9th Cir. Weighs in on Split Re Whether Protected Status of Speech is a Question of Mixed Law and Fact

Per Posey v. Lake Pend Oreille School Dist. No. 84, --- F.3d ----, 2008 WL 4570616 (9th Cir. Oct 15, 2008):

Given the factual disputes presented in the record, we must therefore determine whether the inquiry into the protected status of speech remains one purely of law as stated in Connick, or if instead Garcetti has transformed it into a mixed question of fact and law.

Our sister circuits are split over the resolution of this question. In Charles v. Grief, 522 F.3d 508 (5th Cir.2008), for example, the magistrate judge had concluded that the question whether Charles's statements were made in his capacity as a citizen or an employee presented a genuine issue of material fact requiring trial. Id. at 513 n. 17. On appeal, however, the Fifth Circuit disagreed, concluding that "even though analyzing whether Garcetti applies involves the consideration of factual circumstances surrounding the speech at issue, the question whether Charles's speech is entitled to protection is a legal conclusion properly decided at summary judgment." Id.

The Tenth Circuit has also concluded that "[all] three steps" of the inquiry into the protected status of speech, including the "determin[ation] whether the employee [has spoken] pursuant to [his] official duties," "are to be resolved by the district court [and not] the trier of fact." Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1202-03 (10th Cir.2007). There, despite a dispute among the parties, the court found at summary judgment that some of the plaintiffs' speech had been made pursuant to their employment duties and some had not. Id. at 1204.

The District of Columbia Circuit has also held, following Garcetti, that the question whether a plaintiff "ha[s] spoken as a citizen on a matter of public concern" is a "question[ ] of law for the court to resolve," and not a "question[ ] of fact ordinarily for the jury." Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C.Cir.2007) (internal quotation omitted) (going on to affirm summary judgment because, on review of the evidence of plaintiff's alleged but apparently disputed employment duties, the speech "easily" fell within the plaintiff's job responsibilities).

In conflict with the Fifth, Tenth, and D.C. Circuits, the Third Circuit has "held that 'whether a particular incident of speech is made within a particular plaintiff's job duties is a mixed question of fact and law.' " Reilly v. City of Atlantic City, 532 F.3d 216, 227 (3d Cir.2008) (quoting Foraker v. Chaffinch, 501 F.3d 231, 240 (3d Cir.2007)). In Foraker, the Third Circuit considered a First Amendment retaliation case that had already gone to trial. The court applied "clear error" review to the factual finding that the plaintiffs' speech had been "made pursuant to employment duties." Foraker, 501 F.3d at 250 (Pollak, J., concurring).

The Seventh Circuit has implicitly sided with the Third Circuit, concluding in Davis v. Cook County, 534 F.3d 650 (7th Cir.2008), that summary judgment was appropriate because "no rational trier of fact could find" that Davis's speech had been made in her capacity as a private citizen. Id. at 653. And, prior to Garcetti, the Eighth Circuit had already concluded (with respect to the second element, requiring the balancing of interests between the individual and the state) that "any underlying factual disputes concerning whether the speech at issue [is] protected should [be] submitted to the jury." Casey v. City of Cabool, 12 F.3d 799, 803 (8th Cir.1993) (citing Shands v. City of Kennett, 993 F.2d 1337, 1342 (8th Cir.1993)).

Upon consideration, we agree with the Third, Seventh, and Eighth Circuits and hold that the determination whether the speech in question was spoken as a public employee or a private citizen presents a mixed question of fact and law.