Randall T. Fennell v. MATTHEW THEODORE GREGORY, I, former Attorney General

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANDALL T. FENNELL,
Plaintiff - Appellee,
v.
MATTHEW THEODORE GREGORY, I,
former Attorney General; GREGORY
BAKA, Acting Attorney General;
ANTHONY WELCH, Assistant Attorney
General; TOM J. SCHWEIGER,
Defendants - Appellants,
and
BANK OF SAIPAN,
Defendant-intervenor.
No. 09-17237
D.C. No. 1:09-cv-00019
MEMORANDUM*
Appeal from the United States District Court
for the District of the Northern Mariana Islands
Alex R. Munson, Chief District Judge, Presiding
Argued and Submitted October 14, 2010
Honolulu, Hawaii
FILED
JAN 31 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: HAWKINS, McKEOWN and RAWLINSON, Circuit Judges.
Randall Fennell filed this civil rights action alleging that various Attorneys
General violated Fennell’s Fourteenth Amendment due process right to conflict-
free counsel and First Amendment rights to free speech and access to the courts.
The district court granted in part and denied in part the Attorneys General’s motion
to dismiss. We review de novo the Attorneys General’s appeal of the district
court’s denial of absolute and qualified immunity. Tennison v. City and Cnty. of
San Francisco, 570 F.3d 1078, 1087 (9th Cir. 2009). We affirm in part and reverse
in part.
In determining whether the Attorneys General are entitled to qualified
immunity, we review (1) whether the facts pled in the complaint, construed in the
light most favorable to Fennell, show that the Attorneys General’s conduct violated
a constitutional right; and (2) whether the right was clearly established in light of
the circumstances of this case. See Saucier v. Katz, 533 U.S. 194, 201 (2001),
overruled on other grounds by Pearson v. Callahan, 129 S. Ct. 808 (2009).
Fennell contends that he has a constitutionally protected property interest in
conflict-free counsel. However, Fennel’s understanding of this interest is unique:
he argues that he has a constitutional right to the appointment of outside counsel,
which arose after the Office of the Attorney General began its concurrent

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1 Even assuming Fennell has a constitutionally protected property interest as
the dissent describes – that “government counsel, once appointed, remain
independent and conflict-free” – Fennell has failed to allege such a constitutional
violation here. Fennell does not contend that the Assistant Attorney General
representing him was conflicted, nor does he allege that the Attorneys General
were privy to confidential information. Accordingly, because the facts pled, even
construed in a light most favorable to Fennell, do not amount to a constitutional
violation, the Attorneys General are entitled to qualified immunity even under the
dissent’s theory. See Saucier, 533 U.S. at 201.
3
representation of an adverse party. Because Commonwealth law provides that
decisions regarding the appointment of outside counsel are left to the sound
discretion of government officials, Fennell does not have such a protected property
interest. See Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756 (2005)
(“[A] benefit is not a protected entitlement if government officials may grant or
deny it in their discretion.”).1 In any event, the right to conflict-free representation
in this context was not clearly established for qualified immunity purposes. See
Hope v. Pelzer, 536 U.S. 730, 739 (2002) (“For a constitutional right to be clearly
established, its contours must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.”) (internal quotations omitted).
The Attorneys General are thus entitled to qualified immunity with respect to
Fennell’s Fourteenth Amendment due process claims.
The Attorneys General argue that the district court should have dismissed
Fennell’s First Amendment claims for failure to plead with proper specificity.

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Although rulings regarding the sufficiency of pleadings are not ordinarily subject
to immediate appeal, we may exercise pendent jurisdiction “over an otherwise
nonappealable ruling if the ruling is ‘inextricably intertwined’ with a claim
properly before us on interlocutory appeal.” Kwai Fun Wong v. United States, 373
F.3d 952, 960 (9th Cir. 2004). Because we must determine whether Fennell has
pled facts constituting a constitutional violation as part of the qualified immunity
inquiry, we may exercise pendent jurisdiction to review the sufficiency of
Fennell’s Complaint. See id. at 962 (“Whether a complaint fails to allege legally
cognizable claims is . . . ‘inextricably intertwined’ with the qualified immunity
issue.”).
We agree with the Attorneys General that Fennell’s Complaint fails to
satisfy the pleading standards set forth in Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948
(2009). See id. (“[A] plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the Constitution.”).
Notably, Fennell’s Complaint lacks factual particularity regarding the personal
involvement and conduct of the individual Attorneys General. See Kwai Fun
Wong, 373 F.3d at 966 (dismissing on interlocutory appeal a plaintiff’s Bivens
claims where complaint “fail[ed] to identify what role, if any, each individual
defendant had in” the alleged unconstitutional conduct); Leer v. Murphy, 844 F.2d

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2 We take no position as to whether Fennell may amend the Complaint to
properly allege First Amendment and equal protection claims.
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628, 634 (9th Cir. 1988) (“Sweeping conclusory allegations will not suffice . . . .
The [plaintiff] must set forth specific facts as to each individual defendant’s”
causal role in the alleged constitutional deprivation). Accordingly, Fennell’s First
Amendment claims must be dismissed.
Because Fennell fails to allege differential treatment from similarly situated
individuals, any equal protection claims also must be dismissed for failure to state
a claim. See City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432,
439 (1985).2
We affirm the district court’s order, however, with respect to the denial of
absolute immunity for Attorneys General Gregory and Baka. Absolute immunity
applies to a “government attorney’s initiation and handling of civil litigation in a
state or federal court . . . [when] the government attorney is performing acts
‘intimately associated with the judicial phase’ of the litigation.” Fry v. Melaragno,
939 F.2d 832, 837 (9th Cir. 1991). The Attorneys General’s actions in response to
Fennell’s request for certification under the Commonwealth Employees’ Liability
Reform and Tort Compensation Act were not “intimately associated with the
judicial phase” of litigation, nor have the Attorneys General provided any evidence

