Joseph Ryan v. ROBERT FABELA, VTA General Counsel, in his individual capacity

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH RYAN,
Plaintiff-Appellee,
v.
ROBERT FABELA, VTA General
Counsel, in his individual capacity and in
his official capacity,
Defendant-Appellant.
No. 18-15232
D.C. No. 5:16-cv-04032-LHK
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Argued and Submitted March 15, 2019
San Francisco, California
Before: W. FLETCHER, WATFORD, and HURWITZ, Circuit Judges.
Robert Fabela appeals the district court’s denial of summary judgment on
the basis of qualified immunity in Joseph Ryan’s action against him under 42
U.S.C. § 1983. Ryan contends he was fired from his position as senior assistant
counsel within the General Counsel’s office of a regional transportation agency in
FILED
MAR 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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retaliation for his First Amendment-protected speech. We have jurisdiction under
28 U.S.C. § 1291 and we reverse. See Moran v. Washington, 147 F.3d 839, 843
(9th Cir. 1998).
“[Q]ualified immunity shields public officials from liability insofar as their
conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Biggs v. Best, Best & Krieger, 189
F.3d 989, 993 (9th Cir. 1999) (internal quotations omitted). “[W]hether a
government official is entitled to qualified immunity is a two-part inquiry: (1)
whether the facts alleged, taken in the light most favorable to the party asserting
the injury, show that the official’s conduct violated a constitutional right; and (2)
whether that right was clearly established ‘in light of the specific context of the
case.’” Clairmont v. Sound Mental Health, 632 F.3d 1091, 1100 (9th Cir. 2011)
(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). We may begin our analysis
with either prong. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
A government employer “[o]rdinarily . . . cannot fire or retaliate against an
employee for his political opinions, memberships, or activities.” Bardzik v. Cty. of
Orange, 635 F.3d 1138, 1144 (9th Cir. 2011). However, under the “policymaker
exception,” “an employer may fire a public employee for purely political reasons if
the employer can demonstrate that political considerations are ‘appropriate
requirement[s] for the effective performance’ of the job.” Fazio v. City & Cty. of
2

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San Francisco, 125 F.3d 1328, 1332 (9th Cir. 1997) (quoting Branti v. Finkel, 445
U.S. 507, 518 (1980)). Under Ninth Circuit law “an employee’s status as a
policymaking or confidential employee [is] dispositive of any First Amendment
retaliation claim.” Biggs, 189 F.3d at 994–95.
We hold that a reasonable official in Fabela’s position might have concluded
that Ryan was a policymaker, and that Fabela is therefore entitled to qualified
immunity. See Hunt v. Cty. of Orange, 672 F.3d 606, 615 (9th Cir. 2012). The
policymaker inquiry is multi-factor and fact-intensive. See id. at 616. Here, no
case is sufficiently analogous to have put Fabela on notice that Ryan’s position as
senior assistant counsel would fall outside the policymaker exception. We do not
decide whether Ryan was a policymaker as a matter of law, only that his right not
to be fired for political considerations was not “clearly established in light of the
specific context of the case.” Clairmont, 632 F.3d at 1100. We accordingly
reverse the district court’s denial of summary judgment and remand for entry of
judgment in Fabela’s favor.
REVERSED AND REMANDED.1
1 The motion by the League of California Cities, California State Association
of Counties & International Municipal Lawyers Association for leave to file amici
brief in support of Fabela (Dkt. 21) is GRANTED.
3

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