White v. Busboom, 297 Neb. 717

Background

William White, a corrections officer with a CBA-based property interest in continued employment, was placed on unpaid investigatory suspension in April 2010 after a misdemeanor arrest; Scott Busboom signed the suspension letter but says he was following orders.
The CBA allowed unpaid suspension in certain circumstances and provided grievance/arbitration procedures and timelines for postdeprivation review.
White remained suspended after the misdemeanor was dismissed; a second suspension and related disciplinary process led to his termination in July 2011.
An administrative reviewer later set aside the second suspension and ordered back pay from March 28, 2011, to discharge, which the Department did not appeal.
White sued under 42 U.S.C. § 1983 asserting deprivation of a property interest without due process; the district court found Busboom individually liable and awarded damages and partial attorney fees, while dismissing the Department on sovereign immunity grounds.
The Nebraska Supreme Court reversed, holding Busboom entitled to qualified immunity and that White failed to show a postdeprivation due process violation (because he did not invoke available grievance procedures), and thus White was not a prevailing party for § 1988 fees.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Busboom is liable personally for suspending White without predeprivation notice/hearing	White: unpaid suspension deprived property; presuspension notice/hearing required (Loudermill)	Busboom: qualified immunity; law unclear that unpaid suspension required presuspension process; White waived remedies	Held: Qualified immunity for Busboom — law not clearly established that unpaid suspension required presuspension hearing in these circumstances
Whether available postdeprivation grievance/arbitration cures any predeprivation defect	White: postdeprivation process inadequate or not prompt; therefore deprivation unconstitutional	Defendants: CBA grievance/arbitration provided constitutionally adequate postdeprivation remedies which White failed to invoke	Held: Postdeprivation procedures were adequate; White failed to invoke them, so no actionable postdeprivation due process violation
Whether White’s failure to timely file grievance waived his due process claim	White: CBA procedures did not satisfy minimum due process for an unpaid suspension; exhaustion/untimeliness should not bar § 1983 claim	Defendants: Failure to timely grieve means he waived administrative remedies and cannot show deprivation without due process	Held: Failure to invoke adequate postdeprivation remedies defeats the claim; prior precedent (Scott) made the law uncertain as to waiver, but here White failed to use the provided remedies
Entitlement to attorney fees under 42 U.S.C. § 1988	White: prevailed below and awarded fees	Busboom: White is not a prevailing party because judgment reversed	Held: White is not a prevailing party; no § 1988 fees awarded on appeal

Key Cases Cited

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (constitutional minimum pretermination notice and opportunity to respond for public employees)
Gilbert v. Homar, 520 U.S. 924 (Mathews balancing applied; unpaid suspension may not always require presuspension hearing)
Mathews v. Eldridge, 424 U.S. 319 (three-factor test for procedural due process)
Zinermon v. Burch, 494 U.S. 113 (analysis of provided state procedures and when constitutional violation is complete)
FDIC v. Mallen, 486 U.S. 230 (upholding prompt administrative postdeprivation review as constitutionally adequate)
Barry v. Barchi, 443 U.S. 55 (invalidating statutory suspension lacking prompt postdeprivation hearing)
Scott v. County of Richardson, 280 Neb. 694 (Nebraska precedent allowing posttermination grievance procedures to cure presuspension defects)
Ashcroft v. al-Kidd, 563 U.S. 731 (qualified immunity requires law to be clearly established)
Pearson v. Callahan, 555 U.S. 223 (qualified immunity two-step framework)