Arkin v. Batchelder

MEMORANDUM * Although the question is a close one, we conclude that Michael Arkin’s decision to represent County employees who complained of sexual harassment and a hostile workplace environment, and his expression of support for the employees in the form of his February 12 letter, fell within the First Amendment’s ambit. See Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 923-24 (9th Cir.2004), cert. denied, 544 U.S. 975 , 125 S.Ct. 1838 , 161 L.Ed.2d 725 (2005). We also conclude that, on the unique facts of this case, the adverse employment actions that Spencer Batchelder took against Arkin in reaction to Arkin’s First Amendment activity were not justified by “legitimate administrative interests” sufficient to outweigh Arkin’s interests. See id. at 923; Fabiano v. Hopkins, 352 F.3d 447, 455-57 (1st Cir.2003); see also Rankin v. McPherson, 483 U.S. 378 , 388 n. 13, 107 S.Ct. 2891 , 97 L.Ed.2d 315 (1987) (“[A] purely private statement on a matter of public concern will rarely, if ever, justify discharge of a public employee.”). We therefore conclude that Arkin’s First Amendment rights were violated. We nevertheless reverse the district court because Batchelder is entitled to qualified immunity. Even if Batchelder’s conclusion that Arkin’s position created a conflict of interest sufficient to justify termination was mistaken, the mistake was a reasonable one. See Saucier v. Katz, 533 U.S. 194 , 205, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001); Fabiano, 352 F.3d at 458 . Similarly, even if Batchelder erred in concluding that the superior court’s ruling was erroneous and not binding on him, this error too was reasonable. REVERSED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. SILVERMAN, Circuit Judge, concurring in the result. I agree that summary judgment in favor of Batchelder should have been granted, *737 but for a different reason. “[A]n employee’s status as a policymaking or confidential employee [is] dispositive of any First Amendment retaliation claim.” Biggs v. Best, Best & Krieger, 189 F.3d 989, 994-95 (9th Cir.1999). Attorneys in government service, other than public defenders, are generally labeled “policymakers” for First Amendment purposes. Id. at 995-96 . Arkin was “Chief Counsel/Litigator,” hired by Calaveras County to “provid[e] competent and timely legal advice and representation to the Calaveras Works and Human Services Agency, Child Protective Services Division.” His position entailed the responsibilities of a traditional “policymaker.” Arkin was hired for his technical competence, and his position required him to advise county officials. See id. at 995 . Furthermore, the County fully delegated to Arkin its responsibility to represent CPS, and Arkin, as chief litigator, had authority to speak as an agent of the County in juvenile court. Cf. Walker v. City of Lakewood, 272 F.3d 1114, 1133 (9th Cir.2001). Under the facts of this case, our precedents allowed Batchelder to terminate Ar-kin without fear of a First Amendment retaliation claim. As Arkin has not shown that his constitutional rights were violated, it is unnecessary to go any further.