F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

R O B E R T R O Y B A L , P laintiff-Appellee
,

v.

T O P P E N I S H S C H O O L D I S T R

I C T ; J O H N C E R N A , Superintendent, D efendants-Appellants. No. 15-35541

D.C. No. 1:14-cv-03092-SMJ

OPI NI ON

A ppeal from the United States District Court for the Eastern District of W a shing ton Salvador Mendoz a, J r., District J udg e, Presiding

Arg ued and Submitted Aug ust 28, 2017 Seattle, W a shing ton

F iled September 20, 2017

B efore: Michael Daly Hawkins and M. Marg aret McKeown, C ircuit J udg es, and B arbara J acobs Rothstein, *

District J udg e.
Opinion by

J udg e Hawkins

* T h e Ho n o rab le B arb ara J aco b s Ro th stein
, Un ited States Dis t r i ct J u d g e f o r th e W estern District o f W ash in g t o n , sittin g b y

d esig n atio n

.R O Y B A L V

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SUMMARY * *

Civil Rights

On interlocutory appeal in a 42 U.S.C. § 1983 action, the panel r eversed the district court’s order deny ing qualified immunity to defendants on plaintiff’s due process claim, a nd di s m i s s e d, for lack of jurisdiction, the district court’s order deny ing qualified immunity to defendants on plaintiff’s F irst Amendment claim.

Plaintiff, a f

o rmer school principal, alleg ed that the Toppenish School District reduc e d his salary without d ue process and retaliated ag ainst him for speaking to an attorney about his performance evaluation.

The panel held plaintiff had a protected property interest under W ashing ton State law in the salary he r e c eived a s a principal. The panel held, however, that the School District

was not r e quired under federal law to provid e plaintiff with

a predeprivation p r o b able cause hearing pursuant to W a shing ton Revised Code § 28

. 405.300. The panel noted that federal due process does not necessarily entitle a p laintiff
to the same procedu r e s p r o vided by state law. I n this c ase, the state-cr e a

t e d protections reached bey ond those g u aranteed by federal law. The panel held that pursuant to Cleveland Bd. of Educ. v

. L o udermill
, 470 U.S. 532 ( 1985), p laintiff received a ll the process d ue to him when h e twice received notice that the District was r eassig ning him and was provided with opportunities to be heard in his own defense.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.R O Y B A L V

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The panel held that it lacked jurisdiction over the district court’s order deny ing qualified immunity as t o the F irst Amendment claim b ecause the district court h ad f ound
g e n u i n e issues of material fact ex isted reg arding the c laim. The panel held, therefore, that the issue of whether the School District violated plaintiff’s F irst Amendment rig hts was

c a t e go r i c al l y u n re v i e w a b l e o n i n t e r l o c u t o r y a p p ea l

. Moreover, the panel determined that the F i rst A mendment retaliation claim was not “inex tricably intertwined” with the due process c laim such that the panel could ex ercise pendent jurisdiction to review it.

COUNSEL

J erry J

. Moberg (arg

u ed) and J ames E. B ake r , J erry Moberg & Associates P.S., Ephrata, W ashing ton, f o r DefendantsAppellants.

Kevan Tino Montoy a (arg ued) and Ty ler M. Hinkley
, Montoy a H inckley PL L C, Y akima, W ashing ton, for P l a intiffAppellee.R O Y B A L V

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OP INION

HAW KI NS, Circuit J udg e:

I n this interlocutory app eal, the Toppenish School District (“the District”) and its Superintendent, J ohn Cerna (“Cerna”) (collectively
, “Top penish”), appeal the denial of qualified immunity a n d adverse summary judg ment g rant in Robert Roy bal’s (“Roy

bal”) 42 U .S.C. § 1983 action. R o y b a l
, a former principal in the District, claims the District re d u ced his salary without due process and retaliated ag ainst him for speaking to an a ttorney about h is performance evaluation. T he district court d enied Cerna qualified immun i t y , determining Toppenish v iolated due p rocess a nd that g enuine issues of material fact e x isted whether T oppenish retaliated
ag ainst Roy

bal for his speech. W e conclude the district court erred in holding Toppenish violated due process by f ailing to comply with procedures r equired under state law. W e f urther conclude we lack jurisdiction at this stag e to review the denial of qualified immunity as to Roy b al’s F irst A mendment retaliation claim.

