Opinion
3:20-cv-0555-YY
01-04-2022
GREGORY H. ANDERSON, BERNARDINO DE LA TORRE-GUERRERO, YU TE, and SHERRY WILLMSCHEN, Plaintiffs, v. MULTNOMAH COUNTY, Defendant.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You, United States Magistrate Judge
FINDINGS
Plaintiffs Gregory Anderson, Bernardino De La Torre-Guerrero, Yu Te, and Sherry Willmschen are former members of the Multnomah County Citizens Involvement Committee (“CIC”) who bring this action against defendant Multnomah County alleging violations of county laws and plaintiffs' state and federal constitutional rights based on defendant suspending the operations of the CIC and rescinding the appointments of former CIC members, including plaintiffs, on June 28, 2018. See Am. Comp., ECF 17. Plaintiffs assert six claims alleging violations of the Multnomah County Charter, Multnomah County Code, and the free speech and due process provisions of the U.S. Constitution and Oregon Constitution. Id. at 11-37. Plaintiffs seek injunctive and declaratory relief and damages. Id. at 37-40.
Defendant has filed a motion to dismiss plaintiffs' claims for injunctive and declaratory relief pursuant to Federal Rule of Civil Procedure Rule 12(b)(1) for lack of subject matter jurisdiction. Mot., ECF 18. Defendant also moves to dismiss plaintiffs' claims for damages under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Id. For the reasons set forth below, defendant's motion to dismiss under Rule 12(b)(1) should be GRANTED, and defendant's motion to dismiss under Rule 12(b)(6) should be GRANTED in part and DENIED in part.
I. Standards
“Federal courts are courts of limited jurisdiction.” Corral v. Select Portfolio Servicing, Inc., 878 F.3d 770, 773 (9th Cir. 2017) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). A motion to dismiss under Rule 12(b)(1) challenges the jurisdiction of the court over the subject matter of the complaint. FED.R.CIV.P. 12(b)(1). “Because standing and mootness both pertain to a federal court's subject-matter jurisdiction under Article III, they are properly raised in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), not Rule 12(b)(6).” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).
“A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial attack “accepts the truth of the plaintiff's allegations but asserts that they are ‘insufficient on their face to invoke federal jurisdiction.'” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (citing Safe Air, 373 F.3d at 1039)). A factual attack “contests the truth of the plaintiff's factual allegations, usually by introducing evidence outside the pleadings.” Leite, 749 F.3d at 1121; see Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) (observing that on a factual attack, the court may review evidence beyond the complaint from both parties to determine if the plaintiff can “satisfy its burden of establishing subject matter jurisdiction”). When a defendant factually challenges jurisdiction, “‘no presumptive truthfulness attaches to plaintiff's allegations.'” Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012) (quoting Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009)).
Once a defendant has moved to dismiss for lack of subject matter jurisdiction, the plaintiff “bears the burden to establish subject matter jurisdiction by a preponderance of the evidence.” United States ex rel. Mateski v. Raytheon Co., 816 F.3d 565, 569 (9th Cir. 2016). The court must dismiss any case over which it lacks subject matter jurisdiction. FED.R.CIV.P. 12(h)(3).
A Rule of 12(b)(6) motion tests whether there is a cognizable legal theory or sufficient facts to support a cognizable legal theory. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). To survive a Rule 12(b)(6) motion, “the complaint must allege ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). A Rule 12(b)(6) motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015); Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). When evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the plaintiff. Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 971 (9th Cir. 2018) (citing Daniels-Hall v. Nat'lEduc. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010)); Dowers v. Nationstar Mortg., LLC, 852 F.3d 964, 969 (9th Cir. 2017) (citing Iqbal, 556 U.S. at 678).
II. Background and Factual Allegations
Plaintiffs are four former members of the Multnomah County Citizen Involvement Committee (“CIC”). Am. Comp. 2-3, ECF 17. The CIC was established in 1984 by the Multnomah County Charter (“County Charter”), Section 3.75, which also established the Office of Citizen Involvement (“OCI”). Id. at 4. Section 3.75 provides that the OCI will “develop and maintain citizen involvement programs and procedures designed for the purpose of facilitating direct communication between the citizens and the board of county commissioners,” and further provides that “[a] citizens' committee and the structure of the citizen involvement process shall be established by ordinance.” Id.
Between October 2015 and December 2016, each plaintiff was appointed to a three-year term on the CIC by the Board of County Commissioners (“BOCC”). See Sramek Decl., Exs. 3-8, ECF 7 (consisting of county records that show the term of office for each plaintiff). Plaintiff Te's term ended on October 31, 2018; plaintiffs Anderson and Willmschen's terms ended on November 10, 2019; and plaintiff De La Torre-Guerrero's term ended on December 16, 2019. See id. Like all CIC members, plaintiffs served on the CIC as volunteers. Am. Comp. 20, ECF 17.
On June 28, 2018, the BOCC held a regular public meeting during which Resolution 2018-074 was extensively discussed and adopted. See Am. Comp., Ex. 2, at 1, ECF 17; see also Weiner Decl., Ex. 1, at 1-30, ECF 19 (consisting of the BOCC minutes from the June 28, 2018 meeting). Resolution 2018-074 stated in part: “The Board temporarily suspends ongoing Community Involvement Committee operations and rescinds the appointments of all CIC members pending the above actions.” Am. Comp., Ex. 2, at 2, ECF 17. Resolution 2018-074 also stated:
The parties' pleadings indicate that the “Citizen Involvement Committee” became known, over time, as the “Community Involvement Committee” to be more inclusive of Multnomah County residents, and the BOCC amended § 3.250 of the Multnomah County Code on December 13, 2018, to formally adopt the name change. See Am. Comp., Ex. 3, at 1, ECF 17.
Multnomah County is responsible for fostering a safe, productive and welcoming work environment for its employees, interns and volunteers, and that work environment should align with the County's overall values of safety, trust and belonging. Concerns have arisen that demonstrate the current operations of the Community Involvement Committee do not meet these goals.Id.
Plaintiffs originally filed their lawsuit on August 31, 2018, in Multnomah County Circuit Court to challenge defendant's actions in suspending the CIC and rescinding the appointments of CIC members through Resolution 2018-074. Am. Comp. 7, ECF 17. Defendant removed the case to federal court on April 3, 2020. ECF 1.
Plaintiffs' claims stem from this central allegation:
Faced with the prospect of an active and independent CIC, the BOCC in 2018 undertook to dismantle the CIC and replace it with members compliant to the wishes of the Commissioners. This led the Board to adopt Resolution 2018-074 in June 2018 and Ordinance 1267 in December 2018.Am. Compl. 10, ECF 17. In support of their claims, plaintiffs allege the following: On February 15, 2018, plaintiff Anderson “completed and distributed to CIC members, staff and others a document entitled Citizens/Community Involvement Committee: Past and Present” (“Past and Present Report”). Id. at 5. The Past and Present Report is a nine-page narrative report with approximately 15 pages of attachments that “presents a history of the CIC, including its intended role as an advocate for public participation....[and] describes the efforts of the BOCC to impair the independence and effectiveness of the CIC acting by means of the staff of the Office of Citizen Involvement.” Id. Plaintiffs Anderson and Te met with County Auditor Steve March on January 30, 2018, “to share the forthcoming draft report and to ask for his assistance in resisting the efforts of the BOCC and Multnomah County Staff to impede the work of the CIC,” id., and plaintiff Anderson transmitted a completed Past and Present Report to OCI executive director Dani Bernstein on February 20, 2018. Id., Ex. 9, at 1. Plaintiffs allege that county staff “wrote a scathing directive to the Plaintiffs,” on an unspecified date, “asserting that the report should not be distributed to CIC members or elsewhere[.]” Id. at 23. Plaintiffs further allege that plaintiff Anderson “did not comply with the demands of County Staff . . . [and] distributed [the report] to all CIC members, the County Auditor, Oregon State Legislators . . . the Oregon Secretary of State . . . and media reporters[.]” Id. at 23-24.
Plaintiffs continue that, on March 12, 2018, the BOCC “Chair's chief of staff criticized the Past and Present Report and suggested that Plaintiffs Anderson and Yu Te resign from the CIC.” Id. at 23. Further, the Amended Complaint states, “CIC members began receiving phone calls from County Staff, seeking potential complaints against Plaintiffs Anderson and Yu Te.” Id. at 27. On April 5, 2018, OCI executive director Bernstein and OCI program manager Brenda Morgan wrote an email memorandum to “[a]ll CIC Members” stating, “[w]e are writing to inform all of you that OCI has submitted a request that the Board of Commissioners remove Greg Anderson and Yu Te from the Community Involvement Committee.” Id., Ex. 14, at 1. The memorandum also states:
Multiple CIC members and county staff have reported interactions with Greg Anderson and Yu Te that they describe as bullying, intimidating, and aggressive. OCI consulted with the County Attorney and Human Resources as complaints were received, took steps to inform both individuals of the complaints, and offered opportunities for them to work with county staff to be heard and address the concerns. We know that some of you may have had different experiences working with both Greg and Yu, but we cannot discredit the experiences of those who have brought forward concerns.
