Blanford et al v. Dunleavy et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ANTHONY L. BLANFORD and
JOHN K. BELLVILLE,
Plaintiffs,
vs.
MICHAEL J. DUNLEAVY, in his
individual and official capacities;
TUCKERMAN BABCOCK; and the
STATE OF ALASKA,
Defendants.
Case No. 3:19-cv-00036-JWS
ORDER ON MOTIONS FOR
SUMMARY JUDGMENT
[Docs. 54, 55]
I. 	MOTIONS PRESENTED
At docket 54, Plaintiffs, Anthony L. Blanford and John K. Bellville
(collectively “Plaintiffs”), filed a motion for summary judgment on their claims that
Defendants, Governor Michael J. Dunleavy, Tuckerman Babcock, and the State of
Alaska (collectively “Defendants”), violated their rights under the First Amendment
of the United States Constitution, and Article I, § 5 of the Alaska Constitution.
Defendants responded at docket 61. Plaintiffs replied at docket 64. Defendants filed
their cross-motion for summary judgment at docket 55. Plaintiffs responded at docket
62. Defendants replied at docket 63. Oral argument was requested, but was denied at
docket 66 because it would not be of further assistance to the Court’s determination.
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Blanford, et al. v. Dunleavy, et al. 	Case No. 3:19-cv-00036-JWS
Order on Motions for Summary Judgment 	Page 2
II. 	BACKGROUND
In 	November 	2018, 	Defendant 	Michael 	J. 	Dunleavy 	was 	elected
Governor of the State of Alaska. He selected Defendant Tuckerman Babcock to serve
as the chair of his transition team. Part of any transition process requires appointing
subordinate executive branch officials, which necessarily involves replacing officials
that 	served 	under 	the 	prior 	administration. 	In 	past 	transitions, 	incoming
administrations requested resignations from around 250 employees. 1 	Governor
Dunleavy significantly broadened the scope of this practice when, on November 16,
2018, Mr. Babcock, as the chair of the Governor-Elect’s transition team, sent a
memorandum to most of the state’s at-will employees—numbering at least 800 and
including not only department heads, but also criminal prosecutors, state attorneys,
medical doctors, psychiatrists, pharmacists, fiscal analysts, tax code specialists,
investment managers, geologists, accountants, IT professionals, and administrative law
judges.2 The memorandum required employees to submit a resignation, along with a
statement of interest in remaining employed with the new administration. 	The
memorandum stated in part as follows:
In the coming weeks, the incoming administration will
be making numerous personnel decisions. 	Governor-
Elect Dunleavy is committed to bringing his own brand
of energy and direction to state government. 	It is not
Governor-Elect Dunleavy’s intent to minimize the hard
work and effort put forth by current employees, but
rather to ensure that any Alaskan who wishes to serve is
given proper and fair consideration.
1 Dockets 54-4; 54-5.
2 Dockets 54-5; 54-6; 54-7.
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Blanford, et al. v. Dunleavy, et al. 	Case No. 3:19-cv-00036-JWS
Order on Motions for Summary Judgment 	Page 3
As is customary during the transition from one
administration to the next, we hereby request that you
submit 	your 	resignation 	in 	writing 	on 	or 	before
November 30, 2018 to Team2018@alaska.gov. If you
wish to remain in your current position, please make
your 	resignation 	effective 	upon 	acceptance 	by 	the
Dunleavy administration.
Acceptance 	of 	your 	resignation 	will 	not 	be
automatic, and consideration will be given to your
statement of interest in continuing in your current or
another appointment-based state position. 	Please also
include your email address and phone contact so that
you can be reached to discuss your status directly.
Governor-Elect Dunleavy is encouraging you
and all Alaskans to submit their names for consideration
for service to our great state. . . .3
The memorandum was accompanied by a resignation form, which included a sentence
where employees had to choose whether or not they wanted to be considered for their
position with the Dunleavy administration.4
Plaintiffs were among the employees who received the resignation
memorandum. At that time, Dr. Blanford was the chief of psychiatry and Dr. Bellville
was a staff psychiatrist at Alaska Psychiatric Institute (“API”), the State’s psychiatric
hospital. Dr. Blanford was hired in 2016 as a staff psychiatrist and later was promoted
to the chief of psychiatry position. Dr. Bellville started at API in the spring of 2018.
Dr. Blanford was surprised that he received the resignation request and Dr. Bellville
initially disregarded his receipt of the memorandum as a mistake, because they did not
3 Docket 54-1.
4 Docket 54-3.
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Blanford, et al. v. Dunleavy, et al. 	Case No. 3:19-cv-00036-JWS
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consider their jobs to be political in nature and both were professionally well-regarded
at API.5
The demand for the resignations of all at-will employees was reported in
the local newspaper. 	Governor Dunleavy explained his decision to a reporter: 	“We
want to give people an opportunity to think about whether they want to remain with
this administration and be able to have a conversation with us.”6 Mr. Babcock was
reported as saying as follows:
[Governor 	Dunleavy] 	just 	wants 	all 	of 	the 	state
employee who are at-will . . . to affirmatively say, “Yes,
I want to work for the Dunleavy administration,”. . . Not
just bureaucracy staying in place, but sending out the
message, “Do you want to work on this agenda, do you
want to work in this administration? Just let us know.”
. . . .
. . . I do think this is something bold and different, and
it’s not meant to intimidate or scare anybody. It’s meant
to say, “Do you want to be a part of this?”
. . . .
If you don’t want to express a positive desire, just
don’t submit your letter of resignation, . . . [a]nd then
you’ve let us know you just wish to be terminated.7
Upon reading these comments, Dr. Blanford became concerned about the propriety of
having to sign what he considered a “pledge . . . to a political agenda” in his role as
chief of psychiatry at API.8 He voiced his opposition to the resignation demand in a
5 Dockets 54-14 at ¶ 9; 54-15 at ¶ 8; 54-13 at 8; 56-6 at 2.
6 Docket 54-4.
7 Id.
8 Docket 54-14 at ¶¶ 10–13.
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Blanford, et al. v. Dunleavy, et al. 	Case No. 3:19-cv-00036-JWS
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letter to the editor of the newspaper.9 	He indicated in the published letter that he
wanted to keep his job at API, but would not submit a “symbolic gesture of deference”
in order to keep it.10 He stated he was hired for his expertise and not his “political
allegiance,” and that he could not voice his support for the administration’s agenda if
it involved “further cuts and hiring freezes, because that’s not what’s needed at API at
this time.”11 He stated his “moral allegiance” is to the mentally ill and staff who care
for them and that it was his belief that “[p]olitics have already cut deeply into our
ability to care for the mentally ill.” 12 	Dr. Bellville agreed with Dr. Blanford’s
position.13
Neither psychiatrist submitted his resignation. 	In the morning of
December 3, 2018, the day Governor Dunleavy was sworn into office, Mr. Babcock
notified Plaintiffs of their termination from service effective at noon that same day.14
While no basis was provided in the notifications, Defendants concede that Plaintiffs
were fired because they failed to submit their resignations.15 Administration officials
later requested to meet with Plaintiffs to encourage them to stay at API, but maintained
the 	condition 	that 	Plaintiffs 	reapply 	with 	the 	new 	administration. 16 	Plaintiffs
understood that they could have their jobs on the original condition—by submitting a
