FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEPAUL INDUSTRIES, an Oregon 

non-profit corporation,

Plaintiff-Appellee,

v.

BENJAMIN JAMES MILLER, personally 

and in his official capacity as 

Assistant City Attorney for the City 

of Eugene,

Defendant-Appellant,

and

CITY OF EUGENE, a municipal 

corporation; JOHN RUIZ, in his 

official capacity as the City Manager 

of the City of Eugene; LAVENA 

NOHRENBERG, in her official 

capacity as Customer Experience 

Manager of the City of Eugene 

Public Library; CLAYTON STILWELL, 

in his official capacity as Purchasing 

Analyst for the Finance Department 

of the City of Eugene,

Defendants.

No. 20-35598

D.C. No.

6:18-cv-00320-

MC

OPINION
2 DEPAUL INDUSTRIES V. MILLER

Appeal from the United States District Court

for the District of Oregon

Michael J. McShane, District Judge, Presiding

Argued and Submitted August 9, 2021

Seattle, Washington

Filed September 28, 2021

Before: Carlos T. Bea, Daniel A. Bress, and

Lawrence VanDyke, Circuit Judges.

Opinion by Judge VanDyke

SUMMARY*

Civil Rights

The panel reversed the district court’s order denying, on 

summary judgment, qualified immunity to Benjamin Miller, 

an assistant city attorney for the City of Eugene, Oregon, in 

an action brought pursuant to 42 U.S.C. § 1983 alleging that 

Miller violated plaintiff’s due process rights when he 

advised the City not to renew plaintiff’s contracts with the 

City.

Plaintiff, DePaul Industries, is a qualified nonprofit 

agency for individuals with disabilities (QRF) under an 

Oregon law that requires cities to contract with QRFs in 

certain circumstances. DePaul alleged that it held a clearly 

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

has been prepared by court staff for the convenience of the reader.
DEPAUL INDUSTRIES V. MILLER 3

established constitutionally protected property interest in 

two 12-month security-service contracts with the City. But 

in 2016, the City decided to modify its security services by 

requiring that the security service employees be armed and 

decided not to renew the contracts.

The panel held that no court has considered DePaul’s 

novel argument that the Oregon QRF statute created a 

protected property interest in city contracts. Nor does the 

QRF statute on its face definitively resolve this question in 

DePaul’s favor. DePaul had not provided any precedent 

addressing Oregon’s QRF statute or anything closely 

related. While a case need not be “directly on point” to put 

the statutory or constitutional question beyond debate, all of 

the cases relied on by DePaul and the district court were too 

far from “on point.” There was no precedent clear enough 

that every reasonable official would interpret the QRF 

statute as creating a protected property interest in DePaul’s 

annual contracts with the City. DePaul also pointed to no 

Oregon cases considering whether the QRF statute allows 

the City to end a contract if it seeks new services, such as 

armed security. DePaul’s asserted interest was thus not 

clearly established, and Miller was entitled to qualified 

immunity.

COUNSEL

Robert A. Koch (argued), Christopher J. Pallanch, and 

Stephanie J. Grant, Tonkon Corp LLP, Portland, Oregon, for 

Defendant-Appellant.

Thomas M. Christ (argued) and Drew L. Eyman, Sussman 

Shank LLP, Portland, Oregon, for Plaintiff-Appellee.
4 DEPAUL INDUSTRIES V. MILLER

OPINION

VANDYKE, Circuit Judge:

Benjamin Miller, an assistant city attorney for the City 

of Eugene, Oregon (the City), files this interlocutory appeal 

from the district court’s denial of his motion for summary 

judgment. He seeks qualified immunity from due process 

claims brought by DePaul Industries. In this case, we must 

decide whether DePaul, a qualified nonprofit agency for 

individuals with disabilities (QRF) under Oregon law, held 

a clearly established constitutionally protected property 

interest in two 12-month contracts with the City. If DePaul 

held no clearly established interest, then Miller could not 

have violated it when advising the City not to renew 

DePaul’s contracts, and he is entitled to qualified immunity 

as a matter of law.

