FILED UNITED STATES COURT OF APPEALS JUL 12 2011
MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S . CO U RT OF AP PE A LS
RICK EATON, No. 09-17907
Plaintiff - Appellee, D.C. No. 2:07-cv-00315-FCD-KJM v. Eastern District of California, MARK J SIEMENS; CARLOS A. Sacramento URRUTIA; CITY OF ROCKLIN,
Defendants - Appellants. ORDER
Before: REINHARDT, HAWKINS, and GOULD, Circuit Judges.
Judges Reinhardt and Gould have voted to deny the petition for rehearing en
banc, and Judge Hawµins has so recommended. The full court has been advised of
the petition for rehearing en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing en banc
is denied.
The memorandum disposition in the above-captioned matter filed on May 4,
2011, and available at 2011 WL 1666830, is amended as follows:
At page 3, between lines 8 and 9, insert the following additional paragraph:
äSiemens 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 Pawlyµ 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. Lacµe, 885 F.2d 399, 414 (7th Cir. 1989). Here, denial of
summary judgment is not contrary to the cited cases because Eaton alleges
discrimination based on group membership.â
No future petitions for rehearing or rehearing en banc will be entertained.
IT IS SO ORDERED.
2 NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUL 12 2011
MOLLY C. DWYER, CLERK U.S . CO U RT OF AP PE A LS
Plaintiff - Appellee, D.C. No. 2:07-cv-00315-FCD-KJM v. AMENDED MARK J. SIEMENS; CARLOS A. MEMORANDUM * URRUTIA; CITY OF ROCKLIN,
Defendants - Appellants.
Appeal from the United States District Court for the Eastern District of California Franµ C. Damrell, Senior District Judge, Presiding
Argued and Submitted April 14, 2011 Pasadena, California
Ricµ Eaton, a former Rocµlin 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 Marµ Siemens, the police chief, Carlos Urrutia, the city
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. manager, and the City of Rocµlin, pursuant to 42 U.S.C. y 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 lacµed evidence to establish liability
under Monell v. Department of Social Services, 436 U.S. 658 (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. y 1291, as interpreted by Mitchell v. Forsyth, 472 U.S. 511, 527
(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 (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
2 ('[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 lacµ an equal
protection remedy merely because their circumstances vary. Cf. Navarro v. Blocµ,
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 Pawlyµ 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
3 (2d Cir. 1996); Gray v. Lacµe, 885 F.2d 399, 414 (7th Cir. 1989). Here, denial of
summary judgment is not contrary to the cited cases because Eaton alleges
discrimination 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 µnow that they are acting unlawfully by subjecting employees
perceived as being uncooperative with department misconduct to discriminatory
Free access — add to your briefcase to read the full text and ask questions with AI
FILED UNITED STATES COURT OF APPEALS JUL 12 2011
MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S . CO U RT OF AP PE A LS
RICK EATON, No. 09-17907
Plaintiff - Appellee, D.C. No. 2:07-cv-00315-FCD-KJM v. Eastern District of California, MARK J SIEMENS; CARLOS A. Sacramento URRUTIA; CITY OF ROCKLIN,
Defendants - Appellants. ORDER
Before: REINHARDT, HAWKINS, and GOULD, Circuit Judges.
Judges Reinhardt and Gould have voted to deny the petition for rehearing en
banc, and Judge Hawµins has so recommended. The full court has been advised of
the petition for rehearing en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing en banc
is denied.
The memorandum disposition in the above-captioned matter filed on May 4,
2011, and available at 2011 WL 1666830, is amended as follows:
At page 3, between lines 8 and 9, insert the following additional paragraph:
äSiemens 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 Pawlyµ 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. Lacµe, 885 F.2d 399, 414 (7th Cir. 1989). Here, denial of
summary judgment is not contrary to the cited cases because Eaton alleges
discrimination based on group membership.â
No future petitions for rehearing or rehearing en banc will be entertained.
IT IS SO ORDERED.
2 NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUL 12 2011
MOLLY C. DWYER, CLERK U.S . CO U RT OF AP PE A LS
Plaintiff - Appellee, D.C. No. 2:07-cv-00315-FCD-KJM v. AMENDED MARK J. SIEMENS; CARLOS A. MEMORANDUM * URRUTIA; CITY OF ROCKLIN,
Defendants - Appellants.
Appeal from the United States District Court for the Eastern District of California Franµ C. Damrell, Senior District Judge, Presiding
Argued and Submitted April 14, 2011 Pasadena, California
Ricµ Eaton, a former Rocµlin 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 Marµ Siemens, the police chief, Carlos Urrutia, the city
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. manager, and the City of Rocµlin, pursuant to 42 U.S.C. y 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 lacµed evidence to establish liability
under Monell v. Department of Social Services, 436 U.S. 658 (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. y 1291, as interpreted by Mitchell v. Forsyth, 472 U.S. 511, 527
(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 (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
2 ('[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 lacµ an equal
protection remedy merely because their circumstances vary. Cf. Navarro v. Blocµ,
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 Pawlyµ 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
3 (2d Cir. 1996); Gray v. Lacµe, 885 F.2d 399, 414 (7th Cir. 1989). Here, denial of
summary judgment is not contrary to the cited cases because Eaton alleges
discrimination 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 µnow that they are acting unlawfully by subjecting employees
perceived as being uncooperative with department misconduct to discriminatory
discipline and termination.1 See Elliot-Parµ 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 µnowledge of
it.'' (quoting Flores 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 (2004) ('Absent any support for such an exception
in our cases, he cannot reasonably have relied on an expectation that we would
[create one].').
1 For purposes of this analysis, we assume the truth of Eaton's allegations. See Crawford-El v. Britton, 523 U.S. 574, 598 (1998).
4 We taµe 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 maµe out an equal protection claim and what law is clearly established.
Ortiz v. Jordan, 131 S. Ct. 884, 891 (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.2
AFFIRMED.
2 '[W]here the district judge identifies disputes of fact or maµes inferences from the record, we do not have jurisdiction to evaluate those determinations by maµing an independent review of the record.' Collins v. Jordan, 110 F.3d 1363, 1372 n.7 (9th Cir. 1997). Although we may exercise pendent jurisdiction over such issues when they are 'inextricably intertwined' with the qualified immunity issues presented for interlocutory appeal, Swint v. Chambers Cnty. Comm'n, 514 U.S. 35, 51 (1995), we conclude that the fact issues here are not inextricably intertwined with the legal issues on qualified immunity that we resolve.