Terrance M. ALLEN, Plaintiff/Appellant, v.

Jerry SCRIBNER, Hans Van Nes, Olaf Leifson, Gordon Tween, Robert Milam, Richard Rominger, Lyndon Hawkins, Robert Hobza, Robert V. Dowell, Charles D. Hunter, and John Does 9 Thru 250, Defendants/Appellees. No. 85-2125.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 1986.

Decided March 5, 1987.

Stanley G. Hilton, Michael S. Sorgen, San Francisco, Cal., for plaintiff/appellant.

George Chris Stoll, San Francisco, Cal, Susan R. Oie, Sacramento, Cal,, for defendants/appellees.

Appeal from the United States District Court for the Northern District of California.

Before NELSON, CANBY and NOONAN, Circuit Judges.

NELSON, Circuit Judge: Terrance Allen, an entomologist employed by the California Department of Food and Agriculture ("the Department"): filed an action for damages against the

Department, eight Department employees,^{Footnote 1} and two employees of the United States Department of Agriculture ("USDA"),^{Footnote 2} alleging violations of his civil rights under both 42 U.S.C. § 1983 and the first amendment of the Constitution.^{Footnote 3}

The gravamen of Allen's complaint is that he was removed from the Mediterranean Fruit Fly Eradication Project ("the Project") in Santa Clara County, reassigned to another position, and otherwise harassed in retaliation for, and in anticipation of, remarks he made to the press about an alleged breach of public trust by Project management. The district court granted summary judgment for the defendants after denying Allen's motion for change of venue. On appeal, Allen seeks reversal of both the summary judgment and the denial of his venue motion.

We reverse the summary judgment as to all of the defendants, affirm the denial of Allen's venue motion, and remand for further proceedings consistent with this opinion.

FACTS In June 1980, Mediterranean fruit flies were discovered in both Santa Clara and Los Angeles Counties. To combat this serious threat to California's agriculture industry, eradication programs were immediately established in both Northern and Southern California under the aegis of the Department, the USD A, and the two county agricultural commissioners. Allen was assigned to supervise the fruit collection/larvae detection section of the Santa Clara Project in July 1980.

On August 5, 1980, federal defendant Gordon Tween issued a memorandum prohibiting Project employees from talking to the media. In November 1980, Allen distributed to members of the Project's Technical Review Committee ("TRC") a report concluding that the medfly infestation was more extensive than Project officials had acknowledged in their statements to the press. Federal defendant Robert Milam learned of Allen's report at a November 20, 1980, meeting of the TRC, and allegedly issued to Allen a threat meant to keep the entomologist from airing any of his opin ions publicly. ^{Footnote 4}

Nevertheless, in November and December of 1980, and in January of 1981, Allen told the news media that Project management "did not have a 'han dle' " on the medfly infestation problem.

On December 18, 1980, Richard Rominger, Director of the California Department of Food and Agriculture ("CFDA"), appointed state defendant Jerry Scribner to take over leadership of the Project. Rominger and Scribner decided that the Project needed reorganizing to integrate the chain of command among federal and state employees. On December 21, 1980, Scribner implemented the reorganization plan he and Rominger had developed, taking Allen's collection section out of the trapping unit and elevating it to a separate unit reporting directly to Gordon Tween. By then, the medfly problem had become acute. Governor Edmund G. Brown, Jr., was about to proclaim a state of emergency in Santa Clara and Alameda Counties on December 24, 1980. On January 12, 1981, and again on January 14, Tween asked

Allen to implement a new larvae surveillance system. Both times Allen refused to change his methodology. Also on January 12, 1981, Scribner allegedly told Allen to cancel a scheduled media interview and prohibited him from granting any further interviews. On January 15, 1981, Allen was removed from the collection unit. Upon being transferred to the Project's ground spray unit, Allen was given direct orders to stay away from the collection unit. However, on January 19, 1981, the new supervisor of the collection unit reported to Scribner that Allen had interfered with her efforts to give the crews their instructions that morning.