F ACTUAL BACK G ROUND AND P ROCEDURAL

HISTORY

A. F actual Background

The District employ ed Roy bal as a principal b eg inning in the 2005–06 s c h o o l y ear. Roy bal held that position, at two district schools, throug h the 2011–12 school y ear. P r i or to the 2012–13 school y ear, Cerna reassig ned Roy bal to work a s

an assistant principal a t a d ifferent school. The District raised Roy bal’s salary

that y e ar from $90,296.75 to $92,021.39.R O Y B A L V

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I n A ug ust 2013, Roy

bal received his performance r eview for the 2012–13 school y ear. He scored poorly

. B elievi n g the evaluation was inaccurate a n d d i d not comply w ith state law, Roy bal requested District administrators correct it. After they failed to d o so, Roy

bal retained attorney Kevan Montoy a (“Montoy a”). Montoy a subsequently sent the District a letter stating he w as reviewing Roy bal’s evaluation. The letter
ang ered Cerna.

The District thereafter served Roy bal w ith a Notice o f Reassig nment. The May 2, 2014 notice stated that, pursuant to Washing ton Revised Code § 28A.405.230, the District was reassig ning Roy

b al for the 2014–15 school y ear to work as a teacher, at a base salary o f $ 5 6,599. The notice also stated that if he had ques t i o n s to contact the District H uman Resources Director.

On May 15, 2014, the D i s trict served Roy b al with a second notice, reiterating its decision to reassig n Roy bal a nd
to pay him $56,599. The notice stated the Dist r i c t was reassig ning Roy

bal b e c a use he had “[ n] ot successfully demonstrated t h e qualities a nd skills necessary for an administrative position in the District.” The notice then listed

reasons for the reassig nment, including insubordination, poor communication and judg ment, and fai l ure to comply with laws concerning student discipline. I n addition, citing section 28A.405.230, the notice ex plained the District B oard o f Directors would hold an ex ecutive session to al low Roy bal “to meet informally w i t h t he board a nd request reconsideration for [ h] is re a s s ig nment.” The notice concluded by informing Roy b a l that if h e had questions, he could contact the District Human Resources Director.R O Y B A L V

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On May 22, 2014, R o y b al, represented by Montoy a , attended the b oard session. Montoy a presented a written submission to the board, ex plaining why the Dis t r i ct h ad erred in reassig ning Roy

bal. The board upheld the District’s decision in a J u ne 2, 2014 letter.

B. P rocedural History

Roy bal sued Toppenish in W ashing ton state court, bring ing two claims u nder 42 U.S.C. § 1983: (1) that Toppenish reduced his salar y w i thout due process a nd (2) r etaliated ag ainst him for speaking to an attorney , as w ell

a s v a r i o us state law claims. Toppenish removed the case to federal court where the parties jointly moved for summary judg ment. Toppenish arg ued they d id not violate due process

or retaliate a ga i n s t Roy

bal. Cerna arg ued he was entitled to qualifi e d i m munity in his individual c apacity

. I n his crossmotion, Roy

b al arg u ed he was e ntitled to j u d gm e nt as a matter of law on his due process claim.

The district court denied Toppenish’s motion, concluding they violated d

ue process as a matte r o f l aw, that g enuine issues of material fact ex isted whether they violated Roy bal’s F irst Amendment rig hts, and that C e r n a w a s not entitled to qualified immunit y

. T he district court g ranted summary judg ment to Roy

bal on his due process claim.

