Ostlund v. Bobb
| Decision Date | 21 August 1987 |
| Docket Number | No. 86-5538,86-5538 |
| Citation | 825 F.2d 1371 |
| Court | U.S. Court of Appeals — Ninth Circuit |
| Parties | Michael OSTLUND, Plaintiff-Appellant, v. Robert C. BOBB, Edward J. Cooper, City of Santa Ana, Defendants-Appellees. |
Seth J. Kelsey, Santa Ana, Cal., for plaintiff-appellant.
A.J. Pyka, Santa Ana, Cal., for defendants-appellees.
Appeal from the United States District Court for the Central District of California.
Before PREGERSON, NELSON and WIGGINS, Circuit Judges.
OVERVIEW
Appellant Michael Ostlund appeals an adverse ruling in his civil rights action. He asserts that the City of Santa Ana, California and its officials, Robert Bobb and Edward Cooper, violated his constitutional right to due process by not providing him
with a hearing regarding the City's denial of his claim for disability retirement benefits. The district court dismissed the action after conducting a pretrial conference. In dismissing the action the court ruled that the City was not required to grant Ostlund a hearing because he had not requested one. The court also ruled that Bobb and Cooper were entitled to qualified immunity. We reverse and remand.
Appellant Ostlund was employed as a police officer by the City of Santa Ana, California ("the City") between 1980 and 1983. On May 6, 1983, after Ostlund had been involved in two shooting incidents and had undergone a psychiatric examination, the City notified him that it intended to discharge him because he had been "found to possess an emotional or mental condition which might adversely affect [his] exercise of the powers of a peace officer."
On May 10, 1983, Ostlund applied for disability retirement from the Public Employee's Retirement System ("PERS") and for worker's compensation from the California Worker's Compensation Appeals Board ("WCAB").
On June 8, 1983, the City discharged Ostlund. On September 12, 1983, September 29, 1983, February 13, 1984, February 22, 1984, and February 23, 1984, the Personnel Board of the City of Santa Ana held hearings on Ostlund's appeal from his discharge. The Board upheld the City's decision to discharge Ostlund.
Meanwhile, on September 16, 1983, Ostlund petitioned the Orange County Superior Court for a writ of mandamus to compel the City to provide him with a due process hearing on his application for disability retirement. The City took the position that it was not required to hold a hearing, but conceded that Ostlund was "substantially incapacitated for the performance of his police officer duties." However, the City also asserted that Ostlund's disability was not job related and, therefore, he was not entitled to disability retirement.
Ostlund then dismissed his petition for writ of mandamus and filed a proceeding with the WCAB to determine whether his disability was in fact job related. In June 1984, the WCAB found that Ostlund's disability was job related. Ostlund notified PERS of the WCAB finding. The City's admission that Ostlund was incapacitated together with the WCAB finding that his incapacity was job related qualified Ostlund for disability retirement.
At this point the City changed its course. Citing purportedly newly discovered evidence in the WCAB proceedings, city manager Robert Bobb notified PERS that the City had determined that Ostlund was not incapacitated and therefore not entitled to disability retirement. Bobb contended that the WCAB report established "that Mr. Ostlund is able to perform the usual duties of a police officer but, because of alleged personality conflicts with supervisors in the Santa Ana Police Department, he is somehow not able to function as a police officer for the Santa Ana Police Department."
Under California law, the local governing body, in this case the City, determines disability. Therefore, PERS accepted the City's determination that Ostlund was not disabled.
On July 18, 1984, Ostlund's attorney wrote to city manager Bobb, requesting that Bobb reconsider his determination that Ostlund was not incapacitated and threatening to sue the City if it refused to do so.
On August 8, 1984, Ostlund filed this action against City Manager Bobb, Santa Ana City Attorney Cooper, and the City of Santa Ana. Ostlund alleged violations of 42 U.S.C. Secs. 1983, 1985(3), and 1986 on the ground that the City had violated his due process rights by refusing to hold an evidentiary hearing regarding his disability claim.
The district court dismissed the action after pretrial conference. The court held (1) that sections 1985 and 1986 were not applicable; (2) that Bobb and Cooper were entitled to have the cases against them dismissed on the ground of qualified immunity; and (3) that Ostlund was not entitled to relief against the City of Santa Ana because he never requested a hearing regarding
his disability retirement. Ostlund only appeals the dismissal of his section 1983 claim.
This court reviews de novo a district court's determinations on questions of law and on mixed questions of fact and law. LaDuke v. Nelson, 762 F.2d 1318, 1322 (9th Cir.1985), modified, 796 F.2d 309 (1986).
Ostlund contends that the City violated his constitutional right to due process by not providing him with a hearing on his application for disability retirement. The City contends that Ostlund waived his right to a hearing by not requesting one after the City made its final determination that he was not incapacitated.
Appellees now acknowledge that Ostlund had a due process right to a hearing. Section 21022 of the California Government Code provides that any "local safety member incapacitated for the performance of duty as a result of an industrial disability shall be retired for disability." Section 21022 clearly gives city police officers a vested right to disability retirement if they suffer a work-related disability. The due process right of a police officer in Ostlund's position to a hearing to determine entitlement to disability retirement was recognized explicitly by the California Court of Appeal in Watkins v. City of Santa Ana, 189 Cal.App.3d 393, 234 Cal.Rptr. 406, 408 (1987). There the court stated:
Police officers and other public employees have a vested contractual right to a reasonable disability retirement pension.... Here, Watkins had a fundamental vested right to disability retirement benefits if, in fact, he was disabled. The city's decision on that threshold question substantially affects that right.... It must therefore hold an evidentiary hearing to determine whether Watkins is capable of performing his duties.
Id. (citations omitted).
Whether deprivation of a property right implicates a due process right to a hearing is a matter of federal constitutional law. See Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1314 (9th Cir.1984). However, "[p]roperty rights are created 'and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.' " Kerley Indus., Inc. v. Pima County, 785 F.2d 1444, 1446 (9th Cir.1986) (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)). Unquestionably Ostlund had a property interest in his disability retirement benefits and had a due process right to a hearing regarding his entitlement to such benefits.
The critical question before us is whether Ostlund waived his right to a hearing by not demanding one after the City had determined that he was not incapacitated. A waiver of a constitutional right is "not to be implied and is not lightly to be found." United States v. Provencio, 554 F.2d 361, 363 (9th Cir.1977). Waiver of a constitutional right must be knowing and voluntary. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Correa v. Nampa School Dist., 645 F.2d 814, 816-17 (9th Cir.1981). The facts in this case do not support the assertion that Ostlund knowingly waived his right to a hearing. The district court did not make a finding that Ostlund was aware that he was entitled to a hearing, and the City never informed Ostlund that he was entitled to a hearing. In fact, the City had established no administrative mechanism through which a hearing could be requested or held. Under these circumstances, the fact that Ostlund did not demand a hearing cannot be construed as a waiver of his right to one. Cf. Correa v. Nampa School Dist., 645 F.2d at 817 ().
Ostlund had a right to a hearing regarding his entitlement to disability retirement benefits. His failure to demand a hearing did not constitute a waiver of that right. Therefore, the City violated Ostlund's right to due process by not holding a hearing.
Qualified immunity shields government officials from liability for damages arising from...
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