Both Greg and Yu have refused or ignored the staff's request to meet and address the concerns, and we have continued to receive complaints. OCI will not tolerate bullying or intimidation of its volunteers or staff, or a refusal to work in partnership with staff to address concerns.Id. Plaintiffs allege that, on April 12, 2018, the BOCC met and OCI staff presented “allegations of bullying to remove Chair Anderson and member Yu Te,” but plaintiffs' exhibits indicate that, “[a]fter a dozen people presented public testimony against the staff proposal, the Board table[d] the matter.” Id., Ex. 7, at 3. As discussed above, the BOCC conducted a public meeting on June 28, 2018. After extensive and heated discussion that is captured in the BOCC's meeting minutes, see Weiner Decl., Ex. 1, at 1-30, ECF 19, the BOCC adopted Resolution 2018-074, which suspended the operations of the CIC and rescinded the appointment of all CIC members serving at that time. See Am. Comp., Ex. 2, at 2, ECF 17.
Plaintiffs allege that after the BOCC passed Resolution 2018-074, the BOCC “refused to allow the rightful members of the CIC to carry out its functions.” Am. Comp. 6, ECF 17. “Rightful members of the CIC, including Plaintiffs, continued to meet and adopt resolutions, including Resolution 18-01 adopted on November 4, 2018 . . . setting forth the CIC position on the unlawful actions of the [BOCC] . . . with regard to the CIC.” Id. at 8. “The rightful members of the CIC including Plaintiffs” also (1) “adopted a letter to the Human Resource Director of Multnomah County . . . to indicate that the ‘private workplace investigator,' hired to investigate Plaintiffs long after the BOCC purported to remove them from the CIC, failed to allow Plaintiffs to respond to the complaints he generated against them,” Id., (2) sent a letter to Secretary of State Dennis Richardson on November 19, 2018 requesting that he “take action to ‘address the abuse of power and related wrongs committed by the current county administration against the citizens of Multnomah County,” Id., and (3) sent a letter to County Auditor Steve March on December 6, 2018 requesting “an independent audit of the recent actions of the CIC and BOCC.” Id. at 9. No audit was scheduled. Id.
The BOCC conducted a public meeting on November 29, 2018, to consider proposed changes to the CIC through amendments to the Multnomah County Code (“MCC”). See Weiner Decl., Ex. 2, at 1-30, ECF 19. At that meeting, Multnomah County Commissioner Loretta Smith remarked that the proposed restructuring of the CIC was “designed to go after two people . . . to get people out of the way when we don't want to hear what they're saying.” Am. Comp. 21, ECF 17. Plaintiffs allege that Commissioner Smith was referring to “Plaintiff Anderson and Plaintiff De La Torre-Guerrero.” Id. On December 13, 2018, the BOCC conducted a public meeting and adopted Ordinance 1267. See id., Ex. 3, at 1-9 (showing the amendments Ordinance 1267 made to MCC §§ 3.250 to 3.254, §§ 3.300 to 3.306, and §§ 25.810 to 25.830).
III. Discussion
Plaintiffs assert six claims alleging (1) violations of the Multnomah County Charter (first, second, third, and sixth claims), (2) “violation of the freedom of speech and assembly provisions of the Constitution of Oregon and the United States” (fourth claim), and (3) “violation of the Constitution of Oregon and the United States by dismissing the [CIC] members . . . without due process of law or due course of law” (fifth claim). Am. Comp. 11-37, ECF 17. Regarding their free speech and due process claims, plaintiffs seek damages. Id. at 38-39. Regarding all claims, plaintiffs seek a declaration that Resolution 2018-074 and Ordinance 1267 were unlawful, and plaintiffs pray for the following injunctive relief: (1) enjoining defendant “from any action to implement the purported suspension of the CIC” and “[r]einstating the operation of the CIC as it was on June 27, 2018,” (2) enjoining defendant “from any action to implement the purported removal of all members of the CIC from that office” and reinstating “plaintiffs to their positions as members and chair of the CIC to serve out the time left on their terms of office as of June 27, 2018,” and (3) enjoining defendant “from any action to implement the purported removal” of the “authority of the CIC to hire and fire its staff.” Id. at 37-40.
Defendant argues that plaintiffs' claims for declaratory and injunctive relief should be dismissed under Rule 12(b)(1) because they are moot, or, alternatively, because plaintiffs lack standing. Mot. 16-22, ECF 18. Defendant argues that plaintiffs' claims seeking damages for alleged free speech and due process violations should be dismissed under Rule 12(b)(6) for failure to state a claim. Id. at 5-15.
A. Subject Matter Jurisdiction
Defendant argues that plaintiffs' claims for declaratory and injunctive relief are moot because “Plaintiffs' removal from the CIC has been fully implemented,” “their original terms have expired,” and an “order reinstating Plaintiffs would have no practical effect on the rights of the parties.” Mot. 18, ECF 18. Plaintiff counters that their claims are not moot because “Defendant could repeat its unlawful conduct at will,” and “the court can grant the relief sought by Plaintiffs.” Resp. 28-29, ECF 22. Defendant argues in the alternative that plaintiffs lack standing to assert their claims for equitable relief because they “have alleged no concrete particularized injury resulting from the current operations of the CIC or its staffing.” Mot. 21, ECF 18.
As a threshold matter, the court assumes without deciding that plaintiffs had standing to bring their claims on the date they initially filed this action, August 31, 2018, and turns to the mootness analysis. See Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 66-67 (1997) (describing how courts may assume that standing exists in order to analyze mootness because both questions “go[] to the Article III jurisdiction of th[e Supreme] Court and the courts below, not to the merits of the case”); see also Wolfe v. City of Portland, No. 3:20-CV-1882-SI, 2021 WL 4713237, at *5 (D. Or. Oct. 8, 2021) (citing Arizonans for Off. Eng., assuming the plaintiffs had standing, and analyzing mootness).
1. Mootness Analysis
Article III of the U.S. Constitution “limits the jurisdiction of the federal courts to live cases and controversies.” Kittel v. Thomas, 620 F.3d 949, 951 (9th Cir. 2010) (citations omitted). The “doctrine of mootness, which is embedded in Article III's case or controversy requirement, requires that an actual, ongoing controversy exist at all stages of federal court proceedings.” Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 2011) (citing Burke v. Barnes, 479 U.S. 361, 363 (1987)); see Wilson v. Terhune, 319 F.3d 477, 479 (9th Cir. 2003) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)) (“[a] case becomes moot when ‘it no longer present[s] a case or controversy under Article III, § 2, of the Constitution'”). In determining mootness, “[t]he basic question . . . is whether there is a present controversy as to which effective relief can be granted.” Bayer v. Neiman Marcus Grp., 861 F.3d 853, 862 (9th Cir. 2017). Courts “are unable to effectively remedy a present controversy between the parties where a plaintiff seeks to enjoin an activity that has already occurred.” protectmarriage.com-YES on8 v. Bowen, 752 F.3d 827 (9th Cir. 2014). In such a case, “courts cannot undo what has already been done, the action is moot, and must be dismissed.” Bernhardt v. Cty. of Los Angeles, 279 F.3d 862, 871 (9th Cir. 2002) (citing Seven Words LLC v. Network Solutions, 260 F.3d 1089, 1095 (9th Cir. 2001))
The mootness issues presented here are similar to those in UWMStudent Ass 'n v. Lovell, 888 F.3d 854, 860 (7th Cir. 2018). There, university students asserted claims for injunctive and declaratory relief against university officials arising out of a “long-running feud between rival student governments.” Id. at 856. The plaintiffs alleged that the university had “excluded certain students from student government by unseating the legitimately elected officers and replacing them over several years with a supposedly ‘puppet' student government,” and sought reinstatement to positions they formerly held. Id.
The Seventh Circuit noted that, “[e]xpiration of an officeholder's expected term of office ordinarily moots claims for injunctive or declaratory relief.” Id. at 862. The court further observed that “[a] prospective injunction would be pointless,” and cited the plaintiffs' acknowledgment that they were seeking to “revive a student government that is ‘moribund.'” Id. at 860. The court also emphasized that “nearly four years” had passed since the defendants' “last alleged wrongdoing,” pointed out the plaintiffs' failure to identify any “real and immediate threat of future injury”, and ultimately held, “[i]t is too late for an injunction.” Id. The court further held, “[i]t is also too late for a declaratory judgment because it would do the plaintiffs no practical good.” Id. (citation omitted). While the plaintiffs sought a declaration that the defendants “unlawfully interfered with [past] . . . elections that should have resulted in their being elected or appointed to paid position for one-year terms[,]” the court found they had, “at most,” an “expectation of continued employment for one year.” Id. at 862. The plaintiffs' claims for prospective relief were therefore moot because “the passage of time beyond the anticipated one-year term ‘dissolved their personal stake in the underlying controversy.'” Id. (quoting Barany v. Buller, 707 F.2d 285, 287 (7th Cir. 1983) (quoting Socialist Labor Party v. Gilligan, 406 U.S. 583, 589 (1972)).