9 Docket 54-21.
10 Id.
11 Id.
12 Id.
13 Docket 54-15 at ¶¶ 10–13.
14 Dockets 54-22; 54-23.
15 Docket 58 at ¶ 3.
16 Dockets 56-8 at 4–5; 54-25 at 9; 54-14 at ¶ 20; 54-15 at ¶ 18.
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Blanford, et al. v. Dunleavy, et al. 	Case No. 3:19-cv-00036-JWS
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letter of intent or otherwise specifically articulating their interest in being employed at
API under the new administration, which they again refused to do, believing the
demand to be a political one to which they objected.17
This lawsuit followed. Plaintiffs assert a 42 U.S.C. § 1983 claim against
Defendants for violation of their First Amendment rights, as well as a free speech claim
under Article I, § 5 of the Alaska Constitution. 	Plaintiffs also allege a breach of the
implied covenant of good faith and fair dealing under state law. They seek monetary
relief, as well as injunctive and declaratory relief.
Plaintiffs now seek summary judgment on their federal and state free
speech claims. 	Defendants, in turn, seek summary judgment on these same claims.
They also ask for summary judgment as to Plaintiffs’ state claim for the breach of the
covenant of good faith and fair dealing.
III. 	STANDARD OF REVIEW
Summary judgment is appropriate where “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.”18 The
materiality requirement ensures that “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of
summary judgment.”19 Ultimately, “summary judgment will not lie if the . . . evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” 20
17 Dockets 54-14 at ¶¶ 20–21; 54-15 at ¶¶ 18–19.
18 Fed. R. Civ. P. 56(a).
19 Anderson v Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
20 Id.
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Blanford, et al. v. Dunleavy, et al. 	Case No. 3:19-cv-00036-JWS
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However, summary judgment is mandated “against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.”21
The moving party has the burden of showing that there is no genuine
dispute as to any material fact.22 Where the nonmoving party will bear the burden of
proof at trial on a dispositive issue, the moving party need not present evidence to show
that summary judgment is warranted; it need only point out the lack of any genuine
dispute as to material fact. 23 	Once the moving party has met this burden, the
nonmoving party must set forth evidence of specific facts showing the existence of a
genuine issue for trial.24 All evidence presented by the non-movant must be believed
for purposes of summary judgment, and all justifiable inferences must be drawn in
favor of the non-movant.25 However, the non-moving party may not rest upon mere
allegations or denials, but must show that there is sufficient evidence supporting the
claimed factual dispute to require a fact-finder to resolve the parties’ differing versions
of the truth at trial.26 “[W]hen simultaneous cross-motions for summary judgment on
the same claim are before the court, the court must consider the appropriate evidentiary
21 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
22 Id. at 323.
23 Id. at 323–25.
24 Anderson, 477 U.S. at 248–49.
25 Id. at 255.
26 Id. at 248–49.
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Blanford, et al. v. Dunleavy, et al. 	Case No. 3:19-cv-00036-JWS
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material identified and submitted in support of both motions, and in opposition to both
motions, before ruling on each of them.”27
IV. 	DISCUSSION
A. 	Plaintiffs’ § 1983 Claim Based on the First Amendment
Plaintiffs 	assert 	their 	First 	Amendment 	retaliation 	claim 	against
Defendants pursuant to 42 U.S. C. § 1983. 	Section 1983 creates a private right of
action for those plaintiffs seeking to redress and remedy constitutional wrongs caused
by those acting “under the color of state law.”28 “To state a claim under § 1983, a
plaintiff must allege two essential elements: (1) that a right secured by the Constitution
or laws of the United States was violated, and (2) that the alleged violation was
committed by a person acting under the color of State law.”29 	Based on Eleventh
Amendment considerations, a state, its agencies, and officials acting in their official
capacity cannot be sued under § 1983.30 An exception exists for § 1983 claims brought
against state officials sued in their official capacity for prospective injunctive or
declaratory relief.31 	These claims, however, must be brought against state officials
with the ability to provide injunctive relief in their official capacities.32 Claims seeking
27 Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir.
2001). 28 42 U.S.C. § 1983.
29 Long v. Cnty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006).
30 Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Wolfe v. Strankman, 392 F.3d
358, 364 (9th Cir. 2004).
31 Will, 491 U.S. at 71 n.10 (“Of course a state official in his or her official capacity, when
sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for
prospective relief are not treated as actions against the state.’” (quoting Kentucky v. Graham, 473 U.S.
159, 167 n.14 (1985))); Flint v. Dennison, 488 F.3d 816, 824–25 (9th Cir. 2007).
32 Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013).
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Blanford, et al. v. Dunleavy, et al. 	Case No. 3:19-cv-00036-JWS
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monetary damages may only be brought against a state official if the official is sued in
his or her individual capacity and such claims are subject to a possible qualified
immunity defense. 33 	For these personal-capacity claims, Eleventh Amendment
immunity issues are not implicated because the claim is actually against the individual
and not the state.34 	To establish personal liability for damages under § 1983, it is
enough to show that the official, acting under color of state law, caused the deprivation
of a federal right.35
Under these principles, Plaintiffs’ § 1983 claim against the State of
Alaska itself is not viable. The claim may be brought against Defendant Dunleavy in
his official capacity for prospective injunctive and declaratory relief, and against the
individual Defendants in their personal capacities for damages. Whether Plaintiffs are
entitled to summary judgment on this § 1983 claim depends on whether there has been
an underlying First Amendment violation and, if so, whether Defendants are entitled
to qualified immunity.
1. 	First Amendment in the public employment context
Plaintiffs’ § 1983 claim against Defendants falls within the ambit of case
law governing First Amendment rights in relation to public employment. “The Court
has rejected for decades now the proposition that a public employee has no right to a
government job and so cannot complain that termination violates First Amendment
33 Suever v. Connell, 579 F.3d 1047, 1060–61 (9th Cir. 2009); Kentucky v. Graham, 473 U.S.
159, 166 (1985).
