At an oral argument session in San Francisco, counsel for Thomas Ostly — who was among a group of city employees let go when then-newly elected San Francisco District Attorney Chesa Boudin took office in 2020 — urged the three-judge panel to revive his suit, which was tossed by a federal district court in June 2023.
Ostly's suit contended that he was targeted for firing when Boudin swept in because he had told the media that public defenders were breaking the rules by not communicating plea offers with clients.
But U.S. Circuit Judge Susan P. Graber pointed out Wednesday that Boudin had essentially said he wasn't aware of the complaints or potentially protected speech at issue in the case, which would mean his actions couldn't have been retaliatory.
"What is your response to that?" she asked Shane Anderies of Anderies & Gomes LLP, counsel for Ostly, later adding, "What support is there in the record that Mr. Boudin was aware of these alleged complaints?"
Oral arguments focused mainly on whether the First Amendment protected Ostly's speech, and whether his firing was unlawful retaliation. U.S. Circuit Judge Consuelo M. Callahan posited that Boudin could have fired Ostly simply because Ostly was a "more traditional prosecutor" and Boudin was "more progressive" and had a different philosophy for the office.
Boudin himself was removed from office in a recall election in 2022.
In the 2023 summary judgment order nixing Ostly's suit, U.S. District Judge Edward M. Chen said that Ostly's assertions of a discriminatory motive lacked evidence, and that his public complaints about the plea deals were not protected by the First Amendment because they were done as part of his job.
Anderies also pointed out emails that he said showed the public defenders were not fans of Ostly. Graber said she wasn't sure that was relevant.
"If he's removed because the public defenders don't like him, that's not a First Amendment issue, is it? Graber asked. "The fact that they don't like him seems to me separate from the allegedly protected speech."
If the reason the public defenders didn't like Ostly was because of his whistleblowing, then it would be related, Anderies said.
"But you still have to show us that there's evidence that Mr. Boudin knew that," Graber said. "And that's what I, just speaking for myself — I don't find a nonspeculative nexus there."
In a brief, Ostly argued that his statements — which accused public defenders of breaking rules by not communicating plea offers to their clients — were "related to a topic of public interest involving public figures and employees engaging in conduct affecting the public at large."
But the panel seemed skeptical, with Judge Callahan noting that employees in the San Francisco District Attorney's Office are at-will employees. That, she asked, means when a new district attorney is elected, he or she can "bring in their own people, and they can get rid of everyone if they want – correct?"
Anderies confirmed that to be correct.
Arguing for the city, Peter Cownan of the San Francisco City Attorney's Office said that the staff replacements Boudin made were "a common occurrence in San Francisco."
Callahan drew on her own experience as a trial judge to say that "you don't want to take a plea from someone if they don't have all the information, and I don't think society wants the courts accepting pleas or supporting convictions or sentences when the defendant has not had a proper opportunity to have all of the information."
How, she asked Cownan, is that not a matter of public concern?
Cownan eventually conceded that Ostly's point, if valid, would be a matter of public concern, but that it would be "activity that he is pursuing or conducting as a result of his job as an assistant district attorney. It is not as a private citizen, and that's the import, particularly in this case."
U.S. Circuit Judges Susan P. Graber, Consuelo M. Callahan and Lucy H. Koh served on the panel for the Ninth Circuit.
Ostly was represented at oral arguments by Shane K. Anderies of Anderies & Gomes LLP.
The city and county of San Francisco were represented at oral arguments by Peter Cownan of the San Francisco City Attorney's Office.
The case is Thomas Ostly v. City and County of San Francisco et al., case number 23-16000, in the U.S. Court of Appeals for the Ninth Circuit.
--Editing by Amy French.
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