NUNEZ v CITY OF LOS ANGELES, 9755139
U.S. 9th Circuit Court of Appeals
NUNEZ v CITY OF LOS ANGELES
9755139
DAVID NUNEZ, ALEX GOMEZ, and
CLYDE ANTHONY VLASKAMP,
Plaintiffs-Appellants,
No. 97-55139
v.
D.C. No.
CITY OF LOS ANGELES, the LOS
CV-95-2446-DT
ANGELES POLICE DEPARTMENT,
CHIEF WILLIE WILLIAMS, CAPTAIN OPINION
JAMES TATREAU, CAPTAIN LEE
CARTER, SERGEANT GARY GRUBBS,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dickran Tevrizian, District Judge, presiding
Argued and Submitted
April 9, 1998--Pasadena, California
Filed June 5, 1998
Before: Jerome Farris, Diarmuid F. O'Scannlain, and
Ferdinand F. Fernandez, Circuit Judges.
Opinion by Judge O'Scannlain;
Concurrence by Judge Farris
_________________________________________________________________
COUNSEL
Russell J. Cole, Law Offices of Paul R. DePasquale, Los
Angeles, California, for the appellants.
Leslie E. Brown, Assistant City Attorney, Los Angeles, Cali-
fornia, for the appellees.
_________________________________________________________________
OPINION
O'SCANNLAIN, Circuit Judge:
We must decide whether a Los Angeles police officer has
a constitutionally protected property or liberty interest in pro-
motion to higher rank.
I
The Los Angeles Police Department ("LAPD") administers
an examination for police officers who wish to be promoted
to the position of lieutenant. The test contains written and oral
components. If a candidate scores high enough -- 65% on the
written portion and 70% overall -- his or her name is added
to a list of qualified prospects. The list is organized by bands,
or groups, of scores; the Chief of Police must exhaust the can-
didates within a given band before selecting anyone from a
lower band. As positions become available, candidates are
chosen until such time as the list expires.
Not just any officer can take the examination. According to
official policy, a candidate must have, among other creden-
tials, at least one year of supervisory experience. It is undis-
puted that officers David Nunez, Alex Gomez, and Clyde
Anthony Vlaskamp (collectively, the "police officers") all ful-
filled this requirement and each took the examination at least
once. None, however, got promoted. The problem, they assert,
is that several applicants lacking supervisory experience sat
for the exam, received top scores, and eventually became lieu-
tenants. Allegedly, the LAPD, the City of Los Angeles, and
several members of the police force (collectively, the
"LAPD") waived the experience requirement for these
favored candidates in violation of the official policy. This
contention forms the basis of the police officers' substantive
due process claims, which were brought in April 1994, in an
action under 42 U.S.C. S 1983.1 In addition, Nunez argues
that, after he objected to the LAPD's alleged practice of pro-
moting unqualified applicants, he suffered retaliation. This
allegation forms the basis of his First Amendment claim, also
brought pursuant to 42 U.S.C. S 1983.
Upon motion, the district court granted summary judgment
to the LAPD. Nunez, Gomez, and Vlaskamp timely appealed.
II
As to Gomez, the district court held that the statute of limi-
tations barred all but one of his substantive due process claims.2
Gomez applied for the promotion five times -- in 1985, 1987,
1989, 1991, and 1994 -- and alleges that, every time, the
LAPD allowed inexperienced candidates to take the examina-
tion. According to the district court, if this favoritism were
unconstitutional, Gomez's claims would have accrued one at
a time when the exams were administered, see Grimes v. City
and County of San Francisco, 951 F.2d 236, 238-39 (9th Cir.
1991) (holding that violation accrues when discriminatory act
occurred); upon accrual, the statute of limitations would have
started to run. Because the limitations period is only one year,
see Usher v. City of Los Angeles, 828 F.2d 556, 558 (9th Cir.
1987), it would have expired well before this action was filed
in April 1994 -- for all claims except the one arising out of
the 1994 examination.
Gomez's only response is that the "discovery rule " should
have tolled the statute of limitations until he had knowledge
of his injury and its cause. The district court did not disagree.