Here, plaintiffs' claims are moot because the “passage of time” beyond plaintiffs' anticipated terms of office on the CIC has similarly “dissolved their personal stake in the underlying controversy.” See id. Like the plaintiffs in UWM Student Ass'n, plaintiffs in this action had an expectation of continued service “at most” through the end of their respective terms on the CIC, but “their terms of office expired years ago,” with the most recent expiration date being December 2019. While plaintiffs insist that the CIC must have “substantial independence from the BOCC,” Am. Comp. 10, ECF 17, and argue that the actions of the BOCC “sought to impair the independence of the CIC,” Id. at 5, 37, plaintiffs are not members of the CIC. As the Seventh Circuit remarked, it would be “pointless” to issue a prospective injunction that “seek[s] to revive” a now “‘moribund'” entity-here, the former CIC board that ceased operating in 2018 with the passage of Resolution 2018-074-especially where the plaintiffs' terms of office on the formerly-existing board or entity have long since expired and where they face “no real [or] immediate threat of future injury.” See UWM Student Ass'n, 888 F.3d at 860; see also Casumpang v. Int'l Longshoremen's & Warehousemen's Union, Loc. 142, 269 F.3d 1042, 1057 (9th Cir. 2001) (noting that any claim “seeking reinstatement” asserted by the plaintiff, a union official who had been disqualified from an election, “would be moot because the term of office for the candidate elected in the [contested election] . . . expired”).
Plaintiffs' claims are also moot because “the activities sought to be enjoined already have occurred,” Bernhardt, 279 F.3d at 871-i.e., the suspension of the CIC, the removal of plaintiffs from the CIC, and the removal of the CIC's authority to hire and fire staff-and cannot be undone. Indeed, while plaintiffs insist they are entitled to injunctive relief “[that] would restore the CIC to status quo ante,” Resp. 31, ECF 22, they do not indicate how the court could reverse defendant's past actions and also seem to disregard the fact that defendant restructured the CIC through Ordinance 1267 in December 2018, accepted applications for the newly-constituted CIC in January 2019, and “appointed 15 new members to the CIC” on March 14, 2019. See Sramek Decl. Ex. 3-8, ECF 7. In short, plaintiffs' claims are moot because, as the Seventh Circuit held in UWM Student Ass'n, “[a]n injunction or declaration at this late stage would not redress plaintiffs' alleged but stale injuries.” 888 F.3d at 860.
Plaintiffs say that Multnomah County Circuit “already ruled that Plaintiffs' claims are not moot,” Resp. 4, ECF 22, and argue that the ruling must now be followed as the “law of the case.” Id. at 27. However, plaintiffs misunderstand the “law of the case” doctrine, which “generally precludes reconsideration of ‘an issue that has already been decided by the same court, or a higher court in the identical case.'” Rocky Mountain Farmers Union v. Corey, 913 F.3d 940, 951 (9th Cir. 2019). Here, there has been no prior ruling on mootness from this court or a higher court, but even if there had been, such a ruling would not preclude reconsideration of the issue given that “mootness . . . requires that an actual, ongoing controversy exist at all stages of federal court proceedings,” Pitts, 653 F.3d at 1086 (emphasis added), and “Article III . . . deprives federal courts of jurisdiction to hear moot cases.” Native Vill. of Nuiqsut v. Bureau of Land Mgmt., 9 F.4th 1201, 1208 (9th Cir. 2021). The law of the case doctrine is therefore inapposite on the question of mootness.
Plaintiffs also argue that this court “must proceed according to the rules of standing and mootness applicable in state court,” and erroneously rely on the Oregon Court of Appeals' decision in De Young v. Brown, 297 Or.App. 355 (2019). In De Young, a former city councilor alleged that the city of Damascus, Oregon, had been unlawfully disincorporated and sought declaratory relief. Id. at 357. The defendant argued that the plaintiff's claims had been rendered moot by the passage of the election and the resultant disincorporation of the city, but the Oregon Court of Appeals held, “we are not persuaded that defendants have established that this case is moot.” Id. at 363. Plaintiffs rely on De Young to demonstrate this court's power to “undo” past government actions and reconstitute dissolved political entities. See Resp. 30-31, ECF 22. However, De Young is neither binding nor persuasive authority because, as plaintiffs concede, “[t]he Oregon court system functions under very different rules for standing, mootness, and other elements of jurisdiction.” Id. at 4. Furthermore, the De Young court analyzed the issue of mootness under Oregon law as a “prudential consideration rather than a constitutional limit on [a] court's authority to decide cases,” Id. at 360-61 (citation omitted), and fixed its mootness analysis on a single question: “whether a future decision by . . . [the Oregon Court of Appeals] will itself have practical consequences.” Id. at 361 (citation omitted). Here, in contrast, the question of whether plaintiff's claims for injunctive and declaratory relief are moot is “embedded in Article III's case or controversy requirement,” Pitts, 653 F.3d at 1086, and the issue requires consideration of myriad factors including the existence of “an actual, ongoing controversy” between the parties, see id.; the reversibility of past government actions, see Bernhardt, 279 F.3d at 871; and whether the plaintiff is “threatened with future injury . . . [that] is certainly impending[.]” Index Newspapers, 977 F.3d at 825 (citing In re Zappos.com, Inc., 888 F.3d at 1024 (9th Cir. 2018)). While De Young presented issues similar to those presented in this case, the similarities are not enough to render the Oregon Court of Appeal's mootness framework under state law more authoritative than caselaw from federal circuit courts that analyzes mootness under Article III and federal precedent. See supra.
2. “Capable of Repetition, Yet Evading Review” Exception to Mootness
Plaintiffs contend that, even if their claims are moot, defendant's actions and their injuries fall under the “capable of repetition, yet evading review” exception to mootness. Resp. 27, ECF 22. However, “[t]hat exception applies only in ‘extraordinary cases[,]'” W. Coast Seafood Processors Ass'n v. Nat. Res. Def. Council, Inc., 643 F.3d 701, 704 (9th Cir. 2011) (citation omitted), and “[a] dispute qualifies for that exception only ‘if (1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again.'” United States v. Sanchez-Gomez, 138 S.Ct. 1532, 1540 (2018) (citation omitted); Foster v. Carson, 347 F.3d 742, 746 (9th Cir. 2003).
Plaintiffs cite election law cases in which courts have found claims capable of repetition, yet evading review, because “the inherently brief duration of an election is almost invariably too short to enable full litigation on the merits.” Porter v. Jones, 319 F.3d 483, 490 (9th Cir. 2003). Plaintiffs argue that their claims are similarly fit for the capable-of-repetition exception because they “could not litigate their claims to finality before the expiration of their 3-year terms on the CIC.” Resp. 27-28, ECF 22. Assuming that is true and plaintiffs satisfy the first prong, the second prong nevertheless “requires a ‘reasonable expectation' that the same party will confront the same controversy again.” W. Coast, 643 F.3d at 704 (citing Feldman v. Bomar, 518 F.3d 637, 644 (9th Cir. 2008)). Plaintiffs argue that “courts routinely ignore the second requirement,” and insist they are not required to show that they “themselves are likely to face the same situation in the future” to qualify for the capable-of-repetition exception. Resp. 28, ECF 22 (citing Matthew I. Hall, The Partially Prudential Doctrine of Mootness, 77 GEO. WASH. L. REV. 562, 579-80 (2009)) (emphasis added).
