NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUN 15 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FRANK STRAUB, No. 16-35545
Plaintiff-Appellant, D.C. No. 2:16-cv-00029-TOR
v.
MEMORANDUM*
CITY OF SPOKANE, a municipal
corporation; DAVID CONDON, City of
Spokane Mayor, in his individual and
official capacity; NANCY ISSERLIS, City
of Spokane City Attorney, in her
individual and official capacity;
THERESA SANDERS, City of Spokane
City Administrator, in her individual and
official capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief Judge, Presiding
Argued and Submitted June 8, 2018
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: BYBEE and N.R. SMITH, Circuit Judges, and HUCK,** District Judge.
Plaintiff Frank Straub appeals the district court’s grant of summary
judgment on his federal claims in favor of the City of Spokane and its officials
(“Defendants”). He also appeals dismissal of his state-law contract claim.1 We
have jurisdiction under 28 U.S.C. § 1291, and our review is de novo. San Pedro
Hotel Co. v. City of Los Angeles, 159 F.3d 470, 477 (9th Cir. 1998). We affirm.
1. Straub claims that the press release and the lack of a pre-publication name-
clearing hearing resulted in a reputational injury that violated his right to due
process. Although we usually “analyze a procedural due process claim in two
steps,” Vasquez v. Rackauckas, 734 F.3d 1025, 1042 (9th Cir. 2013), we will
assume without deciding here that Straub’s claim implicates a liberty interest.2 Our
inquiry is therefore limited to whether he was afforded constitutionally-sufficient
process. See id.
As an initial matter, Straub erroneously argues that there is a bright-line rule
that the government, in all circumstances, must afford the process due before it
**
The Honorable Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
1
Straub has not appealed dismissal of his state-law tort claims.
2
It is undisputed that Straub was an at-will employee and therefore cannot
assert a property interest in his former position. Brady v. Gebbie, 859 F.2d 1543,
1547–48 (9th Cir. 1988).
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deprives an individual of liberty or property. The Supreme “Court has recognized,
on many occasions, that where a State must act quickly, or where it would be
impractical to provide predeprivation process, postdeprivation process satisfies the
requirements of the Due Process Clause.” Gilbert v. Homar, 520 U.S. 924, 930
(1997). The Court has thus “rejected the proposition that [due process] always
requires the State to provide a hearing prior to the initial deprivation . . . .” Id.
(alteration in original) (quoting Parratt v. Taylor, 451 U.S. 527, 540 (1981)).
Rather, “[t]o determine what process is due in an individual case—and if it is due
before or after the deprivation of a constitutionally protected interest—a court
must apply the” Mathews three-part balancing test. Brady v. Gebbie, 859 F.2d
1543, 1554 (9th Cir. 1988) (emphasis added) (citing Mathews v. Eldridge, 424
U.S. 319, 334–35 (1976)).
Here, we find that the timing of the proposed name-clearing hearing satisfied
due process. Straub certainly had an interest in holding such a hearing prior to the
press release and the loss of his position. However, Defendants were removing the
head of their police department—an important, high-profile position—and had a
stronger interest in quickly executing that decision and communicating its rationale
to the public. Indeed, if due process required a pre-deprivation hearing in such
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circumstances, public employers would have an incentive to terminate at-will
employees without public explanation.
Moreover, there is no merit to Straub’s contention that Defendants have
failed to establish that the proposed hearing’s content would have been
procedurally adequate. Defendants offered Straub a name-clearing hearing in
writing on four occasions, and extended the opportunity, through counsel, to
“discuss timing and appropriate process” for the hearing. The record is devoid of
any indication that Straub ever sought to schedule the hearing or negotiate its
content. We therefore find that Defendants did not violate Straub’s right to due
process.
2. In any event, the individual defendants are entitled to qualified immunity.
Straub has failed to cite any precedent that would have, “beyond debate,” informed
them that due process mandated a pre-deprivation hearing under these
circumstances. See Shinault v. Hawks, 782 F.3d 1053, 1059 (9th Cir. 2015)
(“Because the Mathews test ‘boils down to an ad hoc balancing inquiry,’
procedural due process requirements ‘can rarely be considered clearly established
at least in the absence of closely corresponding factual and legal precedent.’”
(quoting Brewster v. Bd. of Educ., 149 F.3d 971, 983 (9th Cir. 1998))).
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3. Straub’s Monell municipal liability claim against the City of Spokane is
premised on his allegation that its executive officials—i.e., the individual
defendants—violated his right to due process. See Connick v. Thompson, 563 U.S.
51, 60 (2011); Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Because
Straub failed to show that any of the individual defendants acted
unconstitutionally, the district court properly granted summary judgment to the
City.
4. Finally, the Washington Supreme Court has expressly “declined . . . to adopt
the rule that an at will employment contract, oral or written, contains an implied
covenant of good faith and fair dealing, and that a termination not made in good
faith can constitute a breach of the contract.” Willis v. Champlain Cable Corp.,
748 P.2d 621, 624 (Wash. 1988) (en banc); see also Roe v. TeleTech Customer
Care Mgmt. (Colorado) LLC, 257 P.3d 586, 594–95 (Wash. 2011) (en banc). The
district court therefore did not err in dismissing Straub’s contract claim.
Accordingly, the district court’s judgment is AFFIRMED.
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