No court has considered DePaul’s novel argument that 

the Oregon QRF statute created a protected property interest 

in city contracts. Nor does the QRF statute on its face 

definitively resolve this question in DePaul’s favor. 

DePaul’s asserted interest was thus not clearly established.1 

Miller is entitled to qualified immunity, and we reverse the 

district court’s denial of summary judgment as to him.

BACKGROUND

In the early 2000s, the City began contracting for 

security services with DePaul Industries. DePaul is 

classified as a “qualified nonprofit agency for individuals 

1 We do not reach the question of whether DePaul had a 

constitutionally protected property interest in its contracts with the City. 

Instead, our analysis is limited to whether any such interest was clearly 

established at the time of the alleged violation.
DEPAUL INDUSTRIES V. MILLER 5

with disabilities” or “QRF” under an Oregon law that 

requires cities to contract with QRFs in certain 

circumstances. Or. Rev. Stat. §§ 279.835(5), 279.850(1)(a). 

For more than a decade, DePaul staffed the City’s public 

library and eleven of its parking garages with unarmed 

security guards. Every twelve months, the City reviewed 

DePaul’s contracts for the library and parking garages and 

renewed the contracts for the coming year. But in 2016, the 

City decided to modify its security services by requiring that 

the security service employees be armed and decided not to 

renew the contracts. At the time, DePaul was the only QRF 

certified by the Oregon Department of Administrative 

Services to provide unarmed security services in the county 

where the City is located.

I. The City Considers Whether to Renew DePaul’s 

Library Contract.

The City’s 2016 contract-review process began with a 

review of DePaul’s library security services. In response to 

alarming increases in drug and alcohol use, disruptive 

conduct, and threatening behavior from library patrons, the 

library convened a safety committee. Committee members 

expressed concerns about the skill level, training, and 

professionalism of DePaul security guards, as well as a 

general desire for guards to be armed in the future. The 

committee began to consider whether the City should seek 

better-trained contractors licensed to provide armed security 

services for the library. Later, the committee learned that the 

City’s performing arts center was planning to seek a bid for 

armed security services. DePaul acknowledges it was not 

qualified to provide armed services.

On March 11, 2016, the committee advised the library’s 

leadership team to recommend that the City solicit new bids 

for armed security services at the library. Later that month, 
6 DEPAUL INDUSTRIES V. MILLER

the City informed DePaul that it would soon solicit security 

services for the both the library and the performing arts 

center. This combined solicitation would request “high 

quality uniformed armed and unarmed Security Officer 

Services.” During the evaluation and solicitation process, 

DePaul continued to provide security services under the two 

active City contracts.

II. The Parties Dispute DePaul’s Indemnification 

Obligations under the Existing Parking Garage 

Contract.

On February 16, 2016, a DePaul parking garage security 

guard sued the City for retaliation, claiming that the City, 

through DePaul, reduced his hours in response to protected 

political speech. Assistant city attorney Benjamin Miller, 

who handled this litigation for the City, identified an 

indemnification provision in the City’s parking garage 

contract with DePaul that required DePaul to defend the City 

from claims “arising out of or in any way related to 

performance of the Services or other actions or failure to act 

by [DePaul] or [DePaul’s] employees.”

On March 3, 2016, Miller sent a letter to DePaul’s 

President and CEO stating “the City’s position that . . . 

DePaul is legally obligated to defend and indemnify the City 

. . . with respect to [the security guard’s] complaint.” 

DePaul disagreed. On May 31, 2016, shortly after the City 

published its solicitation for security services at the library, 

DePaul informed Miller that it would not indemnify the City 

in the lawsuit because the employee was “seek[ing] to hold 

the City liable for its own alleged conduct.” But Miller 

believed that DePaul had breached the parking garage 

security contract by declining to indemnify the City against 

this suit.
DEPAUL INDUSTRIES V. MILLER 7

Miller informed the City Attorney of DePaul’s actions 

and later noted that the City “ha[s] a current cont[r]act with 

[DePaul] that is being renegotiated. I don’t know why it is 

being renewed if this is their position.” Asked for his 

recommendation on how to secure indemnification, Miller 

shared his opinion that “stopping contract negotiations and 

getting the principals together may go further for getting 

DePaul to cooperate.”

