FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT ROYBAL,

Plaintiff-Appellee,

v.

TOPPENISH SCHOOL DISTRICT;

JOHN CERNA, Superintendent,

Defendants-Appellants.

No. 15-35541

D.C. No.

1:14-cv-03092-SMJ

OPINION

Appeal from the United States District Court

for the Eastern District of Washington

Salvador Mendoza, Jr., District Judge, Presiding

Argued and Submitted August 28, 2017

Seattle, Washington

Filed September 20, 2017

Before: Michael Daly Hawkins and M. Margaret

McKeown, Circuit Judges, and Barbara Jacobs Rothstein,*

District Judge.

Opinion by Judge Hawkins

* The Honorable Barbara Jacobs Rothstein, United States District

Judge for the Western District of Washington, sitting by designation.
2 ROYBAL V. TOPPENISH SCH. DIST.

SUMMARY**

Civil Rights

On interlocutory appeal in a 42 U.S.C. § 1983 action, the

panel reversed the district court’s order denying qualified

immunity to defendants on plaintiff’s due process claim, and

dismissed, for lack of jurisdiction, the district court’s order

denying qualified immunity to defendants on plaintiff’s First

Amendment claim. 

Plaintiff, a former school principal, alleged that the

Toppenish School District reduced his salary without due

process and retaliated against him for speaking to an attorney

about his performance evaluation. 

The panel held plaintiff had a protected property interest

under Washington State law in the salary he received as a

principal. The panel held, however, that the School District

was not required under federal law to provide plaintiff with

a predeprivation probable cause hearing pursuant to

Washington Revised Code § 28.405.300. The panel noted

that federal due process does not necessarily entitle a plaintiff

to the same procedures provided by state law. In this case,

the state-created protections reached beyond those guaranteed

by federal law. The panel held that pursuant to Cleveland Bd.

of Educ. v. Loudermill, 470 U.S. 532 (1985), plaintiff

received all the process due to him when he twice received

notice that the District was reassigning him and was provided

with opportunities to be heard in his own defense. 

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ROYBAL V. TOPPENISH SCH. DIST. 3

The panel held that it lacked jurisdiction over the district

court’s order denying qualified immunity as to the First

Amendment claim because the district court had found

genuine issues of material fact existed regarding the claim. 

The panel held, therefore, that the issue of whether the School

District violated plaintiff’s First Amendment rights was

categorically unreviewable on interlocutory appeal. 

Moreover, the panel determined that the First Amendment

retaliation claim was not “inextricably intertwined” with the

due process claim such that the panel could exercise pendent

jurisdiction to review it.

COUNSEL

Jerry J. Moberg (argued) and James E. Baker, Jerry Moberg

& Associates P.S., Ephrata, Washington, for DefendantsAppellants.

Kevan Tino Montoya (argued) and Tyler M. Hinkley,

Montoya HinckleyPLLC, Yakima, Washington, for PlaintiffAppellee.
4 ROYBAL V. TOPPENISH SCH. DIST.

OPINION

HAWKINS, Circuit Judge:

In this interlocutoryappeal, the Toppenish School District

(“the District”) and its Superintendent, John Cerna (“Cerna”)

(collectively, “Toppenish”), appeal the denial of qualified

immunity and adverse summary judgment grant in Robert

Roybal’s (“Roybal”) 42 U.S.C. § 1983 action. Roybal, a

former principal in the District, claims the District reduced

his salary without due process and retaliated against him for

speaking to an attorney about his performance evaluation. 

The district court denied Cerna qualified immunity,

determining Toppenish violated due process and that genuine

issues of material fact existed whether Toppenish retaliated

against Roybal for his speech. We conclude the district court

erred in holding Toppenish violated due process by failing to

comply with procedures required under state law. We further

conclude we lack jurisdiction at this stage to review the denial

of qualified immunity as to Roybal’s First Amendment

retaliation claim.

