Unpublished Disposition, 908 F.2d 976 (9th Cir. 1990)

No. 89-15691.

United States Court of Appeals, Ninth Circuit.

Before NELSON and TROTT, Circuit Judges, and STEPHENS, Senior District Judge.^* 

MEMORANDUM^** 

OVERVIEW

Plaintiff/Appellee Malcolm Hardiman was suspended for six months without pay from the San Francisco Municipal Railway ("MUNI") where he is employed as an automobile mechanic. Plaintiff was suspended following a hearing at which he was found guilty of various charges, including falsifying records and insubordination. Plaintiff filed a 42 U.S.C. section 1983 action in district court against the City and County of San Francisco, the Public Utilities Commission, MUNI and George Kelcec and Jack Blanchfield, supervisors at MUNI. Hardiman alleged that he was denied due process because Blanchfield and Kelcec conspired to have him dismissed when he refused to be transferred. Specifically Hardiman alleged that Blanchfield and Kelcec compiled false and misleading charges against him. The defendants filed a motion to dismiss and later a motion for reconsideration. The district court dismissed the City and County of San Francisco, the Public Utilities Commission and MUNI but declined to confer qualified immunity on Blanchfield and Kelcec. This appeal followed. We reverse, finding that Blanchfield and Kelcec are entitled to qualified immunity.

JURISDICTION

The denial of a claim to qualified immunity is appealable under the collateral order doctrine notwithstanding the absence of a final judgment. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). However, " [t]he Supreme Court's grant of appellate jurisdiction under Mitchell is narrow. We have jurisdiction only to decide if defendants' conduct violated [ ] clearly established constitutional rights." Todd v. United States, 849 F.2d 365, 369 (9th Cir. 1988); accord Manhattan Beach Police Officers v. Manhattan Beach, 881 F.2d 816, 817 (9th Cir. 1989). On appeal the government urges this court to review the district court's denial of summary judgment and find that Hardiman received ample due process as a matter of law and that collateral estoppel applies. We do not have jurisdiction under Mitchell and Todd to decide these claims. Denial of summary judgment is not a final appealable decision. See Wood v. Ostrander, 879 F.2d 583, 591 (9th Cir. 1989). Therefore, we will consider appellants' arguments only to the extent that they apply to the issue of qualified immunity. See Todd, 849 F.2d at 368.

STANDARD OF REVIEW

The defendants' assertion of qualified immunity presents a question of law. Mitchell, 472 U.S. at 528 n. 9. The court reviews a district court's denial of a government official's qualified immunity claim de novo. Todd, 849 F.2d at 368; DiMartini v. Ferrin, 889 F.2d 922, 925 (9th Cir. 1989).

DISCUSSION

The court is to evaluate claims to qualified immunity under a strictly objective test.¹  Todd, 849 F.2d at 368. State and local officials are entitled to qualified immunity if "their conduct [did] not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); accord Manhattan Beach, 881 F.2d at 818. "Immunity attaches if the official's conduct is objectively reasonable 'as measured by reference to clearly established law.' " DiMartini, 889 F.2d at 925 (quoting Harlow, 457 U.S. at 818).

On appeal the court is not to determine the merits of plaintiff's claim that defendants' conduct actually violated clearly established statutory or constitutional rights. Mitchell, 472 U.S. at 528-29; Manhattan Beach, 881 F.2d at 818. "All it need determine is a question of law: whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions...." Mitchell, 472 U.S. at 528; accord Manhattan Beach, 881 F.2d at 818. The appellees are "entitled to summary judgment based on qualified immunity only if, viewing the facts in the light most favorable to [Hardiman], the facts as alleged do not support a claim that [appellees] violated clearly established law." DiMartini, 889 F.2d at 926.

Thus in the instant case we must decide whether appellees' alleged action violated Hardiman's clearly established constitutional rights. We find that it did not. Hardiman claims that his rights were violated because defendants conspired to have him fired after he refused to transfer.²  Plaintiff alleges further that Kelcec and Blanchfield "trumped up" charges against him as part of the conspiracy. We have found hidden in these allegations two possible causes of action.

First, Hardiman may be arguing that defendants conspired to deny him his property right to employment for impermissible reasons.³  However, Hardiman asserts that the reason defendants wanted to fire him was because he refused to be transferred. It may be that he is protected under state law or contract from being terminated for refusing transfer, but there is no constitutional protection from an employer who fires an employee because he refuses to transfer. Hardiman has alleged no unconstitutional motive; thus, even if Blanchfield and Kelcec did conspire to terminate Hardiman's employment because of his refusal to transfer to another MUNI worksite, this conspiracy in itself is not unconstitutional.

Hardiman's second claim is that defendants denied him procedural due process by "trumping up" the charges against him. Appellants argue that as a matter of law Hardiman received all the process he was due because they provided adequate notice and a hearing. Appellants' argument elevates form over substance. An employee has been denied due process even if he has the benefit of one hundred hearings if the parties to the hearing conspire to supply false evidence. See In Re Murchison, 349 U.S. 133, 136 (1955) ("A fair trial in a fair tribunal is a basic requirement of due process."). If appellants conspired to manipulate the hearing to a preordained result based on false evidence they violated Hardiman's due process rights.

However, Hardiman, in his opposition to defendant's motion to dismiss and for summary judgment, provided no proof that the evidence used against him at the hearing was false. Instead, he appears to be arguing that the charges were"trumped up" because the evidence was all "submitted in response to a specific request from Kelcec to provide derogatory and uncorroborated information." This assertion does not go to the underlying validity of the evidence. Even if defendants affirmatively sought information in order to fire plaintiff, if the information were true, the integrity of the hearing was not tainted. Without specific proof that defendants purposely falsified the charges and evidence in the hearing there is no constitutional violation of due process.⁴ 

Because defendants did not violate any clearly established constitutional rights of plaintiff they are entitled to qualified immunity. For the foregoing reasons the judgment of the district court is reversed.

REVERSED.