The same week, DePaul’s President and CEO personally 

received notice of the library’s solicitation for security 

services. DePaul did not contact the City to discuss the 

solicitation, and it did not submit a bid, but several other 

security service providers did.

III. The City Chooses Not to Renew DePaul’s Library 

and Parking Garage Contracts.

On June 10, 2016, DePaul filed for Chapter 11 

bankruptcy. On June 21, 2016, a City purchasing analyst 

and the City’s parking operations supervisor discussed 

adding parking garage security to the eventual consolidated 

contract for the library and performing arts center. This was 

possible because the scope of the library solicitation 

included any other facilities “covered by a resulting 

Contract.” The purchasing analyst concluded that the 

parking garages could be added to the library and performing 

arts center contract, and impressed upon the parking 

operations supervisor the importance of “hav[ing] all the 

performance-issue related documentation as you move away 

from the DePaul contract,” given the QRF law.

On June 23, 2016, the City announced its intent to award 

the library and performing arts center contract to Advanced 

Security, Inc. On June 28, 2016, a city employee informed 

DePaul that the City was “working to consolidate all of its 
8 DEPAUL INDUSTRIES V. MILLER

security services under one contract” and would “be ending 

the [parking garage security services] contract” with DePaul. 

The City and Advanced Security, a non-QRF contractor, 

amended their contract—which went into effect on August 

1, 2016—to cover the additional parking garages.

IV. DePaul Sues the City and Miller.

On February 8, 2017, DePaul filed a lawsuit against the 

City, Miller in his personal and official capacities, and other 

City officials in their official capacities. In the operative 

complaint, DePaul alleges that the defendants:

bypassed the QRF mandate, concocted and 

ratified an RFP [Request For Proposal] 

process that essentially disqualified [DePaul] 

from the Library Contract by the addition of 

an unnecessary requirement for “armed” 

security, and then deprived [DePaul] of the 

Parking Garage Contract as well, in 

retaliation for [DePaul]’s refusal to succumb

to the City’s wrongful demand for 

contractual indemnity for the City’s own 

conduct which deprived [the DePaul 

employee who filed a lawsuit against the 

City] of his First Amendment rights.

DePaul brought seven claims for relief against Miller in 

his personal capacity, including—as relevant to this 

appeal—a claim for violating its federal substantive and 

procedural due process rights under 42 U.S.C. § 1983. 

Miller moved for summary judgment, arguing in relevant 

part that he is entitled to qualified immunity as to the due 

process claims.
DEPAUL INDUSTRIES V. MILLER 9

After quoting at length from emails between City 

employees (which Miller maintains are privileged and that 

the district court should not have required to be disclosed), 

the district court determined that “[a] reasonable jury could 

infer from this evidence that the City decided it no longer 

wanted to contract with [DePaul,] then crafted a pretext, and 

Mr. Miller engaged in clearly arbitrary and unreasonable 

government conduct to that end.” The district court 

concluded that Miller was not entitled to qualified immunity 

because DePaul had a clearly established property interest in 

its contracts with the City, and a reasonable jury could infer 

that Miller participated in the deprivation of this interest. 

Accordingly, the court denied his motion for summary 

judgment on the due process claims. Miller then filed this 

interlocutory appeal.

STANDARD OF REVIEW

“When evaluating a denial of summary judgment on the 

issue of qualified immunity, our review is limited to the 

purely legal issue whether the facts alleged . . . support a 

claim of clearly established law.” Alston v. Read, 663 F.3d 

1094, 1098 (9th Cir. 2011) (internal quotation marks 

omitted) (alteration in original). We review this legal issue 

de novo. Hardwick v. County of Orange, 844 F.3d 1112, 

1115 (9th Cir. 2017). In the qualified immunity context, “we 

lack[] jurisdiction over an interlocutory appeal challenging 

the sufficiency of the evidence.” Alston, 663 F.3d at 1098

(internal quotation marks omitted) (alteration in original). 

