Nunez v. City of Los Angeles

• Citation: 147 F.3d 867
• Decision Date: 05 June 1998
• Docket Number: No. 97-55139,97-55139
• Parties: 13 IER Cases 1854, 98 Cal. Daily Op. Serv. 4282, 98 Daily Journal D.A.R. 5877 David NUNEZ, Alex Gomez, and Clyde Anthony Vlaskamp, Plaintiffs-Appellants, v. CITY OF LOS ANGELES, the Los Angeles Police Department, Chief Willie Williams, Captain James Tatreau, Captain Lee Carter, Sergeant Gary Grubbs, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 867

147 F.3d 867

13 IER Cases 1854, 98 Cal. Daily Op. Serv. 4282,

98 Daily Journal D.A.R. 5877

David NUNEZ, Alex Gomez, and Clyde Anthony Vlaskamp Plaintiffs-Appellants, v. CITY OF LOS ANGELES, the Los Angeles Police Department Chief Willie Williams, Captain James Tatreau Captain Lee Carter, Sergeant Gary Grubbs, Defendants-Appellees.

No. 97-55139.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 9, 1998.

Decided June 5, 1998.

Russell J. Cole, Law Offices of Paul R. DePasquale, Los Angeles, California, for appellants.

Leslie E. Brown, Assistant City Attorney, Los Angeles, California, for appellees.

Appeal from the United States District Court for the Central District of California; Dickran Tevrizian, District Judge, presiding. D.C. No. CV-95-2446-DT.

Before: FARRIS, O'SCANNLAIN, and FERNANDEZ, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether a Los Angeles police officer has a constitutionally protected property or liberty interest in promotion to higher rank.

I

The Los Angeles Police Department ("LAPD") administers an examination for police officers who wish to be promoted to the position of lieutenant. The test contains written and oral components. If a candidate scores high enough--65% on the written portion and 70% overall--his or her name is added to a list of qualified prospects. The list is organized by bands, or groups, of scores; the Chief of Police must exhaust the candidates within a given band before selecting anyone from a lower band. As positions become available, candidates are chosen until such time as the list expires.

Not just any officer can take the examination. According to official policy, a candidate must have, among other credentials, at least one year of supervisory experience. It is undisputed that officers David Nunez, Alex Gomez, and Clyde Anthony Vlaskamp (collectively, the "police officers") all fulfilled this requirement and each took the examination at least once. None, however, got promoted. The problem, they assert, is that several applicants lacking supervisory experience sat for the exam, received top scores, and eventually became lieutenants. Allegedly, the LAPD, the City of Los Angeles, and several members of the police force (collectively, the "LAPD") waived the experience requirement for these favored candidates in violation of the official policy. This contention forms the basis of the police officers' substantive due process claims, which were brought in April 1994, in an action under 42 U.S.C. § 1983. ¹ In addition, Nunez argues that, after he objected to the LAPD's alleged practice of promoting unqualified applicants, he suffered retaliation. This allegation forms the basis of his First Amendment claim, also brought pursuant to 42 U.S.C. § 1983.

Upon motion, the district court granted summary judgment to the LAPD. Nunez, Gomez, and Vlaskamp timely appealed.

II

As to Gomez, the district court held that the statute of limitations barred all but one of his substantive due process claims. ² Gomez applied for the promotion five times--in 1985, 1987, 1989, 1991, and 1994--and alleges that, every time, the LAPD allowed inexperienced candidates to take the examination. According to the district court, if this favoritism were unconstitutional, Gomez's claims would have accrued one at a time when the exams were administered, see Grimes v. City and County of San Francisco, 951 F.2d 236, 238-39 (9th Cir.1991) (holding that violation accrues when discriminatory act occurred); upon accrual, the statute of limitations would have started to run. Because the limitations period is only one year, see Usher v. City of Los Angeles, 828 F.2d 556, 558 (9th Cir.1987), it would have expired well before this action was filed in April 1994--for all claims except the one arising out of the 1994 examination.

Gomez's only response is that the "discovery rule" should have tolled the statute of limitations until he had knowledge of his injury and its cause. The district court did not disagree. Neither do we. However, as Gomez's own deposition unmistakably shows, he had the requisite knowledge as soon as an allegedly favored candidate took the exam and got promoted; consequently, the discovery rule does not help him:

Q: When did you first become aware or when did you first believe that people who did not have the necessary supervisorial experience were sitting for the lieutenant's exam?

A: I was assigned to internal affairs, and there were two women there who were detectives, and they were D-II's, Detective II's, working with sergeant II's. They both took the lieutenant's exam and weren't qualified because they didn't meet the supervisory requirement, passed, and made lieutenant.