34 Suever, 579 F.3d at 1060.
35 Id.
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Blanford, et al. v. Dunleavy, et al. 	Case No. 3:19-cv-00036-JWS
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rights . . . .”36 Under the Supreme Court’s “unconstitutional conditions” doctrine, “the
government ‘may not deny a benefit to a person on a basis that infringes his
constitutionally protected . . . freedom of speech’ even if he has no entitlement to that
benefit.”37 Based on this doctrine, “[i]t is by now black letter law that ‘a state cannot
condition public employment on a basis that infringes the employee’s constitutionally
protected interest in freedom of expression.’” 38 	This means that “[a]bsent some
reasonably appropriate requirement, government may not make public employment
subject to the express condition of political beliefs or prescribed expression.”39
Stemming from these principals are two types of cases—those falling
under the Elrod/Branti40 line of patronage cases, and those under the Pickering41 free
speech retaliation cases. 	Under Elrod/Branti, as a general rule, public employees
cannot be terminated based upon their political associations. 42 	Such patronage
practices impermissibly infringe upon public employees’ First Amendment rights.
“The threat of dismissal for failure to provide [support for the favored political party]
unquestionably inhibits protected belief and association, and dismissal for failure to
provide support only penalizes its exercise.”43
36 O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 716 (1996).
37 Bd. of Comm’rs, Wabaunsee Cnty. v. Umbehr, 518 U.S. 668, 674 (1996) (quoting Perry v.
Sindermann, 408 U.S. 593, 597 (1972)).
38 Nichols v. Dancer, 657 F.3d 929, 932 (9th Cir. 2011) (quoting Connick v. Myers, 461 U.S.
138, 142 (1983)).
39 O’Hare, 518 U.S. at 717.
40 Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S. 507 (1980).
41 Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563 (1968).
42 Biggs v. Best, Best & Krieger, 189 F.3d 989, 994 (9th Cir. 1999).
43 Elrod, 427 U.S. at 359 (plurality opinion).
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Blanford, et al. v. Dunleavy, et al. 	Case No. 3:19-cv-00036-JWS
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Pickering 	retaliation 	cases 	involve 	situations 	where 	a 	government
employer takes an adverse employment action against an employee in response to that
employee’s speech. Under these cases, it is acknowledged that the government cannot
unduly abridge employees’ free speech rights, but nonetheless has broader power to
restrict the speech of its employees than the speech of its constituents given the
different interests at play. 	As a result, unlike the Elrod/Branti cases “where the raw
test of political affiliation suffice[s] to show a constitutional violation,” these speech-
related cases require the application of a balancing test developed in Pickering to
determine whether the employee’s speech is constitutionally protected.44 Under the
balancing test, the court must consider “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.” 45 	This balancing test is also applied in “hybrid speech/association”
claims, where speech is inextricably linked with the associational activity in question.46
Under both types of cases—whether involving political affiliation or
political 	speech—an 	exception 	is 	carved 	out 	for 	those 	employees 	holding
policymaking positions; such employees may be fired for “purely political reasons.”47
In the Ninth Circuit, “an employee’s status as a policymaking or confidential employee
[is] dispositive of any First Amendment retaliation claim[,]” not just a claim based
44 O’Hare, 518 U.S. at 719.
45 Pickering, 391 U.S. at 568.
46 Hudson v. Craven, 403 F.3d 691, 695–98 (9th Cir. 2005); Candelaria v. City of Tolleson,
Ariz., 721 Fed. Appx. 588, 590 n.1 (9th Cir. 2017).
47 Hobler v. Brueher, 325 F.3d 1145, 1150 (9th Cir. 2003).
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solely on political affiliation. 48 	This exception reflects the view that dissenting
political speech, beliefs, or affiliations from a policymaker is disruptive enough that
the government’s interests will necessarily permit patronage-based dismissals. 49
However, “the exception is ‘narrow’ and should be applied with caution.”50 Whether
an employee falls within this classification is not simply a matter of labels and titles;
rather, “the question is whether the hiring authority can demonstrate that party
affiliation is an appropriate requirement for the effective performance of the public
office involved.” 51 	Party affiliation is interpreted broadly to encompass political
affiliation more generally, which “includes commonality of political purpose and
support.”52
2. 	Dr. Blandford’s position as the chief of psychiatry at API
As a threshold matter, Defendants argue that they cannot be liable to
Dr. Blanford for any First Amendment violation because Dr. Blanford occupied a
policymaking position at API and, therefore, could be fired for purely political reasons.
Defendants bear the burden of establishing Dr. Blanford occupied such a position.53
That is, they must show that political considerations are relevant to the chief of
psychiatry position at API. The duties of this position are not disputed and, therefore,
48 Biggs, 189 F.3d at 994–95 (emphasis added).
49 See Hobler, 325 F.3d at 1150 (noting that “some positions must be subject to patronage
dismissals for the sake of effective governance and implementation of policy”).
50 Hunt v. Cnty. of Orange, 672 F.3d 606, 611 (9th Cir. 2012) (quoting DiRuzza v. Cnty. of
Tehama, 206 F.3d 1304, 1308 (9th Cir. 2000)).
51 Branti, 445 U.S. at 518.
52 Walker v. City of Lakewood, 272 F.3d 1114, 1132 (2001) (quoting Biggs, 189 F.3d at 996).
53 DiRuzza v. Cnty. of Tehama, 206 F.3d 1304, 1311 (9th Cir. 2000).
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whether it constitutes a policymaking one is a question of law amenable to summary
judgment.54
The Ninth Circuit has set forth nine factors that can be relevant when
determining the nature of a position for purposes of the policymaking exception under
the First Amendment. These factors are as follows: (1) vague or broad responsibilities;
(2) relative pay; (3) technical competence; (4) power to control others; (5) authority to
speak in the name of policymakers; (6) public perception; (7) influence on programs;
(8) contact with elected officials; and (9) responsiveness to partisan politics and
political leaders.55 These factors do not need to be applied mechanically, but rather
should act as a guide to the underlying purpose and intent of the exception.56
As chief of psychiatry, Dr. Blandford supervised the medical, pharmacy,
and social work departments at API. 57 	He was involved in hiring decisions, and
evaluated and disciplined staff members within these departments.58 	He performed
administrative tasks such as running department meetings, completing documentation,
and 	ensuring 	compliance 	with 	various 	medical 	laws, 	policies, 	procedures, 	and
standards of care.59 He oversaw patient care and clinical services.60 His supervisor
was the CEO, and the CEO, in turn, was supervised by API’s 11-member “Governing
54 Walker, 272 F.3d at 1132.
55 Fazio v. City & Cnty. of San Francisco, 125 F.3d 1328, 1334 n.5 (9th Cir. 1997).
56 Hunt, 672 F.3d at 611–12.
57 Docket 62-2 at 2, ¶ 2.
58 Dockets 54-14 at ¶ 4; 62-2 at 3, ¶ 6.
59 Dockets 56-4; 56-5; 54-14 at ¶ 4.
60 Dockets 56-4; 56-5; 54-14 at ¶¶ 3–4.
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Body.”61 The Governing Body “is responsible for broad policy making in accordance
with applicable State of Alaska laws and regulations.”62 Its authority is delegated to it
by the Commissioner of Health and Social Services, and it “is empowered to determine
and maintain the objectives, purposes, and values of the Hospital,” to hire and fire the
CEO, and approve budgets, bylaws, rules, regulations, policies, and procedures of
API.63 Dr. Blanford was not a member of the Governing Body.64
Based on the record provided, including the duties of Dr. Blanford as
chief of psychiatry and the structural organization of API, the Court concludes that
political affiliation was not a requirement for the effective performance of his job at
API. 	Gavin Carmichael, API’s CEO at that time and Dr. Blanford’s supervisor,
confirmed that Dr. Blanford’s support of Governor Dunleavy’s agenda and his
particular political affiliations had no influence on any of his job responsibilities.65 He
confirmed that Dr. Blandford’s clinical judgment was not influenced by political
considerations.66 Furthermore, the evidence does not show that he had contact with
elected officials or that he spoke on behalf of those officials as chief of psychiatry. His
duties were distinct and clear, involving patient care, compliance, and medical services
and staff management.
