NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 28 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS OSTLY, No. 23-16000

Plaintiff-Appellant, D.C. No. 3:21-cv-08955-EMC

v.

MEMORANDUM *

CITY AND COUNTY OF SAN

FRANCISCO; CHESA BOUDIN,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding

Argued and Submitted August 14, 2024 San Francisco, California

Before: GRABER, CALLAHAN, and KOH, Circuit Judges. Partial Dissent and Partial Concurrence by Judge CALLAHAN.

Plaintiff Thomas Ostly worked in an at-will capacity as an Assistant District

Attorney for the San Francisco District Attorney’s Office from 2014 until his

termination in 2020. Plaintiff brought this action against Defendants, the City and

County of San Francisco and former District Attorney Chesa Boudin, alleging

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. claims of First Amendment retaliation; violation of due process; and age-related

discrimination, retaliation, and harassment in violation of California’s Fair

Employment and Housing Act (“FEHA”), Cal. Gov’t Code § 12940. In this timely

appeal, Plaintiff challenges the district court’s grant of summary judgment to

Defendants. Reviewing de novo, Scalia v. Emp. Sols. Staffing Grp., LLC, 951

F.3d 1097, 1101 (9th Cir. 2020), we affirm.

1. The district court did not err by granting summary judgment for

Defendants on Plaintiff’s First Amendment retaliation claims. Assuming, without

deciding, that the First Amendment protects Plaintiff’s identified instances of

speech and petitioning, the retaliation claims fail because Plaintiff offered no

credible evidence of causation. See Barone v. City of Springfield, 902 F.3d 1091,

1098 (9th Cir. 2018) (explaining that, to establish a prima facie case of First

Amendment retaliation, a plaintiff must show that “the relevant speech was a

substantial or motivating factor in the adverse employment action”).

Boudin’s declaration stated that he did not recall being aware of Plaintiff’s

complaints concerning the San Francisco Public Defender’s Office or Plaintiff’s

public records requests. Boudin cited several reasons unrelated to Plaintiff’s

allegedly protected speech for Boudin’s decision to release Plaintiff, including

courtroom interactions with Plaintiff and complaints received about Plaintiff from

third parties. Plaintiff has proffered no evidence to contradict that declaration by

2 reasonable inference. See Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d

741, 750–51 (9th Cir. 2001) (affirming summary judgment because no evidence

contradicted the defendant’s declaration that he was unaware of protected speech

and, therefore, there was no evidence that the speech was a motivating factor). To

the contrary, the evidence on which Plaintiff relies lacks any nexus to the relevant

speech. For instance, Plaintiff argues that an email circulated within the Public

Defender’s Office supports his contention that Boudin knew about Plaintiff’s

reports to the press and to the California State Bar. But that email discusses a

lawsuit regarding Plaintiff’s conduct at a prior law firm that predated the earliest

instance of Plaintiff’s allegedly protected speech and makes no mention of either

the press or the State Bar. Similarly, the SF Chronicle article on which Plaintiff

relies describes only sources of information other than Plaintiff.

Plaintiff asks us to overlook the lack of nexus and hold that circumstantial

evidence undercuts Boudin’s declaration, which in turn establishes that Boudin

knew about Plaintiff’s speech. Arriving at that conclusion requires a series of

inferential leaps that are impermissibly speculative. To infer from an unrelated

email that Boudin may have been aware of Plaintiff’s reports to the SF Chronicle,

when nothing in the record supports that Boudin even read the SF Chronicle in

general or the particular article, is to engage in “sheer speculation” in the face of

Boudin’s sworn statement. See Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995)

3 (holding that it was “sheer speculation” to assume that a defendant was aware of

protected speech when insufficient evidence supported that there was actual

awareness, particularly when the record contained sworn assertions to the

contrary). Moreover, Plaintiff’s inferential leaps rely on his assumptions about

communications among and between individual Assistant Public Defenders.

Nothing in the record suggests that Plaintiff, an Assistant District Attorney, had any

way to know what was discussed within the Public Defender’s Office, a separate

department of City government. To create a genuine issue of material fact,

Plaintiff must show more than “some ‘metaphysical doubt’ as to the material facts

at issue,” which he has not done here. In re Oracle Corp. Sec. Litig., 627 F.3d 376,

387 (9th Cir. 2010) (citation omitted); see Schowengerdt v. United States, 944 F.2d

483, 489 (9th Cir. 1991) (ruling that allegations based on “inference and

speculation” are insufficient to defeat summary judgment).

2. The district court did not err by granting summary judgment for

Defendants on Plaintiff’s due process claim. Plaintiff was covered by a collective

bargaining agreement, which provided a grievance procedure that he could have

used to challenge the termination of his indemnification agreement. Although the

record does not reveal the details of that procedure, Plaintiff provides neither

evidence nor argument that the procedure was insufficient. His procedural due

process claim therefore fails. See Portman v. County of Santa Clara, 995 F.2d 898,

4 904 (9th Cir. 1993) (stating that a “lack of process” is required to establish a

procedural due process claim).

