and Submitted October 20, 2016 San Francisco, California
from the United States District Court Nos. 2:12-cv-00788-FJM
2:13-cv-01148-FJM for the District of Arizona Frederick J.
Martone, Senior District Judge, Presiding
Kimberly A. Demarchi (argued) and Jared L. Sutton, Lewis Roca
Rothgerber LLP, Phoenix, Arizona; Michele M. Iafrate, Iafrate
& Associates, Phoenix, Arizona; for
J. Cohen (argued), Cohen Law Firm, Phoenix, Arizona, for
Before: Carlos T. Bea and Sandra S. Ikuta, Circuit Judges,
and Jane A. Restani, [*] International Trade Judge.
panel reversed the district court's judgment in favor of
plaintiff following jury verdicts and vacated the
attorneys' fee award in plaintiff's action brought
under 42 U.S.C. § 1983 and state law alleging she was
fired from the Maricopa County Attorney's Office in
retaliation for a statement she made to a local newspaper
regarding a case she handled for the Maricopa County
panel held that no reasonable jury could conclude that County
risk management officials improperly interfered with
plaintiff's employment contract when they requested
reassignment of her risk management cases to other lawyers
after she made statements to the newspaper. Accordingly, the
panel reversed the jury's verdict against the defendant
officials on the state law tortious interference with
contract claim because, as a matter of law, defendants'
conduct was not improper.
panel held that with the legally defined scope of an
attorney's duties in mind, it was obvious that
plaintiff's comments to the newspaper could not
constitute constitutionally protected citizen speech under
the principles from Dahlia v. Rodriguez, 735 F.3d
1060, 1074-76 (9th Cir. 2013). Accordingly, the
panel reversed the jury's First Amendment retaliation
the panel remanded for the district court to enter judgment
for defendants, there were no successful claims that could
serve as the basis for a fee award. As such, the panel held
that the district court's fee award must be vacated.
Maria Brandon worked for many years as a civil litigation
attorney for the Maricopa County Attorney's Office
(MCAO), and later (briefly) as a direct employee of Maricopa
County, defending the county and related entities in civil
lawsuits, before again returning to her previous employment
at the MCAO. During her time as a direct employee of the
county she received a call at her office from a newspaper
reporter inquiring about a case she was handling for the
Maricopa County Sheriff's Department. One of her comments
to the reporter about the case was later published in an
article in that newspaper. This article suggested that the
county substantially increased settlement offers to avoid
having key county officials testify.
Brandon returned to the MCAO, county officials responsible
for overseeing risk management and civil lawsuits against the
county thought her conduct in talking about the case
mentioned was unprofessional for a lawyer representing the
county. In light of what they considered were justifiable
misgivings regarding Brandon's judgment, these officials
requested that Brandon not be assigned further cases in which
the county was a party and which involved risk management.
Brandon was later terminated from employment with the MCAO.
She filed a lawsuit against the county and certain county
officials. A jury found for Brandon and against Maricopa
County on her claim that she had been fired in retaliation
for her exercise of First Amendment rights in speaking to the