Unpublished Disposition, 920 F.2d 936 (9th Cir. 1990)

ORDER

The memorandum disposition filed August 7, 1990, is withdrawn. The attached disposition is filed in its stead.

MEMORANDUM^* 

Our independent review of the record supports the district court's conclusion that Sussel was in a civil service position. The state court decision resolves this issue. The central issue is therefore whether Sussel has alleged sufficient facts to support a claim for violation of due process: "It is not every erroneous administration of state law that results in a denial of due process." Haywood v. Younger, 769 F.2d 1350, 1357 (9th Cir. 1985), cert. denied, 478 U.S. 1020 (1986). To determine whether a genuine issue of fact is presented on the question of due process we first determine if there was a property interest and if so, what process was due before the government could deprive Sussel of that property interest. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982).

As a civil servant, Sussel has a property interest in his job that is protectable and subject to due process. See Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). The City civil service rules provide that when a covered employee is dismissed or demoted, there shall be written notice to the employee at least ten days prior to the effective date of the action, setting forth the reasons for the action taken. Revised Rules of the Civil Service Commission 1.1-D (Rule 10.2.c).

Sussel, however, was not terminated. He continues employment with the city and collects the same salary as he did before the acts complained of. The dispute is not whether demotion is an interest protected by the due process clause but whether Sussel was demoted or merely downwardly reallocated. The latter process is not protected by due process. State law determines the property interest in question but federal law determines whether or not the taking of such interest is a violation of due process. See Logan, 455 U.S. at 432.

Sussel has failed to establish a genuine issue of material fact as to whether he was denied property without due process. The "root requirement" of due process is "that an individual be given an opportunity for a hearing before he is deprived of any significant property interest." Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (first emphasis added, second emphasis in original), quoted in, Loudermill, 470 U.S. at 542. The hearing need not be a formal one. See Loudermill, 470 U.S. at 543 n. 8. When Sussel's responsibilities were decreased, he had notice and a "hearing" before the Mayor, the person making the decision. He received notice and an opportunity for hearing before any change in pay occurred. Sussel also has an established post-deprivation procedure, with which he is familiar; that Civil Service Commission proceedings are sometimes slow to reach a result, does not necessarily constitute a violation of due process. Cf. Loudermill, 470 U.S. at 547. The delay in this case is the result of legitimate appeals by the parties.

Whether Sussel was victim of poor treatment is not the question. He was not terminated and he retains his salary. Cf. Loudermill, 470 U.S. at 544-45.

Sussel also fails to establish a genuine issue of material fact on the first amendment claim. He has not alleged facts that support a claim that the exercise of his first amendment rights was a substantial or motivating factor for the actions taken towards him. See Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1977). Sussel relies upon his letter to Fasi describing the problems present between the state and the city civil service defense organizations to support his argument. This letter was written several weeks after Fasi announced his intention to place Kekuna in a management position at the Oahu Civil Defense Agency. Further, Sussel has failed to present sufficient probative evidence that he was demoted because of his political affiliation. See Rutan v. Republican Party of Illinois, 110 S. Ct. 2729, 2735 (1990).

Sussel fails to raise a genuine issue of material fact on his equal protection claim. He alleges no facts to demonstrate that he was part of a group that is treated unequally. He complains of treatment to him as an individual. See generally Plyer v. Doe, 457 U.S. 202, 217 n. 14 (1982) (fourteenth amendment designed to abolish "class or caste" treatment). He also fails to allege sufficiently egregious treatment to reach the level of a substantive due process violation. See, e.g., United States v. Salerno, 481 U.S. 739, 746 (1987) (substantive due process prohibits conduct that shocks the conscience or interferes with rights implicit in the concept of ordered liberty).

Summary judgment was appropriate on all of Sussel's federal claims. It was therefore within the district court's discretion to remand all state issues. See 28 U.S.C. § 1441(c); Carnegie-Mellon University v. Cohill, 484 U.S. 343 (1988). Because these claims could have been pled in the alternative, see Fed. R. Civ. P. 8(e) (2), we vacate the summary judgment as to them and remand so that the district court may have an opportunity to consider whether the state contract claims should be dismissed without prejudice to Sussel's pursuing them in a state forum.

AFFIRMED IN PART AND VACATED AND REMANDED IN PART.