3. The district court did not err by granting summary judgment for

Defendants on Plaintiff’s age-related discrimination, retaliation, and harassment

FEHA claims. On appeal, Plaintiff challenges only the district court’s ruling on his

FEHA discrimination claim, but he presents no evidence of his age, the age of his

replacement, or age-related animus motivating Boudin to fire him. See Guz v.

Bechtel Nat’l Inc., 8 P.3d 1089, 1113 (Cal. 2000) (stating that “the most patently

meritless claims” of age discrimination under FEHA are eliminated when a

plaintiff fails to establish a prima facie case).

AFFIRMED.

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FILED

AUG 28 2024

Thomas Ostly v. City and County of San Francisco, et al., No. 23-16000

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

CALLAHAN, Circuit Judge, dissenting in part and concurring in part:

I agree with my colleagues that summary judgment was properly granted on

Mr. Ostly’s due process and FEHA claims. I cannot say the same for his First

Amendment retaliation claims.

During his time as a criminal prosecutor for the City and County of San

Francisco, Mr. Ostly engaged in various forms of whistleblowing speech and

petitioning related to his concerns that Assistant Public Defenders were acting

unethically by (1) not conveying all plea deal offers to their clients and (2) filing

retaliatory unfounded California State Bar complaints against Assistant District

Attorneys, like himself, who zealously prosecuted their cases. Speech alerting

others about suspected misconduct by public employees often merits First

Amendment protection; and the majority avoids the district court’s questionable

conclusion that none of Mr. Ostly’s speech warranted constitutional protection.

The majority rejects Mr. Ostly’s First Amendment retaliation claims solely

because, in its view, he offered “no credible evidence” that his speech was “a

substantial or motivating factor” for his termination. Barone v. City of Springfield,

902 F.3d 1091, 1098 (9th Cir. 2018). “As with proof of motive in other contexts,

this element of a First Amendment retaliation suit may be met with either direct or

circumstantial evidence and involves questions of fact that normally should be left

1 for trial.” Ulrich v. City & Cnty. of San Francisco, 308 F.3d 968, 979 (9th Cir.

2002) (citation omitted); see Eng v. Cooley, 552 F.3d 1062, 1071 (9th Cir. 2009)

(“This third step is purely a question of fact.”). Because Mr. Ostly presented

sufficient circumstantial evidence that Mr. Boudin fired him because of his past

campaigns against Mr. Boudin’s former colleagues in the Public Defender’s Office,

the question of motive/causation should have been left to the jury—not decided by

the district court, or this panel of judges.

The majority relies primarily on a passage from Mr. Boudin’s declaration

that states: “I do not recall being aware of these alleged complaints regarding the

San Francisco Public Defender’s Office and/or Mr. Ostly’s public record requests

prior to releasing Mr. Ostly.” The majority takes this to mean that Mr. Boudin was

unaware of any instances of Mr. Ostly’s protected speech. But the “alleged

complaints” to which Mr. Boudin refers are only Mr. Ostly’s “supposed complaints

regarding [the Public Defender’s] Office’s filing of complaints with the California

State Bar” against prosecutors. His declaration does not expressly disclaim

knowledge of Mr. Ostly’s earlier speech—to the press and to the State Bar—

regarding public defenders not conveying settlement offers.

Moreover, there is circumstantial evidence in this record contradicting Mr.

Boudin’s self-serving disclaimer. Mr. Ostly averred that “it was publicly known

that [he] whistle blew against [his] fellow City employees,” and that due to the

2 constant overlap between prosecutors and defenders working criminal cases,

“gossip about the people working at the Hall of Justice spread quickly and it was

not uncommon to hear about cases, verdicts and personal interactions from

multiple sources.” The record reflects that Mr. Ostly was a frequent subject of

communications within the Public Defender’s Office, and even a target of that

office. “In May of 2019 [Mr. Ostly] was informed by multiple City employees that

emails had been sent within the public defender department asking people to come

forward and complain about [him],” and these “disparaging e-mails” were sent to

“all public defender employees.” The previous month, an Assistant Public

Defender sent an office-wide email stating that many in the office knew Mr. Ostly

as a “horrible human being” and sharing disparaging details of his previous

employment.

Of course, none of these pieces of evidence standing alone would be enough

to prove Mr. Boudin carried over from his public defender days a retaliatory

animus toward Mr. Ostly. But the totality of the circumstances is enough to create

a genuine dispute of material fact as to Mr. Boudin’s motive—sufficient to deny

summary judgment and leave that question of fact for the fact finder.

3