Whether a retaliatory investigation may be a distinct adverse action under the First Amendment

QUESTION PRESENTED This Court has frequently reversed erroneous denials of qualified immunity before trial, especially when lower courts have defined clearly-established law in general terms and without particularizing it to the facts of the case. It remains unsettled whether a retaliatory investigation may be a distinct adverse action under the First Amendment. This Court expressly reserved that question in Hartman v. Moore, and the Ninth Circuit recently recognized the absence of clearly-established law on the issue in Moore uv. Garnand. Moreover, no federal appellate court has held 42 U.S.C. § 1983 liability may be based solely on recommending an employment-related action that was never imposed, or on individual committee members’ participation in voting on such a recommendation or initiating an investigation. The question presented is: Whether the Ninth Circuit, before deciding Moore, yet again departed from this Court’s precedents by invoking broad principles and inapposite cases on adverse actions to deny qualified immunity before trial to publiclyemployed physicians who participated in a hospital medical staff executive committee’s decisions to: (1) convene a neutral ad hoc committee to conduct a fact-finding evaluation of a colleague’s allegations that a physician engaged in conduct detrimental to patient care and disruptive to hospital operations; and (2) recommend revoking the physician’s clinical privileges, after this evaluation found the physician’s ii conduct adversely impacted patient care and healthcare professionals’ well-being, and after the physician rejected a behavioral contract—but subject to a right of a full evidentiary hearing by a neutral judicial review committee, which was mutually dismissed without the recommended revocation ever being implemented?