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, 556 U.S. 662, 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 *999suspensions were justified. Debs and O’Donoghue do not challenge the Commission’s procedures, but rather the substantive standard the Commission applied to them, that is, they object to the Commission’s determination that they could be validly suspended simply because felony charges had been filed against them. According to Debs and O’Donoghue, their hearings were not “meaningful” because, in effect, it was too easy for the Sheriffs Department to win.
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,1 the Sheriffs 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 sheriffs “qualifications” for employment as a law enforcement officer. See Gilbert, 520 U.S. at 932, 117 S.Ct. 1807 (noting that a state has a “significant interest in immediately suspending, when *1000felony 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 enforcement employee of any constitutionally protected property interest. See id. The government is not obliged to “give an employee charged with a felony a paid leave at taxpayer expense.” Id. In other words, if a law enforcement employee’s “services to the government are no longer useful once the felony charge has been filed, the Constitution does not require the government to bear the added expense of hiring a replacement while still paying him.” Id.2
In short, a Los Angeles County deputy sheriffs 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 were entitled, and thus they cannot raise a plausible due process claim.4
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 stan*1001dard 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 (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 warrant-less 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.
. The rule provides that:
Failure of an employee to perform his or her assigned duties so as to meet fully explicitly stated or implied standards of performance may constitute adequate grounds for discharge, reduction or suspension.... Grounds for discharge, reduction or suspension may also include ... any behavior or condition which impairs an employee's qualifications for his or her position or for continued county employment.
Civil Service Rule 18.031.
. The majority asserts that Gilbert is inapposite because its holding was about the necessity of pre-suspension process, see Maj. op. at 995-96, not about backpay, see Maj. op. at 996 n. 10. But the Court's reasoning in Gilbert is directly on point. As noted above, Gilbert stated that the government need not "bear the added expense of hiring a replacement while still paying” a suspended law enforcement officer, if that officer’s "services to the government are no longer useful once the felony charge has been filed.” Gilbert, 520 U.S. at 932, 117 S.Ct. 1807. In short, it is constitutionally permissible not to pay a law enforcement employee who has been suspended with felony charges pending. The majority apparently interprets this statement to mean that while the government need not pay the employee during the suspension, it would have to provide backpay for the suspension period later. This interpretation makes no sense, however, because the government would then still be in the position of paying for both the suspended employee and the employee’s replacement during the suspension period, the very expense Gilbert said the government need not bear.
. While Civil Service Rule 18.04 authorizes the Civil Service Commission to award backpay to an employee for the period of an unpaid suspension if the Commission determines that the suspension was not "justified], ” the Sheriff's Department was fully justified in suspending Debs and O’Donoghue under Rule 18.031.
.The County asserts that the district court's decision as to Debs and O’Donoghue can also be affirmed on the alternate ground of issue preclusion. The County is correct. In Miller v. County of Santa Cruz, 39 F.3d 1030 (9th Cir.1994), this court held that where a plaintiff's § 1983 claim involves the same "primary right” that was at stake in a prior administrative proceeding, a federal court must give the same "full faith and credit” to the factual and legal determinations of the administrative proceeding as it would give to a state court judgment. See id. at 1032-34.
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.