Brentley Foster; v. Patrick Flaherty, individually

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRENTLEY FOSTER; et al.,
Plaintiffs - Appellants,
v.
PATRICK FLAHERTY, individually and
in his personal capacity for actions he took
under color of state law as Deschutes
County District Attorney and Deschutes
County District Attorney-Elect; et al.,
Defendants - Appellees.
No. 13-35825
D. C. No. 6:11 cv-06115 AA
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted October 15, 2015
Portland, Oregon
Before: FERNANDEZ, TASHIMA, and BEA, Circuit Judges.
Plaintiffs are three former Oregon deputy district attorneys (“DDA”) who
appeal the district court’s dismissal of their claims against Deschutes County and
FILED
OCT 28 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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individual Commissioners of the County Board of Commissioners (collectively,
“Defendants”). Plaintiffs were terminated by the newly-elected district attorney
(“DA”), Patrick Flaherty, the same day he took office on January 3, 2011. In
anticipation of the potential firings, Plaintiffs and other DDAs had formed a union
following Flaherty’s election in May 2010. Although the union and the County
tentatively agreed in late 2010 to a proposed collective bargaining agreement
(“CBA”), which included a good cause requirement for termination, the County
Commissioners delayed the ratification vote of the CBA until after Flaherty
assumed office.
The district court dismissed Plaintiffs’ § 1983 free speech retaliation claim
against Defendants and wrongful discharge, breach of the covenant of good faith
and fair dealing, and sex discrimination claims against the County.1 We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the dismissal.
Under Oregon law, DAs are officers of the State of Oregon. See State v.
Coleman, 886 P.2d 28, 30 (Or. Ct. App. 1994). The DA is empowered both to
appoint DDAs, subject to the county court or board of county commissioners’
authorization of compensation for the positions, and to fire DDAs. Or. Rev. Stat.
1 District Attorney Flaherty originally was a defendant in this action,
but he was dismissed after he reached a settlement with Plaintiffs.
-2-

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§§ 8.760, 8.780; see also Morris v. Parks, 28 P.2d 215, 216 (Or. 1934) (“The
power of appointment generally carries with it as an incident the power to
remove.”). DDAs “have the same qualifications as the district attorney and,
subject to the direction of the district attorney, [have] the same functions as the
district attorney.” Or. Rev. Stat. § 8.780. Based on the foregoing, we conclude
that DDAs are State, not County, employees. Graves v. Arnado, relied on by
Plaintiffs, concerns a sheriff’s ability to hire and fire deputy sheriffs and is
inapposite because sheriffs are deemed county officers by Oregon statute. 768
P.2d 910, 912 (Or. 1989) (citing Or. Rev. Stat. § 204.005).
Because the DA, and not Defendants, was the employer of the DDAs,
Plaintiffs must look to the DA who had the authority to, and in fact did, terminate
their employment for any damages flowing from Plaintiffs’ firings. Because
Plaintiffs’ loss of employment is the only claimed injury, this is fatal to all of
Plaintiffs’ claims. Plaintiffs’ claim for breach of the covenant of good faith and
fair dealing fails for the additional reason that there was no contract between the
union and the County at the time of Plaintiffs’ termination of which the implied
covenant could have been a part. See Vukanovich v. Kine, 342 P.3d 1075, 1084 n.6
(Or. 2015) (“Breach of the covenant is a breach of the contract.”); Klamath Off-
Project Water Users, Inc. v. Pacificorp, 240 P.3d 94, 101 (Or. Ct. App. 2010).
-3-

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AFFIRMED.
-4-

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