Margaret Vuksanovich-Dunn, a married woman v. MIAMI UNIFIED SCHOOL DISTRICT NO. 40, of Gila County, a political subdivision of the…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARGARET VUKSANOVICH-DUNN, a
married woman, and DONNIE BROWN, a
single woman
Plaintiff-counter-defendant -
Appellant,
v.
MIAMI UNIFIED SCHOOL DISTRICT
NO. 40, of Gila County, a political
subdivision of the State of Arizona
Defendant-counter-claimant -
Appellee.
No. 12-15350
D.C. No. 2:10-cv-01180-RRB
MEMORANDUM *
Appeal from the United District Court
for the District of Arizona
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted December 6, 2013
San Francisco, California
FILED
DEC 26 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Before: GOULD and PAEZ, Circuit Judges, and BURNS, District Judge.**
Vuksanovich-Dunn and Brown appeal the district court’s entry of summary
judgment against them on their federal constitutional claims. They argue that
being required to contribute to the cost of health insurance pursuant to an early
retirement agreement that promised to “furnish” it—and after the Miami Unified
School District had paid for it entirely for almost three years—constitutes a
violation of the Due Process Clause, Takings Clause, and Contract Clause. The
district court disagreed, holding that they had no constitutionally protected
property interest in no-cost health insurance. We affirm.
A claim under the Due Process Clause and the Takings Clause requires, in
the first instance, a constitutionally protected property interest in whatever has
been deprived by state action. See Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014,
1019 (9th Cir. 2011) (Due Process Clause); McIntyre v. Bayer, 339 F.3d 1097,
1099 (9th Cir. 2003) (Takings Clause). A contract can create a constitutionally
protected property interest. San Bernardino Physicians’ Servs. Med. Grp, Inc. v.
Cnty. of San Bernardino, 825 F.2d 1404, 1407–08 (9th Cir. 1987). So can
** The Honorable Larry A. Burns, District Judge for the
U.S. District Court for the Southern District of California, sitting by designation.
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“policies and practices that create a legitimate claim of entitlement to a government
benefit.” Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1020 (9th Cir. 2011).
In both instances, however, there must be a clear and mutual understanding
that the entitlement exists. See id.; Cnty. of San Bernardino, 825 F.2d at 1408; see
also Hyland v. Wonder, 972 F.2d 1129, 1140 (9th Cir. 1992) (“First, an
understanding must be mutually explicit before it can rise to the level of an
entitlement.” (internal quotation marks omitted)). In this case, the parties contest
the property interest Dunn and Brown assert, and their need to present parol
evidence to clarify the meaning of “furnish,” is fatal to their Due Process and
Takings Clause claims. Alday v. Raytheon Co., 693 F.3d 772, 783 (9th Cir. 2012),
is distinguishable. In that case, the collective bargaining agreement at issue
established a clear right to no-cost health insurance for retirees.
Dunn and Brown’s Contract Clause claim fails for similar reasons. Federal
law requires that a contracting government entity must “evince a clear and
unmistakable indication” that it “intends to bind itself” as alleged for the purposes
of the Contract Clause. San Diego Police Officers’ Ass’n v. San Diego City Emps.’
Ret. Sys., 568 F.3d 725, 737 (9th Cir. 2009). The meaning of the word “furnish” in
Dunn and Brown’s contract with the District is contested by the parties, and the
fact that each offers a reasonable interpretation of the word demonstrates that its
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meaning isn’t so clear and unmistakable as to establish a Contract Clause violation.
Moreover, breaching a contract and impairing one aren’t the same thing. As long
as a party can recover damages for a breach, the Contract Clause’s ban on
“impairing the Obligation of Contracts” is not implicated. Univ. of Haw. Prof’l
Assembly v. Cayetano, 183 F.3d 1096, 1102–03 (9th Cir. 1999).
We have previously recognized the need to preserve the distinction between
the state law of public contracts and federal constitutional law, lest every contract
dispute with a government entity be elevated into a case of constitutional
consequence. Cnty. of San Bernardino, 825 F.2d at 1409–10. And we have
previously favored the dismissal of federal constitutional claims where state breach
of contract claims were adequate to vindicate a plaintiff’s interests. See DeBoer v.
Pennington, 287 F.3d 748, 749–50 (9th Cir. 2002). This is just that kind of case.
The district court properly entered summary judgment for the District on Dunn and
Brown’s constitutional claims, and also properly remanded their surviving state
law claims to state court. Nothing in our opinion, or that of the district court,
should be read as a comment on the merits of those surviving contract claims.
AFFIRMED.
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