Appeal from the United States District Courtfor the District of NevadaDavid A. Ezra, District Judge, PresidingArgued and SubmittedFebruary 10, 1999--San Francisco, CaliforniaFiled July 7, 1999Before: Harlington Wood, Jr.,1 David R. Thompson andSidney R. Thomas, Circuit Judges.Opinion by Judge Thompson;Dissent by Judge Thomas
_____________________________COUNSEL Kathy M. Banke, Crosby, Heafey, Roach & May, Oakland,California, for the defendants-appellants.Robert D. Vannah, Vannah & Costello, Las Vegas, Nevada,for the plaintiff-appellee.
_____________________________OPINION THOMPSON, Circuit Judge:OVERVIEWTrudi Lytle, an elementary school teacher in the ClarkCounty School District in Nevada ("the District") brought suitunder 42 U.S.C. S 1983 against the District and a group ofpresent and former school administrators. She alleged thedefendants had harassed her and violated her First Amend-ment rights to free speech and access to the courts in retalia-tion for a prior lawsuit she had filed against the District andfour individuals, including the then principal of the elemen-tary school where she taught. Lytle had prosecuted her prioraction to a favorable conclusion, winning a jury verdict of$135,000 and reinstatement.The individual appellant-defendants (the "Appellants")moved for summary judgment, contending they were entitledto qualified immunity. The district court denied their motion,and this appeal followed.We have jurisdiction under 28 U.S.C. S 1291, see Mitchellv. Forsyth,
472 U.S. 511, 524
-25 (1985), and we reverse.Lytle is a public employee. Applying the balancing test ofPickering v. Board of Educ.,
391 U.S. 563, 568
(1968), asrequired by Brewster v. Board of Educ., 149 F.3d 971, 979-80(9th Cir. 1998), petition for cert. filed, 67 USLW 3484 (Jan.11, 1999) (No. 98-1145), we hold that it was not "patentlyunreasonable for [the Appellants] to conclude that the FirstAmendment did not protect [Lytle's conduct in prosecutingher prior lawsuit]." Id. at 980. Thus, the constitutional rightLytle asserts in the present case was not clearly established atthe time the Appellants allegedly retaliated against her, and asa result they are entitled to qualified immunity.BACKGROUNDIn her previous lawsuit, Lytle alleged that she was trans-ferred and disciplined for publicly criticizing a school educa-tion program. A jury awarded her $135,000 in damages andthe district court ordered that she be reinstated as a teacher.Pursuant to that order, the District reinstated her, but assignedher to teach kindergarten instead of fourth grade, which shehad previously taught. On the first day of school, she filed anemergency motion for clarification of the reinstatement order.The district court concluded that the District had compliedwith the reinstatement order, and Lytle then taught kindergar-ten during the 1994-95 term.On October 26, 1995, Lytle commenced the present law-suit. She asserted two causes of action, one for violation ofher First Amendment right of free speech and another for vio-lation of her First Amendment right of access to the courts.See Sorrano's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314(9th Cir. 1989). She alleged that the defendants had retaliatedagainst her for having filed her previous lawsuit. She claimedthat Appellants Wondrash and Simmons made disparagingcomments about her to a student's parent; the District gaveher only one-and-a-half days to prepare her classroom,whereas other teachers were given three days; the Districtreturned her teaching materials damaged, three weeks afterthe school term began; the District improperly disciplined herfor a substitute teacher's decision to teach students in the hall-way; Appellant Wondrash requested that an office managerkeep a log of interactions with Lytle; Appellant Simmonsaccompanied Lytle on Lytle's visits to observe other kinder-garten classes, although Simmons did not routinely accom-pany other teachers to classroom observations; and Simmonsand Wondrash held five meetings with Lytle ostensibly to dis-cuss various school-related issues, including preparation ofher classroom, observations of other kindergarten classes, andinstructional materials, but the real purpose of these meetings,according to Lytle, was to harass her in retaliation for herprior litigation.The Appellants and the District moved for summary judg-ment. The