But we may exercise appellate jurisdiction under 28 U.S.C. 

§ 1291 over an interlocutory appeal to consider “the purely 

legal issue” of whether Miller violated DePaul’s “clearly 

established federal rights.” Id.
10 DEPAUL INDUSTRIES V. MILLER

DISCUSSION

Miller is entitled to qualified immunity unless he 

violated a clearly established statutory or constitutional 

right. Miller could not do so here because DePaul’s claimed 

constitutionally protected property interest was not clearly 

established.

I. When a Constitutionally Protected Property Interest 

is Clearly Established.

“Qualified immunity shields government officials from 

civil damages liability unless the official violated a statutory 

or constitutional right that was clearly established at the time 

of the challenged conduct.” Reichle v. Howards, 566 U.S. 

658, 664 (2012). Constitutionally protected property 

“interests are created and their dimensions are defined by 

existing rules or understandings that stem from an 

independent source such as state law.” United States v. 

Guillen-Cervantes, 748 F.3d 870, 872 (9th Cir. 2014) 

(internal quotation marks omitted). “This typically requires 

an individual to demonstrate that an existing law, rule, or 

understanding makes the conferral of a benefit mandatory.” 

Id. (internal quotation marks omitted).

“To be clearly established, a legal principle must have a 

sufficiently clear foundation in then-existing precedent. The 

rule must be settled law, which means it is dictated by 

controlling authority or a robust consensus of cases of 

persuasive authority.” District of Columbia v. Wesby, 138 S. 

Ct. 577, 589–90 (2018) (internal citations and quotation 

marks omitted). When a rule is merely “suggested” by 

precedent it is not clearly established. Id. at 590. Rather, 

“[t]he precedent must be clear enough that every reasonable 

official would interpret it to establish the particular rule the 

plaintiff seeks to apply. Otherwise, the rule is not one that 
DEPAUL INDUSTRIES V. MILLER 11

every reasonable official would know.” Id. (internal 

citations and quotation marks omitted). “[R]easonableness 

is judged against the backdrop of the law at the time of the 

conduct,” Brosseau v. Haugen, 543 U.S. 194, 198 (2004), 

and “a case directly on point” is not required, “but existing 

precedent must have placed the statutory or constitutional 

question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 

741 (2011).

II. DePaul’s Asserted Interest Was Not Clearly 

Established.

DePaul’s due process claims against Miller can succeed 

only if the protected property interest DePaul asserts was 

clearly established when it was allegedly violated. But the 

QRF statute is not clear about whether it creates a protected 

property interest in annually renewable city contracts. Nor 

has any Oregon court considered this question. The two 

cases cited by the district court did not involve QRFs at all. 

Therefore, even if those cases were precedential (which, as 

discussed below, they are not), they could not clearly 

establish a protected property interest in DePaul’s QRF 

contracts with the City. Without more, we cannot say that 

DePaul’s alleged property interest in its contracts has been 

“placed . . . beyond debate.” Ashcroft, 563 U.S. at 741.

DePaul’s arguments to the contrary are unpersuasive. 

DePaul asserts that it held a “de facto entitlement” that gives 

rise to a protected property interest in its contracts with the 

City because: first, DePaul was the only QRF providing 

unarmed security services in the area and by Oregon statute 

public agencies are required to purchase goods and services 

from a “QRF” when a QRF meets the agency’s procurement 

requirements, see Or. Rev. Stat. §§ 279.835(5), 

279.850(1)(a); and second, DePaul had a long-standing 

contractual relationship with the City. But DePaul cannot 
12 DEPAUL INDUSTRIES V. MILLER

construct a clearly established interest on its own. We 

reverse the district court for three reasons.