Scribner contacted Robert McCarry, the Personnel Officer for the Department in Sacramento, to inquire whether Allen could be transferred back to Sacramento, McCarry told him that personnel rules allowed management to assign employees according to the Department's needs so long as each employee's duties were commensurate with his classification. Scribner then informed Allen that he was transferring him back to Sacramento.

Allen contends that his new assignment consisted primarily of "trivial clerical tasks" and bore no relationship to his training and experience. He further alleges that he was the subject of continued harassment designed both to prevent him from voicing his opinion and to punish him for his having already done so. Specifically, his complaint asserts that: (i) all of the state defendants made defamatory statements to the media with the intent of discrediting him; (ii) state defendants Scribner, Hans Van Nes, Richard Rominger, and Lyndon Hawkins intimidated him in order to prevent him from testifying before the California Senate Agricultural Committee; (iii) state defendants Olaf Liefson, Robert Hobza, Robert Dowell, and Charles Hunter threatened and harassed him between January and August of 1981; and (iv) one or more of the state defendants harassed him by confiscating his phone messages from the press. ^{Footnote 5}

Allen filed suit in the United States District Court for the Northern District of California, seeking damages from the state defendants under 42 U.S.C. § 1983, and from the federal defendants directly under the first amendment of the Constitution. ^{Footnote 6}

He asserted that the defendants' actions caused him mental and physical harm, as well as damage to his reputation. On December 3, 1984, Allen filed a motion under 28 U.S.C. § 1404{a) seeking a transfer of venue to the Eastern District of California. On January 4, 1985, the trial judge denied the motion because "the bulk of the cause of action occurred in [the Northern District]," and because he was "quite familiar" with the case after some three and one-half years. ^{Footnote 7}

The defendants then filed motions for summary judgment. The district court granted those motions on May 3, 1985, and Allen timely filed his notice of appeal.

ISSUES I.

Did Allen's remarks to the media fall outside the protection of the first amend ment as a matter of law? II.

If Allen's remarks are not outside of first amendment protection, did undisput ed facts show that he would have been transferred and harassed on the basis of his non-speech conduct anyway?

III.

Were Scribner and the federal de fendants entitled to summary judgment on the ground of qualified immunity? IV.

If this court decides to reverse the summary judgment, should it remand with instructions to grant Allen's motion for change of venue?

STANDARD OF REVIEW We review the district court's grant of a motion for summary judgment de novo. Lew v. Kona Hosp.,  754 F.2d 1420, 1423 (9th Cir.1985). We view the evidence in the light most favorable to the party opposing the motion and accord that party's papers a liberal construction. Id.; see also 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2738, at 484 (1983). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., -' U.S.-----------S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986) (citing Adickes v. S.H. Kress & Co.,  398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970)).

We affirm only if there is an absence of any genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. Lew, 754 F.2d at 1423. The Supreme Court has analogized the standard for summary judgment to that for a directed verdict and observed: "If reasonable minds could differ as to the import of the evidence ... a verdict should not be directed." Anderson, 106 S.Ct. at 2511. The Court also noted that "at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id.

We review the district court's denial of a motion to change venue for abuse of discretion. Commodity Futures Trading Comm'n v. Savage,  611 F.2d 270, 279 (9th Cir.1979).

DISCUSSION I. Allen's Speech as Protected Expression In evaluating the first amendment rights of a public employee, the threshold inquiry is whether the statements at issue address a matter of public concern. ^{Footnote 8}

