FILED

NOT FOR PUBLICATION JAN 31 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RANDALL T. FENNELL, No. 09-17237

Plaintiff - Appellee, D.C. No. 1:09-cv-00019

v.

MEMORANDUM*

MATTHEW THEODORE GREGORY, I,

former Attorney General; GREGORY BAKA, Acting Attorney General; ANTHONY WELCH, Assistant Attorney General; TOM J. SCHWEIGER,

Defendants - Appellants,

and

BANK OF SAIPAN,

Defendant-intervenor.

Appeal from the United States District Court for the District of the Northern Mariana Islands Alex R. Munson, Chief District Judge, Presiding

Argued and Submitted October 14, 2010 Honolulu, Hawaii

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Before: HAWKINS, McKEOWN and RAWLINSON, Circuit Judges.

Randall Fennell filed this civil rights action alleging that various Attorneys

General violated Fennell’s Fourteenth Amendment due process right to conflict-

free counsel and First Amendment rights to free speech and access to the courts.

The district court granted in part and denied in part the Attorneys General’s motion

to dismiss. We review de novo the Attorneys General’s appeal of the district

court’s denial of absolute and qualified immunity. Tennison v. City and Cnty. of

San Francisco, 570 F.3d 1078, 1087 (9th Cir. 2009). We affirm in part and reverse

in part.

In determining whether the Attorneys General are entitled to qualified

immunity, we review (1) whether the facts pled in the complaint, construed in the

light most favorable to Fennell, show that the Attorneys General’s conduct violated

a constitutional right; and (2) whether the right was clearly established in light of

the circumstances of this case. See Saucier v. Katz, 533 U.S. 194, 201 (2001),

overruled on other grounds by Pearson v. Callahan, 129 S. Ct. 808 (2009).

Fennell contends that he has a constitutionally protected property interest in

conflict-free counsel. However, Fennel’s understanding of this interest is unique:

he argues that he has a constitutional right to the appointment of outside counsel,

which arose after the Office of the Attorney General began its concurrent

2 representation of an adverse party. Because Commonwealth law provides that

decisions regarding the appointment of outside counsel are left to the sound

discretion of government officials, Fennell does not have such a protected property

interest. See Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756 (2005)

(“[A] benefit is not a protected entitlement if government officials may grant or

deny it in their discretion.”).1 In any event, the right to conflict-free representation

in this context was not clearly established for qualified immunity purposes. See

Hope v. Pelzer, 536 U.S. 730, 739 (2002) (“For a constitutional right to be clearly

established, its contours must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.”) (internal quotations omitted).

The Attorneys General are thus entitled to qualified immunity with respect to

Fennell’s Fourteenth Amendment due process claims.

The Attorneys General argue that the district court should have dismissed

Fennell’s First Amendment claims for failure to plead with proper specificity.

1 Even assuming Fennell has a constitutionally protected property interest as the dissent describes – that “government counsel, once appointed, remain independent and conflict-free” – Fennell has failed to allege such a constitutional violation here. Fennell does not contend that the Assistant Attorney General representing him was conflicted, nor does he allege that the Attorneys General were privy to confidential information. Accordingly, because the facts pled, even construed in a light most favorable to Fennell, do not amount to a constitutional violation, the Attorneys General are entitled to qualified immunity even under the dissent’s theory. See Saucier, 533 U.S. at 201.

3 Although rulings regarding the sufficiency of pleadings are not ordinarily subject

to immediate appeal, we may exercise pendent jurisdiction “over an otherwise

nonappealable ruling if the ruling is ‘inextricably intertwined’ with a claim

properly before us on interlocutory appeal.” Kwai Fun Wong v. United States, 373

F.3d 952, 960 (9th Cir. 2004). Because we must determine whether Fennell has

pled facts constituting a constitutional violation as part of the qualified immunity

inquiry, we may exercise pendent jurisdiction to review the sufficiency of

Fennell’s Complaint. See id. at 962 (“Whether a complaint fails to allege legally

cognizable claims is . . . ‘inextricably intertwined’ with the qualified immunity

issue.”).

We agree with the Attorneys General that Fennell’s Complaint fails to

satisfy the pleading standards set forth in Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948

(2009). See id. (“[A] plaintiff must plead that each Government-official defendant,

through the official’s own individual actions, has violated the Constitution.”).

Notably, Fennell’s Complaint lacks factual particularity regarding the personal

involvement and conduct of the individual Attorneys General. See Kwai Fun

Wong, 373 F.3d at 966 (dismissing on interlocutory appeal a plaintiff’s Bivens

claims where complaint “fail[ed] to identify what role, if any, each individual

defendant had in” the alleged unconstitutional conduct); Leer v. Murphy, 844 F.2d

4 628, 634 (9th Cir. 1988) (“Sweeping conclusory allegations will not suffice . . . .

The [plaintiff] must set forth specific facts as to each individual defendant’s”

causal role in the alleged constitutional deprivation). Accordingly, Fennell’s First

Amendment claims must be dismissed.

