The case is Latreille v. Gross, a summary order decided on November 15. This is a public employee First Amendment retaliation case. Plaintiff worked for Orange County. The decision is not clear on this, but she was evidently disciplined for disclosing certain public assistance information to law enforcement. Public employees do have some speech rights, but they are limited under Garcetti v. Ceballos, 547 U.S. 410 (2006), which says employee speech is not protected under the First Amendment if the employee speaks pursuant to her job duties and does not speak as a citizen. The trial court denied the County's summary judgment motion on this issue.
Normally, when the court denies defendant's summary judgment motion, the case heads to trial or the parties settle. But in Section 1983 cases, individual defendants can invoke qualified immunity, which gets them off the hook if they did not violate clearly-established law. If the trial court denies that motion, the government defendant can take up an immediate appeal (we call it an interlocutory appeal) on the qualified immunity theory, on the basis that government defendants have the right to get out of the case at the earliest possible opportunity. The kicker, though, is that, in taking up the appeal, the government has to assume for purposes of the appeal that the plaintiff's version of events is correct and that, even under the plaintiff's side of the story, the government defendant is entitled to immunity.
This is easier said than done. Government lawyers certainly know that the rule that in order to take an interlocutory appeal, they have to assume for the time being that the plaintiff's account is true. But in writing the brief, government lawyers will still press their side of the story. The Court of Appeals is wise to this tactic, and it notes in this case that it dismisses these appeals all the time without reaching the merits because it often finds that the case is too fact-specific for appellate review at this early stage. That is what happened here. Here is how the Court of Appeals reasons it out:
Gross and Miller profess — as they must — to pursue their interlocutory appeal based on the facts alleged by Plaintiff-Appellee Nicole S. Latreille. However, upon our review of the record and despite Gross and Miller's representations to the contrary, we conclude that Gross and Miller do not proceed on this basis. We thus must dismiss their appeal for lack of appellate jurisdiction.
As one example, Gross and Miller spend considerable time arguing that Latreille's disclosures to law enforcement of public assistance records, insofar as they related to welfare fraud, were within the scope of her professional responsibilities and therefore not constitutionally protected. Based on the record, we lack jurisdiction to review this challenge. The district court determined that "[t]he parties don't dispute that Plaintiff's investigation was outside of her official job responsibilities." S.A. 15-16 (emphasis added). And there is ample record evidence that Latreille's job responsibilities did not include fraud investigation of any sort, whether it be welfare or mortgage fraud. See, e.g., J.A. 120 (noting that it is not "within [Latreille's] job description to conduct investigations into fraud"); id. at 113 (noting that the work "expanded beyond [her] job duties"); id. at 133 (noting that the information was not "pertinent" to Latreille's job); id. at 269 (noting that her "investigations and disclosures were outside the scope of her work responsibilities");id. at 552 (noting at Miller's deposition that "investigating to begin with" is not part of Latreille's duties); id. at 624 (noting in Bradshaw's complaint letter that "[t]his certainly is not part of our job description"). Some of this record evidence is even cited in Gross and Miller's own Rule 56.1(a) statement.
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