Q: When was this?

A: 1985.

. . . . .

Q: You said that every examination after 1985, that there would be people who sat for the lieutenant's exam who were not qualified?

A: Right, and promoted to lieutenant.

Q: Who were those persons, what year did they sit, and when did you find out about that?

A: Every exam, I knew who those people were.

. . . . .

Q: So just making sure I understand it, as these exams were being administered and at the time you were participating in them, you were aware of individuals who were sitting for the exam who were not qualified?

A: Yes, sir.

Deposition of Alex Gomez 16-20 (Mar. 20, 1996) (emphasis added).

Gomez's own words betray him. He had actual knowledge of his alleged injury: inexperienced candidates were taking the examination and receiving promotions over him. He also had at least presumptive knowledge of the alleged cause of his injury, the LAPD's favoritism. ³ Despite this overwhelming evidence, however, Gomez argues that the district court overlooked a genuine issue of fact, which arose when he made contradictory statements in a subsequent declaration. Alas, not good enough: a party cannot create a triable issue by contradicting his own sworn testimony. See Radobenko v. Automated Equip. Corp., 520 F.2d 540, 543-44 (9th Cir.1975); see also Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.1991). Finding the subsequent declaration to be a sham, the district court correctly held that the only test Gomez can challenge is the one administered in 1994.

III

The central question on appeal is whether the LAPD violated the police officers' substantive due process rights by promoting inexperienced candidates in disregard of official policy. The concept of "substantive due process," semantically awkward as it may be, forbids the government from depriving a person of life, liberty, or property in such a way that "shocks the conscience" or "interferes with rights implicit in the concept of ordered liberty." United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (quoting, respectively, Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952), and Palko v. Connecticut, 302 U.S. 319, 325-26, 58 S.Ct. 149, 82 L.Ed. 288 (1937)) (citations and internal quotation marks omitted).

A

To establish a substantive due process claim, a plaintiff must, as a threshold matter, show a government deprivation of life, liberty, or property. ⁴ See Jeffries v. Turkey Run Consol. Sch. Dist., 492 F.2d 1, 4 (7th Cir.1974) (opinion by Stevens, J.) ("[T]he absence of any claim by the plaintiff that an interest in liberty or property has been impaired is a fatal defect in her substantive due process argument."). According to Nunez, Gomez, and Vlaskamp, the cronyism in the LAPD deprived them of both property and liberty. The property interest, they contend, is the promotion to lieutenant. The two asserted liberty interests are the right to engage in one's chosen profession and the right "to be free from wholly unreasonable and arbitrary" government conduct.

Do these police-officer plaintiffs have a property interest in promotion? Although one's actual job as a tenured civil servant is property, see, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), the prospect of a promotion is not in the same category. Several of our sister circuits have already reached the issue and rejected attempts to classify an expectancy in a promotion as a property interest. ⁵ See, e.g., Wu v. Thomas, 847 F.2d 1480, 1485 (11th Cir.1988); Griffith v. Federal Labor Relations Auth., 842 F.2d 487, 500-01 (D.C.Cir.1988); Bigby v. City of Chicago, 766 F.2d 1053, 1056-57 (7th Cir.1985); Robb v. City of Philadelphia, 733 F.2d 286, 293 (3d Cir.1984); Burns v. Sullivan, 619 F.2d 99, 104 (1st Cir.1980); Clark v. Whiting, 607 F.2d 634, 641 (4th Cir.1979); Schwartz v. Thompson, 497 F.2d 430, 433 (2d Cir.1974). On one occasion, so has this court, albeit in a cursory manner. See Blevins v. Plummer, 613 F.2d 767, 768 (9th Cir.1980) (per curiam).

We see no reason to buck the trend. As the Supreme Court has explained, property interests are not created by the Constitution, but rather by "existing rules or understandings that stem from an independent source such as state law." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In California, the terms and conditions of public employment are generally "fixed by the statute, rules or regulations creating it, not by contract (even if one is involved)." Williams v. Los Angeles City Department of Water and Power, 130 Cal.App.3d 677, 680, 181 Cal.Rptr. 868 (1982); see also Miller v. California, 18 Cal.3d 808, 813-14, 135 Cal.Rptr. 386, 557 P.2d 970 (1977). No such law creates a property interest in a promotion. To be sure, the Los Angeles City Charter grants tenured police officers "a substantial property right" in his "office or position"; however, it merely precludes arbitrary "suspen[sions], demot[ions] in rank, ... remov[als]," or other separation from the LAPD. Charter of the City of Los Angeles, Art. XIX, § 202, at 323 (1990). It does not address promotions. Cf. Shoemaker v. County of Los Angeles, ...