading as factual 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 consider ‘the correctness of the plaintiff’s 

version of the facts.’”10 “Only these issues of law qualify as appealable ‘final 

decisions’ before a final judgment.”11

C. CLAIM

As a preliminary matter, Valdez suggests that Anderson’s claim is

subject to a heightened pleading 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 qualified 

immunity defense is asserted in an answer or motion to dismiss, “the district 

court 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 required the district

court to apply “Rule 8(a)(2)’s ‘short and plain’ standard” to the complaint.14

After applying this general 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 FernandezMontes 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.

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[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 if the district court does so insist, Shultea requires it to 

apply the Rule 8(e)(1)’s standard to the reply, emphasizing that it is “[t]he 

only . . . Rule 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 We therefore apply the general pleading standard derived from 

Rule 8(a)(2) in considering whether a plaintiff has stated a retaliation claim.18

In applying that general pleading standard, we consider whether 

Anderson has, in fact, stated such a claim. “To establish a § 1983 claim for 

employment retaliation related to speech, a plaintiff-employee must show: 

(1) he suffered an adverse employment action; (2) he spoke as a citizen on a 

matter of public concern; (3) his interest in the speech outweighs the 

government’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 FED. R. CIV. P. 8(e)(1)).

17 Id. at 1434. Stated differently, even though the complaint and any reply are subject 

to distinct standards, 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 qualified 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, 511 F.3d 494, 497 (5th Cir. 2007) (citations 

omitted) (internal quotation marks omitted).

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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 

outweighed the government’s interest. We need not address the first element, 

viz., whether Anderson suffered an adverse employment action, because 

Valdez does not contest it.20

1. FOURTH ELEMENT

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 letter 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, even a cursory reading of the complaint 

demonstrates that Anderson has adequately alleged that Valdez knew of 

Anderson’s letter and complaint. In fact, Anderson expressly alleged 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 each 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, 205 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: “On May 9, 2014, 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. 

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interfered with Perkes’s decision to do so and that this was Valdez’s decision 

alone. When all of these contentions are accepted as true, they clearly 

demonstrate that Chief Justice Valdez knew of 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 other 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. With regard to the letter, 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 that the letter 

had not remained confidential.

With regard to the disciplinary complaint, Valdez contends that Texas 

law requires the Commission on Judicial Conduct to keep such complaints

confidential. But this misstates that law. Although “the papers filed with and 

proceedings before the commission 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] motivated his eventual termination.”). 

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

“On the filing of a written request by a judge, the commission may release 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 

release the identity of a complainant” 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 

alleged 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. SECOND & THIRD ELEMENTS

Valdez next asserts that Anderson is unable to satisfy the second and 

third elements of his retaliation claim, viz., whether Anderson spoke as a 

 

23 TEX. GOV’T CODE ANN. § 33.032(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 plausible that his [speech] motivated his eventual termination.”). 

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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 official 

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 report 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 [public 

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 citizen 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., 480 F.3d 689, 692–93 (5th Cir. 2007) 

(“Pickering, however, is now 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 omitted)).

33 Garcetti, 547 U.S. at 417.

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explains that there are “two inquiries to guide interpretation of the 

constitutional protections accorded to public employee speech”34: (1) “whether 

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 “When a citizen enters government service, the citizen by necessity 

must accept certain limitations on his or her freedom.”38 This is because the 

public employer, like any principal, has an interest 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) prohibiting 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 government or on his or her own behalf. As discussed infra, Garcetti expounds 

on this.

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ability of a public employer . . . to restrict, incidentally or intentionally, the 

liberties employees enjoy in their capacities 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 

employer’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 pursuant to their 

official duties . . . the Constitution does not insulate their communications from employer 

discipline.”); Discipline, MERRIAM-WEBSTER, http://www.merriamwebster.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.

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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 citizen, . . .

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 for a similar 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 Atlantic 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 official 

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 performing 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). 

