Lum v. Jensen

• Decision Date: 31 May 1989
• Docket Number: No. 87-2896,87-2896
• Parties: Philip W.L. LUM, Plaintiff-Appellee, v. Raymond JENSEN, Robert Drake, and the State of California, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1385

876 F.2d 1385

Philip W.L. LUM, Plaintiff-Appellee, v. Raymond JENSEN, Robert Drake, and the State of California,

Defendants-Appellants.

No. 87-2896.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 13, 1988.

Decided May 31, 1989.

Vincent J. Scally, Jr., Deputy Atty. Gen., Sacramento, Cal., for defendants-appellants.

James R. Kirby, Segal & Kirby, Sacramento, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before CHOY, CANBY and NORRIS, Circuit Judges.

CHOY, Circuit Judge:

Raymond Jensen and Robert Drake (collectively referred to as "defendants"), employees of the California Department of Justice, appeal from the district court's denial of their claim to qualified immunity in a 42 U.S.C. Sec. 1983 suit brought by Philip Lum. The district court denied the defendants' motion for summary judgment, in part ruling that there were triable issues of fact as to whether the defendants had violated a clearly established constitutional right. We have jurisdiction over this interlocutory appeal under Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985). We reverse, concluding that because there was a conflict among the other circuits and no case law in this circuit at the time of the alleged constitutional violation, the defendants could not have known they were violating a clearly

established constitutional right of the plaintiff. Thus, the defendants are entitled to qualified immunity as a matter of law.

BACKGROUND

Philip Lum was employed by the California Department of Justice as a criminalist, a civil service position. Raymond Jensen was Lum's supervisor and Robert Drake was Bureau Chief of Lum's division. On April 24, 1984, Lum was placed on paid administrative leave. On May 4, 1984, Lum was served with a Notice of Adverse Action terminating him from the Department of Justice effective May 18, 1984. On two previous occasions, Lum had met with the defendants to discuss Lum's job performance.

Lum appealed his termination to the State Personnel Board and the Board ordered Lum reinstated with back pay and benefits. He returned to work on September 3, 1985. On January 26, 1986, Lum filed a complaint alleging a procedural due process violation and requesting general and punitive damages. On June 9, 1986, Lum filed an amended complaint, alleging denial of both procedural and substantive due process. He claimed that the defendants denied him substantive due process because his termination was arbitrary, capricious, and pretextual.

On July 27, 1987, the defendants filed a motion for summary judgment seeking dismissal of both the procedural and substantive due process claims. They asserted the defense of qualified immunity on the ground that they had violated no clearly established constitutional right. On October 5, 1987, the district court issued an order granting summary judgment to the defendants on the procedural due process claim but denying the defendants' motion as to the substantive due process claim and the qualified immunity defense. The district court also denied Lum's motion for summary judgment, ruling that triable issues of fact existed as to whether the defendants' termination of Lum had been arbitrary, capricious, and pretextual.

On October 28, 1987, the defendants filed a timely appeal from the order denying their motion for summary judgment. They argue that at the time Lum was fired, there was no clearly established substantive due process right to continued public employment that would preclude an arbitrary, capricious, and pretextual termination. They contend that because there was no clearly established right, they were entitled to qualified immunity as a matter of law. ¹

DISCUSSION

I. Qualified Immunity in General

Government officials who perform discretionary functions are protected from liability for civil damages as long as "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). To defeat qualified immunity, Lum must allege violation of more than an abstract right to due process. He must allege violation of a right that has been " 'clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.... [I]n the light of preexisting law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).

