Fifth Circuit rules for former 13th COA Chief Justice Rogelio Valdez in spat over staff attorney (non)hiring

Bruce M. Anderson v. Rogelio Valdez, No 17-41243 (5th Cir. Jan 14, 2019) (chief justice of state appellate court entitled to qualified immunity in retaliation claim brought by former staff attorney who reported chief justice for possible financial improprieties). 

Bruce M Anderson v. Rogelio Valdez No 17-41243 (5th Cir. Jan 14, 2019) 

Fifth Circuit concludes, in interlocutory appeal, that former Chief Justice of the 13th Texas Court of Appeals Rogelio Valdez should have been granted summary judgment. Court rules that Valdez is entitled to qualified immunity because it was not clearly established as of May 2014 that, where a briefing attorney swore as part of his employment to comply with a code of conduct requiring him to report judicial misconduct to a specific state authority, he nonetheless spoke as a citizen in reporting a judge to that authority, which is an essential element of a Section 1983 claim by a public employee. 

“To establish a § 1983 claim for employment retaliation related to speech, a plaintiff-employee must show: (1) he suffered an adverse employment action; (2) he spoke as a citizen on a matter of public concern; (3) his interest in the speech outweighs the government’s interest in efficient provision of public services; and (4) the speech precipitated the adverse employment action.

Anderson’s Oath of Briefing Attorney subjected Anderson to the Texas Code of Judicial Conduct, requiring that he swear that he would “observe the standards of fidelity and diligence prescribed.” In turn, the Code of Judicial Conduct requires judges—and, by extension, Anderson—“having knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge’s fitness for office [to] inform the State Commission on Judicial Conduct or take other appropriate action.” Anderson stated multiple times that he reported Valdez to the State Commission on Judicial Conduct to meet this obligation. 

We conclude that it was not clearly established that Anderson’s original complaint to the State Commission on Judicial Conduct was not employee speech. It follows that Valdez is entitled to summary judgment on qualified immunity grounds concerning Anderson’s later contact with the District Attorney. There may be cases where a public employee’s later, protected speech as a citizen was sufficiently attenuated from his earlier, unprotected speech as an employee that it can ground a retaliation claim. Not here.

The court points out that in an earlier appeal at the motion-to-dismiss stage (Anderson I) it had no occasion to consider the status of a job-imposed duty mirroring a “citizen analogue,” because Valdez’s sole argument at that stage was that Anderson had an independent—not a job-imposed—obligation as a lawyer to report misconduct. Based on that distinction, the Court stated that its resolution at the summary judgment stage is not in tension with Anderson I. 

Anderson v. Valdez (Anderson I), 845 F.3d 580 (5th Cir. 2016).

Chief Justice Rogelio Valdez term expired 12/31/2018
(screenshot of official profile)

Reversing the court below, the Fifth Circuit disposed of Anderson's claim against Valdez in this individual capacity based on qualified immunity because the law was not clearly established at the time of the alleged retaliation. It also rejected Anderson's official-capacity claim for equitable relief in the form of reinstatement on the basis that the position of staff attorney that he was not hired for no longer existed because the judge in question (Justice Perkes) was no longer in office, and that there was no ongoing violation of federal law in the failure to hire Anderson for a different staff attorney position with a different judge. 

As pointed out in a footnote, the administrative rules of the Thirteenth Court of Appeals provide that “[e]ach justice shall be solely responsible for all employment and management decisions regarding his or her staff.” Similarly, the court’s hiring procedures provide that “[s]enior attorneys, briefing attorneys, and legal assistants shall be hired by the Justice to whom they are assigned.” 

Chief Justice Valdez' term expired at the end of 2018. He is succeeded by Justice Dori Contreras who won the contest for chief in the November 2018 election, having previously served as an associate justice on the same intermediate appellate court. The Thirteenth is unique in that it sits in two places: Corpus Christi and Edinburg. All current members have Hispanic surnames.