Neither do we. However, as Gomez's own deposition unmis-
takably shows, he had the requisite knowledge as soon as an
allegedly favored candidate took the exam and got promoted;
consequently, the discovery rule does not help him:
Q: When did you first become aware or when did
you first believe that people who did not have
the necessary supervisorial experience were sit-
ting for the lieutenant's exam?
A: I was assigned to internal affairs, and there
were two women there who were detectives,
and they were D-II's, Detective II's, working
with sergeant II's. They both took the lieuten-
ant's exam and weren't qualified because they
didn't meet the supervisory requirement,
passed, and made lieutenant.
Q: When was this?
A: 1985.
. . .
Q: You said that every examination after 1985, that
there would be people who sat for the lieuten-
ant's exam who were not qualified?
A: Right, and promoted to lieutenant.
Q: Who were those persons, what year did they sit,
and when did you find out about that?
A: Every exam, I knew who those people were.
. . .
Q: So just making sure I understand it, as these
exams were being administered and at the time
you were participating in them, you were aware
of individuals who were sitting for the exam
who were not qualified?
A: Yes, sir.
Deposition of Alex Gomez 16-20 (Mar. 20, 1996) (emphasis
added).
Gomez's own words betray him. He had actual knowledge
of his alleged injury: inexperienced candidates were taking
the examination and receiving promotions over him. He also
had at least presumptive knowledge of the alleged cause of his
injury, the LAPD's favoritism.3 Despite this overwhelming
evidence, however, Gomez argues that the district court over-
looked a genuine issue of fact, which arose when he made
contradictory statements in a subsequent declaration. Alas,
not good enough: a party cannot create a triable issue by con-
tradicting his own sworn testimony. See Radobenko v. Auto-
mated Equip. Corp., 520 F.2d 540, 543-44 (9th Cir. 1975);
see also Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266
(9th Cir. 1991). Finding the subsequent declaration to be a
sham, the district court correctly held that the only test Gomez
can challenge is the one administered in 1994.
III
[1] The central question on appeal is whether the LAPD
violated the police officers' substantive due process rights by
promoting inexperienced candidates in disregard of official
policy. The concept of "substantive due process, " semanti-
cally awkward as it may be, forbids the government from
depriving a person of life, liberty, or property in such a way
that "shocks the conscience" or "interferes with rights implicit
in the concept of ordered liberty." United States v. Salerno,
481 U.S. 739, 746
(1987) (quoting, respectively, Rochin v.
California,
342 U.S. 165, 172
(1952), and Palko v. Connecti-
cut,
302 U.S. 319, 325
-26 (1937)) (citations and internal quo-
tation marks omitted).
A
To establish a substantive due process claim, a plaintiff
must, as a threshold matter, show a government deprivation
of life, liberty, or property.4See Jeffries v. Turkey Run Con-
sol. Sch. Dist., 492 F.2d 1, 4 (7th Cir. 1974) (opinion by Ste-
vens, J.) ("[T]he absence of any claim by the plaintiff that an
interest in liberty or property has been impaired is a fatal
defect in her substantive due process argument."). According
to Nunez, Gomez, and Vlaskamp, the cronyism in the LAPD
deprived them of both property and liberty. The property
interest, they contend, is the promotion to lieutenant. The two
asserted liberty interests are the right to engage in one's cho-
sen profession and the right "to be free from wholly unreason-
able and arbitrary" government conduct.
1
[2] Do these police-officer plaintiffs have a property inter-
est in promotion? Although one's actual job as a tenured civil
servant is property, see, e.g., Cleveland Bd. of Educ. v.
Loudermill,
470 U.S. 532, 538
-39 (1985), the prospect of a
promotion is not in the same category. Several of our sister
circuits have already reached the issue and rejected attempts
to classify an expectancy in a promotion as a property interest.5
See, e.g., Wu v. Thomas, 847 F.2d 1480, 1485 (11th Cir.