Plaintiffs misconstrue the law, however, and cite to cases that do not support the arguments they assert. See Resp. 28-29, ECF 22. In actuality, the cases cited by plaintiffs, either confirm that “plaintiffs have the burden of showing that . . . they will once again be subjected to the challenged activity[,]” Lee, 766 F.3d at 1390, apply the capable-of-repetition exception in a cursory fashion, or do not mention the exception at all. See, e.g., Honig v. Doe, 484 U.S. 305, 321 (1988) (holding the plaintiff's claims were not moot under the capable-of-repetition exception where it was “probable” that the plaintiff himself would “again be subjected to the same unilateral school action for which he originally sought relief”) (emphasis added); see also Cruz v. Farquharson, 252 F.3d 530, 534 (1st Cir. 2001) (noting the capable-of-repetition exception applies “only if there is some demonstrated probability that the same controversy, involving the same parties, will reoccur”) (emphasis added); Doe v. Bolton, 410 U.S. 179, 187 (1973) (holding, without discussion or reference to the capable-of-repetition exception, that the termination of the plaintiff's pregnancy did not render her claims moot); Dunn v. Blumstein 405 U.S. 330, 333 n.2 (1972) (first noting, “the State does not pursue any mootness argument here,” then holding without discussion that the issue presented was “capable of repetition, yet evading review”); Rosario v. Rockefeller, 410 U.S. 752, 756 n.5 (1973) (noting without discussion that claims asserted by allegedly disenfranchised voters fit the capable-of-repetition exception to mootness); Storer v. Brown 415 U.S. 724, 737 n.8 (1974) (briefly noting that the issues were not moot under the “capable of repetition, yet evading review” doctrine because impacts from the contested law “will persist as . . . the statutes are applied in future elections”).
Furthermore, Ninth Circuit cases considering the capable-of-repetition exception to mootness confirm “there must be a reason to expect that there will be future litigation of the same issue between a present complaining party and a present defending party.” Lee v. Schmidt-Wenzel, 766 F.2d 1387, 1390 (9th Cir. 1985). In Lee, the plaintiffs challenged the manner in which new board members were initially elected to a bank's board of directors, but the court held their claims became moot when a subsequent election was held in which the new board was “duly elected by the stockholders.” Id. While the plaintiffs argued their claims were not moot under the capable-of-repetition exception, the court found the exception inapplicable because the plaintiffs could not “establish a demonstrated probability that the same controversy will recur involving the same litigants.” Id. (citation omitted). To illustrate, the court recounted the steps that “would have to occur again” for “the same controversy to recur” between the parties- including the defendants once again using the same, allegedly unlawful methods to select board members-but ultimately concluded it was “highly unlikely that all of the . . . conditions would arise again.” Id. at 1391.
Where there is “a reasonable expectation that any of the plaintiffs will again be subjected to the same challenged activity,” Id., the Ninth Circuit applies the capable-of-repetition exception to mootness. In Porter, for example, the plaintiff created a “vote swapping” website prior to the 2004 election, shut it down to avoid prosecution, and filed a lawsuit challenging the applicable voting laws. 319 F.3d at 486. There, the passage of the 2004 election did not moot the claims because the plaintiff specifically “expressed his intent to create a similar website in future presidential elections,” and there was no indication that the defendant “will not enforce the election laws against Plaintiff in the future.” Id. at 490. In Padilla v. Lever, 463 F.3d 1046 (9th Cir. 2006), another elections case, the plaintiffs sued county officials for failing to provide materials in Spanish for a recall election and sought “an injunction prohibiting the defendant officials from taking any steps to proceed with the recall election and requiring translation of the recall petition[.]” Id. at 1049. On appeal, the plaintiffs “concede[d] that their claim for injunctive relief has become moot” because the “recall election has occurred, and the term of office filled by that election has expired.” Id. The plaintiffs' request for declaratory relief, however, was not moot because there was “a reasonable expectation that the plaintiffs will again be presented with recall petitions printed only in English,” and because “[t]he election officials' practice of not requiring translation remains in place, and recall petitions printed only in English are likely to be circulated in the plaintiffs' district in the future.” Id. at 1050.
Here, in contrast, plaintiffs do not challenge an extant state law or standing election policy that could impact them or others like them in the future. Further, unlike the plaintiffs in Porter and Padilla, plaintiffs in this action have alleged no intent to seek a position on the CIC or to engage in any activity that would subject them to the same, allegedly unlawful actions taken by defendant in June 2018. In fact, plaintiffs contend that “they did not reapply” to serve on the CIC when they had an opportunity to do so in January 2019 “because they did not accede to the authority of the Board to replace them and because obviously the Board would not choose them to be CIC members.” See Resp. 32, ECF 22. While that may be the case, plaintiffs still must show “they will once again be subjected to the challenged activity,” Lee, 766 F.2d at 1390, and they have not done so. Plaintiffs' claims for injunctive and declaratory relief are therefore moot.
In sum, “[i]f there is no longer a possibility that an appellant can obtain relief for his claim, that claim is moot and must be dismissed for lack of jurisdiction.” Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003) (citation and internal quotation marks omitted). Here, plaintiffs cannot obtain relief because they seek to enjoin defendant from suspending the operation of the former CIC-an action that occurred in June 2018-and they seek to be reinstated to the CIC to serve the remainder of their terms-terms that expired years ago. See UWM Student Ass'n, 888 F.3d at 860. Moreover, plaintiffs' claims for declaratory and injunctive relief do not qualify for the “capable of repetition, yet evading review” exception because plaintiffs have not and cannot show that they will again be subjected to the same, allegedly unlawful actions by defendant. See Padilla, 463 F.3d 1046. Therefore, plaintiffs' first, second, third, and sixth claims cannot survive because they only seek declaratory or injunctive relief based on alleged violations of the Multnomah County Charter and Multnomah County Code. Plaintiffs' fourth claim alleging free speech violations and fifth claim alleging due process violations are also moot to the extent they seek declaratory or injunctive relief. See Foster, 347 F.3d at 745 (dismissing as moot challenges to an allegedly unlawful court order where the order was no longer in effect and where the declaratory relief sought would not “undo” the alleged harms caused by the court order); cf. Alaska Right To Life Comm. v. Miles, 441 F.3d 773, 776 (9th Cir. 2006) (holding that a claim challenging state election laws fell under the ‘capable of repetition, yet evading review' exception to mootness because the contested laws “remain[ed] in place” and there was “sufficient likelihood” that the plaintiff “will again be required to comply with them”).
To the extent plaintiffs seek damages for their alleged injuries, those claims are not moot and are discussed below.
B. Oregon Constitution Claims
Defendant argues that plaintiffs' claims alleging violations of the free speech and due process provisions of the Oregon Constitution must be dismissed because “Oregon law provides no private right of action for damages under the Oregon Constitution.” Mot. 15, ECF 18 (citing Hunter v. City of Eugene, 309 Or. 298, 302 (1990)). Defendant is correct. Plaintiffs' claims seeking damages for alleged violations of their rights under the Oregon Constitution must therefore be dismissed. See RealEst. Exch., Inc. v. Brown, No. 3:20-CV-02075-HZ, 2021 WL 5855660, at *8 (D. Or. Dec. 9, 2021) (dismissing state constitutional claims because “Oregon law provides no mechanism to recover damages under the Oregon Constitution”).
C. First Amendment Retaliation Claims
Plaintiffs' fourth claim alleges that defendant violated their free speech rights under the U.S. Constitution. Am. Comp. 20, ECF 17. Plaintiffs specifically claim that defendant adopted Resolution 2018-074 and Ordinance 1267 “to stifle their speech on issues of public concern.” Id. Defendant argues that plaintiffs' claims should be dismissed because they have “failed to . . . state a plausible claim that their removal was substantially motivated by their prior, protected expressive conduct.” Mot. 6, ECF 18.
In the Ninth Circuit, “First Amendment retaliation claims are governed by the framework in Eng [v. Cooley, 552 F.3d 1062 (9th Cir. 2009)].” Kennedy v. Bremerton Sch. Dist., 869 F.3d 813, 822 (9th Cir. 2017). Under Eng, to state a First Amendment retaliation claim, a plaintiff must show that “(1) he spoke on a matter of public concern, (2) he spoke as a private citizen rather than a public employee, and (3) the relevant speech was a substantial or motivating factor in the adverse employment action.” Id. (citing Coomes v. Edmonds Sch. Dist. No. 15, 816 F.3d 1255, 1259 (9th Cir. 2016) (citing Eng, 552 F.3d at 1070-71)). “[A]ll the factors are necessary, in the sense that failure to meet any one of them is fatal to the plaintiff's case.” Dahlia v. Rodriguez, 735 F.3d 1060, 1067 n.4 (9th Cir. 2013) (en banc). Before a court can evaluate the sufficiency of a plaintiff's retaliation claims under the Eng factors, it may be necessary to first identify the speech that prompted the defendant to allegedly take adverse action against the plaintiff. See Kennedy, 869 F.3d at 825 (defining, prior to analyzing the plaintiff's retaliation claim, the precise contours of the “speech at issue” and rejecting the plaintiff's characterization).
In the Ninth Circuit, the framework for First Amendment retaliation claims asserted by government employees applies equally to government volunteers. See Hyland v. Wonder (Hyland I), 972 F.2d 1129, 1136 (9th Cir. 1992).