Toppenish then pursued this interlocutory appeal as to the qualified immunity denial a n d o n the merits of the constitutional claims.R O Y B A L V

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JURISDICTION AND STANDARD OF REVIEW

W e must first determine whether we have jurisdiction to entertain this interlo c utory appeal. Our interlocutory appellate jurisdiction un d e r 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 (9t h Cir. 2004). The Supreme Court has made clear that our jurisdiction does not

ex tend to those appeals which involve whether the p r e t rial record set forth a “g enuine” issue of fact for trial. Johnson v

. Jones , 515 U.S. 304, 319–20 (1995).

I n this case, the district court concluded, a s a matter o f law, that Toppenish violated Roy bal’s clearly established d ue process rig hts. W e t h erefore have jurisdiction to review the denial of qualified immunity
, a s w ell as the summary judg ment g rant to Roy

bal, as to the due process claim. See Mueller v. Auker
, 576 F .3d 979, 989 (9th Cir. 2 009) (“[ Granting summary judg ment] a s a matter o f law on the merits of a constitutional claim, and ag ainst a defendant asserting qualified immunity , is the equivalent of a denial o f such an assertion.”). W e review a d i strict court’s denial o f
summary judg ment on q ualified immunity g rounds a nd the
g rant of summary

judg ment de novo. Id. at 991.

W e do not ha v e j u r isdiction, however, to review the denial of qualified immunity as to Roy b al’s F irst A mendment retaliatio n c laim. On appeal, Toppenish arg ues that the district court erred in deter m i n i n g g enuine issues of fact

e x i s t e d whether Toppenish v iolated Roy b al’s Fi r s t Amendm e nt rig hts. B ut that determination “is categ orically unreviewable on interlocutory a p p e al.” E ng v. Cooley
, 552 F .3d 1062, 1067 (9th Cir. 2009). Moreover, the F irst A m e n d m e n t r e t a l i a t i o n c l a i m i s n o t “ i n e x t r i c ab l yR O Y B A L V

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intertwined” with the due process claim s u c h that we may

ex e r cise pendent jurisdiction to review it. S e e Cunningham

v. G ates , 2 29 F .3d 1271, 1284 (9th Cir. 2000). W e therefore limit our review to the procedural due process claim.

ANALYSIS

“A p ro c e dural due process c laim has two d istinct elements: (1) a deprivation of a con s t i tutionally protected liberty o r property interest, and (2) a denial o f a d equate procedural protections.” Brewster v. Bd. of Educ. , 149 F .3d 971, 982 (9th Cir. 1998).

A. P roperty Interest

Property interests a

r e not c r e a t e d b y the Constitution, instead “they are created and their dimensions are defined b y

ex isting rules or u nde rstanding s that stem f rom an independent source such as state law.” Bd. of Regents of State Colls. v

. Roth
, 408 U .S. 564, 5 77 ( 1 9 7 2 )

. A property interest arises only where there is a le gi t i m ate claim o f entitlement, n ot merely an abstract n e e d o r desire for the particular benefit. I

d.

Roy bal correctly asserts W a shing ton Revis ed Code § 28A.405.230 created a constitutionally protected property interest in the salary

he received as a principal. 1 I t did so by

1 In relev an t p arts, sectio n 2 8 A .4 05 .2 3 0 read s:

A n y certif icated em p lo y ee o f a sch o o l d istrict em p lo y ed

as

. . . [a] p rin cip al

. . . s h all b e su b j ect t o tran sf

er, at th e

ex p i ratio n o f t

h e term o f h is o r h er em p l o y m en t

co n t ract, to an y su

bo rd in ate certif

icated p o sitio n w ith in th e sch oo l d istrict. “ Su

b o rd in ate certif

icated p o sitio n ”R O Y B A L V

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treating the redu c t ion of a principal’s salary as a n adverse chang e in contract status, and by requiring any adverse chang e in contract status b e supported by probable cause. See Sanchez v. City of Sant a Ana
, 915 F .2d 424, 4 2 9 (9th Cir. 1990).