As the Supreme Court has so often recognized, such speech occupies the "highest rung of the hierarchy of [fjirst [ajmendment values." NAACP v. Claiborne Hardware Co.,  458 U.S. 886, 913, 102 S.Ct. 3409, 3425-26, 73 L.Ed.2d 1215 (1982); see also Connick v. Myers,  461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983); Carey v. Brown,  447 U.S. 455, 467, 100 S.Ct. 2286, 2293-94, 65 L.Ed.2d 263 (1980). It is "more than self-expression; it is the essence of self-government," worthy of special , 106 protection. Garrison v. Louisiana,  379 U.S. 64, 74-75, 85 S.Ct. 209, 215-16, 13 L.Ed.2d 125 (1964); see also Mills v. Alabama,  384 U.S. 214, 218-19, 86 S.Ct. 1434, 1436-37, 16 L.Ed.2d 484 (1966); New York Times Co. v. Sullivan,  376 U.S. 254, 26970, 84 S.Ct. 710, 720-21, 11 L.Ed.2d 686 (1964).

The Court has not articulated a precise definition of "public concern," however. It has allowed only that the determination of whether an employee's speech deals with such an issue is to be made with reference to "the content, form, and context" of the speech. Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690-91. In Pickering v. Board of Education,  391 U.S. 563, 571-72, 88 S.Ct. 1731, 1736-37, 20 L.Ed.2d 811 (1968), the Court determined that a high school teacher's open criticism of the school board for its allocation of funds between athletics and education, and for its methods of informing taxpayers about revenue needs, addressed "a matter of legitimate 'public concern.'" ^{Footnote 9} In Connick v. Myers, 461

U.S. at 148, 103 S.Ct. at 1690, questions posed by an assistant district attorney to her co-workers about (i) their confidence and trust in certain supervisors, (ii) the level of office morale, and (iii) the need for a grievance committee, did not "fall under the rubric of matters of public concern." This court has synthesized these holdings as follows: Speech by public employees may be characterized as not of "public concern" when it is clear that such speech deals with individual personnel disputes and grievances and that the information would be of no relevance to the public's evaluation of the performance of governmental agencies. See Connick. On the other hand, speech that concerns "issues about which information is needed or appropriate to enable the members of society" to make informed decisions about the operation of their government merits the highest degree of first amendment protection. Tkornhill v. Alabama, 310 U.S.

88, 102 [80 S.Ct. 736, 744, 84 L.Ed. 1093] (1940) (footnote omitted). McKinley v. City of Eloy,  705 F.2d 1110, 1114 (9th Cir.1983).

The state defendants contend that Allen's public criticism of the Project, particularly his criticism of management's communications regarding the extent of the medfly infestation, did not involve "government policy." Insofar as the state defendants mean to suggest that Allen's speech did not address a "matter of public concern," they are incorrect. In McKinley v. City of Eloy, 705 F.2d at 1114-15, this court had "no difficulty" deciding that a probationary police officer's criticism of the city for its failure to grant annual pay raises to the police force "substantially involve^] matters of public concern." Just as the speech in McKinley was "purposefully directed to the public," id. at 1115, and related to the "competency of the police force." id. at 1114, as well as " 'the efficient performance of [police] duties,'" id. (quoting Connick, 461 U.S. at 148, 103 S.Ct. at 1691), so too was Allen's speech directed to the public, ^{Footnote 10} and related to the competency of Project management as well as the efficient performance of Project duties. Indeed, Allen's speech may rest more firmly on the "highest rung of the hierarchy of [fjirst [a]mendment values," Claiborne Hardware, 458 U.S. at 913, 102 S.Ct. at 3425, because it "bring[s] to light a[n alleged] breach of public trust on the part of [public officials]." Connick, 461 U.S. at 148, 103 S.Ct. at 1691. Such allegations are arguably the most fundamental sort of first amendment expression, given the first amendment's role in facilitating self-government. See id. at 161, 103 S.Ct. at 1697-98 (Brennan, J., dissenting) ("We have long recognized that one of the central purposes of the [fjirst [ajmendment ... is to protect, the dissemination of information on the basis of which members of our society may make reasoned decisions about the government.") (citing Mills v. Alabama, 384 U.S. at 218-19, 86 S.Ct. at 1438-37; New York Times Co. v. Sullivan,  376 U.S. 254, 269-70, 84 S.Ct, 710, 720-21, 11 L.Ed.2d 686 (1964); A. Meikiejohn, Free Speech and Its Relation to Self-Government 22-27 (1948)); see also Saxbe v. Washington Post Co.,  417 U.S. 843, 862, 94 S.Ct. 2811, 2821, 41 L.Ed.2d 514 (1974) (Powell, J., dissenting) ("No aspect of that constitutional guarantee is more rightly treasured than its protection of the ability