Here, plaintiffs present the Past and Present Report as the most prominent “example of the speech that BOCC sought to stifle.” Am. Comp. 21, ECF 17. However, plaintiffs attribute authorship of that report to plaintiff Anderson only and no other plaintiffs. Plaintiffs state that, “[o]n February 15, 2018, Greg Anderson completed and distributed . . . [the] Past and Present [Report]” Id. at 5, and explain that “[i]t contains several footnotes identifying statements as ‘Opinion of Author,'” which, plaintiffs explain, “refers to one person.” Id. at 22. The Amended Complaint also describes the Past and Present Report as being “prepared by Plaintiff Anderson,” Id. at 21, and refers to it as “his report.” Id. at 9. Plaintiffs do not contest their own attribution of the Past and Present Report to plaintiff Anderson. Instead, they argue, “[b]ut Defendant took action against all of the Plaintiffs due to the distribution of the Past and Present Report, indicating that Defendant attributed authorship to all of them.” Resp. 17, ECF 22. Plaintiffs' contention, however, is undermined by their own exhibits.
First, as plaintiffs point out, the Past and Present Report contains footnotes, seven total, that state, “Opinion of author,” and six of the footnotes add a second phrase, “subject to decision by CIC.” See Am. Comp. Ex. 6, at 8-9, ECF 17. The references to a single author in multiple footnotes, alone, makes it highly unlikely that defendant attributed authorship of the report to multiple individuals, such as plaintiffs. Plaintiff Anderson also used first-person singular when he referred to the Past and Present Report, such as “the research I was doing on past and current practices of the Multnomah County [CIC]” in a February 20, 2018 memorandum he wrote to OCI executive director Dani Bernstein in which he transmitted the document. Id., Ex. 15, at 1. Moreover, Dani Bernstein acknowledged receipt of the Past and Present Report in a March 1, 2018 memorandum that contained the subject line: “CIC/OCI Research Report authored by Greg Anderson.” Id., Ex. 9, at 1. Given that explicit reference to plaintiff Anderson's authorship and the fact that the memorandum was carbon copied to high-level staff (“Kimberly Melton, Chief of Staff for Chair Kafoury,” “Jenny Madkour, County Attorney,” and “Brenda Morgan, Program Manager for OCI”), see id., plaintiffs' assertion that defendant “attributed authorship to all of them” is simply not plausible. Thus, while all four plaintiffs allege violations of their free speech rights, only the claims asserted by plaintiff Anderson can survive based on the Past and Present Report. The question of whether plaintiffs Te, Willmschen, and De La Torre-Guerrero have sufficiently pled a First Amendment retaliation claim based on speech other than the Past and Present Report is addressed below.
1. Plaintiff Anderson
Turning to plaintiff Anderson's retaliation claim, the parties do not contest that he spoke on a matter of public concern, the first Eng factor. Rather, defendant argues that plaintiff Anderson has failed to plausibly allege the second Eng factor, under which plaintiff Anderson “bears the burden of showing the speech was spoken in the capacity of a private citizen and not a public employee.” 552 F.3d at 1071 . In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court held that, “[w]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id. at 420-21. “[Statements are made in the speaker's capacity as citizen if the speaker had no official duty to make the questioned statements or if the speech was not the product of performing the tasks the employee was paid to perform.” Greisen v. Hanken, 925 F.3d 1097, 1111 (9th Cir. 2019) (quoting Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1127 n.2 (9th Cir. 2008) (alterations, citations, and internal quotation marks omitted)). In the Ninth Circuit, courts consider “three non-exhaustive factors to make this assessment: (1) whether ‘the employee confined his communications to his chain of command'; (2) whether ‘the subject matter of the communication' fell within the plaintiff's regular job duties; and (3) whether the ‘employee sp[oke] in direct contravention to his supervisor's order[].'” Id. (quoting Dahlia, 735 F.3d at 1074-75) (“Dahlia factors”).
The question of “whether the speech in question was spoken as a public employee or a private citizen presents a mixed question of fact and law.” Posey, 546 at 1129. “‘First, a factual determination must be made as to the scope and content of a plaintiff's job responsibilities.'” Kennedy, 869 F.3d at 823 (citation omitted). “‘Second, the ultimate constitutional significance of those facts must be determined as a matter of law.'” Id. (quoting Johnson v. Poway UnifiedSch. Dist., 658 F.3d 954, 966 (9th Cir. 2011)).
Because the scope and content of former CIC members informs all three Dahlia factors, it is appropriate to first determine what plaintiffs' duties were when they served on the former CIC. Plaintiffs provide no job description and few details regarding their responsibilities as members of the CIC. However, in the Past and Present Report, plaintiff Anderson states that “[t]he CIC was to serve as a ‘watchdog' over county leadership[,]” and that the CIC was “to be both a watchdog and advocate for public participation.” Am. Comp., Ex. 6, at 3-4, ECF 17. Correspondence from plaintiffs Anderson and De La Torre-Guerrero in the fall of 2018 also includes the term “watchdog” to describe the duties of the CIC. See id., Ex. 5, at 1 (December 6, 2018 letter to County Auditor Steve March referring to the CIC as serving “in a watchdog and advisory role for the county”); see also id., Ex. 11, at 1 (November 19, 2018 letter to Oregon Secretary of State Dennis Richardson stating the same). While the term, “watchdog” provides scant insight into the actual functions and duties of the CIC, the Multnomah County Code affords guidance. When plaintiffs served on the CIC in 2018, prior to the BOCC's adoption of Resolution 2018-074, MCC § 3.252 provided that, “[t]he functions and responsibilities of the [CIC] . . . within the county's citizen involvement process may include, but not be limited to, the following:
(1) An ongoing study and discussion of the county's priorities, programs, and procedures, including budget preparation and amendment.
(2) Recommendation of an action, a plan, or a policy, to the Board or any department on any matter impacting the life of the county, including, but not limited to the following: health, mental health, parks, corrections, jails, animal control, assessment, taxation, elections, citizen participation, cable television, crime prevention, mediation, and libraries.
(3) A strengthening and encouragement of department advisory boards and budget subcommittees and cooperation with existing boards, subcommittees, and commissions.
(4) Written reports to the Board at least every six months outlining its activities and summarizing its recommendations to the Board. The Board shall respond in writing to the semiannual reports of the Citizen Involvement Committee.
(5) Responsibility for the hiring, supervision, and discharge of its staff as may be necessary to execute functions and responsibilities of the Citizen Involvement Committee. The Citizen Involvement Committee shall act in accordance with county personnel ordinances and regulations.
(6) Election of a chair and adoption of rules or procedures for the operation of the committee.
(7) Review of the size and representation of the committee every five years.”Am. Comp., Ex. 3, at 3, ECF 17 (shown above in its original format). Neither party contends that this description is over- or under-inclusive of the actual responsibilities carried out by plaintiffs as former members of the CIC. Thus, the ability of plaintiff Anderson-and the other plaintiffs- to satisfy the Dahlia factors will be determined, as necessary, based on the job duties listed above.
As to the first Dahlia factor, chain of command, plaintiff Anderson alleges that he shared a draft of the Past and Present Report with the county auditor on January 30, 2018, Am. Comp. 5, ECF 17, and “distributed [it] to CIC members, staff, and others” on February 15, 2018. Id. He further alleges that he distributed the Past and Present Report to “Oregon State Legislators with districts incorporating parts of Multnomah County, the Oregon Secretary of State . . ., and media reporters[.]” Id. at 24. Plaintiff Anderson also transmitted a copy of the Past and Present Report to the Oregon secretary of state and the county auditor in the letters previously mentioned, and expressed his concerns about defendant's actions vis-a-vis the CIC in the same letters. See id., Ex. 11, at 1. While plaintiff Anderson does not identify or explain the chain of command for the CIC in 2018, the Amended Complaint alleges, “[n]one of the external recipients receiving the report were within the ‘chain of command' of the CIC or even Multnomah County as a whole.” Id. at 24. Defendant does not specifically contest whether any particular recipients were in the chain of command, and, on a motion to dismiss under Rule 12(b)(6), plaintiff Anderson's allegations are entitled to a presumption of truth. Wilson, 668 F.3d at 1140.
