ASSOCIATION FOR LOS ANGELES DEPUTY SHERIFFS, in Its Representational Capacity, on Behalf of Its Members; DARRIN WILKINSON; LISA BROWN DEBS; SEAN O’DONOGHUE; DAVID SHERR v. COUNTY OF LOS ANGELES, a Municipal Corporation (also erroneously sued as the LOS ANGELES COUNTY BOARD OF SUPERVISORS, the LOS ANGELES COUNTY CIVIL SERVICE COMMISSION and the LOS ANGELES COUNTY SHERIFF’S DEPARTMENT); GLORIA MOLINA, in her capacity as a Los Angeles County Supervisor; YVONNE BRAITHWAITE BURKE, in her capacity as a Los Angeles County Supervisor; ZEV YAROSLAVSKY, in his capacity as a Los Angeles County Supervisor; DON KNABE, in his capacity as a Los Angeles County Supervisor; MICHAEL D. ANTONOVICH, in his capacity as a Los Angeles County Supervisor; LYNN ADKINS, in his capacity as a Civil Service Commissioner; VANGE FELTON, in her capacity as a Civil Service Commissioner; CAROL FOX, in her capacity as a Civil Service Commissioner; Z. GREG KAHWAJIAN, in his capacity as a Civil Service Commissioner; EVELYN MARTINEZ, in her capacity as a Civil Service Commissioner; LEROY BACA, individually and as Sheriff of the County of Los Angeles
No. 08-56283
United States Court of Appeals for the Ninth Circuit
August 12, 2011
10747
D.C. No. 2:08-cv-00238-RGK-FFM
Argued and Submitted October 6, 2010—Pasadena, California
Filed August 12, 2011
Before: Harry Pregerson, Dorothy W. Nelson, and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Pregerson; Partial Concurrence and Partial Dissent by Judge Ikuta
Elizabeth J. Gibbons, Green & Shinee, Encino, California, for the plaintiffs-appellants.
Connie C. Almond (argued) and Jeffrey C. Freedman, Liebert Cassidy Whitmore, Los Angeles, California, for the defendants-appellees.
OPINION
PREGERSON, Circuit Judge:
This appeal concerns the requirements of due process when law enforcement officers charged with felonies are suspended without pay. We affirm in part and reverse in part the decision of the district court.
FACTUAL AND PROCEDURAL BACKGROUND1
Plaintiffs Darrin Wilkinson, David Sherr, Lisa Brown Debs, and Sean O’Donoghue are four current or former Los Angeles County deputy sheriffs, joined by their union, the Association of Los Angeles Deputy Sheriffs (collectively, “Plaintiffs“). Defendants are the County of Los Angeles (the “County“), the Los Angeles County Supervisors (the “Supervisors“), the Los Angeles County Civil Service Commissioners (the “Civil Service Commissioners“), and the Los Angeles County Sheriff (the “Sheriff“) (collectively, “Defendants“).
The four deputies were served by the Los Angeles County Sheriff’s Department with letters of intent to suspend them. Plaintiffs responded in writing and denied the allegations against them, but were nonetheless suspended without pay. All four plaintiffs then requested post-suspension hearings before the Los Angeles County Civil Service Commission (the “Commission“). The request was held in abeyance pending completion of the criminal proceedings and disciplinary action by the Sheriff’s Department.
Ultimately, the criminal charges against plaintiffs Wilkinson and Debs were dropped, and plaintiffs Sherr and O’Donoghue were acquitted by juries. All four were reinstated from their suspensions and returned to paid status.2 They continued to demand hearings before the Commission to contest the propriety of their suspensions after the fact.
Many months after their reinstatement from suspension,
While waiting for their hearings on their suspensions and discharges, Wilkinson and Sherr were both granted disability retirement by the Los Angeles County Employee Retirement System. The date of retirement was set retroactively to the day after their discharge. This effectively converted Wilkinson and Sherr from discharged employees to retired employees. The Commission subsequently issued final decisions stating that it did not have jurisdiction over the appeals of retired deputies, including Wilkinson and Sherr. Neither Wilkinson nor Sherr ever received a post-suspension hearing.
