DeBoer v. Pennington

287 F.3d 748, 2002 WL 338150

Opinions

Order; Partial Concurrence and Partial Dissent by Judge TASHIMA; Concurrence by Judge CANBY.

ORDER

Following this court’s decision in this matter,¹ defendant-appellant City of Bell-ingham (“City”) petitioned for a writ of certiorari in the United States Supreme Court challenging this court’s ruling on the due process claim of plaintiffs-appellees Dean DeBoer and Luanne DeBoer (“De-Boers”) raising questions as to whether there is due process protection here and, assuming due process protection, whether the common law remedy for breach of contract provides adequate process.

The Supreme Court granted the writ of certiorari and has vacated the judgment and remanded the case to this court for further consideration in light of Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 121 S.Ct. 1446, 149 L.Ed.2d 391 (2001).²

Because the Court in Lujan assumed, without deciding, that the interest in question was subject to due process protection and only addressed the issue of whether adequate process was accorded, id. at 1451, the issue before this court is whether the common law remedy for breach of contract under Washington state law provides the DeBoers with all the process due for the deprivation of their contractual property interests committed by the City.

Upon a careful reading of Lujan, it appears that the common law breach of contract claim provides adequate process for the deprivation of a property right derived from a contract, unless the deprivation constitutes a denial of a present entitlement. The Supreme Court has described “present entitlement” as “a right by virtue of which [one is] presently entitled either to exercise ownership dominion over real or personal property, or to pursue a gainful occupation.” Lujan, 121 S.Ct. at 1451. We need not decide whether this list of examples is exhaustive. In the circumstances presented here, the DeBoers, like the plaintiff in Lujan, are fully protected by an ordinary breach of contract suit. Although the deprivation to the DeBoers, being the total termination of the contract, is greater than that suffered by the plaintiff in Lujan, the interest injured is still merely a contractual interest and the injury to the DeBoers is no more than a contractual injury. In other words, the contract here has not given rise to a greater interest than the contract itself, and so a wrongful termination of the contract may be fully remedied by a common law breach of contract claim.

Upon remand, the district court is directed to dismiss the DeBoers’ due process claim. This court’s prior ruling on the DeBoers’ Fourth Amendment claim is reinstated.

REVERSED AND REMANDED WITH INSTRUCTIONS.

1 . DeBoer v. Pennington, 206 F.3d 857 (9th Cir.2000).

2 . City of Bellingham v. DeBoer, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 635 (2001).