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.
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"),
All four deputy sheriffs were charged with felonies. Plaintiff Wilkinson was charged in June 2002 with nine felony counts of falsifying police reports. Plaintiff Sherr was charged on June 11, 2003, with seven counts of workers' compensation insurance fraud, perjury, and grand theft. Plaintiff Debs was charged on June 27, 2004, with felony drunk driving. Plaintiff O'Donoghue was charged on June 3, 2002, with two counts of falsifying a police report, three counts of accessory after the fact to possession of narcotics for sale, one count of perjury, and one count of false imprisonment.
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.
Many months after their reinstatement from suspension, and before any post-suspension hearings were held, all four deputies were discharged from the Sheriff's Department, at least in part based on the allegations underlying the criminal charges.
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
As for O'Donoghue, the hearing officer issued a report recommending O'Donoghue's full reinstatement with back pay to the date of his discharge. The hearing officer also recommended that O'Donoghue receive back pay and benefits for the time he was suspended. After hearing the recommendation, the Commission ordered O'Donoghue reinstated from his discharge. Rather than reversing the suspension, however, the Commission directed the Sheriff, the Sheriff's Department, and the County to reconsider the decision to suspend O'Donoghue. They did not do so. O'Donoghue was not reimbursed for his lost pay and benefits for the time he was suspended.
Plaintiffs brought claims under 42 U.S.C. § 1983 in federal district court, alleging violations of their Fourteenth Amendment due process rights.
A dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is reviewed de novo. Synagogue v. United States, 482 F.3d 1058, 1060 (9th Cir.2007). "When ruling on a motion to dismiss, we accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005). The court draws all reasonable inferences in favor of the plaintiff. Newcal Industries, Inc. v. Ikon Office Solution, 513 F.3d 1038, 1043 n. 2 (9th Cir.2008). "Dismissal is proper under Rule 12(b)(6) if it appears beyond doubt that the non-movant can prove no set of facts to support its claims." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.2004). This court also reviews de novo the district court's determination regarding qualified immunity. Robinson v. Prunty, 249 F.3d 862, 865-66 (9th Cir.2001).
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, 105 S.Ct. 1487, 84 L.Ed.2d 494 (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, 108 S.Ct. 1780, 100 L.Ed.2d 265 (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, 108 S.Ct. 1780 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).
"[E]mployees who occupy positions of great public trust and high public visibility,
However, the constitutionality of a suspension without any pre-suspension procedural due process depends on the availability of a post-suspension hearing. See Gilbert, 520 U.S. at 930, 117 S.Ct. 1807 ("[W]here a State must act quickly, or where it would be impractical to provide predeprivation process, post-deprivation process satisfies the requirements of the Due Process Clause."); Mallen, 486 U.S. at 240, 108 S.Ct. 1780 (holding that "in limited cases demanding prompt action," the government may be justified in "postponing the opportunity to be heard until after the initial deprivation."); see also Loudermill, 470 U.S. at 547 n. 12, 105 S.Ct. 1487 ("[T]he existence of post-termination procedures is relevant to the necessary scope of pretermination procedures.").
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.
To bring a § 1983 claim against a local government entity, a plaintiff must plead that a municipality's policy or custom
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.
The district court relied on Zuniga v. Los Angeles County Civil Service Commission, 137 Cal.App.4th 1255, 40 Cal.Rptr.3d 863 (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."
But the fact that the Commission is precluded from hearing Wilkinson's and Sherr's appeals does not remove the County's
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 were predetermined. They allege that Defendants had a policy of sustaining suspensions, even after post-suspension review, so long as there was
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, 96 S.Ct. 893, 47 L.Ed.2d 18 (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:
424 U.S. at 335, 96 S.Ct. 893.
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.
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
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 998. Thus, the dissent claims, Debs and O'Donoghue are not raising a procedural due process issue at all. Dis. op. at 998-99. 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, 99 S.Ct. 2642, 61 L.Ed.2d 365 (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, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965))). Thus, Defendants' policy of upholding suspensions on the sole basis of felony charges, even on post-suspension review, directly impacts the procedural due process question. Accordingly, Debs and O'Donoghue have properly and plausibly stated a procedural due process claim.
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 999. 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 999-1000. 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, 117 S.Ct. 1807. 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
The dissent also reads Rule 18.031 to conclusively allow for summary suspensions when a law enforcement officer is charged with a felony.
In sum, we hold that Debs and O'Donoghue have plausibly stated a Monell claim, and remand to the district court for further proceedings.
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, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). A right is clearly established if it would be clear to a reasonable official that his conduct was unlawful. Id. at 202, 121 S.Ct. 2151. 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, 172 L.Ed.2d 565 (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.
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.
Thus, as to the claims brought by Wilkinson and Sherr, we hold that the district court erred in granting qualified immunity to the Sheriff and the Board of Supervisors, but did not err in granting qualified immunity to the Civil Service Commissioners.
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, 161-62 (2d Cir.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.