Debs and O’Donoghue received post-suspension hearings. The Commission’s hearing officer found that Debs’s suspension and discharge were both improper because the allegations underlying the felony charge against her were untrue. The hearing officer recommended that the Commission reinstate Debs from her discharge and also restore the pay lost during her suspension. After hearing this recommendation, the Commission ordered Debs reinstated from her discharge, but denied Debs any back pay for the time she was suspended. The Commission held that Debs’s suspension was proper because a felony charge, whether supported by valid allegations or not, was pending against her at the time the Sheriff’s Department imposed her suspension.
Plaintiffs brought claims under
STANDARD OF REVIEW
A dismissal for failure to state a claim under
DISCUSSION
I. Procedural Due Process
[1] It is not disputed by Defendants that Plaintiffs have a constitutionally protected property interest in continued employment. Plaintiffs may not be deprived of that employment without due process of law. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). Temporary suspensions, like terminations, are deprivations of employment that can implicate the protections of due process. See FDIC v. Mallen, 486 U.S. 230, 240 (1988); Finkelstein v. Bergna, 924 F.2d 1449, 1451 (9th Cir. 1991). ” ‘Once it is determined that due process applies, the question remains what process is due.’ ” Mallen, 486 U.S. at 240 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
[2] “[E]mployees who occupy positions of great public trust and high public visibility, such as police officers,” can be temporarily suspended without any pre-suspension due process if felony charges are filed against them. Gilbert v. Homar, 520 U.S. 924, 932-34 (1997); see also Mallen, 486 U.S. at 230 (upholding suspension of indicted bank official without pre-suspension hearing). The felony charge “serve[s] to assure that the state employer’s decision to suspend the employee is not ‘baseless or unwarranted,’ in that an independent third party has determined that there is probable cause to believe the employee committed a serious crime.” Gilbert, 520 U.S. at 934 (quoting Mallen, 486 U.S. at 240) (internal citation omitted).
[3] However, the constitutionality of a suspension without any pre-suspension procedural due process depends on the
[4] Even though the plaintiffs in Gilbert and Mallen received no pre-suspension process at all, unlike the plaintiffs in this case, who received notice of the impending suspension and the opportunity to submit a written statement in response, this distinction is immaterial. Plaintiffs allege—and at this stage of the proceedings we must assume the allegation is true—that the pre-suspension process provided by Defendants consisted of nothing more than a determination that felony charges had been filed, without any inquiry into the veracity of the allegations underlying those charges. In other words, once Defendants confirmed that Plaintiffs had been charged with felonies, the pre-suspension inquiry was at an end, and Plaintiffs were suspended. This level of due process is no more substantial than what was accorded the plaintiffs in Gilbert and Mallen, in which the plaintiffs were summarily suspended as soon as it was determined that they had been charged with felonies. The fact that Plaintiffs in the instant case were given an opportunity to respond makes little difference when their response could have had no effect on their suspension. Therefore, as indicated in Gilbert and Mallen, due process requires that Plaintiffs receive post-suspension hearings in addition to the limited procedures they received before their suspensions.5
[5] To bring a
A.
[6] Plaintiffs allege that Defendants have adopted a policy of denying post-suspension hearings to employees who resigned after the suspension was imposed but before the hearing was completed. As discussed above, due process requires that an employee suspended solely on the basis that felony charges were filed against him must be granted a post-suspension hearing. Because plaintiffs Wilkinson and Sherr were denied any post-suspension hearing at all, pursuant to Defendants’ policy, they have sufficiently stated a Monell claim.
[7] The district court relied on Zuniga v. Los Angeles County Civil Service Commission, 40 Cal. Rptr. 3d 863 (Ct. App. 2006), a California case, to dismiss Wilkinson and Sherr’s Monell claim. Zuniga held that the Commission lacks jurisdiction to hear appeals from retired employees. Id. at 866. The district court stated, “Because the Commission lacks jurisdiction, it cannot be simultaneously denying the individuals their constitutional right to due process.”