district court granted summary judgment in theirfavor on the merits as to Lytle's free speech claim, but deniedtheir motion on the merits as to Lytle's court access claim.The district court also denied the Appellants' alternative sum-mary judgment motion for qualified immunity. The Appel-lants then filed this timely appeal, raising only the qualifiedimmunity issue. The District has not appealed, and Lytle hasnot filed a cross-appeal. The sole issue, therefore, is whetherthe Appellants are entitled to qualified immunity on Lytle'sFirst Amendment claim that they violated her right of accessto the courts.STANDARD OF REVIEWThe denial of qualified immunity by summary judgment issubject to immediate appeal under 28 U.S.C. S 1291. SeeMitchell,
472 U.S. at 530
. We review de novo a districtcourt's decision on qualified immunity in a 42 U.S.C. S 1983action. See Elder v. Holloway,
510 U.S. 510, 516
(1994). Inreviewing the district court's summary judgment denial ofqualified immunity, we review the "purely legal" issue of"whether facts alleged [by the plaintiff] support a claim ofviolation of clearly established law." Mitchell, 472 U.S. at528, n.9; accord Armendariz v. Penman, 75 F.3d 1311, 1317(9th Cir. 1996) (en banc). We must assume the relevant factsin the light most favorable to Lytle, and then determinewhether the Appellants are nonetheless entitled to qualifiedimmunity as a matter of law. See Moran v. State of Washing-ton, 147 F.3d 839, 844 (9th Cir. 1998).DISCUSSION[1] Qualified immunity protects "government officials per-forming discretionary functions . . . from liability for civildamages insofar as their conduct does not violate clearlyestablished statutory or constitutional rights of which a rea-sonable person would have known." Harlow v. Fitzgerald,
457 U.S. 800, 818
(1982). The doctrine of qualified immunitysafeguards "all but the plainly incompetent or those whoknowingly violate the law. . . . [If] officers of reasonable com-petence could disagree on th[e] issue [of whether a chosencourse of action is constitutional], immunity should berecognized." Malley v. Briggs,
475 U.S. 335, 341
(1986).[2] In determining whether public officials are entitled toqualified immunity for their conduct, we must examine thatconduct in the light of the constitutional right the plaintiffasserts. Specifically, "[t]he contours of the right must be suffi-ciently clear that a reasonable official would understand thatwhat he is doing violates that right." Anderson v. Creighton,
483 U.S. 635, 640
(1987).[3] The constitutional right Lytle asserts is the right toaccess the courts. In Soranno's Gasco, 874 F.2d at 1314, weheld that deliberate retaliation against an individual for filinga complaint violated the exercise of his right of access to thecourts and was actionable under 42 U.S.C. S 1983. TheAppellants argue Lytle's constitutional claim is different.Lytle not only filed a previous complaint, she actually had herday in court, litigated her claim, and won her case. TheAppellants contend, therefore, that nothing they did precludedLytle from having her day in court or violated any right shehad to access the court. She had fully accessed the courtbefore the Appellants allegedly retaliated against her.Courts have taken different positions on this issue. In Smithv. Smith, 578 F. Supp. 1373, 1373-74 (E.D. Pa. 1984), thecourt held that an inmate's allegations of retaliation for priorlawsuits would state a claim for deprivation of the right ofaccess to courts. Sorrano's Gasco seems to support this view.See Soranno's Gasco, 874 F.2d at 1314. In addition, the SixthCircuit has specifically recognized the potential unconstitu-tionality of retaliation for prior litigation. In Graham v.National Collegiate Athletic Ass'n, 804 F.2d 953, 956 (6thCir. 1986), the plaintiff claimed he was kicked off the univer-sity football team in retaliation for participating in a priorstate lawsuit. Although the court decided the case on othergrounds, the court noted that the plaintiff arguably stated aclaim actionable under section 1983. Id. at 959. Similarly, theEleventh Circuit in Hall v. Sutton, 755 F.2d 786 (11th Cir.1985), recognized the viability of a prisoner's section 1983claim against prison officials for retaliation against himbecause of his prior litigation against them. The Fifth Circuit,however, has upheld a claim of qualified immunity where itwas not clearly established at the time the officers retaliatedagainst an individual that retaliation for prior litigation wasunconstitutional. See Hale v. Townley, 45 F.3d 914, 920 (5thCir. 