61 Docket 62-2 at 2, ¶ 5; id. at 5; id. at 14.
62 Id. at 17.
63 Id. at 14, 17, 19.
64 Id. at 4, ¶ 11.
65 Docket 62-1 at 8–9.
66 Id. at 10; Docket 54-13 at 10.
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Defendants argue that Dr. Blanford’s control over subordinate medical
staff is a factor that weighs in favor of finding that his position was a policymaking
one. They argue that he supervised a large number of skilled medical staff, including
over 140 nurses. 	Looking at the record, however, that number is disputed. 	While a
memorandum dated June 4, 2018, from the Department of Health and Social Services
indicates that the duties of chief of psychiatry include supervising the nursing
department at API,67 and Mr. Carmichael testified that the nursing department reported
to Dr. Blanford,68 the organizational chart provided by Plaintiffs demonstrates that the
nursing department was overseen by a separate director of nursing, who reported to the
CEO.69 Both Mr. Carmichael and Dr. Blanford stated that he only directly supervised
about fifteen people.70 Even assuming the chief of psychiatry supervised the entire
nursing staff at API, this alone would not show that political affiliation is part of the
job, as simply increasing the number of medical personnel under his supervision does
not sufficiently demonstrate in and of itself that he affected the administration’s
political policy goals.71
Defendants argue that his supervision of the nurses bled into influential
policy decisions, such as when he “negotiated with the nurses’ union” and ultimately
solved a staffing issue.72 However, the deposition testimony that Defendants rely upon
67 Docket 56-5.
68 Docket 56-3 at 5.
69 Docket 62-2 at 5; id. at 2, ¶ 3.
70 Dockets 56-3 at 11; 62-2 at 2, ¶ 2.
71 Hunt, 672 F.3d at 614 (acknowledging that merely being a supervisor is not sufficient to
show status as a policymaker).
72 Docket 55 at 5.
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does not support such a conclusion about Dr. Blanford’s role in the staffing changes.
Mr. Carmichael stated in his deposition that he had asked Dr. Blanford to consider
API’s staffing model and propose a way that would allow for continuous nursing
coverage at the facility, and that Dr. Blanford was able to come up with a solution that
eventually was implemented.73 	There was nothing said about Dr. Blanford himself
advancing this solution or negotiating with the nurses’ union. Indeed, there is nothing
in the record to suggest he had such authority.
To the contrary, Dr. Blanford’s ability to make consequential policy
decisions was constrained by the hierarchical system at API. Even as the supervisor
of the medical staff at API, his hiring and termination decisions had to be approved by
the CEO and Governing Body.74 Similarly, his ability to implement or change policies
and practices at API was limited. Decisions involving clinical administrative matters,
whether initiated by him as chief of psychiatry or by the CEO, had to be considered
and approved by the Governing Body, which would take those matters to the applicable
commissioners as necessary.75 Any medical policies and procedures developed by him
as the chief were designed to meet medical standards of care, not policy agendas, and
even those items had to be approved by the Governing Body to go into effect.76
Defendants also point to Dr. Blanford’s salary of $298,000 a year, one
of the top salaries in the executive branch, as a factor suggesting he qualifies as a
73 Docket 56-3 at 11.
74 Dockets 62-1 at 6; 62-2 at 3, ¶ 6; 62-2 at 14.
75 Dockets 62-1 at 7; 62-2 at 3, ¶ 8.
76 Docket 62-2 at 3, ¶ 7.
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policymaker.77 When Dr. Blanford was first hired as a staff psychiatrist, his salary was
$273,000. 78 	This salary was based on his board certification, his five years of
experience, and his familiarity with API.79 Dr. Bellville, who Defendants do not claim
was a policymaker, was hired with a similar salary of $262,500.80 The evidence shows
that the alternative to hiring staff psychiatrists was to hire locum tenens psychiatrists,
which cost between $550,00 and $600,000 per year, per position.81 Given these facts,
Dr. Blanford’s high salary had more to do with the cost required to hire a qualified
psychiatrist as a permanent staff member and less about the level of influence he
exerted over state policy and governance. 	The same can be said of the technical
competence possessed by Dr. Blandford. 	It is no more than any other psychiatrist
working at API. 	Defendants have failed to show how Dr. Blanford’s salary and
competence as a psychiatrist is relevant to the overall purpose of the policymaking
exception 	to 	the 	First 	Amendment 	analysis. 	Given 	the 	Court’s 	finding 	that
Dr. Blanford did not occupy a policymaking position, his termination can implicate the
First Amendment.
3. 	Mass resignation demand as an unconstitutional patronage practice
Plaintiffs assert their terminations under Defendants’ resignation plan
were political in nature, raising patronage issues. As noted above, the Supreme Court
has held that patronage dismissals—where public employees are discharged or
77 Docket 56-5.
78 Docket 56-11.
79 Id.
80 Docket 54-12.
81 Docket 56-11.
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threatened with discharge solely because of their partisan affiliation or lack thereof—
impermissibly restrict freedoms of belief and association guaranteed under the First
Amendment. In cases involving patronage practices applied to employees not holding
policymaking 	positions, 	no 	balancing 	test 	is 	necessary 	because 	such 	practices
“unquestionably inhibit protected belief and association” and “are not narrowly
tailored to serve vital government interests.”82 	The interest the government has in
securing effective employees “can be met by discharging, demoting, or transferring
persons whose work is deficient,” and the interest the government has in loyally
implementing its policies “can be adequately served by choosing or dismissing [only
those] high-level employees on the basis of their political view” under the policymaker
exception.83
The 	seminal 	cases 	addressing 	unconstitutional 	patronage 	involved
dismissal based on party membership. 	In Elrod, a newly elected Democratic sheriff
discharged certain at-will employees because they did not belong to or otherwise have
the support of the Democratic party. 	The court found that conditioning public
employment on political activity is “tantamount to coerced belief” and inhibits
employees from exercising their own political beliefs.84 In Branti, a newly appointed
public defender had threatened to dismiss two assistant public defenders on the sole
ground that they were Republicans. 	The Court, in finding a constitutional violation,
82 Rutan v. Republican Party of Ill., 497 U.S. 62, 69, 74 (1990).
83 Id. at 74.
84 427 U.S. at 355.