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to say, speech 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” formulation.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 

statements pursuant to their official duties, the employees are not speaking as citizens for 

First Amendment purposes, and the Constitution does not insulate their communications 

from employer discipline.” (emphasis added)); id. at 423 (“The court [below] suggested 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 omitted) (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 expressions 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 action 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 

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In Williams v. Dallas Independent School District, we explained that a 

public employee’s speech is 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 speech is not necessarily required by his job duties but 

nevertheless is related to his job duties.”56 Yet, we 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 (This 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 the 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 duties, 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 . . . .”). 

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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 course of conduct subject to the employer’s 

control.”63 It likewise 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 might have acted within the scope 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. Supervision & Corr. Dep’t, 479 F.3d 377, 380 (5th Cir. 2007).

63 RESTATEMENT (THIRD) OF AGENCY § 7.07 (2006) (emphasis added); see Bohnsack v. 

Varco, L.P., 668 F.3d 262, 273 (5th Cir. 2012).

64 RESTATEMENT (THIRD) OF AGENCY § 7.07. The Restatement of Employment 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].” 

RESTATEMENT OF EMPLOYMENT LAW § 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.

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pursuant to his official duties—if he was “engaging in a course of conduct 

subject to the employer’s control.”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 actually 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 employer 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 employer, 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 what the employer itself has 

commissioned or created.”67

 

65 RESTATEMENT (THIRD) OF AGENCY § 7.07.

66 Garcetti, 547 U.S. at 421–22.

67 Id.

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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 “When [the public employee] went to work and 

performed the tasks he was paid to perform, [he] acted as a [public] employee,”

not as a private citizen.70 “That consideration—the fact that [the employee] 

spoke 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 

interest[ ] in controlling [Anderson’s] speech.”72 Anderson’s speech was not an 

“[o]fficial communication[ ] [that had] official 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.

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work for the government.”74 All 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 inefficiency 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 

conduct” for public employees who are also lawyers.78 “These 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. 

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those criminal and civil laws do not protect employees from discipline arising 

from their failure to perform unlawful or otherwise 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 employees’ 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 pursuant to his official duties. It is 

 

80 See RESTATEMENT (THIRD) OF AGENCY § 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 administrative 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 member 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.”); 

RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 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 skill and knowledge so as 

to deprive others of their rights or to obstruct the legal system subvert the justifications of 

their calling.”); see also WILLISTON ON CONTRACTS § 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 other is given for unlawful consideration.” (footnotes omitted)); 

RESTATEMENT (SECOND) OF CONTRACTS § 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) 

legislation relevant to such a policy, or (b) the need to protect some aspect of the public 

welfare . . . .”).

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useful to note that Anderson’s supervisor, Vela, did not ask him, much less

require him, to send the letter or to file the disciplinary complaint. Anderson

expressly alleged that he did so “on his own initiative.” He also alleged that he 

asked Chief Justice Jefferson to “keep the letter confidential” so that no one

“at the Thirteenth Court” would know about it. If Anderson, as Vela’s briefing 

attorney, had an 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 community.’”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 by 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 suggest that she believed she 

had no such duty and that, in fact, no such duty existed.

82 Branton v. City of Dallas, 272 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.

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D. QUALIFIED IMMUNITY DEFENSE

Valdez urges that, even if Anderson stated a retaliation claim, he 

(Valdez) is entitled to qualified immunity because neither Garcetti nor other 

relevant contemporary cases clearly established that speech made pursuant to 

a professional (here, 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 an ethical duty.

A person may assert a § 1983 claim against anyone who “under color of 

any statute, ordinance, regulation, custom, or usage, of 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 protects ‘all but the plainly incompetent or those who knowingly 

violate the law.’”88 Accordingly, we “do not deny immunity unless ‘existing 

precedent must have placed the statutory or constitutional question beyond 

 

85 42 U.S.C. § 1983.

