Huppert v. City of Pittsburg

We examine the question whether a state police officer’s speech, in different forms, is protected under the First Amendment from retaliatory actions taken by that officer’s superiors. Plaintiffs Ron Huppert and Javier Salgado appeal the district court’s grant of summary judgment in favor of the Appellees, the City of Pittsburg and individual police officers within the Pittsburg Police Department (“PPD”), dismissing their claims under 42 U.S.C. § 1983.

We hold that the speech at issue was given pursuant to Huppert and Salgado’s job duties, and therefore affirm the district court’s grant of summary judgment. Additionally, Salgado appeals the district court’s dismissal on summary judgment of his § 1983 claim brought under the Fourth, Sixth, and Fourteenth Amendments. We affirm the district court on this claim as well. Finally, both Huppert and Salgado appeal the district court’s grant of costs to the Appellees solely on the ground that the Appellees failed to timely file their bill of costs. This argument is meritless, so we also affirm the district court’s award of fees.

I

Huppert joined the PPD on January 25, 1991, where he worked primarily as a patrol officer and an inspector. In 1995, he was assigned to work a twenty-four hour shift at the Pittsburg Seafood Festival. He requested a shift modification, which was subsequently denied by the PPD. He consulted with a labor attorney, who, unbeknownst to Huppert, contacted the PPD. After Huppert returned to work, Lieutenant Aaron Baker (“Baker”) — who is now Chief of Police for the PPD — expressed unhappiness with Huppert and asked Huppert to sign a letter in which he acknowledged (non-existent) sick-leave abuse. When Huppert refused to sign the letter and requested review of all his “sick-leave slips,” the matter was “apparently dropped.”

In 1996, after being promoted to Inspector, Huppert was assigned to investigate a vehicular manslaughter case. He reported that one of his supervisors, Sergeant Keel-er (“Keeler”), a personal friend of Baker, had pursued a carjacking suspect, reaching speeds of up to 100 m.p.h. without using his emergency lights or siren. An innocent third party perished in the resulting crash. In his report about the incident, Huppert discussed his “concerns about Keeler’s conduct during the pursuit,” and Keeler’s use of racial slurs. Now a Commander, Baker charged Huppert with “failure to report and subversive conduct” for not having previously reported this misconduct — which Baker referred to as a “letter of advisement.” The charge was later reduced to a “warning.”

Between 1997 and 1998, while still employed as a Pittsburg police officer, Hup*699pert was selected by the Contra Costa County District Attorney’s Office to assist in investigating corruption at the Pittsburg Public Works Yard. Huppert states that “[f|rom that time on, my superiors [at the PPD] treated me with scorn and as an outcast.” Then, in 1998 Huppert took the sergeant’s exam. He finished first on the written section of the exam, and during the oral portion of the exam, he was questioned “mostly” about his goatee. The following day Baker informed him that he would not be promoted because he had decided to keep his goatee.

Sometime prior to 2001, Huppert began working with the FBI on an investigation into suspected corruption within the PPD. While he does not disclose what assistance he gave to the FBI, he does claim that this work was “outside [his] duties as a member of the PPD.” Then, in January 2001, his superior, William Zbacnik, informed Huppert that he would be transferred to “Code Enforcement,” also known as the “Strategic Operations Bureau.” He was officially transferred in June 2001, and was sent to a building known within the PPD as the “Penal Colony,” because “disaffected and/or disfavored officers were assigned there.” Huppert’s new supervisor, William Hendricks (“Hendricks”), informed him that he had been sent to the “Penal Colony” because Baker wanted Hendricks to find a way to fire him. Huppert’s new office at the “Penal Colony” was a “tiny converted bathroom without computer access,” and even though he was assigned to investigate gang-related activity, the building was not equipped with the proper secured areas needed for his investigations. During the six-month period between January and June 2001, Huppert was not permitted to work overtime.

Salgado joined the force in 1995 and was, for the majority of his tenure, a detective. In September 2001, he was assigned to the “Strategic Operations Bureau” as Huppert’s partner. Baker assigned both of them to investigate suspected corruption at the local City-owned golf course, but told them not to inform Hendricks of this assignment. The investigation “revealed improper conduct by members of the PPD, including gambling, accepting free golf, and possible illegal drug activity.” After only two interviews, Baker commanded that Huppert and Salgado cease the investigation. Once they informed Hendricks, he encouraged them to continue investigating and informed Baker that Huppert and Salgado were still looking into corruption at the golf course. Hendricks also informed the FBI that he believed there was a major gambling operation on-going at the golf course.