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clarified that “there is no requirement that dismissed employees prove that they, or
other employees, have been coerced into changing, either actually or ostensibly, their
political allegiance.”85 	Instead, it is enough for a plaintiff to prove that they were
dismissed because they were not affiliated with the favored party.86
In Rutan, the Court revisited the Elrod/Branti doctrine to consider
whether it applies to employment actions short of dismissal. In that case, the Illinois
governor issued an executive order instituting a hiring freeze, whereby state officials
were prohibited from hiring any employee, filling any vacancy, or creating a new
position without the Governor’s express permission. Plaintiffs in that case alleged that
the Governor’s hiring freeze was operating as a patronage system whereby the
Governor limited employment and beneficial employment-related decisions to those
affiliated with his favored party to the detriment of those not affiliated with that party.
The Court held that, in line with Elrod and Branti, promotions, transfers, or recalls
based on political affiliation or support impermissibly infringe on public employees’
First Amendment rights. 87 	It found that the same First Amendment concerns
underlying the decisions in Elrod and Branti were implicated by the governor’s freeze:
Employees who do not compromise their beliefs stand
to 	lose 	the 	considerable 	increases 	in 	pay 	and 	job
satisfaction attendant to promotions, the hours and
maintenance expenses that are consumed by long daily
commutes, and even their jobs if they are not rehired
after 	a 	“temporary” 	layoff. 	These 	are 	significant
85 445 U.S. at 517.
86 Id.
87 497 U.S. at 75.
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penalties and are imposed for the exercise of rights
guaranteed by the First Amendment.88
As for hiring decisions, it concluded that, under the Supreme Court’s long-standing
precedent, “conditioning hiring decisions on political belief and association plainly
constitutes an unconstitutional condition” when applied to public positions that cannot
be considered policymaking ones.89
Party affiliation of the employee is not, in and of itself, the determinative
factor in these cases. 	That is, neither active campaigning, nor affiliation with a
competing party, nor vocal opposition to the favored political party by the employee is
required to raise the issue of unconstitutional patronage. 	“[T]he right not to have
allegiance to the official or party in power itself is protected under the First
Amendment.” 90 	Consequently, to support a First Amendment claim under these
patronage cases, it is sufficient for the employee to show “that they were fired for
failing to endorse or pledge allegiance to a particular political ideology.”91
While 	not 	as 	direct 	as 	the 	patronage 	practices 	described 	above,
Defendants’ 	demand 	for 	the 	resignations 	of 	over 	800 	at-will 	employees, 	with
acceptance 	or 	rejection 	of 	each 	resignation 	dependent 	upon 	an 	accompanying
statement of commitment to state employment under the incoming administration, is
sufficiently analogous as to its purpose and effect to be considered an unconstitutional
88 Id. at 74.
89 Id. at 78.
90 Galli v. N.J. Meadowlands Comm’n, 490 F.3d 265, 272 (3d Cir. 2007).
91 Gann v. Cline, 519 F.3d 1090, 1094 (10th Cir. 2008) (quoting Bass v. Richards, 308 F.3d
1081, 1091 (10th Cir. 2002)).
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patronage practice. It is undisputed the resignation plan was designed to communicate
to employees that they needed to express a desire to work for the Dunleavy
administration in order to retain their jobs and the resignation and reapplication process
was the means by which they were to do this.92 This intent was made sufficiently clear
to its recipients. 	The resignation memorandum itself stated that Governor Dunleavy
was “committed to bringing his own brand of energy and direction to government” and
asked employees to consider whether they wanted to remain in state service.93 The
resignation form provided to employees included a line where, after resigning their
position, the employee had to indicate whether they wanted to be considered for their
current position “with the new administration.”94 	The media reports that followed
solidified the nature of the request. 	Mr. Babcock was quoted as affirming that the
purpose of the mass resignation request was to have employees commit to working for
the Dunleavy administration and its agenda in particular, rather than just staying in
place as part of the usual bureaucracy.95 He stated that “[n]o public servant should
ever think that they are irreplaceable,”96 and he made it clear that their jobs were on
the line. 	Employees who did not offer a resignation would be terminated. 	More
specifically, he directed employees who did not want to “express a positive desire” to
work with the new administration to simply not turn in a resignation, which would,
92 Docket 64-1 at 7–11.
93 Docket 54-1.
94 Docket 54-3.
95 Docket 54-4.
96 Docket 54-8.
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convolutedly, indicate a “wish to be terminated.”97 In other words, to keep their jobs,
employees had to actually resign it as a gesture of support and then hope that the
incoming administration would reject the resignation based on unknown criteria.
Based on these circumstances, Defendants were requiring an ostensible
commitment of political support, or at least deference, in return for continued
employment, the effect of which was to either interfere with or chill employees’
exercise of protected First Amendment rights. Those that did not want to signal such
a commitment, like Plaintiffs, were fired. Those that complied to keep their jobs could
thereafter reasonably “feel a significant obligation to support political positions held
by their superiors, and to refrain from acting on the political views they actually hold”
that officials might find subversive in order to avoid dismissal.98 As such, this threat
of dismissal for failure to provide the resignation as a gesture of support for the newly
elected governor “unquestionably inhibit[ed] protected belief and association.”99
Defendants assert that there was nothing political about the resignation
plan; they issued pro forma resignation requests from at-will employees as a routine
part of the administrative transition process. However, the sheer scope of the demand
for resignations, which undisputedly went beyond what was customary during an
administration transition, and extended to employees not occupying policymaking
positions, demonstrates that the purpose went beyond routine employment action.
97 Docket 54-4.
98 Rutan, 497 U.S. at 73.
99 Elrod, 427 U.S. at 359.
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They were not actually asking at-will employees to resign en mass. Rather, they were
asking employees to offer up their job to the new administration’s express approval on
a basis left unclear, but with suggestive political underpinnings. 	Indeed, Defendants
did not describe it to employees as a mere formality. 	Rather, in connection with the
resignation demand, Mr. Babcock stressed that “[n]o public servant should ever think
that they are irreplaceable” and another transition team member stated that the
resignation demand served as a reminder to state employees that they work for the
public and that the public elected the governor.100 Therefore, it functioned less as an
employment formality and more of a hedge against, and warning to, political dissenters
working in state government. At a minimum, the resignation demand had the purpose
and effect of infusing political concerns and considerations into the civil service
sector.101
The fact that actual party membership or activity did not factor into who
received the resignation memorandum is not dispositive here. It is sufficient if, under
Defendants’ plan, employees faced potential dismissal, or other adverse employment
action, if they did not want to affiliate with a particular political ideology. Such is the
case here. 	It was made clear that by submitting a resignation, the employee was
actually signaling a commitment to work with the new governor and on behalf of his
agenda. This agenda was later described by Mr. Babcock to include support for a full
statutory PFD, the repeal of Senate Bill 91, reorganization of government agencies,
100 Dockets 54-7; 54-8.
101 Dockets 54-2 at 2; 54-5; 54-8.
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pro-life issues, and a balanced state budget. 102 	Plaintiffs did not want to align
themselves with these political priorities to the extent they involved funding cuts and
hiring freezes that would detrimentally affect the functioning of API, and therefore
they did not submit their resignations. 103 	They consequently were fired for this
exercise of their associational rights guaranteed under the First Amendment.