of our people through free and open debate to consider and resolve their own destiny.")Of course, even speech dealing with matters of public concern is subject to governmental regulation. See Cox v. Louisiana,  379 U.S. 536, 558, 85 S.Ct. 453, 466,13 L.Ed.2d 471 (1965) (time, place, and manner regulations proper when reasonably related to valid public interest). In the public employment context, "[t]he problem ... is to arrive at a balance between the interests of the [employee] as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35. Thus, the Court upheld the firing of the assistant district attorney in Connick'even though one of her questions to fellow workers "touched" upon a matter of public concern'because it was reasonable for her supervisor to have believed that the speech would "disrupt the office, undermine his authority, and destroy close working relationships." 461 U.S. at 154, 103 S.Ct. at 1694. ^{Footnote 11}

Yet it might have been necessary, cautioned the majority, for the government to make "a stronger showing" of disruption "if the employee's speech [had] more substantially involved matters of public concern." Id. at 152, 103 S.Ct. at 1692-93. ^{Footnote 12}

Exactly what that "stronger showing" entails is unclear. The Supreme Court has deemed it both inappropriate and unfeasible to lay down a general standard "[b]ecause of the enormous variety of fact situations in which critical statements by ... public employees may be thought by their superiors ... to furnish grounds for dismissal." Pickering, 391 U.S. at 569, 88 S.Ct. at 1735; Connick, 461 U.S. at 154, 103 S.Ct. at 1694. In this circuit, a police department ordinarily will not be governed by the same standard as a school district: "Substantial differences between the public interest in education and the public interest in safety and order justify a difference in the standards by which the respective institutions may protect themselves from ... their employees." Byrd v. Gain,  558 F.2d 553, 554 (9th Cir.1977) (refusing to expunge reprimands from personnel files of officers who had issued public statements about the police department's stop-and-frisk tactics), cert, denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978); see also Kannisto v. City of San Francisco,  541 F.2d 841 (9th Cir.1976) (discussed supra note 12), cert, denied, 430 U.S. 931, 97 S.Ct. 1552, 51 L.Ed.2d 775 (1977). Yet even in a police department, the complained-of disruption must be "real, [and] not imagined." McKinley, 705 F.2d at 1115. The disruption exception cannot "serve as a pretext for stifling legitimate speech or penalizing public employees for expressing unpopular views." Id.

In Phillips v. Adult Probation Dep't,  491 F.2d 951 (9th Cir.1974) which upheld the suspension of a probation officer who

had refused to remove a political poster from his office, the government's allegation of disruption was well documented: The clerk typist and receptionist ... stated that the poster was disruptive to her [work], and she would not do any more typing for [the officer]. Two others stated that the poster made them 'extremely upset' and 'extremely angry,' one of them (a senior ... officer) stating further that it was a 'detrimental morale factor.' Another senior ,.. officer stated that ... the poster personally offended him and that unless it was removed 'a problem would arise within the department since other[s] ... were also offended by the poster.' Id. at 953 n. 4. The supervisor testified that "if [he had] not take[n] immediate action, ... morale would have been devastated] at a time when tremendously heavy case loads imposefd] a severe burden upon [the] staff." Id. at 953.

