DeBoer

Order; Partial Concurrence and Partial Dissent by Judge TASHIMA; Concurrence by Judge CANBY.

ORDER

Following this court’s decision in this matter, 1 defendant-appellant City of Bell-ingham (“City”) petitioned for a writ of certiorari in the United States Supreme Court challenging this court’s ruling on the due process claim of plaintiffs-appellees Dean DeBoer and Luanne DeBoer (“De-Boers”) raising questions as to whether there is due process protection here and, assuming due process protection, whether the common law remedy for breach of contract provides adequate process.

The Supreme Court granted the writ of certiorari and has vacated the judgment and remanded the case to this court for further consideration in light of Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189 , 121 S.Ct. 1446 , 149 L.Ed.2d 391 (2001).

Because the Court in Lujan assumed, without deciding, that the interest in question was subject to due process protection and only addressed the issue of whether adequate process was accorded, id. at 1451, the issue before this court is whether the common law remedy for breach of contract under Washington state law provides the DeBoers with all the process due for…

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:

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…

concurring.

I concur fully in the order of remand. I am not persuaded by Judge Tashima’s dissenting view that D & M Operating Company’s contract with the City created the land of personal employment status protected under the doctrine of Perry v. Sindermann, 408 U.S. 593 , 92 S.Ct. 2694 , 33 L.Ed.2d 570 (1972). The “Management Agreement” between D & M Operating Company (designated as “Manager”) contemplated that D & M would utilize employees in carrying out its contract with the City. The Agreement conferred no personal, constitutionally-protected status upon DeBoer. The mere fact that D & M, as an entity, contracted to supply personal services to the City does not vest it with an interest protected by the due process clause; D & M stands in the position of a supplier, not in that of a tenured employee. See Physicians’ Servs. Med. Group, Inc. v. County of San Bernardino, 825 F.2d 1404, 1409 (9th Cir.1987). The remand order is therefore correct in directing the dismissal of the DeBoers’ due process claim.