Because Fennell fails to allege differential treatment from similarly situated

individuals, any equal protection claims also must be dismissed for failure to state

a claim. See City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432,

439 (1985).2

We affirm the district court’s order, however, with respect to the denial of

absolute immunity for Attorneys General Gregory and Baka. Absolute immunity

applies to a “government attorney’s initiation and handling of civil litigation in a

state or federal court . . . [when] the government attorney is performing acts

‘intimately associated with the judicial phase’ of the litigation.” Fry v. Melaragno,

939 F.2d 832, 837 (9th Cir. 1991). The Attorneys General’s actions in response to

Fennell’s request for certification under the Commonwealth Employees’ Liability

Reform and Tort Compensation Act were not “intimately associated with the

judicial phase” of litigation, nor have the Attorneys General provided any evidence

2 We take no position as to whether Fennell may amend the Complaint to properly allege First Amendment and equal protection claims.

5 of a historical or common-law basis for absolute immunity in this context. See

Buckley v. Fitzsimmons, 509 U.S. 259, 274-76 (1993) (holding that when a

government attorney “functions as an administrator rather than as an officer of the

court he is entitled only to qualified immunity”). See also Burns v. Reed, 500 U.S.

478, 486 (1991) (“[T]he official seeking absolute immunity bears the burden of

showing that such immunity is justified for the function in question.”).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Each party shall bear its own costs on appeal.

6

FILED

Fennell v. Gregory, Case No. 09-17237 JAN 31 2011 Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur in the result.

FILED

Fennell v. Gregory, No. 09-17237 JAN 31 2011

MOLLY C. DWYER, CLERK

HAWKINS, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS

I agree that absolute immunity is not available to Defendants Gregory and Baka

and concur in that part of the disposition. I also concur in the dismissal of Plaintiff’s

equal protection claims. However, because I believe Fennell’s Complaint provides

a colorable, if perhaps insufficiently detailed, basis for assertion of due process and

First Amendment violations, I would remand to the district court to permit Fennell to

amend his Complaint. I would not conclude that the Attorneys General are entitled

to qualified immunity with respect to these claims at this time.

The discretionary nature of the Commonwealth law providing public employees

with government counsel may preclude Fennell from claiming a property interest in

appointed counsel, but it has no bearing on his clearly established due process right

to have government counsel, once appointed, remain independent and conflict-free.

As we have previously recognized, “[e]thical canons and the common law have long

prohibited the representation of adverse parties.” Smiley v. Office of Workers Comp.

Programs, 984 F.2d 278, 282 (9th Cir. 1993) (citing ABA Model Rules of

Professional Conduct Rule 1.7(a) (1989); ABA Model Code of Professional

Responsibility DR 5-105 (1981)); see also Unified Sewerage Agency of Wash. Cy.,

Or. v. Jelco Inc., 646 F.2d 1339, 1345 (9th Cir. 1981); Nat’l Farmers Union Prop. &

Cas. Co. v. O’Daniel, 329 F.2d 60, 66 (9th Cir. 1964). While the Commonwealth Superior Court may have had discretion under the Public Employees Legal Defense

and Indemnification Act, 7 CMC §§ 2301 et seq., to decide whether to provide Fennell

with counsel from the Office of the Attorney General, the Attorney General (“AG”)

lacked discretion to abandon its “duty of undivided loyalty” owed Fennell once he

became a client. See Smiley, 984 F.2d at 282.

While there certainly are cases from various jurisdictions permitting individual

attorneys from an AG’s office to represent conflicting interests concurrently where

private firms could not, this exceptional allowance should be permitted only where

such an office provides sufficient safeguards guaranteeing independent, conflict-free

representation of each client. See, e.g., State v. Klattenhoff, 801 P.2d 548, 551-52

(Haw. 1990) (permitting concurrent representation of conflicting interests “when the

AG can ensure independent representation for the competing parties” not resulting

in prejudice to either (emphasis added)). Fennell alleges the Commonwealth AG here

failed to maintain adequate safeguards in representing both him and the Mariana

Public Lands Authority (“MPLA”), which is suing him.1 The Commonwealth

1 Defendants’ argument that the Attorney General is obligated under Commonwealth law, see NMI Const. art. 3, § 11; 1 CMC § 2153(h), to represent the MPLA is unavailing, as Commonwealth law also recognizes and provides an exception for situations in which conflicts of interest may render the hiring of outside counsel appropriate. See 7 CMC § 2209 (“In the sole discretion of the Attorney General, outside counsel may be employed for the purposes of this Act as may be appropriate.”).

2 Attorneys General should not be entitled to qualified immunity against such a claim.

See Hope v. Pelzer, 536 U.S. 730, 739 (2002).

But Fennell alleges more than a failure to maintain independence of

representation: he claims the AG defendants purposefully interfered with his right to

conflict-free representation to intimidate and retaliate against him for his whistle-

blowing activities, in violation of his First Amendment rights to free speech and

access to the courts. Fennell’s constitutional rights in this regard are also clearly

established. See Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010); Pratt

v. Rowland, 65 F.3d 802, 806 & n.4 (9th Cir. 1995); Soranno’s Gasco, Inc. v. Morgan,

874 F.2d 1310, 1314 (9th Cir. 1989).

Because I believe that Fennell has pled colorable due process and First

Amendment claims, I respectfully dissent from the portions of the disposition

concluding otherwise. To the extent that specificity is lacking in the Complaint, I

would vacate and remand with instructions to allow Fennell opportunity to amend so

as to comply with the pleading requirements set forth in Ashcroft v. Iqbal, 129 S. Ct.

1937, 1948 (2009).

3