Julius L. Finkelstein v. Louis P. Bergna

The petition for rehearing is granted. The opinion filed August 2, 1989, and published at 881 F.2d 702 , is withdrawn. The suggestion for rehearing en banc is dismissed as moot.

OPINION

Julius Finkelstein brought suit against Louis Bergna in federal court under 42 U.S.C. § 1983 claiming violations of first and fourteenth amendment rights in addition to several pendent state law claims. Bergna moved for summary judgment on the ground that he was entitled to qualified immunity from suit on all claims. The district court denied Bergna’s motion. Bergna appeals. We have jurisdiction over *1451 this interlocutory appeal under 28 U.S.C. § 1291 . Mitchell v. Forsyth, 472 U.S. 511, 530 , 105 S.Ct. 2806, 2817 , 86 L.Ed.2d 411 (1985). We reverse the district court’s denial of summary judgment on the first amendment claim and affirm in all other respects.

In 1982 Julius Finkelstein was a deputy district attorney in Santa Clara County, California. Finkelstein worked for Louis Bergna, the elected District Attorney in Santa Clara County. Bergna did not run for reelection in 1982. Finkelstein and Leo Himmelsbach, another deputy district attorney, were running for Bergna’s position. Bergna…

concurring in part and dissenting in part:

I think the panel errs in granting rehearing. 1 Much of the revised opinion is sound but I must respectfully dissent from the reversal in Part II of the denial of summary judgment on the basis that Bergna was entitled to qualified immunity on Finkel-stein’s first amendment claim. First, the law was clear that a deputy prosecutor’s first amendment rights could not be infringed by disciplinary action. At the time of Finkelstein’s suspension, the law clearly prohibited Bergna’s action. Second, I must say I am at a loss to understand how the majority can agree that the law was clear that Finkelstein as a deputy prosecutor had a protected property interest in his job that would preclude his discipline without a pre-deprivation hearing but that the law was not clear that his job was of such a nature that his boss could not infringe his first amendment rights by suspending him without such a hearing.

I. Finkelstein’s Property Interest in His Employment

In the due process analysis in the majority opinion in Part I, we note that “Bergna concedes that Finkelstein has a property interest in his job under California law.” See supra at 1451. Not…

924 F.2d 1449 Julius L. FINKELSTEIN, Plaintiff-Appellee, v. Louis P. BERGNA, Defendant-Appellant. No. 87-2943. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 14, 1988. Decided Aug. 2, 1989. Opinion Withdrawn Jan. 29, 1991. Opinion Filed Jan. 29, 1991. Craig M. Brown, San Jose, Cal., for defendant-appellant. Alan B. Exelrod, San Francisco, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Northern District of California. Before FLETCHER and BEEZER, Circuit Judges, and KING, * District Judge. BEEZER, Circuit Judge: 1 The petition for rehearing is granted. The opinion filed August 2, 1989, and published at 881 F.2d 702 , is withdrawn. The suggestion for rehearing en banc is dismissed as moot. OPINION 2 Julius Finkelstein brought suit against Louis Bergna in federal court under 42 U.S.C. Sec. 1983 claiming violations of first and fourteenth amendment rights in addition to several pendent state law claims. Bergna moved for summary judgment on the ground that he was entitled to qualified immunity from suit on all claims. The district court denied Bergna's motion. Bergna appeals. We have jurisdiction over this interlocutory…