1995).[4] We need not resolve the question whether harassmentfor prior litigation violates a constitutional right to access thecourts, or whether a reasonable school official would haveunderstood that it did. Lytle is a public employee. We mustconsider that status in determining whether, at the time theAppellants allegedly retaliated against her, it was clearlyestablished that the First Amendment protected her prior liti-gation.[5] Because Lytle is a public employee, to warrant FirstAmendment protection she must first establish that her priorlitigation involved a matter of public concern. See Rendish v.City of Tacoma, 123 F.3d 1216, 1223 (9th Cir. 1997) (holdingthat a public employee cannot present a cognizable section1983 claim challenging a retaliatory employment decisionunless the litigation involves a matter of public concern), cert.denied, 118 S. Ct. 2368 (1998). Even if the litigation involveda matter of public concern, Lytle must also establish that herright to pursue that litigation outweighed "any adverselyaffected interest of [her public employer] in promoting effi-cient delivery of public services." Gillette v. Delmore, 886F.2d 1194, 1197 (9th Cir. 1989). If it was not clearly estab-lished at the time the Appellants allegedly harassed Lytle thather previous litigation satisfied both of these requirements,the Appellants are entitled to qualified immunity. SeeBrewster, 149 F.3d at 978-982.To determine whether Lytle's litigation involved a matterof public concern, we must determine the content, form, andcontext of her lawsuit. See Connick v. Myers,
461 U.S. 138
,147-48 (1983); Zorzi v. County of Putnam, 30 F.3d 885, 896(7th Cir. 1994). Our inquiry into the protected status of theemployee's conduct is one of law, not of fact. See Connick,
461 U.S. at 148
, n.7.[6] This examination of content, form, and context requiresan exploration of Lytle's previous litigation to determinewhether her speech in that case involved a matter of publicconcern. See generally Rendish, 123 F.3d at 1224. The districtcourt in the previous lawsuit applied the Pickering balancingtest, weighing Lytle's First Amendment interest in speakingout and the District's need to provide public services effec-tively and efficiently. See Pickering,
391 U.S. at 568
. In doingso, the court concluded that Lytle's speech involved a matterof public concern that was protected under the First Amend-ment.[7] We agree with this determination. Lytle's original law-suit alleged (and the jury found) that she was transferred anddisciplined for publicly criticizing a school education pro-gram. An expression relating to any matter of political, social,or any other concern to the community is protected. See Rend-ish, 123 F.3d at 1223 (citing Connick,
461 U.S. at 146
). TheDistrict's school education program was within the communi-ty's concerns, so Lytle's speech criticizing the program con-stituted protected speech. Because the speech at the heart ofLytle's prior lawsuit was protected, her original lawsuit quali-fied as litigation regarding a matter of public concern.Having determined that Lytle's prior litigation involved amatter of public concern, we next consider whether that litiga-tion outweighed "any adversely affected interest of the [publicemployer] in promoting efficient delivery of public services."Gillette, 886 F.2d at 1197. In this part of the analysis, weapply the Pickering balancing test. See Brewster, 149 F.3d at979. This test requires us to consider the balance between the interests of the [employee], as a citizen, in commenting on matters of public con- cern and the interest of the State, as an employer, in promoting the efficiency of the public services it per- forms through its employees.Pickering,
391 U.S. at 568
.In conducting the Pickering balancing test,"[w]hen closeworking relationships are essential to fulfilling public respon-sibilities, a wide degree of deference to the employer's judg-ment is appropriate." Connick,
461 U.S. at 151
