FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD DOYLE; ROBERT DEUEL;
BENEDICT MILLER; and CHARLES
STEINBERG,
Plaintiffs-Appellants,
No. 07-35753
v.
CITY OF MEDFORD, an Oregon D.C. No.
CV-06-03058-PA
municipal corporation; and
OPINION
MICHAEL DYAL, City Manager of
the City of Medford, in his official
capacity and as an individual,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Argued March 3, 2009;
Resubmitted April 16, 2010
Portland, Oregon
Filed May 26, 2010
Before: Susan P. Graber, Raymond C. Fisher, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Graber
7549
7552 DOYLE v. CITY OF MEDFORD
COUNSEL
Stephen L. Brischetto, Portland, Oregon, for the plaintiffs-
appellants.
Robert E. Franz, Jr., Law Office of Robert E. Franz, Jr.,
Springfield, Oregon, for the defendants-appellees.
OPINION
GRABER, Circuit Judge:
Plaintiffs, who are former employees of Defendant City of
Medford (“City”), allege that the City’s policy of denying
health insurance coverage to retirees violates their due process
rights. Specifically, Plaintiffs contend that Oregon Revised
Statutes section 243.303 and City Resolution No. 5715 confer
on them a property interest in post-retirement health insurance
coverage that is protected by the Due Process Clause of the
Fourteenth Amendment. Section 243.303 provides that a local
government that offers health insurance coverage to its offi-
cers and employees “shall, insofar as and to the extent possi-
ble, make that coverage available for any retired employee”
who elects it. We certified a question as to the interpretation
of this provision to the Oregon Supreme Court and received
that court’s answer. We now conclude that, under the Oregon
Supreme Court’s interpretation of section 243.303, neither
that statute nor Resolution No. 5715 creates a protected prop-
erty interest. Accordingly, we affirm the district court’s entry
of summary judgment to Defendants on Plaintiffs’ due pro-
cess claim.
In 1981, the Oregon Legislative Assembly enacted Oregon
Revised Statutes section 243.303(2), which read:
The governing body of any local government that
contracts for or otherwise makes available health
DOYLE v. CITY OF MEDFORD 7553
care insurance coverage for officers and employe[e]s
of the local government may, in so far as [sic] and
to the extent possible, make that coverage available
for retired officers and employe[e]s of the local gov-
ernment and for spouses and unmarried children
under 18 years of age of those retired officers and
employe[e]s. The governing body may prescribe rea-
sonable terms and conditions of eligibility and cov-
erage, not inconsistent with this section, for making
that coverage available. The local government may
agree to pay none, part or all of the cost of making
that coverage available.
1981 Or. Laws ch. 240, § 1 (emphasis added).
In 1985, the Oregon legislature amended the statute. 1985
Or. Laws ch. 224, § 1. The legislature replaced the discretion-
ary word “may” with the mandatory word “shall.” The legis-
lature also inserted a provision stating that the local
government “may, but need not” make coverage available
after a retired employee or that employee’s spouse becomes
eligible for Medicare or a retired employee’s child reaches the
age of majority. The statute currently reads:
The governing body of any local government that
contracts for or otherwise makes available health
care insurance coverage for officers and employees
of the local government shall, insofar as and to the
extent possible, make that coverage available for any
retired employee of the local government who elects
within 60 days after the effective date of retirement
to participate in that coverage and, at the option of
the retired employee, for the spouse of the retired
employee and any unmarried children under 18 years
of age. The health care insurance coverage shall be
made available for a retired employee until the
retired employee becomes eligible for federal Medi-
care coverage, for the spouse of a retired employee
7554 DOYLE v. CITY OF MEDFORD
until the spouse becomes eligible for federal Medi-
care coverage and for a child until the child arrives
at majority, and may, but need not, be made avail-
able thereafter. The governing body may prescribe
reasonable terms and conditions of eligibility and
coverage, not inconsistent with this section, for mak-
ing the health care insurance coverage available. The
local government may pay none of the cost of mak-
ing that coverage available or may agree, by collec-
tive bargaining agreement or otherwise, to pay part
or all of that cost.