Huppert claims that while Baker told them not to memorialize their findings, they drafted a report at the conclusion of their inquiry and directed it to Baker and the Pittsburg City Manager. The report “included a finding that defendant Zbacnik had accepted thousands of dollars in gratuities and other illegal perks.” However, following the report, Baker took no action against Zbacnik, and instead deemed Zbacnik’s actions a “training issue.”

In 2002, Huppert and Salgado’s office was moved from the “Penal Colony” back to the main Civic Center. They were not initially given an office, and when they finally received one, it was “an old storage room.”

Huppert states that Hendricks was “forced out” in December of 2002, and Michael Barbaniea (“Barbaniea”) took his place. In January 2003, Barbaniea and defendant William “Brian” Addington (“Addington”) falsely accused Huppert and Salgado of engaging in an improper pursuit. Both Huppert and Salgado claim that they were in no way involved in the *700pursuit. Though Barbaniea initially claimed that an “anonymous concerned citizen” had reported that Huppert and Salgado were involved, he later admitted that he had lied. He agreed that Zbacnik had been behind his false accusations.

It was normal practice at the PPD that when a supervisor was absent, the next senior officer was normally designated as acting unit supervisor. In late 2003 and early 2004, the practice was changed in the Code Enforcement Unit, where Huppert and Salgado were the next senior officers under their supervisor, Sergeant Reposa. Because of the change in practice, Huppert and Salgado were required to report to the Investigations Unit Supervisor, and were hence prevented from exercising any supervisory authority and earning out-of-class pay.

Salgado claims that in late 2003 and early 2004, Addington began an investigation of Officer Jim Hartley for allegedly falsifying reports. It was obvious to Salgado that “Addington disliked Hartley and was seeking to terminate him.” Adding-ton sought to have Salgado claim firsthand knowledge of events which Salgado had not actually witnessed, but Salgado refused to do so.

Huppert and Salgado allege that in February 2004, defendant Wayne Derby (“Derby”) became their supervisor. Derby informed them that he was Chief Baker’s “ ‘hatchet man’ ” and that Baker saw them as “malcontents.” He subsequently took away their undercover vehicle and replaced it with an easily recognizable, though unmarked, Ford Taurus. They claim this hindered their work as gang detectives.

Huppert then states that in March 2004, he was subpoenaed to testify before a Contra Costa County grand jury that was “probing corruption in the PPD.” Other officers, including Baker, were also subpoenaed to testify, and the subpoenas were received at the PPD for delivery to the individual officers. Huppert’s receipt of this subpoena was “recorded in a subpoena log posted in the [PPD] break room.” Huppert states that Baker openly discussed his testimony, and told Huppert he knew Huppert had testified before the grand jury as well. Baker also identified officers who he thought would be “bad witnesses” for the department, which Huppert understood to indicate Baker’s belief that they were “malcontents.”

Sometime after his grand jury testimony, Derby informed Huppert that his position as a gang investigator was being eliminated and he was transferred to a position investigating fraud and forgeries. Adding-ton became his supervisor, and he was assigned to investigate fraud claims, which Huppert claims are less desirable than “person crimes.” After the transfer, Addington changed the way in which fraud cases were handled within the PPD, requiring Huppert to generate reports in order to close each case. Huppert believes this increase in workload was initiated simply as a method of harassment. Additionally, Addington would criticize the completed reports over minor mistakes, “such as the letter ‘M’ (for ‘Male’) being in the wrong font.” Addington also refused to permit Huppert to wear a uniform shirt with an outdated embroidered badge when other officers were allowed to do so. He would call Huppert to come to his office claiming he had Huppert’s “pink slip,” but would then admit he was just “kidding.” Finally, Addington attempted to replace Huppert’s “superlative” yearly evaluation, originally conducted by Sergeant Stroup, with an evaluation completed by Adding-ton. After Huppert and the Patrol Officers’ Association filed a grievance against the PPD and Addington, Baker restored Stroup’s original evaluation to Huppert’s *701file. Huppert took a temporary disability leave in 2003, and then retired on disability in 2004.

In May 2004, Salgado was placed on administrative leave pending an investigation into whether he had falsified police reports in Health and Safety Code section 11550 cases. While he admits that he did “cut and paste” when drafting his arrest reports, he claims this was “an accepted practice at the time in the PPD,” and that he actually ensured that the proper individual results were accurately recorded. In fact, he insists this practice was “encouraged by [his] supervisors,” and he had seen other officers using his prefabricated reports.