Sec t i on 28A.405.230 g overns when a district may transfer school administrators to other positions i n t h e district. 2 Relevant h ere, it prohibits a d istrict from transferring principals with three or more y ears of consecutive service to lower p ay ing positions. A district can still t r a n s fer principals—“to match the skills of the individual administrator with the District’s needs”—but the transfers a re permissible only

if the principals’ respective salaries are not reduced. Sneed v. Barna
, 9 1 2 P

. 2d 1035, 1038 (W ash. Ct. App. 1996).

Section 28A.405.230 itself does n ot ex plain how a district mig ht d ivest principals o f this protection

. B ut W ashing ton authority describes section 28A.405.230’s prote ction a s “tenure
, ” a llowing p rincipals to be removed from their positions only when the decision to do so i s s u pported b y

. . . sh all m ean a n y

. . . po sitio n f o r w h ich t h e an n u al

co m pen satio n is less th an th e p o s itio n cu rren tly h eld b y th e ad m i n istrato r.

. . . PROVIDED, T h at in th e case of
p rin cip als su ch tran sf

er sh all b e m ad e at th e ex p iratio n

o f th e co n tract y ear an d o n ly d u r i n g th e f irst th ree

co n s ecu tiv e sch oo l y ears o f em p lo y m en t as a p rin cip al

. . . .

2 P rin cip als f

irst em p lo y ed af ter J u n e 1 0
, 2 0 1 0
, ar e s u b

j e c t to a d if f eren t tran sf

er statu te, Wash in g to n Rev ised C o d e § 2 8 A .4 0 5 .2 4 5

. T h at statu te d o es n o t ap p ly h ere b ecau se th e District f irst em p l o y ed Ro y

b al as a p rin cip al in 2 0 0 5

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probable cause. Odegaard v. E v e r e tt Sch. Dist. No. 2
, 797 P.2d 1152, 1 155 (W ash. 1990); see also B e l l evue P ub. Sch. Dist. No. 405 v. Benson
, 7 07 P.2d 137, 141 (W ash. Ct. App. 1985) (stating that a demotion f r om principal to teacher, accompanied by a salary reduction, r equired a predeprivation probable cause hearing ). Such a r estriction, limiti ng the
g rounds o n which salary may be reduced, creates a reasonable

ex p ectation that p rincipals will continue to recei v e their

sa l a r y , and therefore, a protected property r ig ht. S ee Brady v. Gebbie , 859 F .2d 1543, 1548 (9th Cir. 1988).

B e cause R o y

bal served seven y ears as a principal in the District, he h ad a p r otected property interest in the salary he attained as a principal, pursuant t o section 28A.405.230. Toppenish deprived h im of this int e r e st when they reduced his salary for the 2014–15 school y ear.
Toppenish contends Roy b a l d id not have a protected property interest. They arg ue section 28A .405.230 only protects principals, and Roy bal was an a s s istant principal when the District transferred him an d r e d u ced his salary in 2014. This is beside the p o int. R o y b a l’s protected property interest vested after he served three y ears as a principal in the District. T he Distric t could not divest him of his interest simply because, as of 2014, R o y bal’s job title a

nd responsibilities had c h a n g ed. Once conferred, the District could not deprive Roy

bal of h is property interest without d ue process. Cleveland Bd. of E duc. v. Loudermill
, 470 U.S. 532, 5 41 (1985) (“W hile the leg islature may elect not to confe r a pr operty interest in public employ ment, it may not constitutionally authoriz e the deprivation of such an interest, once conferred, without appropriate procedural safeg uards.” (quoting Arnett v. Kennedy
, 4 16 U.S. 134, 167 (1974))). W eR O Y B A L V

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turn nex t to whether t h e District provided Roy bal all the process he was due.