First, the QRF statute does not clearly confer on DePaul 

a property interest in its contracts with the City. The QRF 

statute states, in relevant part:

[A] public agency that intends to procure a 

product or service on the procurement list 

that the Oregon Department of 

Administrative Services established under 

ORS 279.845 shall, in accordance with the 

department’s rules, procure the product or 

service at the price the department establishes 

from a qualified nonprofit agency for 

individuals with disabilities, provided that 

the product or service is of the appropriate 

specifications and is available within the 

period the public agency requires.

Or. Rev. Stat. § 279.850(1)(a). Various Oregon regulations 

expand on the statute, for example, by preventing agencies 

from “develop[ing] specifications that inhibit or tend to 

discourage” contracting with QRF providers, Or. Admin. R. 

125-055-0010(1)(a), and urging agencies to “keep in mind 

the purpose of the law: to encourage and assist Individuals 

with Disabilities to achieve maximum personal 

independence in their communities through productive, 

gainful employment by assuring an expanded and constant 

market for [QRF] products and services,” Or. Admin. R. 

125-055-0010(3).

The interpretation of the QRF statute is ultimately a 

matter for the Oregon state courts. But it is enough for 

present purposes that the statute and accompanying 

regulations do not unambiguously create the property 
DEPAUL INDUSTRIES V. MILLER 13

interest that DePaul claims, and so they cannot, without 

more, provide a clearly established right in DePaul’s favor 

for purposes of qualified immunity.2

Second, DePaul points to no case authority for its claim 

here: that the QRF statute created a protected property 

interest in DePaul’s annual contracts with the City. For 

purposes of qualified immunity, “the clearly established law 

at issue must be particularized to the facts of the case.” Perez 

v. City of Roseville, 926 F.3d 511, 519 (9th Cir. 2019). The 

particular issue here, whether the Oregon QRF statute 

required the City to continue contracting with DePaul, is an 

unanswered question of state law.

DePaul points to no Oregon cases considering when, if 

ever, contracting with a QRF is mandatory. See BWK, Inc. 

v. Dep’t of Admin. Servs., 218 P.3d 156, 161 (Or. Ct. App. 

2009) (noting in passing that the QRF statute “requires

public agencies to purchase products and services from 

certain nonprofit providers,” but providing the full text of the 

statute and referring to this statutory scheme as a “preference

and exemption from competitive bidding” (emphases 

added)); see also Doyle v. City of Medford, 606 F.3d 667, 

671 (9th Cir. 2010) (looking first to how much discretion a 

local government has in issuing a statutory benefit to 

determine whether individuals had a property interest in that 

benefit, and, finding no Oregon courts construing the statute, 

certifying the question to the Oregon Supreme Court).

DePaul also points to no Oregon cases considering 

whether the QRF statute allows the City to end a contract if 

2 DePaul also ignores the fact that the City sought armed security 

services and specifically solicited DePaul, who neglected to apply for the 

new contract.
14 DEPAUL INDUSTRIES V. MILLER

it seeks new services, such as armed security. And DePaul 

points to no Oregon cases considering whether a longstanding contract with the only qualified QRF in a particular 

area creates a protected property interest. Compare with

Perez, 926 F.3d at 519 (“The contours of a right must be 

‘sufficiently definite that any reasonable official in the 

defendant’s shoes would have understood that he was 

violating it.’” (quoting Kisela v. Hughes, 138 S. Ct. 1148, 

1153 (2018)). These questions are fundamental to DePaul’s 

claim that the statute and its long-standing contract “gave 

DePaul . . . a property interest for due process purposes.”3 

But they remain unanswered—far from clearly 

established—and no reasonable official could be expected to 

know otherwise.

Third, the district court primarily relied on two District 

of Oregon cases to conclude DePaul’s interest was clearly 

established—one decided in 2009 (Grabhorn), and the other 

decided in 2010 (David Hill). But our precedent dictates that 

Grabhorn and David Hill could not clearly establish a 

protected property interest in DePaul’s contracts with the 

City because these cases do not even consider the Oregon 

QRF statute. In Grabhorn, the court recognized a 

constitutionally protected property interest in the plaintiff’s 

status as a city-designated waste facility. Grabhorn, Inc. v. 

