NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JAMES BUSEY, an individual,

Plaintiff

- Appellant,

v. RICHLAND SCHOOL DISTRICT; et al.,

Defendants

- Appellees. No. 16

- 35308 D.C. No. 2:13

- cv - 05022

- TOR
MEMORANDUM *

Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, Chief Judge, Presiding Argued and Submitted April 9, 2018 Seattle, Washington Before: HAWKINS, TASHIMA, and GRABER, Circuit Judges. Dr. James Busey appeals the adverse grant of summary judgment on his 42 U.S.C. § 1983 due process claim as well as his state law declaratory relief and wage claims against the Richland School District (the “District”) and its Board members. We review de n ovo, Zetwick v. C ty
. of Yolo , 850 F.3d 436, 440 (9th Cir. 2017), and affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED
MAY 2 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 16

- 35308

In this appeal, Dr. Busey contends that a genuine dispute of material fact precluded summary judgment. He contends that a news article quoting a Board member’s statement that his termination was “effective immediately” following the Board’s January 22, 2013 meeting and a letter regarding his benefits sent the following day create a factual dispute as to the date of his termination. Contrary to Dr. Busey’s contention, the news art icle and letter do not create a dispute of material fact sufficient to withstand summary judgment. The critical date for purposes of federal due process is the date on which the deprivation becomes final. See Brewster v. Bd. of Educ. of Lynwood Unified S ch. Dist. , 149 F.3d 971, 985 (9th Cir. 1998). Even viewing the article and letter in the light most favorable to Dr. Busey and accepting that the Board voted to terminate him effective immediately on January 22, 2013, the undisputed facts demonstrate that his deprivation did not become final on that date. Dr. Busey concedes that his salary and benefits continued after January 22, 2013, and that his employment contract was not closed officially until the end of February 2013. Before then , and as the Distr ict advised him in writing, Dr. Busey could have requested a hearing before a neutral hearing officer, who would decide whether the Board’s discharge decision would take effect. See Wash. Rev. Code §§ 28A.405.300 & 28A.405.310. Because the hearing office r had the power to override the Board’s vote before the District officially closed Dr. Busey’s employment contract, his deprivation did not3 16

- 35308

become final until he waived the right to that hearing , thereby rendering the Board’s vote final. See Brewster , 149 F.3d at 985

– 86. Summary judgment, therefore, was proper on Dr. Busey’s due process claim. 1 See id. Similarly, summary judgment was proper on Dr. Busey’s state law claims for a declarati on that the Board violated Washington Revised Code § 28A.405.300 and owed unpaid wages. Again, even assuming the Board should have provide d formal notice before its January 22, 2013 meeting, it is undisputed that Dr. Busey received the Board’s Notice of Proba ble Cause , which he concedes was substantively adequate, and an opportunity for a hearing before the date on which his salary and benefits ceased and his employment contract was closed

. See Martin v. Dayton Sch. Dist. No. 2 , 536 P.2d 169, 170 (Wash. 1975)

. Dr. Busey’s claim for u npaid w ages under Washington Revised Code § 49.52.070 depends on the success of his due process and declaratory relief claims

. B ecause summary judgment was proper on his process - based claims, summary judgment was also proper on his claim for unpaid wages

. AFFIRM ED.

1 The dissent argues that the record supports an inference that, even though Dr. Busey could have requested an additional hearing, the hearing officer might not have been neutral. We do not decide whether that argument has merit because Dr. Busey did not ra ise it in his briefing. McKay v. Ingleson , 558 F.3d 888, 891 n.5 (9th Cir. 2009).Buse

y v . Ric hland Sc hool Distric t , No. 16-35308 TASHIM A, C irc uit Judge , disse nting: B e c a use the re is a

que stion of m a te ria l fa c t a s to whe the r Dr. B use y ’ s te rm ina tion wa s e ffe c tive ly fina l on Ja

nua ry 22, 2013, I re s pe c t fully

disse nt. The

m a jority m ista ke nly re lie s on the a ssum

ption tha t “ Dr. B u se y c ould ha

ve re que ste d

a he a ring be fore a

ne utra l he a ring offic e r, who would de c ide whe the r the B oa rd’ s disc ha rge de c ision would ta

