Todd Roberts v. Springfield Utility Board

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 12, 2023
• Docket: 21-36052
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 12 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TODD ROBERTS, No. 21-36052

Plaintiff-Appellant, D.C. No. 6:19-cv-01595-MC

v. MEMORANDUM* SPRINGFIELD UTILITY BOARD, a Public Body; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Argued and Submitted February 6, 2023 Portland, Oregon

Before: M. SMITH, FORREST, and SUNG, Circuit Judges.

Plaintiff-Appellant Todd Roberts appeals certain evidentiary and discovery

orders, as well as the district court’s grant of summary judgment to Defendants-

Appellees on his First Amendment prior restraint claim, Fourteenth Amendment

procedural due process claim, and state law retaliation claim brought pursuant to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Oregon Revised Statute 659A.230. The parties’ familiarity with the briefing and

record is assumed, and the applicable standards of review are well-established. See,

e.g., Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc); Laub v. U.S.

Dep't of Interior, 342 F.3d 1080, 1084, 1093 (9th Cir. 2003); Microsoft Corp. v.

Motorola, Inc., 795 F.3d 1024, 1052 (9th Cir. 2015). We have jurisdiction pursuant

to 28 U.S.C. § 1291, and we affirm.1

1. The district court properly determined that Roberts failed to establish a

due process violation. Roberts argues that Defendants violated his right to due

process because it barred him from personally speaking with potential witnesses

during the pendency of the investigation into his alleged violation of Springfield

Utility Board (SUB) policy. “The fundamental requirement of due process is the

opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews

v. Eldridge, 424 U.S. 319, 333 (1976) (quotation marks and citation omitted).

Broadly speaking, this “requires some kind of a hearing prior to the discharge of an

employee who has a constitutionally protected property interest in his employment.”

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 546 (1985) (cleaned up);

see also Morrisey v. Brewer, 408 U.S. 471, 481 (1972) (“[D]ue process is flexible

and calls for such procedural protections as the particular situation demands”). SUB

1 In a concurrently filed opinion, we address Roberts’ challenge to the district court’s grant of summary judgment on his First Amendment prior restraint claim brought pursuant to 42 U.S.C. § 1983.

2 informed Roberts of the policies he was alleged to have violated in a notice of paid

administrative leave. Roberts was able to present his version of events at two

interview sessions with SUB counsel, at the second of which his attorney was also

present. Importantly, Defendants did not limit Roberts’ counsel’s ability to

interview potential witnesses during the investigation. Finally, Roberts was given

advance notice of pre- and post-termination hearings at which he would have had

the opportunity to contest the findings of the investigation. Despite these

opportunities, Roberts did not attend either hearing or request that they be moved to

a different time or venue. Nothing more was required of SUB.

2. The district court did not abuse its discretion in quashing the

depositions of SUB’s attorneys, Kathy Peck and Dian Rubanoff. “[I]f the defendant

does plead the [qualified] immunity defense, the district court should resolve that

threshold question before permitting discovery.” Crawford-El v. Britton, 523 U.S.

574, 598 (1998) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Here, Peck

and Rubanoff raised a qualified immunity defense, so the district court was justified

in proceeding to summary judgment without permitting their depositions to proceed.

Moreover, the district court determined that the information sought in the

depositions was protected under the attorney-client privilege and was therefore not

discoverable. Roberts does not challenge this underlying privilege determination in

his briefing, and therefore forfeited the right to do so. Miller v. Fairchild Indus.,

3 Inc., 797 F.2d 727, 738 (9th Cir. 1986) (“The Court of Appeals will not ordinarily

consider matters on appeal that are not specifically and distinctly argued in

appellant’s opening brief[.]”).

3. Nor did the court abuse its discretion by striking SUB’s proposed

separation agreement as inadmissible. Roberts sought to introduce the proposed

agreement to prove the validity of his state law retaliation claim, which is a

prohibited use pursuant to Fed. R. Evid. 408(a) that does not qualify for an exception

pursuant to Fed. R. Evid. 408(b).

4. Finally, the district court did not err in granting summary judgment on

Roberts’ state law retaliation claim. Roberts’ entire argument regarding this claim

relies on the proposed separation agreement to prove liability. Because the

separation agreement was properly excluded, Roberts’ argument fails.

AFFIRMED.