concurring in part and dissenting in part.
I concur in the. Order of Remand insofar as it confirms our prior ruling on DeBoer’s Fourth Amendment claim, but I respectfully dissent from its dismissal of his due process claim. Dismissal is not required by Lujan v. G and G Fire Sprinklers, Inc., 582 U.S. 189, 121 S.Ct. 1446, 149 L.Ed.2d 391 (2001).
The majority correctly reads Lujan’s, holding:
Upon a careful reading of Lujan, it appears that the common law breach of contract claim provides adequate process for the deprivation of a property right derived from a contract, unless the deprivation constitutes a denial of a present entitlement. The Supreme Court has described “present entitlement” as “a right by virtue of which [one is] presently entitled either to exercise ownership dominion over real or personal property, or to pursue a gainful occupation.”
Order of Remand at 3518-19 (quoting Lu-jan, 121 S.Ct. at 1451) (emphases added).
As I noted in my earlier concurring opinion, we left open in San Bernardino Physicians’ Serv. Med. Group, Inc. v. County of San Bernardino, 825 F.2d 1404, 1409 (9th Cir.1987), the question of whether termination of the kind of contract involved in this case is entitled to Fourteenth Amendment protection. Viewing the evidence in the light most favorable to DeBoer, at the time termination occurred, D and M Operating Company had been transformed into a sole proprietorship— DeBoer was D and M. See DeBoer v. Pennington, 206 F.3d 857, 868 (9th Cir.2000). The City’s termination letter of January 31,1995, recognizes DeBoer as “the principal” of D and M. Article I of the Agreement provides that “this Agreement is one for personal services.” (Emphasis added.) Article XI.B goes on to provide that “[n]one of the services covered by this Agreement shall be subcontracted by the Manager without prior written consent of the City....” Upon the City’s insistence, in late 1994, DeBoer withdrew from his other business ventures to devote his full time to the management of the cemetery. Thus, all available indicia are that this was a five-year, personal service contract, terminable only for cause.1
*751Lujan does not foreclose our consideration of the kind of case contemplated by and left open by San Bernardino Physicians as eligible for due process protection.2 Upon the facts of this case, DeBoer was deprived of his right “to pursue his gainful occupation,” i.e., to render his personal services to the city under the five-year, personal service contract. The majority does not tell us why the termination of DeBoer’s personal service contract is not entitled to due process protection. I submit that, under Lujan and San Bernar-dino Physicians, DeBoer should be entitled to pursue his due process claim.
. Judge Canby’s concurrence depends on an understanding of the facts which is based on *751drawing all inferences against DeBoer, instead of in his favor, as required by our summary judgment jurisprudence.
. Lujan does not purport to define exhaustively what constitutes a "present entitlement” for purposes of due process protection. By any reasonable measure, however, a personal service contract, under which one is required to spend full time rendering that personal service, is a contract under which one is presently entitled to pursue a gainful occupation.