FACTUAL BACKGROUND AND PROCEDURAL

HISTORY

A. Factual Background

The District employed Roybal as a principal beginning in

the 2005–06 school year. Roybal held that position, at two

district schools, through the 2011–12 school year. Prior to

the 2012–13 school year, Cerna reassigned Roybal to work as

an assistant principal at a different school. The District raised

Roybal’s salary that year from $90,296.75 to $92,021.39.
ROYBAL V. TOPPENISH SCH. DIST. 5

In August 2013, Roybal received his performance review

for the 2012–13 school year. He scored poorly. Believing

the evaluation was inaccurate and did not comply with state

law, Roybal requested District administrators correct it. After

they failed to do so, Roybal retained attorneyKevan Montoya

(“Montoya”). Montoya subsequently sent the District a letter

stating he was reviewing Roybal’s evaluation. The letter

angered Cerna.

The District thereafter served Roybal with a Notice of

Reassignment. The May 2, 2014 notice stated that, pursuant

to Washington Revised Code § 28A.405.230, the District was

reassigning Roybal for the 2014–15 school year to work as a

teacher, at a base salary of $56,599. The notice also stated

that if he had questions to contact the District Human

Resources Director.

On May 15, 2014, the District served Roybal with a

second notice, reiterating its decision to reassign Roybal and

to pay him $56,599. The notice stated the District was

reassigning Roybal because he had “[n]ot successfully

demonstrated the qualities and skills necessary for an

administrative position in the District.” The notice then listed

reasons for the reassignment, including insubordination, poor

communication and judgment, and failure to comply with

laws concerning student discipline. In addition, citing section

28A.405.230, the notice explained the District Board of

Directors would hold an executive session to allow Roybal

“to meet informally with the board and request

reconsideration for [h]is reassignment.” The notice

concluded by informing Roybal that if he had questions, he

could contact the District Human Resources Director.
6 ROYBAL V. TOPPENISH SCH. DIST.

On May 22, 2014, Roybal, represented by Montoya,

attended the board session. Montoya presented a written

submission to the board, explaining why the District had

erred in reassigning Roybal. The board upheld the District’s

decision in a June 2, 2014 letter.

B. Procedural History

Roybal sued Toppenish in Washington state court,

bringing two claims under 42 U.S.C. § 1983: (1) that

Toppenish reduced his salary without due process and

(2) retaliated against him for speaking to an attorney, as well

as various state law claims. Toppenish removed the case to

federal court where the parties jointly moved for summary

judgment. Toppenish argued they did not violate due process

or retaliate against Roybal. Cerna argued he was entitled to

qualified immunity in his individual capacity. In his crossmotion, Roybal argued he was entitled to judgment as a

matter of law on his due process claim.

The district court denied Toppenish’s motion, concluding

they violated due process as a matter of law, that genuine

issues of material fact existed whether they violated Roybal’s

First Amendment rights, and that Cerna was not entitled to

qualified immunity. The district court granted summary

judgment to Roybal on his due process claim.

Toppenish then pursued this interlocutory appeal as to the

qualified immunity denial and on the merits of the

constitutional claims.
ROYBAL V. TOPPENISH SCH. DIST. 7

JURISDICTION AND STANDARD OF REVIEW

We must first determine whether we have jurisdiction to

entertain this interlocutory appeal. Our interlocutory

appellate jurisdiction under 28 U.S.C. § 1291 to review the

denial of qualified immunity is limited to questions of law. 

Lee v. Gregory, 363 F.3d 931, 932 (9th Cir. 2004). The

Supreme Court has made clear that our jurisdiction does not

extend to those appeals which involve whether the pretrial

record set forth a “genuine” issue of fact for trial. Johnson v.

Jones, 515 U.S. 304, 319–20 (1995).

In this case, the district court concluded, as a matter of

law, that Toppenish violated Roybal’s clearlyestablished due

process rights. We therefore have jurisdiction to review the

denial of qualified immunity, as well as the summary

judgment grant to Roybal, as to the due process claim. See

Mueller v. Auker, 576 F.3d 979, 989 (9th Cir. 2009)

(“[Granting summary judgment] as a matter of law on the

merits of a constitutional claim, and against a defendant

asserting qualified immunity, is the equivalent of a denial of

such an assertion.”). We review a district court’s denial of

summary judgment on qualified immunity grounds and the

grant of summary judgment de novo. Id. at 991.