1988); Griffith v. Federal Labor Relations Auth., 842 F.2d
487, 500-01 (D.C. Cir. 1988); Bigby v. City of Chicago, 766
F.2d 1053, 1056-57 (7th Cir. 1985); Robb v. City of Philadel-
phia, 733 F.2d 286, 293 (3d Cir. 1984); Burns v. Sullivan, 619
F.2d 99, 104 (1st Cir. 1980); Clark v. Whiting, 607 F.2d 634,
641 (4th Cir. 1979); Schwartz v. Thompson, 497 F.2d 430,
433 (2d Cir. 1974). On one occasion, so has this court, albeit
in a cursory manner. See Blevins v. Plummer, 613 F.2d 767,
768 (9th Cir. 1980) (per curiam).
[3] We see no reason to buck the trend. As the Supreme
Court has explained, property interests are not created by the
Constitution, but rather by "existing rules or understandings
that stem from an independent source such as state law."
Board of Regents v. Roth,
408 U.S. 564, 577
(1972). In Cali-
fornia, the terms and conditions of public employment are
generally "fixed by the statute, rules or regulations creating it,
not by contract (even if one is involved)." Williams v. Los
Angeles City Department of Water and Power, 130
Cal.App.3d 677, 680 (1982); see also Miller v. California, 18
Cal.3d 808, 813-14 (1977). No such law creates a property
interest in a promotion. To be sure, the Los Angeles City
Charter grants tenured police officers "a substantial property
right" in his "office or position"; however, it merely precludes
arbitrary "suspen[sions], demot[ions ] in rank, . . . remov[als],"
or other separation from the LAPD. Charter of the City of Los
Angeles, Art. XIX, S 202, at 323 (1990). It does not address
promotions. Cf. Shoemaker v. County of Los Angeles, 37
Cal.App.4th 618, 632 (1995) ("The civil service rules [of Los
Angeles County] may have created a legitimate expectation
that, absent good cause, the County would not terminate
Shoemaker's employment altogether or impose other disci-
plinary measures (e.g., demotion) that would adversely affect
his compensation," but "the County retained the discretion to
reassign or transfer employees without cause.").
[4] The police officers also direct us to an unpublished con-
sent decree, known as the "Hunter-LALEA" Consent Decree,
which was entered into in the Central District of California by
the City of Los Angeles and litigants from other lawsuits.6
This agreement established an "affirmative action plan" con-
sisting, inter alia, of promotion goals for minority police offi-
cers. Nunez and Gomez, who are Hispanic, suggest that this
consent decree grants them a property interest in a promotion.
We disagree. If a consent decree could ever create property
rights, this is not the one. The agreement, at most, bestows
rights on a group, not on any individual police officer. Indi-
vidual applicants for a promotion must still establish qualifi-
cation. Moreover, the city may use any qualification device
not expressly barred, so the LAPD's written and oral tests are
permissible.
[5] To have a property interest, "a person clearly must have
more than an abstract need or desire." Roth,
408 U.S. at 577
.
A mere "unilateral expectation" of a benefit or privilege is
insufficient; the plaintiff must "have a legitimate claim of
entitlement to it." Id. When the police officers sat for the lieu-
tenants examination, notwithstanding the Consent Decree, any
possibility of promotion was contingent upon their success on
the exam, as well as upon the number of lieutenant positions
available. Such contingencies belie the claim that the police
officers had even so much as a reasonable expectation of
being promoted. Even if the police officers anticipated a pro-
motion, any expectations were just that, and nothing more.
They did not rise to the level of entitlements; they were "not
so firm and definite . . . as to be `property' in a constitutional
sense." Bigby, 766 F.2d at 1056. Until someone actually
receives a promotion, or at least a binding assurance of a
forthcoming promotion,7 he cannot claim a property interest
in the promotion. Group preferences, which merely establish
group goals, do not suffice. Thus, the police officers have
failed to establish a property interest in a promotion.8
2
The police officers also contend that they were deprived of
two liberty interests: a right to engage in one's chosen profes-
sion and a right to be free from arbitrary and capricious gov-
ernment action. We address them in turn.