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of a historical or common-law basis for absolute immunity in this context. See
Buckley v. Fitzsimmons, 509 U.S. 259, 274-76 (1993) (holding that when a
government attorney “functions as an administrator rather than as an officer of the
court he is entitled only to qualified immunity”). See also Burns v. Reed, 500 U.S.
478, 486 (1991) (“[T]he official seeking absolute immunity bears the burden of
showing that such immunity is justified for the function in question.”).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Each party shall bear its own costs on appeal.

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Fennell v. Gregory, Case No. 09-17237
Rawlinson, Circuit Judge, concurring:
I concur in the result.
FILED
JAN 31 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Fennell v. Gregory, No. 09-17237
HAWKINS, Circuit Judge, concurring in part and dissenting in part:
I agree that absolute immunity is not available to Defendants Gregory and Baka
and concur in that part of the disposition. I also concur in the dismissal of Plaintiff’s
equal protection claims. However, because I believe Fennell’s Complaint provides
a colorable, if perhaps insufficiently detailed, basis for assertion of due process and
First Amendment violations, I would remand to the district court to permit Fennell to
amend his Complaint. I would not conclude that the Attorneys General are entitled
to qualified immunity with respect to these claims at this time.
The discretionary nature of the Commonwealth law providing public employees
with government counsel may preclude Fennell from claiming a property interest in
appointed counsel, but it has no bearing on his clearly established due process right
to have government counsel, once appointed, remain independent and conflict-free.
As we have previously recognized, “[e]thical canons and the common law have long
prohibited the representation of adverse parties.” Smiley v. Office of Workers Comp.
Programs, 984 F.2d 278, 282 (9th Cir. 1993) (citing ABA Model Rules of
Professional Conduct Rule 1.7(a) (1989); ABA Model Code of Professional
Responsibility DR 5-105 (1981)); see also Unified Sewerage Agency of Wash. Cy.,
Or. v. Jelco Inc., 646 F.2d 1339, 1345 (9th Cir. 1981); Nat’l Farmers Union Prop. &
Cas. Co. v. O’Daniel, 329 F.2d 60, 66 (9th Cir. 1964). While the Commonwealth
FILED
JAN 31 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 Defendants’ argument that the Attorney General is obligated under
Commonwealth law, see NMI Const. art. 3, § 11; 1 CMC § 2153(h), to represent the
MPLA is unavailing, as Commonwealth law also recognizes and provides an
exception for situations in which conflicts of interest may render the hiring of outside
counsel appropriate. See 7 CMC § 2209 (“In the sole discretion of the Attorney
General, outside counsel may be employed for the purposes of this Act as may be
appropriate.”).
2
Superior Court may have had discretion under the Public Employees Legal Defense
and Indemnification Act, 7 CMC §§ 2301 et seq., to decide whether to provide Fennell
with counsel from the Office of the Attorney General, the Attorney General (“AG”)
lacked discretion to abandon its “duty of undivided loyalty” owed Fennell once he
became a client. See Smiley, 984 F.2d at 282.
While there certainly are cases from various jurisdictions permitting individual
attorneys from an AG’s office to represent conflicting interests concurrently where
private firms could not, this exceptional allowance should be permitted only where
such an office provides sufficient safeguards guaranteeing independent, conflict-free
representation of each client. See, e.g., State v. Klattenhoff, 801 P.2d 548, 551-52
(Haw. 1990) (permitting concurrent representation of conflicting interests “when the
AG can ensure independent representation for the competing parties” not resulting
in prejudice to either (emphasis added)). Fennell alleges the Commonwealth AG here
failed to maintain adequate safeguards in representing both him and the Mariana
Public Lands Authority (“MPLA”), which is suing him.1 The Commonwealth

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Attorneys General should not be entitled to qualified immunity against such a claim.
See Hope v. Pelzer, 536 U.S. 730, 739 (2002).
But Fennell alleges more than a failure to maintain independence of
representation: he claims the AG defendants purposefully interfered with his right to
conflict-free representation to intimidate and retaliate against him for his whistle-
blowing activities, in violation of his First Amendment rights to free speech and
access to the courts. Fennell’s constitutional rights in this regard are also clearly
established. See Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010); Pratt
v. Rowland, 65 F.3d 802, 806 & n.4 (9th Cir. 1995); Soranno’s Gasco, Inc. v. Morgan,
874 F.2d 1310, 1314 (9th Cir. 1989).
Because I believe that Fennell has pled colorable due process and First
Amendment claims, I respectfully dissent from the portions of the disposition
concluding otherwise. To the extent that specificity is lacking in the Complaint, I
would vacate and remand with instructions to allow Fennell opportunity to amend so
as to comply with the pleading requirements set forth in Ashcroft v. Iqbal, 129 S. Ct.
1937, 1948 (2009).

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