Here, the defendants have put forth no explanation of how Allen's statements to the media impeded his ability to perform his job or interfered with, the Project's public responsibilities. Cf. Connick, 461 U.S. at 151-52, 103 S.Ct. at 1692-93. ^{Footnote 13}

sure, the medfly infestation represented a serious threat to California's agriculture industry. Other agricultural states, as well as Japan, were poised to quarantine California produce. Yet the very seriousness of the threat underlines the importance of speech meant to inform the public of mismanagement on the part of those entrusted to contain the threat, Thus, the defendants' invocation of the threat should not be enough to justify their alleged restriction of speech. If the efficient functioning of the eradication program necessitated police-type discipline, then the defendants must explain why. If the defendants judged Allen's speech to be a disturbance to the Project's work, then they must be held at least to an assertion of the basis upon which that judgment rested. ^{Footnote 14}

The district court erred in concluding that all adverse action against Allen was justified because of the nature and context of his statements to the media. Accordingly, we proceed to a discussion of whether Allen would have suffered his alleged harm even had he not engaged in his protected speech.

II. Allen's Protected Expression as the Predicate for His Alleged Harm The district court concluded that Allen's "exercise of his [f]irst [a]mendment rights played no part in the acts complained of and that the same transfer decisions would have been made even if [he] had not exercised those rights." In ML Healthy City Bd. of Educ. v. Doyle,  429 U.S. 274, 287, 97 S.Ct. 568, S76, 50 L.Ed.2d 471 (1977), the Supreme Court noted that it is the public employee's burden to show that his constitutionally protected expression was a "substantial" or "motivating" factor in the employer's adverse decision or To be conduct. Once the employee satisfies his burden, the employer must show that it would have reached the same decision or that it would have engaged in the same conduct even in the absence of the protected expression. The Court reasoned that "[a] rule of causation which focuses solely on whether protected [expression] played a part, 'substantial' or otherwise, in a decision not to rehire, could place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing." Id. at 285, 97 S.Ct. at 575. ^{Footnote 15}

Viewed in the light most favorable to the nonmoving party, the evidence indicates that Allen's protected expression was a "substantial" factor in both his transfer ^{Footnote 16} and his harassment. ^{Footnote 17}

davits of two co-workers bear directly on the issue of Allen's transfer, and suggest that his expressive activity motivated the transfer. In his affidavit of February 18, 1983, Michael Arciero stated: In November 1980, a number of ... USDA [P]roject officials made comments The affito me that ... Allen should be removed from the ... [P]roject because of the way in which he expressed his opinions

concerning the degree of ... infestation. These officials disagreed with him on his opinions, and felt that he should be removed. They called [Allen] a "troublemaker." And in her July 20, 1982 affidavit, Cynthia Watts swore to the following: Gordon Tween told me that he had been instructed by several [s]tate and/or [federal officials to remove Allen from his duties of fruit collecting. Tween told me that these officials wanted to have Allen removed from the Project and were looking for an excuse to remove ... Allen ... from the Project entirely, so they ... told ... Tween ... to remove Allen from his duties on the basis of a "disagreement" on the use of maps. ^{Footnote 18}

Whether Allen would have been transferred notwithstanding his first amendment expression is "a genuine issue of material fact," Fed.R.Civ.P. 56(c), and is therefore inappropriate for summary judgment. The evidence put forth by the defendants is definitive only in establishing that Allen could have been transferred off the collection unit and back to Sacramento because of his non-protected activity (i.e., his refusal to obey orders), and not that he would have been transferred. In Mt. Healthy, as noted above, the Court opined that the government's burden is to show that "it would have reached the same decision as to [the plaintiffs'] employment even in the absence of the protected [expression]." 429 U.S. at 287, 97 S.Ct. at 576 (emphasis added). That Allen's insubordinate conduct might have justified an adverse employment decision, including a transfer, does not suffice. The employee in Mt. Healthy was a nontenured high school teacher who "could have been discharged for no reason whatever." Id. at 283, 97 S.Ct. at 574 (emphasis added). Yet the case was remanded so that the district court might determine whether the teacher would have been discharged.

With respect to the alleged harassment, the defendants do not attempt to argue that they would have accorded Allen the same treatment even if he had not engaged in protected expression. Much of the harassment was allegedly meted out in the