NOT FOR PUBLICATION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). 2 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

3 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))).

4 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.

5