In July 2004, Salgado received a Notice of Proposed Disciplinary Action, which suggested his termination. Two days before Salgado’s Shelly1 hearing, a newspaper reporter notified him that Baker was planning to terminate him from the PPD and the District Attorney would institute a criminal prosecution against him. A newspaper article stating the same was published on the day of the hearing. On the advice of counsel, Salgado did not appear at the Shelly hearing, and Baker terminated his employment three days later. However, apparently Baker had a change of heart, and Salgado was reinstated.

Barbaniea informed Salgado that if he were to resign, the criminal charges would be dropped. Salgado reviewed his personnel file and found that it had been purged of all positive references and performance reviews. Notably absent was his 2001 Officer of the Year award. Salgado refused to resign and was officially terminated on August 24, 2004.

Huppert and Salgado filed this civil rights action in the Northern District of California on April 7, 2005. The defendants moved for summary judgment, which the court granted on November 15, 2006.2 The district court held, primarily under Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), that because each alleged incident of speech by either Huppert or Salgado was not made as a private citizen, the speech was not protected from retaliation by the First Amendment. Hence, they had no claim under § 1983. It also granted summary judgment to the defendants on Salgado’s claims and awarded costs to the defendants. Huppert and Salgado timely appealed.

II

We review a district court’s grant of summary judgment de novo. Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 896 (9th Cir.2008). In determining whether summary judgment was appropriate, we view the evidence in the light most favorable to Huppert and Salgado, the non-moving parties. Id. A grant of summary judgment is inappropriate if there is “any genuine issue of material fact or the district court incorrectly applied the substantive law.” Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir.2007).

On Huppert and Salgado’s appeal regarding the award of costs, we review for clear error the district court’s findings of fact with respect to the timeliness of the cost application. Chevron USA Inc. v. Bronster, 363 F.3d 846, 855 (9th Cir.2004), rev’d on other grounds sub nom., Lingle v. *702Chevron U.S.A., Inc., 544 U.S. 528, 125 S.Ct. 2074, 161 L.Edüd 876 (2005). We review for abuse of discretion the district court’s refusal to strike. Idaho Potato Comm’n v. G & T Terminal Packaging, Inc., 425 F.3d 708, 723 (9th Cir.2005).

Ill

Three issues are before us on appeal. First, whether the district court improperly dismissed on summary judgment Huppert and Salgado’s § 1983 claims for violations of the First Amendment. Second, whether the presiding judge also erred by granting summary judgment on Salgado’s claim alleging violations of the Fourth, Sixth, and Fourteenth Amendments. Finally, whether the district court incorrectly awarded costs to the Appellees.

A

The Supreme Court has clearly stated that public employees do not shed their First Amendment rights simply because they are employed by the government. The First Amendment shields a public employee if he speaks as a citizen on a matter of public concern. See, e.g., Ceballos, 547 U.S. at 417, 126 S.Ct. 1951; Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987); Connick v. Myers, 461 U.S. 138, 142-143, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Bd. of Educ. of Twp. High School Dist. 205, Will Cty., 391 U.S. 563, 569-70, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). While this protection is applicable to such individuals, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Ceballos, 547 U.S. at 421, 126 S.Ct. 1951. “The problem in any case is to arrive at a balance between the interests of the [public 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.” Pickering, 391 U.S. at 568, 88 S.Ct. 1731.

Recently, in Eng v. Cooley, 552 F.3d 1062 (9th Cir.2009), we distilled the Supreme Court’s prior holdings on this issue into “a sequential five-step” inquiry:

(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 plaintiffs 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.

Id. at 1070. We reaffirmed this test in Robinson v. York, 566 F.3d 817, 822 (9th Cir.2009), where we again considered whether the district court had improperly denied qualified immunity in a § 1983 retaliation case.

Our sister circuits and the Supreme Court have said that the question whether the plaintiff acted pursuant to his or her job duties is antecedent to a determination whether the plaintiff spoke regarding a matter of public concern. See, e.g., Chaklos v. Stevens, 560 F.3d 705, 711-12 (7th Cir.2009) (“[Ceballos ] requires a threshold determination regarding whether the public employee spoke in his capacity as a private citizen or as an employee.”); Davis v. McKinney, 518 F.3d 304, 312 (5th Cir.2008) (“it is clear that [Ceballos ] added a threshold layer to our previous analysis”); Boyce v. Andrew, 510 F.3d 1333, 1343 (11th Cir.2007) (stating that it must decide *703“at the outset (1) if the government employee spoke as an employee or citizen ..); Weisbarth v. Geauga Park Dist., 499 F.3d 538, 545 (6th Cir.2007) (“the threshold inquiry [is] whether the speech was, in fact, made pursuant to the employee’s official duties”); Williams v. Dallas Ind. Sch. Dist., 480 F.3d 689, 692 (5th Cir.2007) (“[t]he Supreme Court’s recent pronouncement in Garcetti v. Ceballos added a threshold layer ... ”). While we also believe that this should be the threshold inquiry, we are bound by our precedent to follow the test set forth in Eng.