B.
[9] Plaintiffs Debs and O’Donoghue did receive post-suspension hearings, unlike Wilkinson and Sherr. But Debs and O’Donoghue allege that the outcomes of those hearings
The district court concluded that Defendants’ policy, if it existed, was never applied to Debs and O’Donoghue, because the hearing officers in each of their cases recommended that Debs and O’Donoghue “receive back pay for the period of their suspensions.” The district court overlooked the crucial point that the hearing officers were only making recommendations, and were not the final decisionmakers. Plaintiffs allege that the Commission, following the County’s policy to sustain suspensions based on the filing of felony charges, rejected the recommendation to reverse Debs’s suspension. And although the Commission recommended reconsideration of O’Donoghue’s suspension, the County and the Sheriff declined to do so. The district court erred in focusing on the actions of the hearing officers, and not on the actions of the final decisionmakers—in Debs’s case, the Commission, and in O’Donoghue’s case, the County and the Sheriff.
Because Plaintiffs allege that Defendants applied the challenged policy to them, we must decide whether Plaintiffs have thereby alleged a constitutional violation. We determine what procedures satisfy due process by applying the balancing test from Mathews v. Eldridge, 424 U.S. 319, 335 (1976). See Brewster v. Bd. of Educ. of Lynwood Unified School Dist., 149 F.3d 971, 983 (9th Cir. 1998). Mathews requires courts to consider the following three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and [third], the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
[10] Making every inference in favor of Plaintiffs, as we must at the pleading stage, we conclude that Plaintiffs could conceivably prove facts to support their allegation that Defendants’ policy caused a violation of Plaintiffs’ right to due process. For example, Plaintiffs could show that the limited post-suspension inquiry created too great a risk of erroneous deprivation of their protected interest in employment, or that Defendants’ interest in maintaining such limited procedures does not outweigh Plaintiffs’ interest in a more thorough investigation. Because Plaintiffs can potentially prove a “set of facts to support [their] claims,” Adams, 355 F.3d at 1183, we hold that Debs and O’Donoghue have adequately stated a Monell claim.
[11] We need not and do not decide whether, in all cases, a post-suspension hearing that looks no deeper than whether felony charges were filed against an employee would or would not pass constitutional muster. Indeed, full Mathews analysis cannot properly be conducted at the pleading stage with an undeveloped record. See Brewster, 149 F.3d at 983 (“Precisely what procedures the Due Process Clause requires in any given case is a function of context.“). It is possible that Defendants’ post-suspension hearings are more robust than Plaintiffs allege, or that Defendants’ have a strong justification for their challenged policy. We leave it to the district court to make these determinations in the first instance, with
The dissent argues that Debs and O’Donoghue are not challenging Defendants’ hearing procedures, but only the substantive standard applied during those procedures, namely, Defendants’ policy of upholding suspensions solely on the basis of felony charges. Dis. op. at 10768. Thus, the dissent claims, Debs and O’Donoghue are not raising a procedural due process issue at all. Dis. op. at 10769. We disagree. Debs and O’Donoghue allege that Defendants apply their policy both pre-suspension and post-suspension. By doing so, Defendants render the post-suspension hearings redundant and meaningless, because the post-suspension inquiry goes no deeper than the pre-suspension inquiry. A meaningless hearing is no hearing at all, and does not satisfy the requirements of procedural due process. See Barry v. Barchi, 443 U.S. 55, 66 (1979) (“[T]he opportunity to be heard must be ‘at a meaningful time and in a meaningful manner.’ ” (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965))). Thus, Defendants’ policy of upholding suspensions on the sole basis
The dissent further argues that Debs and O’Donoghue cannot state a plausible due process claim because their “terms of employment allowed them to be suspended without pay on the basis of a felony charge alone.” Dis. op. at 10770. In other words, the dissent claims that the felony charges were sufficient cause to justify the suspensions of Debs and O’Donoghue. The dissent supports this assertion by citing to the Supreme Court’s decision in Gilbert and Los Angeles County Civil Service Rule 18.031. See Dis. op. at 10770-71. We disagree that either authority resolves this case at this stage of the proceedings.