a
[6] First, to be sure, there is a centuries-old concept of lib-
erty of occupation. See Bigby, 766 F.2d at 1057 (citations
omitted). However, there is no similar notion of liberty of
position or rank within an occupation. See id. Moreover, the
Supreme Court held in Roth that a person has not suffered a
deprivation of liberty "when he simply is not rehired in one
job but remains as free as before to seek another " within his
chosen industry, Roth,
408 U.S. at 575
; it follows, a fortiori,
that there cannot be a deprivation of liberty when even the
person's current job is still available to him. As long as
employment options within the profession remain, no due
process interests have been implicated. Unsurprisingly, every
circuit that has addressed the issue has rejected the claim that
the denial of a promotion constitutes a deprivation of liberty.
See, e.g., Wu, 847 F.2d at 1485; Bigby, 766 F.2d at 1057;
Robb, 733 F.2d at 293-94; Beitzell v. Jeffrey, 643 F.2d 870,
877-78 (1st Cir. 1981); Clark, 607 F.2d at 641-42; Blevins,
613 F.2d at 768; Schwartz, 497 F.2d at 431-32. We agree with
this consensus. Whereas "preventing someone from advanc-
ing in his occupation can be a cruel deprivation, it would
stretch the idea of liberty of occupation awfully far . . . to treat
a bar to promotion as a deprivation of that liberty. " Bigby, 766
F.2d at 1057.
b
[7] The second liberty interest asserted by the police offi-
cers is the right "to be free from wholly unreasonable and
arbitrary" government conduct bearing no relation to the pub-
lic health, welfare, safety, and morals. Unfortunately for the
police officers, the Supreme Court has already explained that
a court has "no license to invalidate legislation which it thinks
merely arbitrary or unreasonable." Regents of University of
Michigan v. Ewing,
474 U.S. 214, 226
(1985) (quoting Moore
v. East Cleveland,
431 U.S. 494, 543
-44 (1977) (White, J.,
dissenting)); see also Albright v. Oliver,
510 U.S. 266
, 272
(1974). There is no general liberty interest in being free from
capricious government action. See Jeffries v. Turkey Run Con-
sol. Sch. Dist., 492 F.2d 1, 4, n.8 (7th Cir. 1974) (opinion by
Stevens, J.). Otherwise, as then-Judge Stevens explained,
"every time a citizen [i]s affected by governmental action, he
would have a federal right to judicial review." Id. Put simply,
not every social injustice has a judicial remedy. See Bishop v.
Wood,
426 U.S. 341, 349
(1976) ("The federal court is not the
appropriate forum in which to review the multitude of person-
nel decisions that are made daily by public agencies."). The
federal judiciary is not a good-government watchdog; the Due
Process Clause is not the "Fairness Clause."
[8] Thus, the police officers have not even arrived at the
substantive due process threshold. They have asserted no cog-
nizable property or liberty interest.
B
[9] Moreover, we note that, even if there were a constitu-
tionally protected property or liberty interest in a promotion,
which there is not, the police officers still could not prevail.
The Due Process Clause takes effect only if there is a
deprivation of a protected interest. The police officers have
not shown any causal connection between the government's
alleged cronyism and their failure to be promoted.
[10] Nunez took the exam only once, in 1994. Although he
demonstrated that three of the applicants that year lacked the
requisite experience to take the exam, none of the three was
promoted to the position of lieutenant, or even allowed to fin-
ish the exam. Thus, even if the LAPD had a secret policy of
letting favored unqualified applicants sit for the exam, this
policy did not preclude Nunez from being promoted.
[11] Gomez took the examination five times. However, as
explained above, any claims arising from the 1985, 1987,
1989, and 1991 exams are barred by the statute of limitations.
The only surviving claim is the one arising out of the 1994
test. Gomez cannot show causation with regard to this exam
for two reasons: first, as discussed above, there is no evidence
that any inexperienced candidates were promoted that year;
and second, Gomez received a failing score on the written
exam, 56.1%, which made him ineligible for a promotion.