86 Whitley v. Hanna, 726 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, 659 F.3d 359, 370 (5th Cir. 2011).

88 Id. at 371 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

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debate.’”89 “The basic steps of [this court’s] qualified-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 conduct.’”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 he 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 must be apparent.”93 “The 

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 violated 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; see 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, 367 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).

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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 clearly 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 stage of the litigation, 

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 conduct 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 another 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 

complaint 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 interfered 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 not 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 2375–77.

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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, 

noting 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 Eleventh Circuit’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 jurisprudence 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 for 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.

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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, in assessing the summary judgment 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 “ordinary”

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. 

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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 jurisprudence 

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 pursuant 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 clear, 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 “nonordinary” job duties.116

Here, there is not—and at the motion 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 facts.” (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.

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was made outside of his chain of command and outside of his job duties.

Perhaps at the summary judgment or trial phase facts will come to light that 

implicate Lane. Until 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. Qualified immunity thus does not apply—at least,

not yet.

III.

CONCLUSION

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 individual and official capacities.

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JONES, 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, the 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 “explain” 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 

official 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 the majority opinion begins by stating, “In some 

circumstances, state law is relevant insofar as it describes the plaintiff’s 

position, including his duties and the way he is 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

defining the scope of an employee’s duties as “a practical one,” such that formal 

job descriptions will not suffice 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 particular public employee’s workplace will also yield little 

insight. In any event, the majority cites these references but does absolutely 

nothing with them in further analysis of Anderson’s duties. These are dicta, 

pure and simple.

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Much more helpful than treatises in illuminating the practical scope of 

Garcetti are our court’s decisions that evaluated whether employees’ official 

duties comprehended the speech for which they claimed First Amendment 

protection. Thus, in Williams v. Dallas Independent School District,

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 

funds 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 potential 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 interest in 

controlling” the speech, or on an auditor’s professional ethics, or alleged 

whistleblower status. Davis ultimately found some of the communications 

protected by the First Amendment, while others were not. Id. at 315–16. See 

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 majority 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 

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this point, the majority refer to the Supreme Court’s penultimate paragraphs, 

which begin by stating, “Exposing governmental inefficiency and misconduct 

is a matter of considerable significance.” 547 U.S. at 425, 126 S. Ct. at 1962. 

The majority misconstrue the Court’s discussion—which merely enumerates 

various limitations on public officials and concomitant protections of public 

employees—as an invitation to lower courts to distinguish “lawful and 

appropriate” employer 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 their 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) the nature of the speech and (b) the 

government employer’s “interest in control” muddle Garcetti’s clear threshold 

line that holds speech undertaken pursuant to an employee’s job duties is 

categorically unprotected by the First Amendment. The majority assert 

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, misrepresentations 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 authored pursuant to his 

official 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 

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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 disagreement 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 incriminating 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 orders 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 course of” his employment duties, but the speech itself, rather than falling 

within those duties, was an obligation of every citizen). A careful analysis of 

Anderson’s job duties indicates that his complaints about Chief 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 for “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 considerations 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 have

no occasion or need to address that waived argument.

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range beyond writing legal memoranda, conducting 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 

confidential 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 work 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 reasons, 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 public concern.

B. Qualified Immunity

On the question of qualified immunity, the 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 

professionals 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. Gov’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.”

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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 “clearly 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 “knowingly 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 citizen,” 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 Based 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 of Appeals’ authority could be a dispositive 

source of clearly established law”).

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went outside his “chain of command” when he reported about Chief Justice 

Valdez on his own to the State Commission on Judicial Conduct. This logic 

suggests 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 public,4 but its proposed sanctions against a judge are 

ultimately reviewable by the Texas Supreme Court.5 The Texas judiciary may 

thus be considered its own self-regulator. In this situation, Chief Justice 

Valdez’s argument is far from frivolous that Anderson’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 constitutional 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 this 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 

“neither 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 state bar 

who have practiced law for ten consecutive years; five citizens who are not licensed to practice 

law not public employees; one justice of the peace; one municipal court judge; one county 

court at law judge; and one 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.”).

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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. 

 

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