-52. If thepublic employer's interest in avoiding potential disruptionoutweighs the public employee's right to expression, no FirstAmendment protection exists. See Moran, 147 F.3d at 846.The Pickering test "requires particularized balancing basedon the unique facts presented in each case." Voigt v. Savell,70 F.3d 1552, 1560-61 (9th Cir. 1995). Because Pickering'sanalysis as to whether a public employee's expression is con-stitutionally protected requires a fact-sensitive, context-specific balancing of competing interests, "the law regardingsuch claims will rarely, if ever, be sufficiently`clearly estab-lished' to preclude qualified immunity under Harlow and itsprogeny." Moran, 147 F.3d at 847. Thus, we must decidewhether the outcome of the Pickering balancing test so clearlyfavored Lytle that it would have been patently unreasonablefor the Appellants to conclude that their actions were lawful.See Brewster, 149 F.3d at 980-81; Romero v. Kitsap County,931 F.2d 624, 627-28 (9th Cir. 1991).[8] Several Pickering factors weigh in favor of the publicemployer's need to maintain an efficient and cohesive schoolenvironment conducive to learning. The District has a legiti-mate interest in preventing disruption spawned by Lytle'sprior litigation. See Moran, 147 F.3d at 850. When the districtcourt reinstated Lytle, the District was justified in assigningher to teach kindergarten rather than fourth grade. The Districtreduced Lytle's preparation time to two days, but for goodreason: school had already started, and the three days nor-mally allotted to teachers are partially devoted to administra-tive meetings. Appellants' various meetings with Lytle andattempts to document their interaction also served this pur-pose.[9] Courts have recognized the potential for employeeexpression to disrupt a harmonious work environment. SeeRankin v. McPherson,
483 U.S. 378, 388
(1987); Brewster,149 F.3d at 980; Hyland v. Wonder, 972 F.2d 1129, 1139 (9thCir. 1992). Lytle's prior litigation created such disharmony.School staff members signed a petition critical of Lytle'sactions and expressed concern to the school board aboutLytle's behavior and her potential return to school. PrincipalWondrash told the school board that Lytle's litigation causedsignificant turmoil among staff members. Moreover, proof ofactual disruption is not required: an employer need only showthat the public employee's expression caused "reasonable pre-dictions of disruption." Waters v. Churchill,
511 U.S. 661
,673 (1994).[10] The potential for an employee's expression to interferewith the fulfillment of her own office duties is also relevantto the Pickering analysis. See Rankin,
483 U.S. at 388
;Hyland, 972 F.2d at 1139. Lytle's prior litigation created a riftbetween her and both her coworkers and her superior, Dr.Wondrash. An employee's "lack of trust and confidence" inan employer may potentially compromise on-the-job perfor-mance. See Brewster, 149 F.3d at 981 (citing Rendish, 123F.3d at 1225). Further, we have recognized that close workingrelationships require mutual trust and respect to be successful,and that these are the types of relationships where "a widedegree of deference to the employer's judgment isappropriate." Connick,
461 U.S. at 151
-52.In considering the Pickering balancing test, we recognize,of course, that certain considerations favor Lytle. As we notedearlier, speaking out against a school education programclearly constitutes a matter of public concern. Also weighingagainst the Appellants in this analysis is the fact that a juryfound meritorious Lytle's original claim for retaliation forspeaking out.Nonetheless, we need not dwell on each side's merits in thePickering balance because we are faced with the "much sim-pler task," Moran, 147 F.3d at 839, of deciding whether theoutcome of the Pickering balance so clearly favors Lytle thatit would have been unreasonable for the Appellants to believethat their actions were lawful. See Brewster, 149 F.3d at 981.[11] The Pickering balance in this case does not provideclear-cut results. The outcome of that balance does not soclearly favor Lytle "that it would have been patently unrea-sonable for the school officials to conclude that the FirstAmendment did not protect [her litigation]." Brewster, 149F.3d at 980. Accordingly, the constitutional right Lytle assertswas not clearly established at the time the Appellants alleg-edly retaliated against her, and as a result they are entitled toqualified immunity. See id. at 981.REVERSED.