Or. Rev. Stat. § 243.303(2) (emphases added).
In 1986, the City adopted Resolution No. 5715, which set
forth the City’s plan for complying with section 243.303. The
Resolution interprets section 243.303 as requiring “that con-
tinuation of health insurance be offered to employees who
retire from City service.” The Resolution provides that “[a]
retiree shall have a sixty (60) day period from the date of
retirement in which to elect coverage.” Under the Resolution,
“[a]n otherwise qualified retiree may continue on the program
until the earliest of” several events, including the retiree’s
attainment of Medicare eligibility, termination of insurance
coverage by the City or its carrier, or termination of the retiree
program by the City.
Before 1990, the City permitted all employees to elect to
continue their health insurance coverage upon retirement. In
1990, however, the City negotiated with its police officers’
union for a health insurance program that did not give officers
the opportunity to continue coverage after retirement. In 2001,
the City placed management-level employees under that same
health insurance program, which does not cover retirees. In
2002, the City placed non-management employees of its
Parks and Recreation Department and its Public Works
Department in the same program.
DOYLE v. CITY OF MEDFORD 7555
The City contracts with the Oregon Teamsters Employers
Trust to provide health insurance to its employees. The Team-
sters’ contract with the City states: “[P]articipants are not
allowed to participate in the Trust’s Retiree Plan or any
insured or HMO option available through it.” This provision
means that retirees are excluded from coverage under the
Teamsters’ plan. The members of the Teamsters are responsi-
ble for voting on the extent of coverage. According to the
City, the Teamsters were willing to provide health insurance
benefits to retired employees, but only “if the members of the
Teamsters voted for such coverage.” To date, the members
have not approved an extension of health insurance benefits
to retirees.
Although the City does not provide health insurance cover-
age after retirement, retirees can choose to remain covered for
18 months after their retirement under the Consolidated
Omnibus Budget Reconciliation Act of 1985, 29 U.S.C.
§§ 1161-1168. After that 18-month period expires, retired
employees can enroll in the Oregon Public Employees Retire-
ment System Health Insurance Program, into which the City
has paid so that its retired employees can obtain coverage.
In August 2006, Plaintiffs filed suit against the City and
City Manager Michael Dyal. Plaintiffs are former City police
officers or management-level employees who have retired and
who have been denied benefits under the Teamsters’ plan.
Plaintiffs alleged that Defendants had violated Resolution No.
5715 and Oregon Revised Statutes section 243.303; the Due
Process Clause of the Fourteenth Amendment; the Age Dis-
crimination in Employment Act of 1967 (“ADEA”), 29
U.S.C. §§ 621-634; and the parallel Oregon age discrimina-
tion statute, Or. Rev. Stat. § 659A.030. The district court
granted summary judgment on the due process and the ADEA
claims.1
1
The district court declined to exercise supplemental jurisdiction over
Plaintiffs’ state-law claims, and Plaintiffs refiled them in state court. See
7556 DOYLE v. CITY OF MEDFORD
In its order granting summary judgment, the district court
held that neither section 243.303 nor Resolution No. 5715
afforded Plaintiffs a constitutionally protected property inter-
est. The court reasoned that the statute’s text did not “suffi-
ciently limit the conditions under which the City would be
required to extend health insurance coverage to retirees.”
Because a protected property interest is a prerequisite to a due
process claim, the district court concluded that Plaintiffs’
claim failed as a matter of law. Plaintiffs appealed.2
In a decision filed last year, we determined that section
243.303 was ambiguous as to how much discretion it con-
ferred on local governments. Doyle v. City of Medford, 565
F.3d 536, 541-42 (9th Cir. 2009) (order). Whether the statute
significantly constrains the discretion of local governments is
central to our analysis of the alleged property interest.