[12] Vlaskamp sat for the exam twice, but finished it only
once, in 1989.9 The district court noted that he "failed to pro-
vide . . . any competent admissible evidence demonstrating
any unqualified individuals were allowed to take the 1989
lieutenant's examination." Vlaskamp did not challenge this
conclusion on appeal.
[13] Thus, Nunez, Gomez, and Vlaskamp have failed to
show any government deprivation of a protected property or
liberty interest. The LAPD has not violated the police offi-
cers' substantive due process rights.10
IV
Nunez also raises a First Amendment claim. After discov-
ering that inexperienced candidates sat for the 1994 examina-
tion, he complained to the Office of the Chief of Police, the
City Ethics Commission, the City Personnel Department, and
the Board of Police Commissioners. Nunez alleges that,
because of these protests, his superiors retaliated by scolding
him and threatening to transfer or to dismiss him.
[14] To succeed on a wrongful-retaliation claim, a plaintiff
must show, in the first instance, that he has suffered an
adverse employment action. See Pierce v. Texas Dept. of
Criminal Justice, 37 F.3d 1146, 1149 (5th Cir. 1994); Hyland
v. Wonder, 972 F.2d 1129, 1134-36 (9th Cir. 1992). Only then
do we address whether the statement which motivated the
retaliation is one of public concern and whether the interests
of the employee outweigh the state's interest in maintaining
efficient public services. See id. at 1136-40. Although "the
type of sanction . . . `need not be particularly great in order
to find that rights have been violated,' " Hyland, 972 F.2d at
1135 (quoting Elrod v. Burns,
427 U.S. 347
, 359 n.13
(1976)); see also Manhattan Beach Police Officers Ass'n v.
City of Manhattan Beach, 881 F.2d 816, 818-19 (9th Cir.
1989) (denial of promotion); Allen v. Scribner, 812 F.2d 426,
434-35 (9th Cir. 1987) (transfer to less desirable job assign-
ment), the plaintiff must nonetheless demonstrate the loss of
"a valuable governmental benefit or privilege."11 Hyland, 972
F.2d at 1136. Mere threats and harsh words are insufficient.
See Pierce, 37 F.3d at 1150; cf. Gini v. Las Vegas Metropoli-
tan Police Depart., 40 F.3d 1041, 1045 (9th Cir. 1994)
("[D]amage to reputation is not actionable under S 1983
unless it is accompanied by `some more tangible interests.' ")
(quoting Paul v. Davis,
424 U.S. 693, 701
(1976)).
[15] Nunez's claim does not survive this threshold inquiry.
Not only has he retained his job, he has suffered no adverse
employment action whatsoever. Despite the alleged efforts of
his superiors, Nunez never signed or verified any allegedly
false reports, which could have triggered an official repri-
mand. Moreover, although the LAPD did not select him for
promotion, Nunez has not provided any evidence linking this
decision to his criticisms.12 All he has shown is that he was
bad-mouthed and verbally threatened. It would be the height
of irony, indeed, if mere speech, in response to speech, could
constitute a First Amendment violation. Thus, Nunez's First
Amendment claim fails.
AFFIRMED.
_________________________________________________________________
FARRIS, Circuit Judge, Concurring:
I concur. The result is dictated by ample authority that the
plaintiffs have no property interest in a promotion under the
present facts. Despite this authority, the defendants should not
read the opinion as giving them carte blanche to ignore estab-
lished procedures where substantial interests are at stake. This
is simply a matter to which the federal substantive due pro-
cess clause does not speak.
I am satisfied that the facts of this action did not warrant
recovery under the due process clause. Nonetheless, I concur
with the caution that the opinion not be misconstrued.
_______________________________________________________________
FOOTNOTES
1 The police officers originally claimed violations of their procedural
due process and equal protection rights. However, they dropped these con-
tentions on appeal.
2 Intriguingly, Vlaskamp also contends that the district court erroneously
held his claims to be time-barred. The district court did not so hold.
Rather, it tolled the statute of limitations under the "discovery rule" and
then proceeded to reject Vlaskamp's claims on the merits.