Where applicable below, we will move through the sequential Eng factors. The first two prongs of this inquiry address whether the speech should be protected under the First Amendment, while the last three address whether that protected speech caused some retaliatory response. However, because these are sequential steps, as explained in Eng, failure to meet one necessarily concludes our inquiry.

Huppert and Salgado point to four incidents where they believe their protected speech led to retaliatory action by the Appellees: (1) Huppert’s assistance to the Contra Costa County District Attorney’s Office in 1997 and 1998 investigating corruption at the PPD; (2) Huppert and Salgado’s report and memoranda regarding their golf-course investigation; (3) Huppert’s cooperation with the FBI in its investigation of corruption within the PPD; and (4) Huppert’s testimony before the Contra Costa County grand jury investigating potential corruption within the PPD. We discuss each in turn.

1

Huppert’s first claim of retaliation stems from his cooperation with the Contra Cos-ta County District Attorney’s Office in 1997 and 1998 during its investigation of the Public Works Department. He claims that during this time he was not working as a police officer, but instead as an assistant to the District Attorney. Then, after his superiors at the PPD discovered his involvement with the criminal investigation, he was “treated with scorn and as an outcast.” Also as a result of this involvement, he claims that he was passed over for a promotion, transferred to the Penal Colony, and that his assistance led to additional acts of retaliation.3 Though he provides no evidence that any speech occurred — i.e., he points to no record of a report, discussion with superiors, letters to politicians, etc.' — we read the facts in his favor and assume that he engaged in some form of speech.

Under the Eng test, we first consider whether his investigation involved a matter of public concern. “[S]peeeh involves a matter of public concern when it fairly can be said to relate to ‘any matter of political, social, or other concern to the community.’ ” Gibson v. Office of Atty. Gen., State of Cal., 561 F.3d 920, 925 (9th Cir.2009) (quoting Connick, 461 U.S. at 146, 103 S.Ct. 1684 (1983)). “Analysis of public concern is not an exact science.” Weeks v. Bayer, 246 F.3d 1231, 1234 (9th Cir.2001). “When the employee addresses issues about which information is needed *704or appropriate to enable the members of society to make informed decisions about the operation of their government, that speech falls squarely within the boundaries of public concern.” Id. (internal quotation marks and citations omitted). We have said that “[u]nlawful conduct by a government employee or illegal activity within a government agency is a matter of public concern.” Thomas v. City of Beaverton, 379 F.3d 802, 809 (9th Cir.2004). Furthermore, “misuse of public funds, wastefulness, and inefficiency in managing and operating government entities are matters of inherent public concern.” Johnson v. Multnomah County, 48 F.3d 420, 425 (9th Cir.1995). It is clear to us that an investigation into corruption and misconduct at the local Public Works Department — typically a municipal department created to provide multiple public services to community members — is a matter of public concern. Cf. Robinson, 566 F.3d at 823.

However, it is less apparent that Huppert meets the second prong of the Eng test. As explained in Eng, “the plaintiff bears the burden of showing the speech was spoken in the capacity of a private citizen and not a public employee.” 552 F.3d at 1071 (citing Ceballos, 547 U.S. at 421-22, 126 S.Ct. 1951). While the Supreme Court did not delineate a “comprehensive framework” for determining when speech is pursuant to an employee’s job function, it provided guidance for lower courts to follow when making such a decision. Ceballos, 547 U.S. at 424, 126 S.Ct. 1951.

Ceballos said that speech which “owes its existence to an employee’s professional responsibilities” is not protected by the First Amendment. Id. at 421, 126 S.Ct. 1951. Additionally, if the public employee was paid for the speech — e.g., drafting a memorandum, creating a report, advising a supervisor — then that compensation might be indicative of the nature of the speech. Id. at 422, 126 S.Ct. 1951. An adverse employment action for this type of speech “does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.” Id. at 421-22, 126 S.Ct. 1951. Our inquiry should be practical and look beyond the job description to the duties the employee actually performs. Id. at 424, 126 S.Ct. 1951. Speech which has “no official significance” and bears “similarities to [actions taken] by numerous citizens everyday” falls outside the ambit of an employee’s job duties and would be protected by the First Amendment. Id. at 422, 126 S.Ct. 1951.