4. 	Retaliation for the exercise of First Amendment speech
Plaintiffs’ 	terminations 	based 	upon 	their 	refusal 	to 	provide 	their
resignations also implicates free speech issues under the Pickering line of cases. The
Ninth Circuit has synthesized Pickering and its progeny into a five-factor evaluation:
(1) whether the plaintiff spoke on a matter of public
concern; (2) whether the plaintiff spoke as a private
citizen or public employee; (3) whether the plaintiff’s
protected speech was a substantial or motivating factor
in the adverse employment action; (4) whether the state
had an adequate justification for treating the employee
differently from other members of the general public;
and (5) whether the state would have taken the adverse
employment action even absent the protected speech.104
The plaintiff bears the burden at the first three steps of the inquiry. The fourth step of
the analysis represents the Pickering balancing test, and it is at this step where the
burden shifts to the 	government 	employer 	to show 	that there 	were legitimate
administrative interests involved that outweigh the employee’s interest in commenting
about matters of public concern.105
102 Docket 64-1 at 5.
103 Docket 54-21.
104 Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009).
105 Thomas v. City of Beaverton, 379 F.3d 802, 808 (9th Cir. 2004).
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As a threshold matter, Defendants argue there is no speech actually at
issue here. They stress that Plaintiffs were not fired for anything they said or failed to
say, nor were they compelled to convey any public message in order to keep their
jobs.106 However, non-verbal conduct, such as refusing to submit a resignation, can in
fact be expressive. Conduct “implicates the First Amendment when it is intended to
convey a ‘particularized message’ and the likelihood is great that the message would
be so understood.”107
That requisite intent and understanding is present here. 	Dr. Blanford,
upon reading the media reports, understood the resignation demand to be politically
motivated. He “did not think [he] could or should have to pledge [himself] to a political
agenda in order to effectively carry out [his] duties as the chief of psychiatry [at
API].”108 He even penned an editorial stating as much. In it, Dr. Blanford indicated
that he wanted to continue in his role at API, but would not submit what he considered
to be a “symbolic gesture of deference” to a political agenda he did not necessarily
agree with and that actually may run counter to the best interests of patients and staff
106 The parties brief the issue as one of compelled speech. 	However, as shown by the
arguments made, this case does not fall neatly within the confines of that body of law. Indeed, as noted
by the Supreme Court in Janus v. Am. Fed’n of State, Cnty., and Mun. Emps., Council 31, 138 S. Ct.
2448 (2018), except for speech that is part of an employee’s official duties, “it is not easy to imagine
a situation in which a public employer has a legitimate need to demand that its employees recite words
with which they disagree. And we have never applied Pickering in such a case.” Id. at 2473. It went
on to state that even if Pickering applied in a situation involving compelled speech in the public
employment context, “it would certainly require adjustment.” Id. Here, the speech issues are more
accurately viewed as expressive conduct on the part of Plaintiffs rather than speech compelled by
Defendants.
107 Nunez v. Davis, 169 F.3d 1222, 1226 (9th Cir. 1999) (quoting Texas v. Johnson, 491 U.S.
397, 404 (1989)); Thomas, 379 F.3d at 810 (quoting Spence v. Washington, 418 U.S. 405, 410–11
(1974) (per curium)).
108 Docket 54-14 at ¶ 13.
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at API.109 In line with this editorial, he did not submit the resignation. 	Dr. Bellville
agreed with Dr. Blanford’s position and also did not submit the resignation.110 Their
refusal to resign was intended to act as a repudiation of the political underpinnings of
Defendants’ resignation requests, and the likelihood people understood their refusal as
sending such a message was indeed great. In fact, medical staff at API wrote a letter
to Defendants requesting that they not terminate Dr. Blanford despite his stated intent
not to file the resignation, which they understood to be in protest of Defendants’
directive.111 Therefore, Plaintiffs’ refusal to participate clearly conveyed an implicit
message of disapproval of the resignation demand, and therefore was expressive.112
Defendants also challenge the First Amendment’s application in this
situation, arguing that the resignation request was simply a job-related directive,
internal to state operations, and that Plaintiffs were fired for not complying with that
directive. This argument touches upon the first two factors discussed above: whether
the expressive conduct addressed a matter of public concern, and whether it was
undertaken in their capacity as private citizens or public employees. 	Both of these
issues are questions of law.113
109 Docket 54-21.
110 Docket 54-15 at ¶¶ 10–14.
111 Docket 56-6.
112 See Nunez, 169 F.3d at 1227–28 (holding that an employee’s refusal to limit attendees at
training seminars to those court employees who had worked on her supervisor’s re-election campaign
was expressive conduct on a matter of public concern).
113 Eng, 552 F.3d at 1070. 	The issue of whether the speech was made in the employee’s
capacity as a private citizen is a matter of law so long as the employee’s job duties are not disputed.
Id. at 1071.
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The inquiry into the public concern factor requires the court to undertake
a “generalized analysis of the nature of the speech.”114 	The analysis considers the
“content, form, and context of [the expression at issue], as revealed by the whole
record”115 to decide whether it fairly relates to a “matter of political, social, or other
concern to the community.”116 “Of the three concerns, content is king.”117 When the
content of the message addresses “issues about which information is needed or
appropriate to enable the members of society to make informed decisions about the
operation of their government,” it constitutes a matter of public concern.118 When the
content involves individual personnel disputes and grievances, it does not constitute a
matter of public concern.119
The message Plaintiffs intended to convey by refusing to comply with
Defendants’ directive clearly falls within the former content category. Plaintiffs were
surprised to have received a resignation request, and believed the directive effectively
was requiring political loyalty. The infusion of politics into what normally would be
non-political civil service jobs is a matter that the community appropriately would
want to know about to make an informed decision about how the new administration
planned to operate. While their objection to the request was tailored to their roles as
114 Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 964 (9th Cir. 2011) (quoting
Desrochers v. City of San Bernardino, 572 F.3d 703, 709 (9th Cir. 2009)).
115 Connick v. Myers, 461 U.S. 138, 147–48 (1983).
116 Id. at 146.
117 Johnson, 658 F.3d at 965.
118 Desrochers v. City of San Bernardino, 572 F.3d 703, 710 (9th Cir. 2009) (quoting McKinley
v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983)).
119 Id.
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psychiatrists at API, it cannot fairly be characterized as simply a personnel grievance.