3 Under California law, " `presumptive' as well as `actual' knowledge
will commence the running of the statute [of limitations]." Sanchez v.
South Hoover Hosp., 18 Cal.3d 93, 101 (1976). If a plaintiff has "notice
or information of circumstances to put a reasonable person on inquiry,"
the statute runs. Id. (quoting 2 Witkin, Cal. Procedure (2d ed. 1970)
Actions, S 339, at 1181) (internal quotation marks omitted).
4 Obviously, merely showing such deprivation is not enough to prevail.
"The protections of substantive due process have for the most part been
accorded to matters relating to marriage, family, procreation, and the right
to bodily integrity." Albright v. Oliver,
510 U.S. 266, 272
(1994). These
fields likely represent the outer bounds of substantive due process protec-
tion. See Collins v. City of Harker Heights,
503 U.S. 115, 125
(1992)
("[T]he Court has always been reluctant to expand the concept of substan-
tive due process because guideposts for responsible decisionmaking in this
unchartered area are scarce and open-ended.").
5 The Sixth Circuit once reversed a district court which found no prop-
erty interest in a promotion; however, it did so only because the district
court dismissed the employee's claim on the pleadings without regard to
the employee's argument that he had an implied contract entitling him to
a promotion. See Paskvan v. City of Cleveland Civil Serv. Comm'n, 946
F.2d 1233, 1235-36 (6th Cir. 1991). Moreover, the Sixth Circuit expressed
doubt that the employee could satisfy his "heav[y] burden" on remand. Id.
at 1236.
6 Hunter was the named plaintiff in one suit. "LALEA" stands for the
7 When permitted by state law, this commitment need not be formally
expressed in a statute or a written contract; it can be implied from words
or conduct. See Perry v. Sindermann,
408 U.S. 593, 601
-02 (1972). Never-
theless, there must be rules or mutually clear understandings securing the
commitment. See id. at 601.
8 Nor do the plaintiffs have a property interest in the procedures for pro-
moting candidates to lieutenant. Procedural requirements can give rise to
property interests only when they impose "significant limitation[s] on the
discretion of the decision maker." Goodisman v. Lytle, 724 F.2d 818, 820
(9th Cir. 1984). The procedures in the Los Angeles City Charter do not
meet this standard. They merely state that promotions are to be based on
"ascertained merit and seniority." Charter of the City of Los Angeles, Art.
IX, S 107, at 124. Establishing "only an outline of relevant considera-
tions," Goodisman, 724 F.2d at 821, the charter does very little to elimi-
nate the discretion of those who evaluate candidates on the oral portion of
the lieutenants examination. Moreover, although the Manual of the Los
Angeles Police Department imposes an experience requirement on appli-
cants, it does not significantly reduce this discretion; as the LAPD notes
(and the police-officer plaintiffs do not deny), it "relies predominantly on
subjective oral examinations" in selecting officers for promotion.
9 Vlaskamp chose not to take the oral portion in 1991 even though he
had passed the written portion.
10 Contrary to the police officers' assertions, the failure to establish
injury and causation defeats their "Monell claim" against the City of Los
Angeles, as well as their S 1983 claims against the other defendants.
Under Monell v. Department of Social Services,
436 U.S. 658
(1978), to
sustain a S 1983 action against a municipality, a plaintiff must demonstrate
that a governmental policy or custom has caused him injury. See id. at
691-94. Even if Los Angeles had a policy or custom of promoting unquali-
fied favorites, that policy or custom could not have caused any injury, for
the reasons explained above.
11 Unlike Due Process claims, First Amendment claims need not estab-
lish an entitlement to the government benefit or privilege. See Perry, 408
U.S. at 597. "[E]ven though a person has no`right' to a valuable govern-
ment benefit," the government "may not deny[the] benefit . . . on a basis
that infringes his constitutionally protected interests -- especially, his
interest in freedom of speech." Id.
12 Nunez has not even shown that his score on the oral portion of the
exam was downgraded on account of his speech. Indeed, his oral test score
of 86.5% was significantly higher than his barely passing score on the
written portion of the test, 65.9%. the end