Opinion
No. 09-17907.
Argued and Submitted April 14, 2011.
Filed May 4, 2011. As Amended on Denial of Rehearing and Rehearing En Banc July 12, 2011.
James C. Ashworth, Esquire, Mary-Alice Coleman, Law Office of Mary-Alice Coleman, Davis, CA, Lawrence Dale Murray, Murray Associates, San Francisco, CA, for Plaintiff-Appellee.
Bruce A. Scheidt, Kronick Moskovitz Tiedemann Girard, PC, Sacramento, CA, for Defendants-Appellants.
Appeal from the United States District Court for the Eastern District of California, Frank C. Damrell, Senior District Judge, Presiding. D.C. No. 2:07-cv-00315-FCD-KJM.
Before: REINHARDT, HAWKINS, and GOULD, Circuit Judges.
Rick Eaton, a former Rocklin Police Department sergeant, was subjected to discipline and termination because, he alleges, he was part of a group of employees that was uncooperative with, or declined to join, prevalent misconduct in the department. Eaton sued Mark Siemens, the police chief, Carlos Urrutia, the city manager, and the City of Rocklin, pursuant to 42 U.S.C. § 1983, alleging deprivation of equal protection, among other things. Siemens and Urrutia sought summary judgment on the ground of qualified immunity, and the City sought summary judgment on the ground that Eaton lacked evidence to establish liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The district court denied the motions. Eaton v. Siemens, No. 07-315, 2009 WL 4929262, at *2-7 (E.D.Cal. Dec.14, 2009). Defendants appeal pursuant to our jurisdiction under 28 U.S.C. § 1291, as interpreted by Mitchell v. Forsyth, 472 U.S. 511, 527, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We affirm.
Siemens and Urrutia argue that they are entitled to qualified immunity. First, they contend that Eaton's allegations do not establish an actionable constitutional violation because, they say, the class of employees that Eaton claims was subjected to discrimination — dubbed "non-team players" by the district court — is not a "discrete and objectively identifiable" group. But Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008), on which Siemens and Urrutia rely, does not provide that only discrimination against discrete and objectively identifiable groups can give rise to a public employee's equal protection claim. Rather, Engquist holds that public employees cannot assert "class of one" equal protection claims against their employers. See id. at 607, 128 S.Ct. 2146 ("[T]he class-of-one theory of equal protection has no application in the public employment context — and that is all we decide . . ." (emphasis added)). The class of employees allegedly singled out for punishment because they were perceived as being uncooperative with department misconduct do not lack an equal protection remedy merely because their circumstances vary. Cf. Navarro v. Block, 72 F.3d 712, 717 (9th Cir. 1996) (holding that for equal protection purposes, victims of domestic violence are a cognizable class, discrimination against which is subjected to rational basis review, notwithstanding variability within the class).
Siemens and Urrutia argue, for the first time in a Rule 28(j) letter, that the district court's denial of summary judgment is contrary to authority from other circuits that, they say, bars equal protection claims by public employees suing for retaliation. This argument is waived, so we need not consider it. See Pawlyk v. Wood, 248 F.3d 815, 822 n. 5 (9th Cir. 2001) ("[R]ais[ing] [an] issue before argument by submitting a supplemental citation, pursuant to Federal Rule of Appellate Procedure 28(j), . . . is too late; the issue is waived."). But we note that the cases on which they rely provide only that a public employee's equal protection claim must arise from discrimination based on membership in a group, and that a bare act of retaliation, without the element of class-based discrimination, will not give rise to a viable equal protection claim. E.g., Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir. 1996); Gray v. Locke, 885 F.2d 399, 414 (7th Cir. 1989). Here, denial of summary judgment is not contrary to the cited cases because Eaton alleges discrimiation based on group membership.
Second, Siemens and Urrutia argue that the law does not clearly establish that their alleged misconduct violates equal protection. But reasonable officials would surely know that they are acting unlawfully by subjecting employees perceived as being uncooperative with department misconduct to discriminatory discipline and termination. See Elliot-Park v. Manglona, 592 F.3d 1003, 1008-09 (9th Cir. 2010) (" `The constitutional right to be free from such invidious discrimination is so well established and so essential to the preservation of our constitutional order that all public officials must be charged with knowledge of it.'" (quoting Flares v. Pierce, 617 F.2d 1386, 1392 (9th Cir. 1980))). Further, the novel arguments of Siemens and Urrutia that are based on Engquist, which does not govern this case, do not render the controlling law unclear or in flux. See Groh v. Ramirez, 540 U.S. 551, 565, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) ("Absent any support for such an exception in our cases, he cannot reasonably have relied on an expectation that we would [create one].").
For purposes of this analysis, we assume the truth of Eaton's allegations. See Crawford-El v. Britton, 523 U.S. 574, 598, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998).
We take no position on the merits of Eaton's claims. Our jurisdiction over this interlocutory appeal is limited to the "purely legal issue[s]" of whether Eaton's allegations make out an equal protection claim and what law is clearly established. Ortiz v. Jordan, ___ U.S. ___, ___, 131 S.Ct. 884, 891, 178 L.Ed.2d 703 (2011) (internal quotation omitted). We do not review the district court's determination that Eaton's evidence of his individual capacity claims against Siemens and Urrutia and of his Monell claim against the City is sufficient to raise genuine issues of material fact, for we consider those issues to be beyond our present jurisdiction. AFFIRMED.
"[W]here the district judge identifies disputes of fact or makes inferences from the record, we do not have jurisdiction to evaluate those determinations by making an independent review of the record." Collins v. Jordan, 110 F.3d 1363, 1372 n. 7 (9th Cir.