3 DePaul cites two Ninth Circuit cases, Shanks v. Dressel, 540 F.3d 

1082 (9th Cir. 2008) and Del Monte Dunes at Monterey, Ltd. v. City of 

Monterey, 920 F.2d 1496 (9th Cir. 1990), to support its assertion that 

“[i]t was clearly established by 2016 that due process prevents 

government officials from depriving someone of a property interest for 

made-up and retaliatory reasons and thus denying them fair notice and 

an opportunity to be heard.” But the separate threshold question here is 

whether DePaul had a clearly established property interest in the first 

place, not what actions due process demands or prevents once a property 

interest has been established.
DEPAUL INDUSTRIES V. MILLER 15

Metro. Serv. Dist., 624 F. Supp. 2d 1280, 1286–88 (D. Or. 

2009). And in David Hill, the district court recognized a 

constitutionally protected property interest in a binding 

preliminary plat approval that the plaintiff received from a 

city. David Hill Dev., LLC v. City of Forest Grove, 688 F. 

Supp. 2d 1193, 1218–19 (D. Or. 2010). Neither case even 

mentions the QRF statute. So, even if the cases were binding 

precedent, neither is sufficient to “place[] the statutory or 

constitutional question” about whether the QRF statute 

created a protected property interest “beyond debate.” White 

v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting Mullenix v. 

Luna, 577 U.S. 7, 12 (2015)).

We have explained that “[w]e have been somewhat 

hesitant to rely on district court decisions” as clearly 

establishing law for purposes of qualified immunity. Evans 

v. Skolnik, 997 F.3d 1060, 1067 (9th Cir. 2021). “[A]s the 

Supreme Court has pointed out, district court decisions—

unlike those from the courts of appeals—do not necessarily 

settle constitutional standards, because a decision of a 

federal district court judge is not binding precedent in either 

a different judicial district, the same judicial district, or even 

upon the same judge in a different case.” Id. (alterations and 

internal quotation marks omitted); see also S.B. v. County of 

San Diego, 864 F.3d 1010, 1016 (9th Cir. 2017) (rejecting 

the argument that one published and one unpublished district 

court decision, both factually distinguishable, constituted 

clearly established law); Marsh v. County of San Diego, 

680 F.3d 1148, 1159 (9th Cir. 2012) (rejecting the argument 

that a published federal district court and a published lower 

state court decision clearly established a right). This case 

validates our hesitancy to rely on district court decisions for 

the qualified immunity analysis.
16 DEPAUL INDUSTRIES V. MILLER

In sum, DePaul has not provided any precedent 

addressing Oregon’s QRF statute or anything closely 

related. While a case need not be “directly on point” to put 

“the statutory or constitutional question beyond debate,” 

Ashcroft, 563 U.S. at 741, all of the cases relied on by 

DePaul and the district court are too far from “on point.” 

There is simply no precedent “clear enough that every 

reasonable official would interpret it to establish the 

particular rule the plaintiff seeks to apply.” Wesby, 138 S. 

Ct. at 590.

We hesitate to opine further about the meaning of 

Oregon’s QRF statute without additional guidance from 

Oregon courts. But we need not do so to resolve Miller’s 

appeal. As Miller observes, “until the district court’s orders 

in this case, no court had ever interpreted Oregon’s QRF 

statute to create a protected property interest.” Given the 

dearth of law on this issue, we conclude that the property 

right asserted by DePaul was not clearly established at the 

time of the alleged violation.

CONCLUSION

Miller is entitled to qualified immunity if his conduct did 

not violate DePaul’s clearly established statutory or 

constitutional rights. The district court found DePaul had a 

constitutionally protected property interest in its contracts 

with the City. But because this interest was not clearly 

established law at the time of Miller’s alleged violation, the 

district court erred by denying Miller qualified immunity on 

DePaul’s due process claims.

The judgment of the district court denying Miller’s 

motion for partial summary judgment on DePaul’s due 

process claims is REVERSED AND REMANDED with 

instructions to dismiss those claims.