We do not have jurisdiction, however, to review the

denial of qualified immunity as to Roybal’s First Amendment

retaliation claim. On appeal, Toppenish argues that the

district court erred in determining genuine issues of fact

existed whether Toppenish violated Roybal’s First

Amendment rights. But that determination “is categorically

unreviewable on interlocutory appeal.” Eng v. Cooley,

552 F.3d 1062, 1067 (9th Cir. 2009). Moreover, the First

Amendment retaliation claim is not “inextricably
8 ROYBAL V. TOPPENISH SCH. DIST.

intertwined” with the due process claim such that we may

exercise pendent jurisdiction to review it. See Cunningham

v. Gates, 229 F.3d 1271, 1284 (9th Cir. 2000). We therefore

limit our review to the procedural due process claim.

ANALYSIS

“A procedural due process claim has two distinct

elements: (1) a deprivation of a constitutionally protected

liberty or property interest, and (2) a denial of adequate

procedural protections.” Brewster v. Bd. of Educ., 149 F.3d

971, 982 (9th Cir. 1998).

A. Property Interest

Property interests are not created by the Constitution,

instead “they are created and their dimensions are defined by

existing rules or understandings that stem from an

independent source such as state law.” Bd. of Regents of

State Colls. v. Roth, 408 U.S. 564, 577 (1972). A property

interest arises only where there is a legitimate claim of

entitlement, not merely an abstract need or desire for the

particular benefit. Id.

Roybal correctly asserts Washington Revised Code

§ 28A.405.230 created a constitutionally protected property

interest in the salary he received as a principal.1

It did so by

1

 In relevant parts, section 28A.405.230 reads:

Any certificated employee of a school district employed

as . . . [a] principal . . . shall be subject to transfer, at the

expiration of the term of his or her employment

contract, to any subordinate certificated position within

the school district. “Subordinate certificated position”
ROYBAL V. TOPPENISH SCH. DIST. 9

treating the reduction of a principal’s salary as an adverse

change in contract status, and by requiring any adverse

change in contract status be supported by probable cause. See

Sanchez v. City of Santa Ana, 915 F.2d 424, 429 (9th Cir.

1990).

Section 28A.405.230 governs when a district maytransfer

school administrators to other positions in the district.2

Relevant here, it prohibits a district from transferring

principals with three or more years of consecutive service to

lower paying positions. A district can still transfer

principals—“to match the skills of the individual

administrator with the District’s needs”—but the transfers are

permissible only if the principals’ respective salaries are not

reduced. Sneed v. Barna, 912 P.2d 1035, 1038 (Wash. Ct.

App. 1996).

Section 28A.405.230 itself does not explain how a district

might divest principals of this protection. But Washington

authority describes section 28A.405.230’s protection as

“tenure,” allowing principals to be removed from their

positions only when the decision to do so is supported by

. . . shall mean any . . . position for which the annual

compensation is less than the position currently held by

the administrator. . . . PROVIDED, That in the case of

principals such transfer shall be made at the expiration

of the contract year and only during the first three

consecutive school years of employment as a principal

. . . .

2 Principals first employed after June 10, 2010, are subject to a

different transfer statute, Washington RevisedCode § 28A.405.245. That

statute does not apply here because the District first employed Roybal as

a principal in 2005.
10 ROYBAL V. TOPPENISH SCH. DIST.

probable cause. Odegaard v. Everett Sch. Dist. No. 2,

797 P.2d 1152, 1155 (Wash. 1990); see also Bellevue Pub.

Sch. Dist. No. 405 v. Benson, 707 P.2d 137, 141 (Wash. Ct.

App. 1985) (stating that a demotion from principal to teacher,

accompanied by a salary reduction, required a predeprivation

probable cause hearing). Such a restriction, limiting the

grounds on which salarymay be reduced, creates a reasonable

expectation that principals will continue to receive their

salary, and therefore, a protected property right. See Brady

v. Gebbie, 859 F.2d 1543, 1548 (9th Cir. 1988).

Because Roybal served seven years as a principal in the

District, he had a protected property interest in the salary he

attained as a principal, pursuant to section 28A.405.230. 

Toppenish deprived him of this interest when they reduced

his salary for the 2014–15 school year.