Their refusal to comply was rooted in their concern about protecting the integrity of
patient care at API from political interests, which clearly is a concern that would be of
importance to the general public.
The fact that Plaintiffs’ actual failure to turn in their resignations was not
publicly announced is not dispositive. 	Speech, or expressive conduct as is the case
here, about a matter of public concern may be protected even when made in a private
context to staff and superiors rather than the general public.120 Staff at API discussed
the matter of resignations in a meeting and were aware of Plaintiffs’ position and intent
not to turn in a resignation, and they in turn signaled the issue to Defendants in a letter.
Moreover, Dr. Blanford’s intent and decision not to comply with the resignation
demand as a form of protest was, in fact, publicized.
The inquiry into whether Plaintiffs were acting as private citizens or as
public employees focuses on whether an employee’s expressions were made pursuant
to official responsibilities.121 	When an employee makes a statement as part of his
official job responsibilities, he is acting on behalf of the government, and when that
statement is unauthorized, incorrect, or improper, the First Amendment provides no
protection from disciplinary measures. Defendants argue that that Plaintiffs’ failure to
comply with their job-related directive falls within this category—a simple refusal to
follow a job directive. 	Determining whether the conduct at issue was job related
120 Thomas, 379 F.3d at 810–11.
121 Barone v. City of Springfield, Oregon, 902 F.3d 1091, 1098–99 (9th Cir. 2018).
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requires “a ‘practical’ inquiry into an employee’s ‘daily professional activities’ to
discern whether the speech at issue occurred in the normal course of these ordinary
duties.”122 The focus is on “whether the speech at issue is itself ordinarily within the
scope of an employee’s duties, not whether it merely concerns those duties.”123 Under
this case law, the fact that the subject matter of the resignation request was the job
itself does not make Plaintiffs’ refusal to submit their resignations job related. Offering
up a resignation obviously was not part of Plaintiffs’ daily activities as psychiatrists at
API.
Given the foregoing analysis, Plaintiffs’ refusal to resign in these
circumstances is protected expressive conduct. 	There is no dispute that this conduct
was the reason Defendants fired Plaintiffs, and that they would not have been fired but
for this conduct. 	It therefore falls on Defendants to show that Plaintiffs’ First
Amendment rights are outweighed by the interest the government has “in promoting
the efficiency of the public services it performs through its employees.”124 They can
do this by demonstrating some actual disruption stemming from the message. 	This
includes speech or conduct that impairs discipline, disrupts co-worker harmony,
negatively impacts confidential working relationships, impedes the performance of an
employee’s duties, or interferes with regular operations.125 No such showing has been
made, or even asserted, here. Indeed, any such disruptive effects shown in the record
122 Id. at 1099 (quoting Garcetti v. Ceballos, 547 U.S. 410, 422, 424 (2006)).
123 Lane v. Franks, 573 U.S. 228, 240 (2014).
124 Pickering, 391 U.S. at 568.
125 Rankin v. McPherson, 483 U.S. 378, 388 (1987).
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appear to be a product of the resignation plan itself.126 	Without any outweighing
interests, Defendants could not terminate Plaintiffs for their protected expressive
conduct without running afoul of the First Amendment.
5. 	Qualified immunity
Defendants 	argue 	that 	regardless 	of 	any 	underlying 	constitutional
violation, they are entitled to qualified immunity that shields them from Plaintiffs’
§ 1983 claim for damages.127 	“The doctrine of qualified immunity shields officials
from civil liability so long as their conduct does not violate clearly established . . .
constitutional rights of which a reasonable person would have known.”128 Given the
Court has found a First Amendment violation, the remaining issue to be determined is
whether 	Plaintiffs’ 	rights 	in 	relation 	to 	the 	demand 	for 	resignations 	and 	their
subsequent refusal to comply were clearly established. 	A right is clearly established
when it has a “sufficiently clear foundation in then-existing precedent.”129 The rule
must be “dictated by controlling authority or a robust consensus of cases of persuasive
authority.” 130 	“There does not need to be a ‘case directly on point,’ but existing
precedent must place the statutory or constitutional question ‘beyond debate.’”131 The
right cannot be defined with a “high level of generality.”132 	This particularly is so
126 Dockets 54-2; 54-5; 54-7; 54-8.
127 Qualified immunity is only an immunity from suit for damages, not immunity from suit for
declaratory or injunctive relief. L.A. Police Protective League v. Gates, 995 F.2d 1469, 1472 (9th Cir.
1993). 128 Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quotations omitted).
129 Nunes v. Arata, Swingle, Van Egmond & Goodwin (PLC), 983 F.3d 1108, 1112 (9th Cir.
2020) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)).
130 Id. (quoting Wesby, 138 S. Ct. at 589–90).
131 Id. (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)).
132 Id.
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when the circumstances involve quick judgments made by officials in uncertain and
rapidly 	evolving 	circumstances, 	or 	when 	an 	outcome 	is 	otherwise 	highly 	fact
dependent.133
With due consideration of the case law discussed in the preceding
sections, the Court finds that the First Amendment violation in these circumstances
was clearly established and would have been known to any reasonable government
official. 	It 	is 	beyond 	debate 	based 	on 	Supreme 	Court 	precedent 	that 	it 	is
unconstitutional to require non-policymaking employees to signal a commitment to a
political agenda in order to retain their jobs. 	The purpose and effect of Defendants’
employment practice was the same as in the seminal cases discussed above, placing
Defendants on notice that their resignation plan triggered application of these long-
standing precedents. It is not the specific details of the patronage practice that matter
in the application of the case law; rather, it is whether the practice would interfere with
an employee’s political beliefs or otherwise inhibit the political activities of public
employees. 	That effect is beyond debate here. 	As noted above, the nature of the
demand was political. As a condition to retained employment, employees had to offer
a resignation that represented a commitment to serve under a new governor and to
support his political agenda. Those that did not want to signal support of the governor’s
political agenda would be fired. For those who gave the ostensible pledge of support,
the demand admittedly served as a warning that they were replaceable and that they
133 Id. at 1112–13; Gilbrook v. City of Westminster, 177 F.3d 839, 867 (9th Cir. 1999).
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worked for the new governor, which reasonably could be interpreted as a warning
against political dissention in the state workforce. This warning would be expected to
chill employees’ political affiliations and activities that officials would consider
subversive to the administration’s agenda. The Supreme Court has repeatedly stated
that employment practices with this effect inhibit the right to free association.