Contrary to the dissent’s assertion, Gilbert does not hold that felony charges alone can justify the suspension of a law enforcement officer. Gilbert merely holds that felony charges can justify suspension without pre-suspension due process. See 520 U.S. at 932-34. Gilbert says nothing about whether felony charges will continue to justify a suspension under post-suspension review. Gilbert is a case about the timing of suspensions, not their justification.
The dissent argues that Gilbert stands for the proposition that “a suspension without pay while a felony charge is pending does not deprive a law enforcement employee of any constitutionally protected property interest.” Dis. op. at 10770-71. But the Gilbert Court’s analysis belies this claim. If the plaintiff in Gilbert had no protected property interest in his employment, the Court would have ended the inquiry there and concluded he was not entitled to a hearing at all, either pre- or post-suspension. See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 578 (1972) (holding that absent a protected property interest in employment, an employee is not constitutionally entitled to a hearing before his employer
The dissent also reads Rule 18.031 to conclusively allow for summary suspensions when a law enforcement officer is charged with a felony.11 Dis. op. at 10770-71. Even assuming
In sum, we hold that Debs and O’Donoghue have plausibly stated a Monell claim, and remand to the district court for further proceedings.
III. Qualified Immunity
[12] In deciding whether to grant qualified immunity, a court must determine (a) whether the alleged facts make out a constitutional violation, and (b) whether the constitutional right at issue was clearly established at the time of the violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). A right is clearly established if it would be clear to a reasonable official that his conduct was unlawful. Id. at 202. A court may exercise its discretion as to the order in which it addresses each prong. Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 818 (2009).
Under the facts alleged, plaintiffs Wilkinson and Sherr have made out a constitutional violation. They had a right to a post-suspension hearing which Defendants denied them.
The district court held that this right was not clearly established, however. The court stated that after the California Court of Appeal’s decision in Zuniga, a reasonable official would have believed that denying jurisdiction over the appeals of retired deputies was lawful.
[13] We agree with the district court as to the individually named Civil Service Commissioners, who after Zuniga had no authority to hear Wilkinson’s and Sherr’s appeals. 40 Cal. Rptr. 3d at 866. But Zuniga does not protect the County Supervisors and the Sheriff. Zuniga interpreted the County Charter and Civil Service Rules as denying the Commission jurisdiction. See id. Given the holdings of Loudermill, Mallen, and Gilbert, a reasonable official in the position of the Sheriff and the Supervisors should have concluded that, because the Commission was stripped by the state appellate court of its ability to adjudicate the suspensions of retired employees, those suspensions would be constitutionally suspect. The onus would be on County officials to address this constitutional defect, for example by providing an alternative hearing for the retired employees. Zuniga merely points out a jurisdictional flaw in the County’s civil service procedures; Zuniga does not excuse the unconstitutionality of that flaw.
B.
[15] Under the facts alleged, the hearings Defendants provided for Debs and O’Donoghue may have been unconstitutional. We hold, however, that to the extent Debs and O’Donoghue were entitled to a more substantial hearing, this right was not clearly established at the time of the violation. As the Second Circuit recently noted, it is an unresolved question whether due process is satisfied by a post-suspension hearing that sustains a suspension based solely on the fact of a pending criminal proceeding. See Nnebe v. Daus, 644 F.3d 147, 2011 WL 2149924, at *12 (2d Cir. May 31, 2011). Although Gilbert and Mallen make clear that post-suspension procedures are constitutionally required when employees are suspended after being charged with felonies, those cases do not specifically define what must be included in those procedures. A reasonable official would not necessarily infer from existing case law that a post-suspension hearing limited to the question of whether a felony charge has been filed is unconstitutional. Thus, all individual defendants are entitled to qualified immunity from Debs’s and O’Donoghue’s claims.