Only twice since Ceballos have we had the opportunity to determine whether an employee’s speech was pursuant to his official duties.4 First, in Freitag v. Ayers, 468 F.3d 528 (9th Cir.2006), we examined multiple different complaints by Freitag, a female prison guard, regarding sexual harassment by male prisoners. We held that Freitag’s reports of sexual harassment, complaints to her superiors within the prison system, and documentation of the prison system’s response to her eom*705plaints were all examples of unprotected speech.5 Id. at 544, 546. On the other hand, with regard to her communication outside the prison system to her state senator and the appointed inspector general, “we [found] it clear that [those] communications [we]re protected under the First Amendment.” Id. at 545. We held that “her right to complain both to an elected public official and to an independent state agency is guaranteed to any citizen in a democratic society regardless of his status as a public employee.” Id.

Then, in Marable v. Nitchman, 511 F.3d 924 (9th Cir.2007), we concluded that a complaint by Marable, an engineer for the Washington State Ferries (“WSF”), alleging high-level corruption and mismanagement of funds was outside a ferry-worker’s job duties. We applied the requisite “practical inquiry” to whether Marable’s complaints concerning corrupt overpayment schemes was speech pursuant to his job duties, and found it was not. Id. at 932 (“Functionally ... it cannot be disputed that his job was to do the tasks of a Chief Engineer on his ferry, and such tasks did not include pointing to corrupt actions of higher level officials whom he purportedly thought were abusing the public trust and converting public funds to their own use by overpayment schemes.”). We noted that “[h]e was not responsible for attempting to ensure that his superiors abstained from allegedly corrupt financial schemes.” Id. at 933. In total, we found four instances of Marable’s protected speech: (1) complaints to the former chief executive officer of the WSF, (2) conversations with the Department of Transportation auditor, (3) a complaint to the State Executive Ethics Board, and (4) two phone calls to Nitchman, the WSF Maintenance Director. Id. at 929.

Our sister circuits have also weighed in, providing additional analysis to guide our decision. First, in Morales v. Jones, 494 F.3d 590 (7th Cir.2007), the Seventh Circuit held that a police officer’s conversations with superiors and assistant district attorneys discussing an arrest was obviously part of the officer’s duties. Id. at 597. On the other hand, the court concluded that being deposed as a witness in a separate § 1983 action for retaliation by the police chief against another police officer was clearly not part of an officer’s job. Id. at 595, 598. The Fifth Circuit has determined that one indicator might be whether an individual complains “up the chain of command” or instead relays “his concerns to persons outside the work place.” Davis v. McKinney, 518 F.3d 304, 313 (5th Cir.2008). And, the Seventh Circuit again considered the question in 2008 in Tamayo v. Blagojevich, 526 F.3d 1074 (7th Cir.2008). However, this time it found that the speech was not protected, because reporting misconduct and wrongdoing at a legislative hearing was part of the plaintiffs job as “an employee with significant and comprehensive responsibility for policy information and implementation.” Id. at 1092.

This brings us back to any statements Huppert may have made during the investigation at the Public Works yard. Huppert argues that he was not acting as a police officer during his cooperation with the District Attorney’s office. Instead, he claims he was an “assistant to the District Attorney.” However, in his deposition, Huppert concedes that he was asked to participate in the investigation, and subsequently assigned to do so, by the police *706department. While his investigative work might have been supervised by the District Attorney’s office, his six-month assignment was at the direction of his superiors and, as a police officer, in his official capacity as a peace officer.

2

Second, both Huppert and Salgado argue they were retaliated against after they completed them investigation into improper conduct at the Pittsburg Golf Course.6 Here they claim that their charge was to investigate corruption and gambling by PPD officers at the city golf course. Together, they produced an investigative report detailing their findings, which included information about waiver of fees for PPD employees, gambling in the golf course’s sports bar by members of the PPD, and other improper conduct. The report also included a list of PPD officers who took advantage of free golf. They claim this report is protected speech which ultimately led their superiors to take multiple retaliatory actions against them.