Because no Oregon appellate court had construed the state-
law provision at issue, we certified a question to the Oregon
Supreme Court. We asked the Oregon Supreme Court:
What amount of discretion does Oregon Revised
Statutes section 243.303 confer on local govern-
Doyle v. City of Medford, Case No. 08-0137-L7, Circuit Court of Jackson
County (complaint filed Jan. 9, 2008). The disposition of those claims
does not affect our analysis of Plaintiffs’ federal due process claim. The
Oregon circuit court granted summary judgment in favor of Plaintiffs Ron-
ald Doyle and Benedict Miller on their claim that Defendants violated
Oregon Revised Statutes section 243.303 by failing to offer health insur-
ance coverage to retirees. But the circuit court entered judgment before the
Oregon Supreme Court interpreted that statute in response to our certified
question. The circuit court also ruled that the statute of limitations barred
Plaintiffs Robert Deuel and Charles Steinberg’s claims under Oregon
Revised Statutes section 243.303. In addition, the court granted summary
judgment in favor of Plaintiffs Doyle and Deuel on their breach of contract
claims. Trial is set for June 2010 on all remaining claims.
2
Plaintiffs also appealed their ADEA claim. Last year, in an unpub-
lished disposition, we reversed the district court’s grant of summary judg-
ment on the ADEA claim. Doyle v. City of Medford, 327 F. App’x 702
(9th Cir. 2009) (unpublished decision).
DOYLE v. CITY OF MEDFORD 7557
ments to determine whether or not to provide health
insurance coverage to their employees after retire-
ment?
Id. at 544. The Oregon Supreme Court accepted the certified
question. Doyle v. City of Medford, 210 P.3d 907 (Or. 2009)
(table).
The Oregon Supreme Court “reject[ed] the city’s position
that the statute delegates to the city discretion to make health
insurance coverage available to retired employees.” Doyle v.
City of Medford, 227 P.3d 683, 692 (Or. 2010). Rather, the
Court held that “local governments have an obligation to
make health insurance coverage available to retirees, but that
there may be factual circumstances that excuse that obliga-
tion.” Id. at 690. What constitutes compliance with this stan-
dard “will depend on the circumstances of each case and
cannot be determined in the abstract.” Id. at 687. It is the gov-
ernment’s burden to show circumstances sufficient to excuse
the obligation. Id. at 692. The mere fact that, as here, a gov-
ernment’s chosen insurance provider does not offer coverage
for retirees is insufficient to excuse the obligation. Id.
However, the Oregon Supreme Court also rejected the
argument that the obligation may be excused only by “actual
impossibility.” Id. The statute “was not intended to be unduly
burdensome,” and what is possible (in the words of the stat-
ute) may depend on a government’s other undertakings to
provide services and to fulfill statutory and contractual duties.
Id. Furthermore, “the phrase ‘insofar as and to the extent pos-
sible’ was intended to create flexibility within the statute as
a whole.” Id. at 691. Thus, even if it is not “possible” for a
local government to make available to retirees health insur-
ance coverage identical to that offered to current employees,
the statute requires the government “to make some coverage
available” insofar as and to the extent possible. Id. at 690.
With the Oregon Supreme Court’s construction of section
243.303 to assist us, we now consider whether the statute or
7558 DOYLE v. CITY OF MEDFORD
Resolution No. 5715 creates a property right under the federal
Due Process Clause to health insurance coverage for retired
employees. We review de novo a district court’s grant of sum-
mary judgment. Shanks v. Dressel, 540 F.3d 1082, 1086 (9th
Cir. 2008).
[1] The Due Process Clause of the Fourteenth Amendment
protects persons against the deprivation of property without
due process of law. U.S. Const. amend. XIV, § 1. But the
United States Constitution does not itself create property
interests. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,
577 (1972). “Rather they are created and their dimensions are
defined by existing rules or understandings that stem from an
independent source such as state law—rules or understand-
ings that secure certain benefits and that support claims of
entitlement to those benefits.” Id. Here, Plaintiffs contend that
section 243.303 and City Resolution No. 5715 support “a
legitimate claim of entitlement,” id., to health insurance cov-
erage for retired employees. Of course, not every statute
authorizing a benefit creates a property interest. It is our task
to determine whether section 243.303 or Resolution No. 5715
does.