CONCLUSION
Plaintiffs have adequately alleged that Defendants’ policies caused violations of their constitutional rights, and therefore
AFFIRMED IN PART; REVERSED AND REMANDED IN PART. The parties shall bear their own costs on appeal.
IKUTA, Circuit Judge, concurring in part and dissenting in part:
“To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Here, Wilkinson and Sherr alleged a plausible violation of their due process rights, namely, that they never received a hearing after being suspended without pay. Because a government employee has a constitutional right to such a post-suspension hearing, see Gilbert v. Homar, 520 U.S. 924, 930 (1997), I concur in sections II.A and III.A of the majority opinion.
This reasoning misses the point. The scope of a public employee’s constitutionally protected property interest in his or her job depends on the terms of his or her employment. See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577-78 (1972) (“Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . . Just as welfare recipients’ ‘property’ interest in welfare payments was created and defined by statutory terms, so the respondent’s ‘property’ interest in employment at Wisconsin State University-Oshkosh was created and defined by the terms of his appointment.“). In other words, what constitutes adequate “cause” for suspension or termination of a particular employee will vary according to the federal, state, or local law that governs his or her employment. See, e.g., FDIC v. Mallen, 486 U.S. 230, 237 (1988) (holding that “cause” for suspending the indicted director or officer of a federally insured bank is defined by
And that is exactly the situation here. Under Rule 18.031 of the Los Angeles County Civil Service Rules,1 the Sheriff’s Department may suspend deputy sheriffs based on “any behavior or condition which impairs an employee’s qualifications for his or her position or for continued county employment.” In other words, deputy sheriffs may be suspended even if they have not engaged in affirmative misconduct. Debs and O’Donoghue concede that under this standard, a deputy sheriff may be suspended without pay while a felony charge is pending, because the pendency of a felony charge unquestionably “impairs” a deputy sheriff’s “qualifications” for employment as a law enforcement officer. See Gilbert, 520 U.S. at 932 (noting that a state has a “significant interest in immediately suspending, when felony charges are filed against them, employees who occupy positions of great public trust and high public visibility, such as police officers“). Moreover, the Supreme Court has confirmed that a suspension without pay while a felony charge is pending does not deprive a law
In short, a Los Angeles County deputy sheriff’s property interest in continued employment does not extend to being paid while a felony charge is pending against him or her, regardless of whether the employee committed the misconduct that formed the basis of the felony charge.3 Because the hearing afforded by the Commission was consistent with the Civil Service Rules and the Constitution, Debs and O’Donoghue were not deprived of anything to which they
The majority insists that because Debs and O’Donoghue have a property interest in continued employment, they must have alleged a plausible violation of their due process rights. See Maj. op. at 10755-56, 10763-64. This conflates the question whether Debs and O’Donoghue were entitled to post-suspension hearings at all (they were) with what substantive standard they were entitled to at the hearings they received. Debs and O’Donoghue’s sole complaint is that the Commission denied them backpay on the ground that felony charges were (in fact) pending against them while they were suspended. In order for this to state a due process violation, Debs and O’Donoghue must show that they have a constitutionally protected property interest specifically in being paid while felony charges are pending against them. Rule 18.031 and Gilbert establish that they do not have such an interest.
Nor can the majority’s reasoning be saved by analogy to the Second Circuit’s decision in Nnebe v. Daus, 644 F.3d 147, 2011 WL 2149924 (2d Cir. May 31, 2011). See Maj. op. at 10762 n.9. The plaintiffs in Nnebe stated a plausible due pro-
In sum, because Debs and O’Donoghue could not allege that they had a constitutionally protected interest in being paid while felony charges were pending against them, they did not “state a claim to relief that is plausible on its face.” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570) (internal quotation marks omitted). I therefore dissent from Section II.B of the majority opinion, and would not reach the issue of qualified immunity discussed in Section III.B.