The district court's determination regarding immunity is reviewed de novo. Tribble v. Gardner, 860 F.2d 321, 323 (9th Cir.1988). On an interlocutory appeal, the appellate court "need not consider the correctness of the plaintiff's version of the facts, nor even determine whether the plaintiff's allegations actually state a claim." Mitchell, 472 U.S. at 528, 105 S.Ct.

                at 2816.    Review in a case like the instant one is limited to determining, as a matter of law, "whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions."    Id
                

In determining whether officials are entitled to qualified immunity, officials are charged with knowledge of constitutional developments at the time of the alleged constitutional violation, including all available case law. Tribble, 860 F.2d at 324. A right can be clearly established even though there was no binding precedent in this circuit. Ostlund v. Bobb, 825 F.2d 1371, 1374 (9th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 2016, 100 L.Ed.2d 603 (1988). Absent binding precedent, we look to all available decisional law, including the law of other circuits and district courts, to determine whether the right was clearly established. We also evaluate the likelihood that this circuit or the Supreme Court would have reached the same result as courts that had already considered the issue. Chilicky v. Schweiker, 796 F.2d 1131, 1138 (9th Cir.1986), rev'd on other grounds, --- U.S. ----, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988).

II. Clearly Established Nature of the Right

Lum alleges that his substantive due process right was violated by an arbitrary, capricious, and pretextual discharge. At the time of Lum's termination, there was clear precedent in some circuits establishing substantive due process protection when a public employee could establish a property interest in his employment. For example, the Second Circuit had ruled that to meet the requirements of substantive due process, actions impairing a tenured teacher's property interest in continued employment must have a rational relation to a proper governmental purpose. Gargiul v. Tompkins, 704 F.2d 661, 668 (2d Cir.1983), vacated on other grounds, 465 U.S. 1016, 104 S.Ct. 1263, 79 L.Ed.2d 670 (1984). The Fifth Circuit had determined that public employees who had a property interest in continued employment could establish a denial of substantive due process if they could prove their terminations were the result of arbitrary and capricious action. Thompson v. Bass, 616 F.2d 1259, 1267 (5th Cir.1980), cert. denied, 449 U.S. 983, 101 S.Ct. 399, 66 L.Ed.2d 245 (1980). The Tenth and Eleventh Circuits also had clear case law recognizing such a right. Brenna v. Southern Colorado State College, 589 F.2d 475, 476-77 (10th Cir.1978); Barnett v. Atlanta Housing Authority, 707 F.2d 1571, 1577-78 (11th Cir.1983).

There was no Ninth Circuit precedent which established an entitlement to substantive due process protection for public employment. In Bignall v. North Idaho College, 538 F.2d 243 (9th Cir.1976), a case in which the plaintiffs argued that a college had denied a professor substantive due process by firing her in violation of its own tenure policy, we did not reach the issue of whether substantive due process applied. Instead, we determined that because the professor's property interest was based on de facto tenure, the contours of the professor's rights were determined by the representations the college had made to her concerning her employment. Id. at 249.

Case law in the remaining circuits either left the issue open, summarily addressed the issue and found no violation, or held explicitly that there was no substantive due process right. The First and Third Circuits refused to address whether such a right existed, expressly leaving the question open because the cases presenting the question did not involve a property interest sufficient to trigger any due process protection. Perkins v. Board of Directors of School Administrative Dist. No. 13, 686 F.2d 49, 51 n. 5 (1st Cir.1982) (no need to decide whether right exists because no constitutionally protected property right); McKnight v. Southeastern Pennsylvania Transp. Auth., 583 F.2d 1229, 1233 n. 4 (3d Cir.1978) (no need to reach issue because court remanded for determination whether property right existed).

Cases from the Fourth and Sixth Circuits provided only meager support, if any, for a substantive due process right. In Kowtoniuk v. Quarles, 528 F.2d 1161, 1165 (4th Cir.1975), a college teacher claimed his dismissal In the Eighth Circuit, the existence of a substantive due process right to continued public employment was an open question. In Buhr v. Buffalo Public School Dist. No. 38, 509 F.2d 1196 (8th Cir.1974), the Eighth Circuit ruled that the plaintiff must at least have a property or liberty interest which was sufficient to trigger procedural due process before substantive due process would apply. Id. at 1202. Since the plaintiff in Buhr did not have a property or liberty interest which would suffice to give rise to procedural due process protection, the Eighth Circuit did not further consider the attributes of a substantive due process right. The court stated only that "to the extent that...