Section 243.303 does not fit neatly among the statutes and
ordinances that case law informs us create, or fail to create,
protected property interests. Section 243.303 is unusual: It
mandates a benefit the contours of which cannot be fixed in
advance and which may be withdrawn entirely under circum-
stances that cannot be determined in the abstract—all without
granting any discretion to the government responsible for pro-
viding the benefit. Nevertheless, we conclude from the princi-
ples derived from Supreme Court and our precedents that
neither the statute nor the resolution here creates a property
interest. We reach this conclusion because section 243.303
does not contain a particularized standard, because the nature
and extent of the entitlement that it allegedly creates are too
indeterminate, and because it allows local governments exten-
sive functional discretion regarding whether and to what
DOYLE v. CITY OF MEDFORD 7559
extent it will be possible to offer health insurance coverage to
retirees.
[2] A regulation granting broad discretion to a decision-
maker does not create a property interest. Jacobson v. Hanni-
fin, 627 F.2d 177, 180 (9th Cir. 1980). “Whether an
expectation of entitlement is sufficient to create a property
interest will depend largely upon the extent to which the stat-
ute contains mandatory language that restricts the discretion
of the decisionmaker.” Allen v. City of Beverly Hills, 911 F.2d
367, 370 (9th Cir. 1990) (internal quotation marks and brack-
ets omitted).
[3] The Oregon Supreme Court informs us that section
243.303 does not “delegate[ ] to the city discretion to make
health insurance coverage available to retired employees.”
Doyle, 227 P.3d at 692. Instead, “local governments have an
obligation to make health insurance coverage available.” Id.
at 690. The statute’s use of the word “shall,” then, constitutes
“mandatory language that restricts the discretion of the deci-
sionmaker.” Allen, 911 F.2d at 370 (internal quotation marks
and brackets omitted). But our analysis does not end with the
absence of discretion.3
[4] Under section 243.303, “there may be factual circum-
stances that excuse th[e] obligation” to make insurance cover-
age available to retirees. Doyle, 227 P.3d at 690. As the
Oregon Supreme Court noted, “[l]ocal governments exist to
provide government services, and they have statutory and
contractual obligations to employees, retirees, and the citizens
3
It is, however, this absence of discretion that makes inapt a simplistic
reliance on cases in which courts have held that the phrase “in so far as
possible” barred a property right. E.g., Wallace v. Robinson, 940 F.2d 243,
246 (7th Cir. 1991) (en banc); Newsome v. McElhinney, No. 85-318, 1990
WL 6813, at *3 (N.D. Ill. Jan. 10, 1990) (unpublished). Wallace and New-
some interpreted that phrase as conferring discretion, but the Oregon
Supreme Court interpreted similar text in section 243.303 as not confer-
ring discretion.
7560 DOYLE v. CITY OF MEDFORD
within their jurisdictions.” Id. at 692. The impossibility
excuse creates “flexibility” in the statute, id. at 691, although
that flexibility depends on the state of the world—the facts
giving rise to impossibility—rather than on an explicit grant
of discretion.
A factual contingency does not necessarily preclude the
creation of a protected property interest. Our precedents
instruct us that a statute may create a property interest if it
mandates a benefit when specific non-discretionary factual
criteria are met. See, e.g., Wedges/Ledges of Cal., Inc. v. City
of Phoenix, 24 F.3d 56, 63-64 (9th Cir. 1994) (holding that a
property interest is created by an ordinance requiring the city
to issue an operating license if a coin-operated machine satis-
fies the regulatory definition of a “game of skill”); Parks v.
Watson, 716 F.2d 646, 657 (9th Cir. 1983) (per curiam) (hold-
ing that a property interest is created by a statute requiring
that a city, when considering a petition to vacate a street,
determine if notice has been given, if the affected property
owners have consented, and if the vacation will prejudice the
public interest).
[5] However, we have also explained that a statute must
contain “ ‘particularized standards or criteria’ ” to create a
property interest. Allen, 911 F.2d at 370 (quoting Fid. Fin.