Their argument is remarkably similar to Huppert’s contention regarding the Public Works yard. As we have already noted, an investigation into corruption at a public department is most certainly a matter of public concern. The same is true for corruption within or concerning the police force. See Thomas, 379 F.3d at 809; Johnson, 48 F.3d at 425; McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.1983) (“the competency of the police force is surely a matter of great public concern”). However, it is more difficult to determine whether Huppert and Salgado were speaking as public employees or private citizens.

Huppert and Salgado argue that they were not acting pursuant to their job duties because, while Baker had originally assigned them to conduct the inquiry, he then ordered them to discontinue their investigation after only two interviews. However, their immediate supervisor, Hendricks, told them to continue the investigation and encouraged them to report the results. They followed Hendricks’s direction and completed their investigation, which culminated in a memorandum directed to Chief Baker and the City Manager.

This is one of the clearest examples of speech pursuant to one’s job duties. Though Huppert and Salgado would have us believe that they acted outside the chain-of-command by continuing their investigation in direct contravention to Baker’s demand that they cease, Hendricks ordered them to continue. Furthermore, Hendricks informed Baker that Huppert and Salgado would be probing deeper into misconduct at the Golf Course. “When [they] went to work and performed the tasks [they were] paid to perform, [Huppert and Salgado] acted as ... government employee[s]. The fact that [their] duties sometimes required [them] to speak or write does not mean [their] supervisors were prohibited from evaluating [their] performance.” Ceballos, 547 U.S. at 422, 126 S.Ct. 1951. Therefore, we find that Huppert and Salgado’s report, created after their investigation into misconduct at the Golf Course, was also not protected speech.

3

Huppert’s third claim is that he was the subject of retaliatory action following his cooperation with the FBI, which began sometime in 2001. From his declaration, it appears he assisted in their investigation probing corruption at the PPD, which he claims was “outside [his] duties as a mem*707ber of the PPD.” In his declaration, Huppert states that he “met with Investigator Leary, Deputy District Attorney Sepulveda, and Special Agent Joe Davidson of the FBI.” He claims that this communication took place entirely “on [his] personal time.” This claim differs from his first two retaliation arguments because there is no evidence that he was following the direct orders of his superiors at the time he participated in the investigation. Yet, while Huppert again satisfies the first prong of the Eng test, he fails at the second.

The California courts have repeatedly articulated the duties of a police officer within the state. As the oft-quoted passage in Christal v. Police Commission of City and County of San Francisco, 33 Cal.App.2d 564, 92 P.2d 416, 419 (1939), states:

The duties of police officers are many and varied. Such officers are the guardians of the peace and security of the community, and the efficiency of our whole system, designed for the purpose of maintaining law and order, depends upon the extent to which such officers perform their duties and are faithful to the trust reposed in them. Among the duties of police officers are those of preventing the commission of crime, of assisting in its detection, and of disclosing all information known to them which may lead to the apprehension and punishment of those who have transgressed our laws. When police officers acquire knowledge of facts which will tend to incriminate any person, it is their duty to disclose such facts to their superiors and to testify freely concerning such facts when called upon to do so before any duly constituted court or grand jury. It is for the performance of these duties that police officers are commissioned and paid by the community....

See also Riverside County Sheriff’s Dep’t v. Zigman, 169 Cal.App.4th 763, 768, 87 Cal.Rptr.3d 358 (2008); Titus v. Civil Serv. Comm’n, 130 Cal.App.3d 357, 181 Cal.Rptr. 699, 702-03 (1982); Szmaciarz v. State Pers. Bd., 79 Cal.App.3d 904, 915, 145 Cal.Rptr. 396 (1978); see also Frazee v. Civil Serv. Bd. of City of Oakland, 170 Cal.App.2d 333, 338 P.2d 943, 945 (1959).

Though Huppert argues that he was repeatedly informed by the FBI that his investigatory work was outside his duties as a police officer, this is not enough to overcome California’s jurisprudence defining such duties. It is clear that in California a police officer’s official duties include investigating corruption, so as to “prevent[ ] the commission of crime, ... [and] assist[] in its detection.” Christal, 92 P.2d at 419. While we do not know the contents of any speech that Huppert made, we do know that such conversations with the FBI would have been to “disclos[e] all information known to [Huppert]” regarding the alleged acts of corruption within the PPD. This obviously encompasses his duty to uphold the law specifically entrusted to California’s peace officers.