It also is clearly established that a government employer may not
terminate a non-policymaking employee based upon his expressive conduct absent an
appropriate government interest. It is without question that Plaintiffs’ terminations for
refusing to resign runs afoul of this law. The Ninth Circuit has specifically held that
when an employee intends to convey an implicit message of disapproval of an official’s
activity by refusing to facilitate or participate in that activity, and the message relates
to a political matter, it is speech that implicates the First Amendment.134 In Nunez, the
plaintiff was a court administrator who was instructed by a judge to limit attendees at
training seminars to those employees who had worked on the judge’s campaign. 	In
protest of the directive, the plaintiff arranged for two employees who did not work on
the reelection campaign to attend a training seminar and consequently was fired. The
Ninth Circuit found that the plaintiff’s refusal to comply was an implicit repudiation
of the judge’s discrimination against other employees and therefore was expressive
134 Nunez, 169 F.3d at 1227–28 (holding that an employee’s refusal to limit attendees at
training seminars to those court employees who had worked on her supervisor’s reelection campaign
was expressive conduct on a matter of public concern); Thomas, 379 F.3d at 809 (recognizing that a
plaintiff’s refusal to acquiesce to a supervisor’s treatment of another employee—by promoting that
employee against the supervisor’s wishes—with an intention to convey her disapproval of the
supervisor’s unlawful retaliation against that employee would be protected expressive conduct).
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conduct that touched upon a matter of public concern. 	The evidence in that case
demonstrated that the plaintiff intended to convey a message of disapproval and that
her intention was understood by others. The same situation is presented on the record
here. Plaintiffs’ refusal to resign was intended to convey disapproval of the political
nature of the demand and was communicated as, and understood to be, an act of protest.
The political nature of Plaintiffs’ message was obvious, and the law clearly established
that the resignation request could not be considered part of their duties at API.
Furthermore, while the issue of the government’s interest in these free speech cases
can hinge on disputed facts about the nature and extent of any workplace disruption,
no such government interest has been asserted here. 	Therefore, the Court cannot
conclude that the situation presented some fact-sensitive, content-specific analysis that
would make the application of existing case law uncertain.
Defendants assert they are entitled to qualified immunity, at least as to
Dr. Blanford’s § 1983 claim, because there is no existing case law which would have
put them on notice that an employee operating as the head of one of the departments
in a state-run hospital could not occupy the role of a policymaker for purposes of the
First Amendment. They assert the issue is too fact dependent to clearly be established.
This Court disagrees. It is well understood that a non-policymaking public employee
cannot be fired for reasons encompassing political speech or affiliation. 	The
established case law makes it clear that determining whether an employee occupies a
policymaking position is a matter of that position’s particular job duties and requires a
showing that political affiliation is a part of those job duties. Here, Defendants asked
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for resignations in a manner that the Court has concluded clearly was violative of First
Amendment political association rights from almost all at-will employees, without any
regard to the particular positions they held. It reasonably would be understood that the
requests went to people not occupying policymaking positions, and that their demand
would violate at least some employees’ First Amendment rights. 	More specifically,
there is no dispute about the nature of Dr. Blanford’s job duties, and those duties would
have been well known to officials making employment decisions of this nature. As the
preceding analysis shows, none of his job duties suggest under the relevant factors that
the position of chief of psychiatry at API is one where political consideration would
come into play. 	In other words, Defendants could not have reasonably believed
Dr. Blanford occupied a political position in light of his clearly defined and medically
related job duties; indeed, there was no actual individual consideration of his position
prior to his termination.
B. 	Plaintiffs’ 	Free 	Speech 	Claim 	under 	Article 	1, 	§ 5 	of 	the 	Alaska
Constitution
The Alaska Constitution in Article 1, § 5 protects citizens’ right to free
speech. Generally speaking, Alaska’s public employee free speech cases rely heavily
on federal law,135 but the Alaska Constitution is applied more broadly in protecting
speech. 136 	Consequently, given the First Amendment violation present in the
circumstances 	here, 	Defendants’ 	conduct 	also 	violated 	Alaska’s 	free 	speech
135 See Wickwire v. State, 725 P.2d 695, 703 (Alaska 1986); State v. Haley, 687 P.2d 305, 312
(Alaska 1984).
136 Club SinRock, LLC v. Anchorage, 445 P.3d 1031, 1037–38 (Alaska 2019).
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protections. The Court notes, however, there is no implied private cause of action for
damages under the Alaska Constitution unless the case involves flagrant violations
where no alternative remedies are otherwise available.137 Given the Court’s ruling in
favor of Plaintiffs on their federal § 1983 claim, Plaintiffs cannot seek damages for the
state constitutional violation, only declaratory and injunctive relief.138
C. 	Good Faith and Fair Dealing
Under Alaska law, all at-will employment is governed by an implied
covenant of good faith and fair dealing.139 The covenant prohibits an employer from
terminating an employee for the purpose of depriving the employee of the contract’s
benefits and from dealing with the employee in a manner that a reasonable person
would regard as unfair. 140 	“Unfair actions include disparate employee treatment,
terminations on grounds that are unconstitutional, and firing that violates public
policy.”141 Defendants ask for summary judgment on this claim. They argue that the
basis of Plaintiffs’ good faith claim is the First Amendment violation, and they contest
that any such violation occurred. However, the Court has found in Plaintiffs’ favor as
to their constitutional claims, voiding Defendants’ basis for summary judgment.
Plaintiffs have not moved for summary judgment on this claim. 	It is
unclear from their complaint what additional remedies Plaintiffs seek under this claim
137 Larson v. State, 284 P.3d 1, 9–10.
138 Id.
139 Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751, 760 (Alaska 2008).
140 Id. at 761.
141 Montella v. Chugachmiut, 283 F. Supp. 3d 774, 780 (D. Alaska 2017) (citing Crowley v.
State, 253 P.3d 1226, 1232 (Alaska 2011)).
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that are not provided for pursuant to their § 1983 claim, and unclear whether Plaintiffs
have reason to pursue further litigation on this issue apart from the federal claim.
V. 	CONCLUSION
Based on the preceding discussion, Plaintiffs’ motion at docket 54 is
GRANTED, and Defendants’ motion at docket 55 is DENIED. 	The Court hereby
orders as follows:
(1) 	Plaintiffs are entitled to judgment on their § 1983 claim for
damages against Defendant Governor Dunleavy and Defendant Babcock in
their personal capacities based upon the First Amendment violation articulated
in the Court’s order.
(2) 	Plaintiffs are entitled to judgment on their § 1983 claim for
declaratory relief and injunctive relief, to the extent the requested relief is
prospective in nature, against Defendant Governor Dunleavy in his official
capacity.
(3) 	Plaintiffs are entitled to judgment on their free speech
claim brought under Article I, § 5 of the Alaska Constitution.
Counsel are instructed to promptly confer and then, within 14 days from
this order’s date, to file a notice that identifies the remaining issues for litigation,
including whether Plaintiffs are pursuing their state claim for good faith and fair
dealing and what specific injunctive and monetary relief they seek for each claim. The
notice also should suggest a schedule for resolving the outstanding issues.
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IT IS SO ORDERED this 8th day of October, 2021, at Anchorage,
Alaska.
/s/ John W. Sedwick
JOHN W. SEDWICK
Senior United States District Judge
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