Corp. v. Fed. Home Loan Bank of S.F., 792 F.2d 1432, 1436
(9th Cir. 1986)). In Allen, we held that an ordinance providing
that a city “may abolish any position” when “in the judgment
of the Council it becomes necessary in the interests of econ-
omy or because the necessity for a position no longer exists,”
gave the government “broad discretion,” rather than imposing
“particularized standards or criteria that significantly con-
strain.” Id. at 370-71 (emphasis added) (internal quotation
marks and alteration omitted). Thus, it did not create a pro-
tected property interest. Id. at 372. Similarly, in Shanks, we
held that a statute containing several open-ended criteria, as
well as one that looked to “other factors of public interest,”
did not contain “particularized standards” that significantly
DOYLE v. CITY OF MEDFORD 7561
constrained discretion. 540 F.3d at 1091 (internal quotation
marks omitted).
In some cases, even an unparticularized criterion may still
contribute to the creation of a property interest if it is accom-
panied by other, more particularized criteria. For instance, in
Parks, 716 F.2d at 657, “an articulable standard” involving
whether the public interest would be prejudiced, “while obvi-
ously giving a certain amount of play in the decisional pro-
cess,” sufficed, in combination with two specific factual
criteria—notice and consent—to create a property interest.
But we have never held that an unparticularized standard
alone may create a protected property interest.
[6] Here, the “insofar as and to the extent possible” stan-
dard in section 243.303 is similar to—if not even less particu-
larized than—the “necessity” standard that failed to create a
property interest in Allen. Moreover, section 243.303 does not
contain any additional and more particularized criteria for a
local government’s decision to offer health insurance cover-
age to retirees.
Section 243.303 does contain a condition precedent: A
local government must make health insurance coverage avail-
able to retirees only if the government offers such coverage
to current officers and employees. But that condition is not a
criterion limiting the government’s assessment of the real-
world circumstances that would excuse its obligation to cover
retirees. Rather, the condition simply triggers application of
the “insofar as and to the extent possible” standard. Thus, the
condition sets the decision in motion, but does not guide it.
This fact distinguishes the present statute from those, such as
the one examined in Parks, in which several criteria (both
specific and general) directly affect the government’s decision
whether to confer the benefit. Nor does the statute’s require-
ment that an employee make a timely election, if the local
government offers benefits to him or her, affect the local gov-
ernment’s decision whether to offer a benefit in the first place.
7562 DOYLE v. CITY OF MEDFORD
In short, section 243.303 contains no criteria to guide the local
government, apart from the “insofar as and to the extent pos-
sible” standard. Hence, Allen suggests that section 243.303
fails to create a property interest.4
[7] Our conclusion that the standard of section 243.303 is
insufficient to create a property interest is also bolstered by
the fact that the entitlement allegedly created by it is indeter-
minate. “[I]ndeterminacy is not the hallmark of a duty that is
mandatory. Nor can someone be safely deemed ‘entitled’ to
something when the identity of the alleged entitlement is
vague.” Town of Castle Rock v. Gonzales, 545 U.S. 748, 763
(2005). In Castle Rock, a Colorado statute provided that an
officer “shall use every reasonable means to enforce a
restraining order” and “shall arrest, or, if an arrest would be
impractical under the circumstances, seek a warrant for the
arrest of a restrained person” under certain circumstances. Id.
at 759 (emphasis omitted). The Supreme Court held that the
statute did not create a property right because it did not spec-
ify whether it mandated that police arrest the plaintiff’s hus-
band, that they seek a warrant for his arrest, or that they use
every reasonable means to enforce the restraining order. Id. at
763.
[8] Here, as in Castle Rock, the nature and extent of the
alleged entitlement are vague. Qualifying retirees in Oregon
are not assured of coverage by health insurance identical to
that provided to a local government’s current employees. The
statute
recognizes that it may not be possible for a local
government to make the same coverage available to
4
Allen does not decide this case, because it is not directly on point. The
ordinance in Allen “[gave] the City broad discretion.” 911 F.2d at 371.
Here, by contrast, the Oregon Supreme Court interprets section 243.303
as imposing an obligation tempered by conditions for excusing its fulfill-
ment, not as granting discretion.