4

Huppert’s fourth and final cause of action hinges on alleged retaliation following his testimony before the county grand jury, which was also investigating corruption at the PPD. Again, under Christal and its progeny, it is manifest that California expects such testimony from its police officers. As the California Court of Appeal made clear: “When police officers acquire knowledge of facts which will tend to incriminate any person, it is their duty to disclose such facts to their superiors and to testify freely concerning such facts when called upon to do so before any duly constituted court or grand jury.” Id. (emphasis added). Testifying before a *708grand jury charged with investigating corruption is one part of an officer’s job. As the Supreme Court explicitly stated, “[r]estricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.” Ceballos, 547 U.S. at 421-22, 126 S.Ct. 1951; see also Deprado v. City of Miami, 446 F.Supp.2d 1344, 1346 (S.D.Fla.2006) (“In accordance with the Police Department’s regulations, and the plaintiffs obligations as a State-certified law enforcement officer, plaintiffs subpoenaed grand jury testimony occurred pursuant to his official duties as a police officer for the City of Miami Police Department, and was not speech as a private citizen.”). Therefore, any speech Huppert gave during his grand jury testimony was “pursuant to his duties as a [police officer],” and that speech is not protected by the First Amendment. Id. at 421, 126 S.Ct. 1951.

We decline to follow the Third Circuit’s decision in Reilly v. Atlantic City, 532 F.3d 216 (3d Cir.2008). There, the Third Circuit considered whether a police officer’s truthful trial testimony was protected speech. Reilly, an Atlantic City police officer, was called to testify for the prosecution in a trial against another police officer for allegedly running a prostitution ring and other misconduct. Id. at 220. Reilly had received inside information regarding the accused through his work as an investigator at the police department. Id. The Third Circuit found that testimony at trial was protected because “[i]t is axiomatic that ‘every citizen ... owes to his society the duty of giving testimony to aid in the enforcement of law.’ ” Id. at 228 (quoting Piemonte v. United States, 367 U.S. 556, 559 n. 2, 81 S.Ct. 1720, 6 L.Ed.2d 1028 (1961)). Because “offering truthful testimony is the responsibility of every citizen, ... [w]hen a government employee testifies truthfully, [he] is not simply performing his or her job duties; rather, [he] is acting as a citizen and is bound by the dictates of the court and the rules of evidence.” Id. at 231.

The court admitted that it was answering the question of “whether truthful trial testimony arising out of the employee’s official responsibilities constitutes protected speech.” Id. at 230 (emphasis added). It went on to concede that “Reilly’s trial testimony appears to have stemmed from his official duties in the investigation.” Id. at 231. However, instead of finding that this was obviously speech pursuant to Reilly’s job duties, the court took a swift turn to conclude that truthful testimony is never part of a police officer’s duties. Id. This is in sharp contradiction to the Supreme Court’s holding in Ceballos, which drew a distinct line between speech pursuant to one’s job duties and speech in a private capacity. By first finding that Reilly’s speech was pursuant to his job duties, but subsequently concluding that it was protected by the First Amendment, the Reilly court impermissibly began chipping away at the plain holding in Ceballos.

Judge Fletcher’s dissent relies on two other cases to show that a police officer’s grand jury testimony should be protected as a matter of law. The first, Morales, is clearly distinguishable on the facts. 494 F.3d 590. The second, Evans v. Housing Authority of Benicia, No. 2:07-cv-0391, 2008 WL 4177729 (E.D.Cal.Sept. 8, 2008), is merely unbinding precedent which does not interpret the obligation of a California police officer to testify regarding crime.

First, in Morales, the Seventh Circuit found that “[b]eing deposed in a civil suit pursuant to a subpoena was unquestionably not one of Morales’ job duties.” 494 *709F.3d at 598. The court noted that though Morales had gained information for the civil suit while working as a police officer, and had even testified regarding actual speech he made pursuant to his job duties, any retaliation taken because he testified in this deposition was impermissible. Id. This holding is understandable. Morales’ statements were made in a civil suit brought by another officer against the Chief of Police and the Deputy Chief. California’s courts have never said that it expects its police officers to assist other officers in their individual civil suits against present or former employers. Testimony related to the discovery and cessation of crime, however, is an obligation. That was not the question posed to the Seventh Circuit, and Judge Fletcher reads that court’s holding too broadly.