Plaintiffs have adequately alleged that Defendants' policies caused violations of their constitutional rights, and therefore Plaintiffs have stated Monell claims against the County. All individual defendants, however, are entitled to qualified immunity from the claims of Debs and O'Donoghue, whose right to a more substantial post-suspension hearing was not clearly established at the time of the violations. The individually named Civil Service Commissioners are also entitled to qualified immunity from Wilkinson's and Sherr's claims because the Commission was stripped of jurisdiction by the California Court of Appeal in Zuniga. But those claims may go forward against the Sheriff and the County Supervisors, who were constitutionally required to provide post-suspension procedures for suspended deputy sheriffs who later retired. We remand for further proceedings consistent with this opinion.
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, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997), I concur in sections II.A and III.A of the majority opinion.
Debs and O'Donoghue, on the other hand, did not allege a plausible violation of their due process rights. Both received all the process that was due: they had full hearings before hearing officers after they were suspended, and the Commission ordered both to be reinstated, although it denied backpay on the ground that the
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, 92 S.Ct. 2701, 33 L.Ed.2d 548 (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, 108 S.Ct. 1780, 100 L.Ed.2d 265 (1988) (holding that "cause" for suspending the indicted director or officer of a federally insured bank is defined by 12 U.S.C. § 1818(g)(1), which stated that an officer can be suspended if his continued service "[might] pose a threat to the interests of the bank's depositors or [might] threaten to impair public confidence in the bank" (alterations in original)). If (for example) state law allowed a prison guard to be terminated for drinking on the job, a guard who drank on the job could be fired so long as he received an adequate hearing; such a hearing would not be made less "meaningful" just because the state needed to prove only that the guard downed a six-pack while patrolling the yard. Thus, if Debs and O'Donoghue's terms of employment allowed them to be suspended without pay on the basis of a felony charge alone, then they cannot claim they were deprived of adequate process simply because in the end, the Commission upheld their suspension without pay on that basis.
And that is exactly the situation here. Under Rule 18.031 of the Los Angeles County Civil Service Rules,
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.
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 991-92, 995-96. This conflates the question whether Debs and O'Donoghue were entitled to post-suspension hearings at all (they were) with what substantive standard
Nor can the majority's reasoning be saved by analogy to the Second Circuit's decision in Nnebe v. Daus, 644 F.3d 147 (2d Cir.2011). See Maj. op. at 995 n. 9. The plaintiffs in Nnebe stated a plausible due process violation because they alleged that the Taxi and Limousine Commission applied a standard to them that was inconsistent with state law. See 644 F.3d at 150-51, 153-54. In this case, by contrast, Debs and O'Donoghue have not alleged that the Civil Service Commission applied a standard inconsistent with the Civil Service Rules. Moreover, in concluding that "a hearing that does nothing more than confirm the driver's identity and the existence of a pending criminal proceeding" might not be adequate process, the Second Circuit expressly relied on three "crucial" facts that indicated that the balancing test of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), might tip in favor of the plaintiffs: taxi drivers are not government employees; "the misconduct that results in summary suspension" did not need to be "related to the cab driver's work"; and the "summary suspension policy is triggered even by a warrantless arrest." Id. at 162. None of those facts pertains here: deputy sheriffs are government employees; felony charges, by their very nature, affect the work of deputy sheriffs; and the suspension policy in this case is triggered only by the filing of criminal charges. Thus, the reasoning of Nnebe is inapposite.
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, 127 S.Ct. 1955) (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.
If such an approach is appropriate at the summary judgment stage in Nnebe, it is even more compelling in this case. At summary judgment the record is at least partially developed, whereas in this case the record has not been developed at all, given that it was dismissed at the pleading stage.
Moreover, the Court in Gilbert minimized the plaintiff's interest in "the uninterrupted receipt of his paycheck" because "so long as the suspended employee receives a sufficiently prompt post-suspension hearing, the lost income is relatively insubstantial (compared with termination)." Id. at 932, 117 S.Ct. 1807. Indeed, the plaintiff in Gilbert was suspended for only 24 days before receiving a hearing. See id. at 927, 117 S.Ct. 1807. Plaintiff O'Donoghue, in contrast, was suspended without pay for nine months, and received his hearing almost three years after his initial suspension. It is difficult to assert that the loss of nine months' income is "relatively insubstantial," or that a hearing three years after the fact is "sufficiently prompt"—the Gilbert Court's Mathews balancing might have come out quite differently given these facts.
At this stage of the proceedings, we decline to decide whether Plaintiffs are entitled to backpay. We merely note that Gilbert does not resolve the question. Should the issue of backpay arise, we leave its resolution in the first instance to the district court.
Civil Service Rule 18.031.
Civil Service Rule 18.031.
Debs and O'Donoghue both had administrative hearings before the Civil Service Commission, and the Commission denied them backpay. Although the plaintiffs have attempted to restate their claims in procedural terms, see Maj. op. at 992 n. 5, what they are seeking to vindicate in this § 1983 action is exactly the same "primary right" that was at stake in their administrative hearings, namely, their right to backpay. Therefore, under Miller, the Commission's finding that Debs and O'Donoghue's suspensions were justified should be conclusive in this case.
