Chung v. County of Santa Clara

Background

Daniel Chung, then a deputy district attorney for Santa Clara County, published an opinion piece in a local newspaper on February 14, 2021. The piece discussed criminal-justice reform and violence against Asian Americans following the COVID-19 pandemic. It did not specifically mention Santa Clara County, the district attorney’s office, the district attorney, or an investigation or proceeding in which Chung was participating. Chung alleged that he wrote as a private citizen and that writing opinion pieces or providing commentary to local newspapers was not part of his official duties.

Chung alleged that after publication he was reassigned from the Violent Felonies Unit to Mental Health Court and then Juvenile Justice, suspended for two weeks, placed on administrative leave, escorted from the district attorney’s office by armed investigators, barred from County property, and suspended for two weeks without pay. He brought one claim under 42 U.S.C. § 1983, a statute that allows a person to sue for violations of federal rights by officials acting under government authority. He alleged that Santa Clara County and Jeffrey Rosen violated the First Amendment by retaliating against him for his speech.

The defendants again moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which asks whether the complaint alleges enough facts to state a legally plausible claim. This was Chung’s amended complaint after the court had previously dismissed his original complaint.

Requests for judicial notice

The court declined to consider emails that the defendants argued were incorporated into Chung’s complaint. The complaint did not refer to the emails in enough detail, and the emails were not integral to the claim. The court also declined to take notice of a February 5, 2021 newspaper article and emails concerning a public-records request because the materials were not relevant to whether Chung had adequately pleaded retaliation.

The court did take notice of excerpts from the County Charter, County Ordinance Code, and District Attorney’s Office Policy and Procedure Manual. It found those materials could be accurately determined from sources whose reliability could not reasonably be questioned and that the policy manual was relevant to whether communicating with the press was part of Chung’s job duties.

First Amendment claim

The court applied the framework used for First Amendment retaliation claims by public employees. The relevant questions include whether the employee spoke on a matter of public concern, spoke as a private citizen rather than as part of official duties, and whether the speech motivated the adverse employment action. The parties disputed only whether Chung spoke as a private citizen.

The court held that Chung had adequately pleaded that he spoke as a private citizen, at least at the dismissal stage. Chung alleged that his duties did not include writing opinion pieces or providing general commentary to local newspapers, that his media-related duties involved responding to inquiries about cases he was handling, and that the opinion piece was not a response to a media inquiry. The court also noted that the piece did not discuss a case or investigation in which Chung was participating.

The court rejected the argument that the opinion piece became employee speech merely because Chung used knowledge gained through public employment. It stated that speech concerning information learned through public employment does not automatically become official-duty speech. The court also considered significant that the piece was published outside Chung’s chain of command, addressed broad public concerns, and allegedly resulted in harassment by superiors. Whether Chung’s actual job duties included the type of commentary at issue would be addressed at a later stage.

County liability

The court dismissed the claim against Santa Clara County because Chung did not adequately plead municipal liability under the rule commonly called Monell liability. A municipality is not liable under § 1983 solely because one of its employees allegedly violated the Constitution. The plaintiff must plausibly allege that a County policy, custom, or practice caused the violation.

Chung alleged two incidents involving retaliation against deputy district attorneys: his own case and the alleged reassignment of James Sibley after Sibley spoke publicly about Rosen’s use of administrative leave. The court held that these allegations did not show a longstanding and sufficiently consistent practice. It also found that Chung’s allegation that retaliation was “well known” within the district attorney’s office was too conclusory.

The court further held that Rosen was not the final policymaker for County personnel decisions. Although the County Ordinance Code gave Rosen authority to appoint, suspend, or remove employees, the governing documents allowed those decisions to be appealed to the Personnel Board and indicated that employment policy was set elsewhere. The court also found that Chung had not adequately pleaded that Rosen delegated authority or ratified the alleged conduct. Simply stating that Rosen “authorized or ratified” the actions did not allege enough facts showing that Rosen knew of and approved the alleged constitutional violation.

The court therefore dismissed the claim against Santa Clara County with leave to amend.

Rosen’s individual liability

The court also dismissed the claim against Rosen in his individual capacity. A supervisor may be individually liable under § 1983 for personal involvement in a constitutional violation or for a sufficient causal connection between the supervisor’s conduct and the violation. Chung alleged that Rosen authorized or ratified the disciplinary actions, acted with deliberate indifference, and failed to investigate or remedy the conduct of subordinates.

The court found those allegations too conclusory because the complaint did not specify how Rosen participated in the alleged retaliation. The court noted Chung’s statement that Rosen had testified during related arbitration about personal involvement in discussions concerning Chung and the opinion piece, but those facts were not included in the complaint. Because additional facts might make the claim plausible, the court dismissed the claim against Rosen with leave to amend.

Disposition

The order’s opening states that the defendants’ motion to dismiss was “GRANTED in part and DENIED in part with leave to amend.” The court denied dismissal to the extent Chung adequately alleged that he spoke as a private citizen, but dismissed the claims against the County and Rosen because the allegations of liability were insufficient. The conclusion instead states that the motion was “GRANTED with leave to amend.” Any amended complaint was due within 20 days of issuance of the order.

Classification note

This is a procedural order because it ruled on a Rule 12(b)(6) motion to dismiss, which tests whether the complaint adequately states a claim rather than deciding the ultimate merits of the retaliation claim.