Gray v. Washington Department of Transportation

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 6, 2024
• Docket: 23-3278
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 6 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GEOFFREY GRAY, et al., No. 23-3278

Plaintiffs-Appellants, D.C. No. 3:23-cv-05418-DGE

v. MEMORANDUM* WASHINGTON DEPARTMENT OF TRANSPORTATION, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington David Estudillo, District Judge, Presiding

Argued and Submitted November 19, 2024 Seattle, Washington

Before: McKEOWN, H.A. THOMAS, and DESAI, Circuit Judges.

Geoffrey Gray and 59 other former employees (collectively, “Employees”) of

the Washington State Department of Transportation (“WSDOT”) appeal from the

district court’s order dismissing, without leave to amend, Employees’ federal

constitutional claims against WSDOT and four of its officials. The court based its

decision on WSDOT’s sovereign immunity and the officials’ qualified immunity.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. On appeal, Employees limit their claims to those arising under the Due Process

Clause, the Equal Protection Clause, and the Free Exercise Clause.

We have jurisdiction under 28 U.S.C. § 1291. Disabled Rights Action Comm.

v. Las Vegas Events, Inc., 375 F.3d 861, 870 (9th Cir. 2004). We review de novo a

district court’s dismissal based on qualified immunity. Polanco v. Diaz, 76 F.4th

918, 925 (9th Cir. 2023). We review for abuse of discretion a district court’s denial

of leave to amend. Sonner v. Premier Nutrition Corp., 971 F.3d 834, 839 (9th Cir.

2020) (as amended). Denying leave to amend is proper when amendment would be

futile. Id. at 845. We affirm.

To pierce the protections of qualified immunity, Employees must allege a

violation of a constitutional right that was “clearly established” at the time of the

action. Pearson v. Callahan, 555 U.S. 223, 232 (2009).

Employees forfeited their challenges to the officials’ qualified immunity

arguments for the equal protection and free exercise claims. Employees failed to

substantively contest the officials’ assertions of qualified immunity in the district

court. See Hernandez v. Garland, 47 F.4th 908, 916 (9th Cir. 2022) (explaining that

issues that are not “specifically and distinctly” argued may be deemed forfeited);

Olea-Serefina v. Garland, 34 F.4th 856, 867 (9th Cir. 2022) (noting that “purely

conclusory” contentions “devoid of supporting factual detail or legal argument” may

constitute forfeiture of the claims they purport to support).

2 23-3278 The district court did not err in dismissing Employees’ due process claims.

Employees allege the infringement of multiple rights under the rubric of due process.

At oral argument, Employees raised for the first time on appeal a right to bodily

autonomy. But this right to bodily autonomy sounds in substantive due process,

Washington v. Glucksberg, 521 U.S. 702, 720 (1997), and Employees’ other claims

are predicated on procedural due process. Employees failed to make a substantive

due process argument “sufficiently for the trial court to rule on it,” Tarpey v. United

States, 78 F.4th 1119, 1126 (9th Cir. 2023), and failed to raise the argument in their

appellate briefs. The claim is thus forfeited.

Employees also assert procedural due process rights to notice and hearing

procedures. Employees received notice of the vaccination policy, the exemption and

accommodation decision, and the potential for termination, and WSDOT offered

Employees “pretermination opportunit[ies] to respond” via written submissions and

meetings. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). Even if

Loudermill could be read as clearly established law with respect to the

accommodation process, and we are doubtful that it can, Employees received as

much notice and process as the law required. Id.

Finally, Employees assert a right to an impartial decisionmaker (or right to be

free from “sham” or “pretext[ual]” proceedings). Where due process requires an

opportunity to be heard, the proceeding must involve a decisionmaker who has not

3 23-3278 “prejudged” the issue. See, e.g., Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir. 1995).

But the officials are entitled to qualified immunity because the contours of the

claimed right in the accommodations context were not clearly established or

“sufficiently definite” such that a reasonable person in the shoes of one of the

officials would have understood that their actions violated that right. Martinez v. City

of Clovis, 943 F.3d 1260, 1275 (9th Cir. 2019) (quoting Plumhoff v. Rickard, 572

U.S. 765, 778–79 (2014)).

The district court did not abuse its discretion in denying leave to amend.

Employees argued for leave to amend their complaint for two purposes: to seek relief

in the form of reinstatement and to allege additional facts against the officials.

“[R]einstatement is a legitimate request for prospective injunctive relief” under the

Ex parte Young exception to sovereign immunity. Doe v. Lawrence Livermore Nat’l

Lab., 131 F.3d 836, 842 (9th Cir. 1997).

Even if an amended complaint could circumvent the Eleventh Amendment’s

restrictions on suit against the officials, Employees’ claims would fail. Arguments

forfeited in the district court—here, the substantive due process argument and the

challenges to qualified immunity for free exercise and equal protection—are not

considered upon review of a denial of leave to amend. Orsay v. U.S. Dep’t of Justice,

289 F.3d 1125, 1136 n.5 (9th Cir. 2002), abrogated on other grounds by Millbrook

v. United States, 569 U.S. 50 (2013). And the amendments Employees propose do

4 23-3278 not cure the deficiencies in their challenges to qualified immunity for procedural due

process. Amendment also would be futile as to WSDOT, because the Ex parte Young

exception applies only to state officials, not state agencies. See Lawrence Livermore

Nat’l Lab., 131 F.3d at 839.

We conclude that the district court properly dismissed Employees’ claims and

did not abuse its discretion in denying leave to amend.

AFFIRMED.

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