Regarding the second factor, whether a plaintiff's job duties included the contested speech, the Dahlia court commented:
[I]f a public employee raises within the department broad concerns about corruption or systemic abuse, it is unlikely that such complaints can reasonably be classified as being within the job duties of an average public employee, except when the employee's regular job duties involve investigating such conduct, e.g., when the employee works for Internal Affairs or another such watchdog unit.735 F.3d at 1074-75. Here, plaintiffs' characterization of the CIC's role and the description of the CIC's duties in MCC § 3.252, see Am. Comp., Ex. 3, at 3, ECF 17, strongly suggest that the CIC was exactly the kind of watchdog unit that the Dahlia court referred to. However, plaintiffs argue that they, including plaintiff Anderson, “had no official duty to prepare the report or to distribute it outside the chain of command[,]” Resp. 9, ECF 22, and “had no official duty to criticize the Commissioners and their staffs.” Id. at 13-14. Plaintiff Anderson further argues that his work on the Past and Present Report “was not undertaken to satisfy the job duties of a CIC member of CIC Chair,” but, rather, “in his capacity of a private citizen seeking to petition the government to improve its public involvement functions[.]” Am. Comp. 22, ECF 17. Despite the conclusory nature of those assertions, the record shows that the Past and Present Report was prepared in the context of a power struggle among the parties in the first half of 2018 over the very functions and effectiveness of the CIC. See id. That context lends credibility to plaintiffs' contention that “it was not the ‘job' of Plaintiffs to seek the assistance of the County Auditor to correct adverse conduct by County Staff and Commissioners[.]” Resp. 13, ECF 22. Thus, while defendant argues that the Past and Present Report “fit squarely within [the] description” of CIC duties in MCC § 3.252, the unique context in which the speech was expressed makes it less plausible that plaintiff Anderson was simply doing his job when he wrote the Past and Present Report.
As to the third Dahlia factor, whether the “‘employee sp[oke] in direct contravention to his supervisor's order,'” 735 F.3d at 1075, plaintiff Anderson alleges that Multnomah County staff “wrote a scathing directive to the Plaintiffs, asserting that the [Past and Present] report should not be distributed to CIC members or elsewhere[.]” Am. Comp. 23, ECF 17. While plaintiffs provide no substantiating details about who allegedly wrote the communication or when, the Amended Complaint states, “Plaintiff Anderson did not comply with the demands of the County Staff . . . [and] distributed [the report] to all CIC members, the County Auditor, Oregon State Legislators . . ., the Oregon Secretary of State . . . and media reporters[.]” Id. at 24. Defendant does not specifically contest whether plaintiff Anderson spoke in defiance of “demands of the County Staff,” but asserts that speech made “‘in defiance of orders' does not by itself trigger First Amendment protection.” Mot. 8, ECF 18 (citing Ohlson v. Brady, 9 F.4 1156, 1163-64 (9th Cir. 2021)).
Defendant is correct that no single Dahlia factor is dispositive as to the court's determination of whether plaintiff Anderson spoke as a private citizen. However, plaintiff Anderson plausibly alleges facts that go to all of the Dahlia factors-i.e., that he was directed to not share the Past and Present Report, that he did so anyway, that he shared the document outside the chain of command, and that it was not within the scope of his job duties to do so. See Am. Comp. 23-24, ECF 17. While it is a close call whether the Past and Present Report was part of his responsibilities as a member of a unique watchdog committee, the evidence must be viewed in the light most favorable to a plaintiff on a motion to dismiss. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The Eng court also emphasized that, “[i]n evaluating whether a plaintiff spoke as a private citizen, we must . . . assume the truth of the facts as alleged by the plaintiff with respect to employment responsibilities.” 552 F.3d at 1071. At this stage of the litigation, and under the Dahlia factors, plaintiff Anderson has sufficiently and plausibly alleged that he was acting as a private citizen and not as a volunteer member of the CIC when he prepared and distributed the Past and Present Report. Plaintiff Anderson has therefore plausibly alleged the second Eng factor.
Regarding the third Eng factor, “plaintiff bears the burden of showing defendant took an adverse employment action against the plaintiff and that the plaintiff's speech was a substantial or motivating factor.” Greisen, 925 F.3d at 1113. As with the other factors, the Eng court emphasized, “[t]his third step is purely a question of fact. . . . In evaluating whether the government's adverse employment action was motivated by the employee's speech, we must assume the truth of the plaintiff's allegations.” 552 F.3d at 1071. Here, to show defendant's retaliatory motives, plaintiff Anderson alleges that, “the [BOCC's] Chair's staff criticized the Past and Present Report and suggested that Plaintiffs Anderson and Yu Te resign from the CIC[]” during a meeting that allegedly occurred on March 12, 2018. Am. Comp. 23, ECF 17. Plaintiff Anderson argues that defendant's retaliatory motive for removing him from the CIC in June 2018 is also evident from the April 5, 2018 email memorandum from OCI executive director Dani Bernstein and program director Brenda Morgan to CIC members regarding the OIC's request to have plaintiffs Anderson and Te removed from the CIC. See id., Ex. 14, at 1. Plaintiff Anderson goes further in claiming that, “[a]fter distribution of the Past and Present Report”-which plaintiff Anderson contends happened at least once, on February 15, 2018- “County Staff cancelled the CIC planning meeting . . . [and] CIC members began receiving phone calls from County Staff, seeking potential complaints against Plaintiffs Anderson and Yu Te.” Id. at 28.
Defendant contests plaintiff Anderson's allegations of retaliation and argues that Dani Bernstein and Brenda Morgan wrote CIC members on April 5, 2018, because, as stated in the email, “[m]ultiple CIC members and county staff have reported interactions with Greg Anderson and Yu Te that they describe as bullying, intimidating, and aggressive.” Am. Comp., Ex. 14, at 1, ECF 17. While defendant concedes that plaintiffs' allegations are entitled to a presumption of truth, see Mot. 4, ECF 18, it also points out, correctly, that the court is not required to accept as true “allegations that contradict exhibits attached to the Complaint.” Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (2010). The court acknowledges some inconsistencies between the Amended Complaint and plaintiffs' exhibits. As a result, the assessment of the Eng factors is a close call in this case. Because of the unique nature of the CIC's duties to represent the community and advocate for improvements to the management of the county, and given the clear concerns expressed by all parties about the functionality of the former CIC prior to defendant's passage of Resolution 2018-074, the parties particularly dispute the responsibilities and effectiveness of the former CIC. However, at this early stage of the litigation, “[i]f there are two alternative explanations, one advanced by defendant and the other advanced by plaintiff, both of which are plausible, plaintiff's complaint survives a motion to dismiss under Rule 12(b)(6).” Updateme Inc. v. Axel Springer SE, No. 17-CV-05054-SI, 2018 WL 1184797, at *6 (N.D. Cal. Mar. 7, 2018) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). Plaintiff Anderson's First Amendment claim for retaliation therefore survives.
2. Plaintiff Te
Like plaintiff Anderson, plaintiff Te alleges that defendant suspended the operations of the CIC and rescinded his appointment to the CIC “to stifle [his] speech on issues of public concern.” Am. Comp. 20, ECF 17. As an example of the speech defendant allegedly sought to stifle, plaintiff Te alleges that, “[o]n January 30, 2018, Plaintiffs Anderson and Yu Te met with County Auditor Steve March to share the forthcoming draft report and ask for his assistance in resisting efforts of the BOCC and Multnomah County Staff to impede the work of the CIC.” Id. at 5. Plaintiff Te asserts numerous allegations regarding adverse actions allegedly taken against him based on the Past and Present Report, see id. at 23, 27-28, but he cannot rely on that speech in asserting his First Amendment retaliation claim because plaintiffs have failed to plausibly attribute authorship of that report to anyone other than plaintiff Anderson. See supra. The court therefore considers the sufficiency of plaintiff Te's First Amendment retaliation claim based on his alleged communication with County Auditor Steve March.
Because defendant does not contest whether any of the plaintiffs spoke on a matter of concern, the first question is whether plaintiff Te has plausibly alleged that he spoke as a private citizen rather than a public volunteer when he met with the county auditor. See Eng, 552 F.3d at 1070-71. Under the Dahlia factors, plaintiff does not allege that he spoke “in direct contravention to his supervisor's order,” 735 F.3d at 1074, but he does argue that he spoke outside the chain of command and did so “not pursuant to [his] official responsibilities.” Resp. 11, ECF 22 (emphasis added). On the one hand, a meeting between plaintiff Te and the county auditor to discuss concerns about the CIC, BOCC, and county staff could have been part of plaintiff Te's regular job duties because plaintiffs have described the CIC as serving in a “watchdog” capacity, and the CIC's duties under former MCC § 3.252 included “ongoing study and discussion of the county's priorities, programs, and procedures” and “strengthening and encouragement of department advisory boards.” Am. Comp., Ex. 3, at 3, ECF 17. On the other hand, plaintiff Te alleges that he met with the county auditor concerning Multnomah County's “efforts to impede the work of the CIC,” and alleges that he approached the auditor “to ask for his assistance in resisting” those efforts. Id. at 5. This implies that plaintiff Te's discussion with the county auditor was not a typical work meeting and that plaintiff Te raised concerns about possibly improper or unauthorized actions within Multnomah County administration that went beyond his normal duties and that were more akin to the protected speech at issue in Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006).