ke e ffe c t.” M a

j. Disp. a t 2. C ontra

ry to the m a

jority ’ s

a ssum ption, howe ve r, Dr. B use y ’ s he a ring offic e r would not ha v e be e n ne utra l. The W a s hington sta

tutory provision c onc e rning the a ppointm e nt of a he a ring offic e r provide s, “ Nothing he re i n sha l l pre c lude the boa rd of dire c t ors a

nd the e m ploy e e from

stipula t i ng a s to the ide ntity

of the he a

ring offic e r in whic h

e ve nt the fore going proc e dure s for the se le c t ion of the he a ring offic e r sha l l be ina p plic a ble .” W a sh. R e v. C o d e § 28A.405.310(4). Dr. B use y ’ s e m ploy m e nt

c ontra c t with the B oa

rd sta te s, “ In the e v e n t of disc ha rge Supe rinte nde nt sha ll ha ve the right to se rvic e of writte n c ha rge s, notic e of he a ring, a

nd a he a ring be fore the B oa rd sitting in e xe c utive se ssion.” C onfirm ing tha t unde rsta n d ing, be fore litiga tion, the B oa

rd’ s a ttorne y

sta te d in a le t te r tha t, pursua

nt to tha t c o ntra c t, “ Dr. B use y [] ha s a right to a

he a ring be fore the Sc hool B oa rd.” Dr. B u se y ’ s he a ring offic e r, the re fore , would not ha ve be e n inde pe nde nt or ne utra l , but inste a d is the

sa m e B oa rd tha t ha d a lre a dy

de c ide d tha

t B use y wa s te rm ina te d “ e ffe c tive ly



# F IL ED
MAY 2 2018 M OLLY C. DW Y ER, CLERK U

. S. CO URT O F APPEALSim

m e dia te ly ” on Ja

nua ry 22. It is the re fore a

c onte ste d issue of fa c t whe the r suc h

a bia se d he a ring offic e r would e ve r “ ove rride [its own] vote be fore the Distric t offic ia lly c l ose d Dr. B u se y ’ s e m

ploy m e nt c ontra c t.” 1 M a

j. Disp. a t 2. R e ga rdle ss of whe n Dr. B use y ’ s e m ploy m e nt c ontra c t

wa s form a lly
te rm ina te d, the re c ord supports the infe re nc e tha t

Dr. B use y ’ s te rm i na tion wa s a

“ fa it a c c om

pli” on Ja n u a ry 22, 2013. Gie d

ra v . Mt. Adams Sc h. Dist. N o. 209 , 110 P.3d 232, 236 (W a sh. 2005) (c iting Martin v . Day ton Sc h. Dist. N o. 2 , 536 P.2d 169, 170 (W a sh. 1975) (e n ba nc )). B e c a

use the re a re que stions of fa c t a b out the

a de qua c y of the proc e ss Dr. B use y re c e ive d be fore tha

t da te , on this re c ord,

sum m a ry judgm e nt a ga inst Dr. B use y wa s unwa

rra nte d. I would re ve rse the gra nt of sum m a ry judgm e n t in fa

vor of the Sc hool Distric t a nd re m a n d for tria l. I re spe c tfully

disse nt.

1 In its footnote

1, the m a jority sta te s tha t it will not de c ide whe the r the a rgum e nt tha

t “ the he a ring offic e r m ight not ha ve be e n ne utra l” ha s m e rit “ be c a use Dr. B use y

did not ra ise it in his brie fing.” In fa c t, the issue wa s ra ise d by the m a jority itse lf in its a sse rtion tha

t “ Dr. B use y

c o uld ha ve re que ste d a

he a ring be fore a ne utral he a ring offic e r . . . .” M a

j. Disp. a t 2 (e m p h a sis a dde d ). This a sse rtion ha s no support in the re c ord. Thus, the

m a jority a ppe a rs to be a dva

nc ing the re m a rka

ble proposition tha

t it c a n re ly on a fa c tua l a sse rtion unsupporte d by the re c o rd, whic h the n c a nnot be dispute d, a lthough the c ontra ry fa c t is c le a rly sta te d in the re c ord, a s I ha

ve de m onstra

te d a bove , be c a

u se Dr. B use y did not ra i se the issue in his brie f. 2