DOYLE v. CITY OF MEDFORD 7563
retirees that it makes available to current employees,
but that, in that event, “insofar as and to the extent”
that it is possible to make some coverage available
to retirees, in light of all the circumstances, it is obli-
gated to do so.
Doyle, 347 Or. at 575. Because section 243.303 does not
make health insurance an all-or-nothing proposition, and
because whether or how much insurance will be “possible”
cannot be determined in advance, Castle Rock counsels that
section 243.303 does not create a protected property interest.
We acknowledge that the indeterminacy of section 243.303
is distinguishable in one sense from that of the Colorado stat-
ute in Castle Rock. The Colorado statute was irreducibly inde-
terminate; there would never be any way to pin down which
action it required of police. Here, the statute requires precisely
whatever is possible, up to coverage identical to that available
to current employees. But what this requirement will yield is
unpredictable in the abstract and scarcely provides “an expec-
tation of entitlement.” Jacobson, 627 F.2d at 180.
Finally, we note that section 243.303, although not confer-
ring any discretion over the decision to offer health insurance
coverage to retirees, does effectively allow local governments
a form of functional discretion. Those governments have
functional discretion—especially in the long run—over
whether it will be “possible” to offer health insurance to retir-
ees because they have wide discretion about what services
they offer, what contractual obligations they undertake, and
what taxes they levy on their citizens. “Only if the governing
statute compels a result upon compliance with certain criteria,
none of which involve[s] the exercise of discretion by the
reviewing body, does it create a constitutionally protected
property interest.” Shanks, 540 F.3d at 1091 (internal quota-
tion marks omitted) (emphasis added). Thus, a statute does
not create a property right if it allows the decision-making
body discretion to add an additional criterion, Thornton v.
7564 DOYLE v. CITY OF MEDFORD
City of St. Helens, 425 F.3d 1158, 1165-66 (9th Cir. 2005), or
to define its own criteria, Shanks, 540 F.3d at 1091. Although
the functional discretion afforded by section 243.303 is much
more attenuated than the discretion simply to add or define
the criteria for a benefit, it is still to some degree inconsistent
with the mandatory nature of a property right.
Ultimately, these considerations combine to demonstrate
that section 243.303 cannot sustain a due process claim. We
hold that section 243.303 does not create a protected property
interest because “insofar as and to the extent possible” is not
a particularized standard, because the nature and extent of the
entitlement that section 243.303 allegedly creates are too
indeterminate, and because the statute allows local govern-
ments extensive functional discretion.
[9] We turn, then, to a consideration of Resolution No.
5715. The Resolution’s purpose is to set the terms and condi-
tions for provision of health insurance coverage “in compli-
ance with ORS 243.303.” To the extent that the Resolution
merely duplicates the obligation of section 243.303, it too
must fail in creating a property interest.
[10] And if we consider the Resolution on its own terms,
Plaintiffs’ claim similarly fails. The Resolution provides that
health insurance coverage will cease upon “[t]ermination of
the insurance coverage by the City or its carrier” or upon
“[t]ermination of the retiree program by the City.” No criteria
are given for those decisions. The Resolution might require
implicitly that a decision to terminate the retiree program or
insurance coverage be “reasonable,” Jacobsen, 627 F.2d at
180, or that it be made only when “it becomes necessary in
the interests of economy,” Allen, 911 F.2d at 371 (internal
quotation marks omitted). As we have seen, though, those
types of constraints are insufficient to create a property inter-
est. Because the Resolution includes this discretionary loop-
hole for any obligation that it might impose, it cannot by its
own terms create a protected property interest.
DOYLE v. CITY OF MEDFORD 7565
[11] In conclusion, the district court properly determined
that neither Oregon Revised Statutes section 243.303 nor Res-
olution No. 5715 creates a property interest protected by the
Due Process Clause of the Fourteenth Amendment. We affirm
the district court’s grant of summary judgment on Plaintiffs’
due process claim.
AFFIRMED in part.5 The parties shall bear their own costs
on appeal.
5
We previously reversed the district court’s grant of summary judgment
on Plaintiffs’ ADEA claim. See supra note 2.