_____________________________THOMAS, Circuit Judge, dissenting:In a thoughtful opinion, the district court denied qualifiedimmunity to six defendants in this case. Because I agree withthe district court's analysis, I respectfully dissent.Reliance on Brewster v. Board of Education, 149 F.3d 971(9th Cir. 1998), which grafted a balancing test underPickering v. Board of Education,
391 U.S. 563
(1968), into aqualified immunity analysis, is misplaced in this case. Thethrust of a Brewster inquiry is whether the purported exerciseof First Amendment rights is constitutionally protected in agiven context. As the Brewster court put it: The issue the court must decide, therefore, is whether the outcome of the Pickering balancing test so clearly favored Brewster that it would have been patently unreasonable for the school officials to con- clude that the First Amendment did not protect his speech.149 F.3d at 980 (citation omitted).However, that question is not at issue in this case. Indeed,everyone concedes that Lytle's prior litigation was constitu-tionally protected speech because it involved a matter of pub-lic concern. See Rendish v. City of Tacoma, 123 F.3d 1216,1223 (9th Cir. 1997), cert. denied 118 S. Ct. 2368 (1998).Thus, it is inappropriate to apply the balancing discussed inPickering and Brewster because the question of whether Lytlewas engaged in constitutionally protected activity was alreadysettled. A Pickering balancing is only required when there isdoubt about whether the speech should be afforded constitu-tional protection given the context of the public workplace.Because that question is not at issue, it is not proper to applyan additional Pickering threshold analysis.At the time of the alleged retaliatory actions in this case,Lytle had a clearly established right to be free from retaliationfor exercising her First Amendment right of access to thecourts. See Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310,1314 (9th Cir. 1989) (holding that deliberate retaliation bystate actors against an individual's exercise of the right ofaccess to the courts was actionable under S 1983). Pickeringitself clearly established that a teacher's exercise of FirstAmendment rights could not furnish the basis for an adverseemployment action. See Pickering,
391 U.S. at 574
.In a careful analysis of Lytle's contentions, Judge Ezradetermined that she had presented proof of actual retaliationfor the exercise of her right to access to the courts sufficientto survive summary judgment. Lytle tendered evidence thatshe was singled out for disciplinary treatment, refused accessto classroom materials, improperly denied sick leave, given awritten reprimand directing her to drop her complaints andreceived a death threat in a mailbox to which only schoolemployees had access. Given that the type of sanctionimposed by public employers need not be particularly great inorder to find that rights have been violated, see Hyland v.Wonder, 972 F.2d 1129, 1135 (9th Cir. 1992), the districtcourt appropriately concluded that triable issues of factexisted.Even if a Pickering analysis were appropriate in this con-text, qualified immunity could not be granted on the basis ofthis record. There was no evidence tendered to the districtcourt on the question of whether Lytle's assertion of her rightsby successfully obtaining a judgment in a lawsuit "impededthe teacher's proper performance of his daily duties " or"interfered with the regular operation of the schools gener-ally[,]" as Pickering put it. See
391 U.S. at 572
-73. Indeed,the theory argued by the defense to the trial court was not thatthe exercise of rights was disruptive to school operation, butrather that legitimate, non-discriminatory reasons supportedthe adverse employment actions. There is a substantial differ-ence between the theories. Although the existence of non-discriminatory rationale is a legitimate defense, it is not aPickering or Brewster defense. Thus, even if Brewster wereapplicable to this case, the record cannot support summaryjudgment on qualified immunity. To determine, as a matter oflaw, that Lytle's assertion of her constitutional rights was sodisruptive that it interfered with school operation, one mustresort to speculation outside the record. That, as a matter oflaw, is insufficient under Pickering, in which the SupremeCourt made a specific finding that activities were "neithershown nor can be presumed to have in any way eitherimpeded the teacher's proper performance of his daily dutiesin the classroom or to have interfered with the regular opera-tion of the schools generally." Id. Although the arguments inthis case clearly demonstrate that the parties are unhappy witheach other, significant interference with government opera-tions must be shown, not presumed.Although the Pickering defense was asserted to us at oralargument, a different theory was argued to the district court.Thus, even if we were to deviate from the normal appellatepractice of declining to address arguments that were not thebasis for the appealed decision, see Peralta v. Heights Medi-cal Center, Inc.,
485 U.S. 80, 86
(1988), the record does notfurnish us the ability to do so.In sum, I respectfully suggest that (1) the majority hasapplied Brewster and Pickering to a circumstance for whichbalancing was not intended, or appropriate, and (2) the recorddoes not support the results of a balancing inquiry articulatedby the majority. I would affirm Judge Ezra's well-reasonedqualified immunity analysis. Accordingly, I respectfully dis-sent. the end
___________________________FOOTNOTES 1 The Honorable Harlington Wood, Jr., Senior Seventh Circuit Court ofAppeals Judge, sitting by designation.