B. P rocess Due

“[ O] nce a court d e termin e s t hat a protected property interest has been taken, ‘the q uestion remains what process is due.’” Brewster
, 149 F .3d a t 983 (quoting M o r r i s sey v

. Brewer
, 4 0 8 U.S. 471, 481 ( 19 7 2 ) )

. I n its order, the district
court determined Roy

bal did not receive due process because Toppenish violated state law. Specifically , the district court conclud ed that Toppenish did not comply with W ashing ton Revised Code § 2 8A.405.300, which entitles an employ ee to a predeprivation probable cause hearing

. Toppenish’s failure to c omply with section 28A.405.300 does not resolve the issue curren t l y b e fore u s: whether Toppenish violated federal due process, a question of federal,
not state, law. Loudermill
, 470 U.S. a t 541. F ederal d ue process does not necessarily e ntitle a pla i n t i ff to the same procedures provided by state law. Rather, under federal law, what process is due is determined by c ontex t, to be analy z ed 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).

W e r ecog niz e that a violation of state law causin g t h e deprivation of a federally protected rig ht may

form the basis of a § 1983 action. B ut this rule does not apply where, a s here, the state-created p rotections reach bey on d t h at g uaranteed b y feder a l law. Lovell v. Poway Unified Sch. Dist. , 90 F .3d 367, 370 (9th Cir. 1996).R O Y B A L V

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Under W ashing ton law, employ e es are entitled to notice and a trial- like predeprivation hearing to determine whether the adverse employ

ment action is supported b y probable

cause. Wash. Rev. Cod e

. § 28A.405.310. As p art of the hearing
, the p arties may conduct discovery and call witnesses. Id. T o satisfy federal due process minimums, by con t r a s t , employ e es n eed only receive notice and an opportunity for a hearing before being depriv e d o f their property interest. Loudermill
, 470 U.S. at 546. To that end, e mploy ees a re entitled to “oral or written notice o f the charg es

. . . , an

ex p lanation o f the employ e r’s evidence, and an o p p o rtunity [ for em p loy e es] to present [ their] side of the story .” Id. W a shing ton law, therefore, provides g reater protection than federal law and the d ist r i c t court erred in resting its analy sis on a violation of state law.

I n any event, it is clear from the r e co r d R o y bal received all the p rocess due to him before th e b oard made a final decision with respect to his position and s a lary

. Brewster
, 149 F .3d at 9 8 5–86 ( specify ing that pr e d e p r ivation h earing
must o ccur before employ e es are “finally ” deprived o f their property interest). That final decision to reassig n Roy bal a nd reduce his salary came in the board’s J u ne 2, 2014 letter. See section 28A.405.230 (stating “[ t] h e b oard shall notify the administr at o r in writing of its final d ecision within ten day s following its meeting with the administrator”).

B e fore J une 2, 2014, Roy bal twice received notice, on May 2 and May 1 5, that the District was reassig ning him for the 2014–15 school y ear. The May 15, 2014 notice ex p lained the charg es ag ainst Roy bal—that he was n o t adequately performing in his admi n i s t rative role—and identified the
g rounds for his reassig nment.R O Y B A L V

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Roy bal also had oppor t unities to be heard in his o wn defense. B oth notice s solicited Roy b al’s input when they directed him to contact the District Human R es ources Director with any quest i o n s. More sig nificantly
, Roy bal, represented by counsel, a ttended the school board session on May 22 where he presented the board w ith a w r i t t en submission a ddressin g why the District had erred in reassig ning him. That hearing satisfied Loudermill

.

CONCLUSION

W e hold Toppenish did n ot violate Roy bal’s due process under federa l law. According ly
, we reverse the summary judg ment g r ant to Roy

b al and direct the district court to enter judg ment on behalf of Toppenish. Additionally
, because we conclude we lack jurisdict i o n t o review Roy bal’s F irst Amendment retaliation claim, that cl a i m should proceed to trial in district court.

REVERSED IN P ART, DISMISSED IN P ART. Each party to bear its own costs on appeal.