Sherri L. Schruder v. ARCHIE BANBURY, Valley County Clerk, in his individual and official capacities;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHERRI L. SCHRUDER,
Plaintiff - Appellee,
v.
ARCHIE BANBURY, Valley County
Clerk, in his individual and official
capacities; et al.,
Defendants - Appellants,
And
VALLEY COUNTY, Idaho, a political
subdivision of the State of Idaho and
JOHN DOES,
Defendants.
No. 14-35840
D.C. No. 1:13-cv-00309-REB
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
Ronald E. Bush, Magistrate Judge, Presiding
Argued and Submitted July 7, 2016
Seattle, Washington
FILED
JUL 26 2016
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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Before: KLEINFELD, McKEOWN, and M. SMITH, Circuit Judges.
The individual defendants in this case appeal the lower court’s denial of
qualified immunity on two of Sherri Schruder’s claims. We reverse and remand.
The individual defendants are entitled to qualified immunity unless they
violated Schruder’s “clearly established statutory or constitutional rights of which
a reasonable person would have known.” Brewster v. Bd. of Educ. of Lynwood
Unified Sch. Dist., 149 F.3d 971, 977 (9th Cir. 1998) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). We may not “define clearly established law
at a high level of generality.” Padilla v. Yoo, 678 F.3d 748, 758 (9th Cir. 2012)
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). “[E]xisting precedent
must have placed the statutory or constitutional question beyond debate.” Id.
(quoting al-Kidd, 563 U.S. at 741).
The Fourteenth Amendment’s due process requirement protects property
interests. See Brewster, 149 F.3d at 982–87. A person only has a property interest
in a benefit if she has a “legitimate claim of entitlement to it,” rather than a
“unilateral expectation of it.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,
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577 (1972). What a person has a legitimate claim of entitlement to is defined by
state law or other “existing rules or understandings.” Id.
Schruder claims she had a property interest in keeping her job, of which she
was deprived when she was terminated due to an email she sent about bats. But the
uncontested evidence shows the County was pursuing a 23% budget reduction,
hiring freeze, and consolidation of unnecessary positions. The Valley County
Personnel Policy granted wide discretion to administrators regarding what steps to
take in the event of a reduction in force. Though Schruder acknowledged that the
County’s stated reason for terminating her was a reduction in force, she did not
dispute the County’s decision until well past the Policy’s five-day limit. Even if,
as Schruder contends, her discharge was motivated by the bat email, “[i]n this
situation it [is] unclear whether statutory or constitutional rights were implicated in
[Schruder’s] discharge.” Lucero v. Hart, 915 F.2d 1367, 1371 (9th Cir. 1990).
Schruder similarly had no clearly established property interest in
reinstatement. Whether the Valley County Personnel Policy “is sufficient to create
a property interest ‘will depend largely upon the extent to which the [Policy]
contains mandatory language that restricts the discretion of the [decisionmaker].’”
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Allen v. City of Beverly Hills, 911 F.2d 367, 370 (9th Cir. 1990) (second alteration
in original) (quoting Jacobson v. Hannifin, 627 F.2d 177, 180 (9th Cir. 1980)).
The Policy is not mandatory, but conditional and in part discretionary. One
provision outlined conditions in which an employee would be reinstated after a
reduction in force, while another provision gave the County discretion to specify
what reinstatement preferences would be granted, if any, with a reduction in force.
Because Schruder had no clearly established “property interest” in her
continued employment, or in her reinstatement, the lower court should have
granted qualified immunity to the individual defendants on both claims. See
Bernstein v. Lopez, 321 F.3d 903, 905 (9th Cir. 2003).
REVERSED AND REMANDED.
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