Toppenish contends Roybal did not have a protected

property interest. They argue section 28A.405.230 only

protects principals, and Roybal was an assistant principal

when the District transferred him and reduced his salary in

2014. This is beside the point. Roybal’s protected property

interest vested after he served three years as a principal in the

District. The District could not divest him of his interest

simply because, as of 2014, Roybal’s job title and

responsibilities had changed. Once conferred, the District

could not deprive Roybal of his property interest without due

process. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

541 (1985) (“While the legislature may elect not to confer a

property interest in public employment, it may not

constitutionally authorize the deprivation of such an interest,

once conferred, without appropriate procedural safeguards.”

(quoting Arnett v. Kennedy, 416 U.S. 134, 167 (1974))). We
ROYBAL V. TOPPENISH SCH. DIST. 11

turn next to whether the District provided Roybal all the

process he was due.

B. Process Due

“[O]nce a court determines that a protected property

interest has been taken, ‘the question remains what process is

due.’” Brewster, 149 F.3d at 983 (quoting Morrissey v.

Brewer, 408 U.S. 471, 481 (1972)). In its order, the district

court determined Roybal did not receive due process because

Toppenish violated state law. Specifically, the district court

concluded that Toppenish did not comply with Washington

Revised Code § 28A.405.300, which entitles an employee to

a predeprivation probable cause hearing.

Toppenish’s failure to comply with section 28A.405.300

does not resolve the issue currently before us: whether

Toppenish violated federal due process, a question of federal,

not state, law. Loudermill, 470 U.S. at 541. Federal due

process does not necessarily entitle a plaintiff to the same

procedures provided by state law. Rather, under federal law,

what process is due is determined by context, to be analyzed

in accordance with the three-part balancing test described in

Mathews v. Eldridge, 424 U.S. 319 (1976). Orloff v. Cleland,

708 F.2d 372, 378–79 (9th Cir. 1983).

We recognize that a violation of state law causing the

deprivation of a federally protected right may form the basis

of a § 1983 action. But this rule does not apply where, as

here, the state-created protections reach beyond that

guaranteed by federal law. Lovell v. Poway Unified Sch.

Dist., 90 F.3d 367, 370 (9th Cir. 1996).
12 ROYBAL V. TOPPENISH SCH. DIST.

Under Washington law, employees are entitled to notice

and a trial-like predeprivation hearing to determine whether

the adverse employment action is supported by probable

cause. Wash. Rev. Code. § 28A.405.310. As part of the

hearing, the parties mayconduct discoveryand call witnesses. 

Id. To satisfy federal due process minimums, by contrast,

employees need only receive notice and an opportunity for a

hearing before being deprived of their property interest. 

Loudermill, 470 U.S. at 546. To that end, employees are

entitled to “oral or written notice of the charges . . . , an

explanation of the employer’s evidence, and an opportunity

[for employees] to present [their] side of the story.” Id.

Washington law, therefore, provides greater protection than

federal law and the district court erred in resting its analysis

on a violation of state law.

In any event, it is clear from the record Roybal received

all the process due to him before the board made a final

decision with respect to his position and salary. Brewster,

149 F.3d at 985–86 (specifying that predeprivation hearing

must occur before employees are “finally” deprived of their

property interest). That final decision to reassign Roybal and

reduce his salary came in the board’s June 2, 2014 letter. See

section 28A.405.230 (stating “[t]he board shall notify the

administrator in writing of its final decision within ten days

following its meeting with the administrator”).

Before June 2, 2014, Roybal twice received notice, on

May 2 and May 15, that the District was reassigning him for

the 2014–15 school year. The May 15, 2014 notice explained

the charges against Roybal—that he was not adequately

performing in his administrative role—and identified the

grounds for his reassignment.
ROYBAL V. TOPPENISH SCH. DIST. 13

Roybal also had opportunities to be heard in his own

defense. Both notices solicited Roybal’s input when they

directed him to contact the District Human Resources

Director with any questions. More significantly, Roybal,

represented by counsel, attended the school board session on

May 22 where he presented the board with a written

submission addressing why the District had erred in

reassigning him. That hearing satisfied Loudermill.

CONCLUSION

We hold Toppenish did not violate Roybal’s due process

under federal law. Accordingly, we reverse the summary

judgment grant to Roybal and direct the district court to enter

judgment on behalf of Toppenish. Additionally, because we

conclude we lack jurisdiction to review Roybal’s First

Amendment retaliation claim, that claim should proceed to

trial in district court.

REVERSED IN PART, DISMISSED IN PART. Each

party to bear its own costs on appeal.