Also, in Evans, Evans was the former accountant and bookkeeper for the Benicia Housing Authority (“BHA”), which is an “independent public agency created to provide low-cost housing to the city.” 2008 WL 4177729, at *1. Evans realized that his former boss, Peterson — the then manager and Executive Director of the BHA — was operating on reduced work hours and failing to collect rent or assess late fees to delinquent tenants. Id, at *2. In October 2004, a grand jury was convened to investigate operations at the BHA. Id. Peterson first testified before the grand jury regarding overall business practices within the BHA, and then when Evans testified in late November, he explained “tenant rent account irregularities and Peterson’s reduced work hours.” Id. Following Evan’s testimony, Peterson placed Evans on administrative leave and, ultimately, terminated him.

The district court held that “Evans’ statements to the Grand Jury concerning the tenant rent account irregularities and Peterson’s reduced working hours ... [were] not made pursuant to Evans’ official job duties.” Id. at *1. Hence, under Ceballos, the statements were protected by the First Amendment and any retaliatory action taken violated Evans’ constitutional rights.

In addition to the reality that Evans cannot and does not bind us, it is so factually distinguishable as to be irrelevant to our discussion here. Evans was an accountant working for the city’s independent housing authority. The California courts have never explicitly, or even impliedly, stated that one duty of an accountant at a public agency is to testify before grand juries. It comports with our understanding of Ceballos that such testimony would be outside the practical duties of a bookkeeper. However, this says nothing about whether California expects its police officers to testify about alleged criminal conduct. Judge Fletcher’s reliance on this case is unavailing and unpersuasive here, merely discussed because the court chose to protect the speech of a person testifying before a grand jury. The question is not whether such testimony occurred, but instead whether the obligation to provide that testimony “owes its existence to an employee’s professional responsibilities.” Ceballos, 547 U.S. at 421, 126 S.Ct. 1951.

Our holding does not imply that a police officer might never be protected if he speaks on issues such as corruption, for we recognize that “[e]xposing governmental inefficiency and misconduct is a matter of considerable significance.” Ceballos, 547 U.S. at 425, 126 S.Ct. 1951. Even though we find that, under California law, testimony such as Huppert’s is within the duties of a police officer, speech outside one’s official duties remains protected by the First Amendment. See id. at 422, 126 S.Ct. 1951 (noting that a letter to the newspaper is similar to speech undertaken by citizens on a daily basis); Freitag, 468 *710F.3d at 545 (holding that complaints to an elected official and independent reviewing officer are outside a prison guard’s work duties).

5

There exist other avenues of recourse available to protect an officer who exposes misconduct within the police department and is subsequently subjected to retaliation. States, including California, have created “whistle-blower” statutes for this exact purpose, and our holding today does not impact those statutes. See, e.g., Cal. Gov.Code § 8547-8547.12. As the majority in Ceballos explicitly stated, “[t]he dictates of sound judgment are reinforced by the powerful network of legislative enactments — such as whistle-blower protection laws and labor codes — available to those who seek to expose wrongdoing.” 547 U.S. at 425, 126 S.Ct. 1951.

Our conclusion today enforces these statutes and empowers a state to choose the appropriate remedy for an individual who speaks on this type of issue and is then subjected to retaliation. Further, it is these statutes that protect officers from the “Catch 22” — i.e., either not complying with a subpoena and being found in contempt of court, or testifying only to then be the subject of retaliation — that concerns Judge Fletcher. Yet, under Ceballos, these individuals are not entitled to the protections of the Civil Rights Act or the remedies accompanying a victorious § 1983 suit when speaking pursuant to their official duties.

B

In addition to his First Amendment claims, Salgado also appeals the district court’s grant of summary judgment on his § 1983 claim for violations of his rights under the Fourth, Sixth, and Fourteenth Amendments. As with Huppert’s claims regarding retaliation from his cooperation with the FBI, Salgado fails to identify concrete claims, bolster those claims with facts, or cite legal authority pertaining to the claims. These claims are therefore abandoned. See Fed. R.App. P. 28(a)(9)(A); Xin Liu, 347 F.3d at 1138.

C

Finally, Huppert and Salgado contend that the district court improperly awarded costs to the Appellees. They do not challenge the court’s determination that the Appellees were the prevailing party; instead they argue that the Appellees failed to timely file their costs, rendering an award inappropriate. Local Rule section 54-l(a) states: “No later than 14 days after entry of judgment or order under which costs may be claimed, a prevailing party claiming taxable costs must serve and file a bill of costs.... ” While the district court issued its summary judgment ruling on November 15, 2006, the final order was not docketed until November 17, 2006. The Appellees filed their bill of costs on November 30, 2006, within the fourteen-day time period required by the Local Rules.

IY

We affirm the district court’s grant of summary judgment on all claims and the award of costs.

AFFIRMED.