In Freitag, a female former corrections officer asserted a free speech retaliation claim alleging that she was punitively investigated after reporting sexual harassment to her supervisors, contacting a state senator, and writing to the state inspector general. 468 F.3d at 545. In assessing whether the plaintiff spoke as part of her job duties, the Ninth Circuit noted that the plaintiff “[did] not lose her right to speak as a citizen simply because she initiated the communications while at work or because they concerned the subject matter of her employment,” and ultimately found, “[i]t was certainly not part of her official tasks to complain to the Senator or the IG about the state's failure to perform its duties properly.” Id. Here, because plaintiff Te has alleged that he “had no official duty to criticize the Commissioners and their staff,” and further alleged that County Auditor Steve March was not within the “chain of command” for the CIC, he has plausibly alleged the second Eng factor, i.e., that “he spoke as a private citizen rather than as a public employee.” 552 F.3d at 1070-71.
Plaintiff Te has also plausibly alleged that his protected speech “was a substantial or motivating factor” in defendant's suspension of the CIC and rescinding of the members' terms, the third Eng factor. See id. While plaintiff Te does not draw a straight causal line between his meeting with Steve March on January 30, 2018, and the subsequent adverse actions defendant allegedly took against him, he does assert that “the [BOCC's] Chair's staff criticized the Past and Present Report and suggested that plaintiff Anderson and Yu Te resign from the CIC” during a March 12, 2018 meeting, Am. Comp. 23, ECF 17, and also cites the April 5, 2018 email from OCI staff regarding the OCI's request to have plaintiffs Anderson and Te removed from the CIC. See id., Ex. 14 at 1. While both allegations are undermined to some degree by plaintiff Anderson's sole authorship of the Past and Present Report and the reasons stated in the April 5, 2018 email regarding the OCI's efforts to remove plaintiff Te from the CIC (i.e., based on reports about his “bullying, intimidating, and aggressive behavior”), plaintiff Te has offered more than “labels or conclusions” to support his claim of retaliation. Iqbal, 556 U.S. at 678.
Both parties assert a plausible explanation as to defendant's motives in seeking to remove plaintiff Te from the CIC initially in April 2018, and again in June 2018. However, as already noted, “[i]f there are two alternative explanations, one advanced by defendant and the other advanced by plaintiff, both of which are plausible, plaintiff's complaint survives a motion to dismiss under Rule 12(b)(6).” Starr, 652 F.3d at 1216. Therefore, plaintiff Te's First Amendment retaliation claim survives.
3. Plaintiffs De La Torre-Guerrero and Willmschen
In contrast to plaintiffs Anderson and Te, plaintiffs Willmschen and De La Torre-Guerrero have not plausibly alleged that defendant's adoption of Resolution 2018-074 was “substantially motivated by their prior, protected expressive conduct.” Mot. 6, ECF 18. These plaintiffs' First Amendment retaliation claims also rely heavily on the Past and Present Report, but, as noted, plaintiffs have not plausibly alleged that the report is attributable to anyone other than plaintiff Anderson. See supra. As for other speech that could have prompted defendant's adoption of Resolution 2018-074, the Amended Complaint identifies no specific speech made by either plaintiff Willmschen or plaintiff De La Torre-Guerrero prior June 28, 2018. Instead, the Amended Complaint broadly alleges that,
Plaintiffs in the first half of 2018 often appeared and made very short statements to the BOCC during the ‘public comment' initial portion of each BOCC meeting. Their statements pertained to the public involvement function of Multnomah County government.Am. Comp. 24-25, ECF 17. Plaintiffs add:
Further examples of the speech that the BOCC sought to stifle include: discussion of (1) provision of adequate, timely health care services and mental health care to low-income citizens of the County; (2) provision of housing for persons in the County; (3) actions to reduce air pollution, particularly at hotspots in the County that coincide with low-income neighborhoods; and (4) reconfiguration of streets to increase transportation efficiency and reduce death and injury to pedestrians and cyclists.Id. at 26. While plaintiffs next assert that “adverse actions of Multnomah County against Plaintiffs took place after Plaintiffs had criticized various operations of Multnomah County,” Id. at 27, they fail to specify what, if anything, was actually said by plaintiff Willmschen or plaintiff De La Torre-Guerrero, and fail to indicate how any of the speech (as described above) that allegedly occurred prior to June 2018 constituted criticism or why it would have prompted defendant to take adverse action against Willmschen or De La Torre-Guerrero.
At a minimum, plaintiffs must allege sufficient facts to enable assessment of their claims under the Eng factors. See 552 F.3d at 1070-71. As the Dahlia court made clear, “all the factors are necessary, in the sense that failure to meet any one of them is fatal to the plaintiff's case.” See 735 F.3d at 1067 n.4. However, plaintiffs Willmschen and De La Torre-Guerrero's general references to topics addressed by “plaintiffs” do not provide the kind of facts necessary to determine whether either plaintiff Willmschen or De La Torre-Guerrero spoke as a private citizen rather than a public employee, or whether their particular speech could have motivated defendant to take adverse action against either of them. It is true that, at this early stage of litigation, a plaintiff's complaint “does not require ‘detailed factual allegations.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “Rule 8 nevertheless ‘demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.'” Id. Further, because of the unique nature of the former CIC as a “watchdog” entity, and given the responsibilities outlined in MCC § 3.252 regarding the specialized duties of the CIC around community advocacy, the determination of whether plaintiff Willmschen or De La Torre-Guerrero were doing their job when they allegedly spoke on the topics above is a particularly fact-intensive inquiry-even on a motion to dismiss. Because plaintiffs Willmschen and De La Torre-Guerrero have failed to allege with sufficient specificity that they engaged in any speech at all prior to June 28, 2018, let alone constitutionally protected speech, their First Amendment retaliation claims based on Resolution 2018-074 cannot succeed.
Plaintiffs assert the following examples of speech that allegedly occurred after the BOCC adopted Resolution 2018-074:
• An October 15, 2018, memorandum to the Multnomah County Human Resources Director from plaintiffs Anderson, Te, and De La Torre-Guerrero regarding “your third-party investigation of us” and stating concerns about the nature and scope of the investigation. See Am. Comp., Ex. 10, at 1-2, ECF 17.
• A November 4, 2018, document that contains ‘findings' and ‘resolutions' regarding requests for investigative assistance from the Multnomah County auditor and Oregon secretary of state and signed, “Bernardino De La Torre-Guerrero, Chair, Community Involvement Committee.” See id., Ex. 4, at 1-2.
• A November 19, 2018, letter to Oregon Secretary of State Dennis Richardson from plaintiffs Anderson and De La Torre-Guerrero “on behalf of the remaining members of the Community Involvement Committee,” stating that, “Multnomah County . . . has abused its power and violated the county Charter,” and alleging examples. See id., Ex. 11, at 1-3.
• A December 6, 2018, email to County Auditor Steve March from plaintiffs Anderson and De La Torre-Guerrero “on behalf of the remaining members of the Community Involvement Committee,” containing the same allegations as the November 19 letter to Secretary Richardson. See id., Ex. 5 at 1-3.
Regarding these examples of speech, plaintiffs argue:
[O]rdinance [1267] was also retaliation against Plaintiffs, so the events of November 19, 2018 (Plaintiffs' letter to Secretary of State Richardson) and December 6, 2018 (email to County Auditor Steve March) are relevant to Defendant's motivation, as were Plaintiffs' activities between June 18 and December 13, 2018 of continuing to meet and to conduct what they contended was CIC business.Resp. 19, 22.
It is unclear what adverse action is contained within Ordinance 1267 that would constitute retaliation against any plaintiff, including plaintiffs Willmschen and De La Torre-Guerrero, and there is no dispute that a plaintiff asserting a First Amendment retaliation claim “must allege that . . . a state actor took some adverse action against him[.]” Munford v. Sanchez, No. 21-CV-851 JLS (JLB), 2021 WL 3726026, at *3 (S.D. Cal. Aug. 23, 2021) (citing Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Here, it is clear that plaintiffs strongly contest the legality of Ordinance 1267, but plaintiffs never suggest or allege that the CIC was suspended or its former members removed by Ordinance 1267. In fact, plaintiffs specifically concede that “Ordinance No. 1267 does not rescind any appointments to the CIC made pursuant to the previously effective ordinance,” and further acknowledge that “Ordinance 1267 relies upon the unlawful Resolution 2018-074 as having rescinded the appointments of all CIC members as of June 2018.” Am. Comp. 15, ECF 17.
In the section of the Amended Complaint that challenges the legality of Ordinance 1267, plaintiffs describe themselves as the “rightful members and chair of the CIC,” and allege that the ordinance “unlawfully purports to transfer hiring and firing authority over CIC staff from the CIC to the BOCC . . . [and] to put the CIC staff under the control of the County Chair[.]” Am. Comp. 17, ECF 17. Plaintiffs further allege that the ordinance “unlawfully places the Office of Community Involvement in charge of the CIC[.]” Id. at 18. By making these assertions, plaintiffs Willmschen and De La Torre-Guerrero seem to imply that Ordinance 1267 constituted “adverse action” against them because the ordinance made changes to the Multnomah County Code that diminished their power as the “rightful members of the CIC.” See id. at 17. It is difficult to discern, however, how the BOCC could take retaliatory or adverse action against plaintiffs by altering the powers of the CIC if the BOCC had no reason to regard plaintiff Willmschen or De La Torre-Guerrero as members of that body. In other words, plaintiffs' allegation that Ordinance 1267 constituted adverse action because they still considered themselves to be CIC members does not plausibly allege that defendant, acting through the BOCC, regarded them in that light and therefore passed Ordinance 1267 to punish them for their protected speech. Because plaintiffs Willmschen and De La Torre-Guerrero have failed to allege that they were adversely affected by Ordinance 1267, they have failed to state a claim for First Amendment retaliation under the Eng factors. See 552 F.3d at 1070-71.
D. Due Process Claims
Plaintiffs' final claims assert violations of their due process rights under the Fourteenth Amendment of the U.S. Constitution and allege that “Multnomah County did not notify Plaintiffs of any specific misconduct alleged against them that warranted their removal from the CIC on June 28, 2018, conducted no evidentiary proceeding or hearing, made no findings of fact, and issued no conclusions of law[.]” Am. Comp. 6, ECF 17. Plaintiffs further assert that they suffered “stigma” due to defendant's actions and claim that their removal from the CIC “impaired Plaintiffs' opportunities for future employment and future public service.” Id. at 33. Defendant argues that plaintiffs' due process claims must be dismissed because plaintiffs “have not . . . identified or alleged the existence of any liberty or property interest in their continued appointments to the CIC.” Mot. 12, ECF 18.
The Fourteenth Amendment provides: “No state shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend XIV, § 1. “A procedural due process claim has two distinct elements: (1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections.” Roybal v. Toppenish Sch. Dist., 871 F.3d 927, 931 (9th Cir. 2017).
“In order to establish a claim for loss of property without due process of law in violation of the fourteenth amendment, a plaintiff must demonstrate a protectible property interest in his employment.” Thorton v. Barnes, 890 F.2d 1380, 1386 (7th Cir. 1989) (citing Bishop v. Wood, 426 U.S. 341, 343 (1976)); Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972) (“To have a property interest in a benefit, a person must have more than an abstract need or desire for it.”). Property interests “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Town of Castle Rock v. Gonzalez, 545 U.S. 748, 756 (2005) (quoting Paul v. Davis, 424 U.S. 693, 709 (1976)); see also Roth, 408 U.S. at 1409 (“Entitlements arise from rules or understandings from independent sources, such as statutes, regulations, and ordinances, or express or implied contracts.”). A reasonable expectation of entitlement is derived from the wording of the independent source of law, and the “extent to which the entitlement is couched in mandatory terms.” Stiesberg v. State of Cal., 80 F.3d 353, 356 (9th Cir. 1996).
To state a due process liberty claim, plaintiffs must show that: (1) the state made a charge “that might seriously damage [their] standing and associations in the community”; (2) “the accuracy of the charge is contested”; (3) “there is some public disclosure of the charge”; and (4) the charge was “made in connection with the termination of employment or the alteration of some right or status recognized by state law.” Wenger v. Monroe, 282 F.3d 1068, 1074 (9th Cir. 2002) (quoting Llamas v. Butte Cmty. Coll. Dist., 238 F.3d 1123, 1129 (9th Cir. 2001)).
Here, defendant argues that plaintiffs cannot assert a due process claim because plaintiffs “have not-and cannot-identify any ordinance or provision . . . that would provide them a constitutionally significant property interest.” Mot. 13, ECF 18. The Ninth Circuit's decision in Hyland I supports defendant's argument. There, a volunteer probation officer argued that his termination violated his right to due process, but the court upheld the dismissal of his claims because the terminated volunteer failed to show that he held a protected property interest in his volunteer position under state law-a necessary element of both of his due process claims. 972 F.2d at 1140-43. The plaintiff argued that he had been promised his volunteer position for a period of time, but the court found that such a promise could not create the requisite property interest because “[t]emporary, non-civil service employees have no property interest in continued employment” under California state law. Id. at 1141. Thus, the Ninth Circuit held that the plaintiff “ha[d] no constitutionally cognizable property interest in the perpetuation of his volunteer status.” Id. at 1142. The court rejected the plaintiff's liberty interest claims for the same reason. See id. Although the plaintiff alleged that he suffered reputational damage from being terminated from his position, the court emphasized that “protections of the Due Process Clause do not attach to false or damaging accusations alone,” and further emphasized that “criticism must be accompanied by the loss or alteration of a right or status recognized by state law[.]” Id. (citing Paul, 424 U.S. at 708-09). Again, the court held, “[u]nder California law, [the plaintiff] has no protected property interest in or legal entitlement to his volunteer position,” and therefore concluded that the district court properly dismissed the plaintiff's liberty interest claim because “[t]he loss of his volunteer job thus did not deprive him of a right otherwise protected by state law.” Id.
Here, plaintiffs argue that they “were entitled to their positions at the time the Commission removed them,” and rely on provisions of the Multnomah County Charter that established the CIC and provisions of Multnomah County Code that set three-year terms for CIC volunteer members. Resp. 20-22, ECF 22. Plaintiffs also claim that CIC members are “public officials” under Oregon law with protectable property interest in their positions. Id. However, none of the provisions cited by plaintiffs provide any legal rights or entitlements connected with a position on the CIC, and plaintiffs cite no county policies or regulations that establish or require particular procedures in connection with termination of service on the CIC. Plaintiffs have therefore failed to allege that defendant violated their property interests without due process of law. See Miller v. Watson, No. 3:18-CV-00562-SB, 2019 WL 1871011, at *3 (D. Or. Feb. 12, 2019), report and recommendation adopted, 2019 WL 1867922 (D. Or. Apr. 25, 2019) (dismissing a county volunteer's due process claim where “state law does not provide a property interest in his volunteer position”); see also Johnson v. Brown, No. 3:21-CV-1494-SI, 2021 WL 4846060, at *23 (D. Or. Oct. 18, 2021) (citing Hyland1, 972 F.2d at 1141, and noting “there is no constitutionally protected property interest in a volunteer position”).
Plaintiffs' claims asserting violations of their liberty interests fare no better. While plaintiffs allege they “are subject to stigma due to the actions of [defendant] in suspending the CIC operation and rescinding CIC memberships,” Resp. 25, ECF 22, they must, like the plaintiff in Hyland I, cite to some “right or status recognized by state law,” because “calumny unaccompanied by the loss or alteration of a right or status recognized by state law does not constitute a deprivation of liberty within the meaning of the Fourteenth Amendment's Due Process Clause.” Hyland I, 972 F.2d at 1142 (citing Paul, 424 U.S. at 711). Again plaintiffs have not shown that they hold or held a protected property interest in their volunteer positions on the CIC under state law, and where other terminated government volunteers have asserted violations of their liberty interests without alleging the requisite property interest, district courts have dismissed those claims. See, e.g., Miller, 2019 WL 1871011, at *15-*17 (dismissing a plaintiff's liberty interest claim where the plaintiff could not establish a protected property interest in his volunteer position); Gregory v. Fresno County, No. 1:18-cv-00524-LJO-SAB, 2019 WL 2420548, at *21 (E.D. Cal. June 10, 2019), report and recommendation adopted, 2019 WL 7601832 (E.D. Cal. Aug. 8, 2019) (stating that “volunteering for [an] organization is insufficient to allege an interest protected by the Fourteenth Amendment”); Johnson v. Wash. State Conservation Comm'n, No. C18-5824 RJB, 2019 WL 1429503, at *6 (W.D. Wash. Mar. 29, 2019) (“There are no identifiable liberty or property interests in Plaintiffs' volunteer positions.”). Therefore, plaintiffs' claims seeking damages for alleged violations of their due process rights cannot survive.
RECOMMENDATIONS
Defendant's motion to dismiss (ECF 18) should be GRANTED IN PART and DENIED IN PART in that: the motion to dismiss based on lack of subject matter jurisdiction should be GRANTED, and the motion to dismiss based on failure to state a claim should be (1) DENIED as to the First Amendment retaliation claim asserted by plaintiff Anderson and plaintiff Te, (2) GRANTED as to the First Amendment retaliation claim asserted by plaintiff De La Torre-Guerrero and plaintiff Willmschen, (3) GRANTED as to the free speech and due process claims for damages asserted under the Oregon Constitution, and (4) GRANTED as to the due process claims asserted by all plaintiffs under the U.S. Constitution.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Tuesday, January 18, 2022. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.