           Case: 18-13957   Date Filed: 05/22/2019   Page: 1 of 6


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-13957
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 3:16-cv-01595-HES-PDB



JOHN KEANE,

                                              Plaintiff - Appellant,

versus

JACKSONVILLE POLICE FIRE AND PENSION FUND BOARD OF
TRUSTEES,
THE CITY OF JACKSONVILLE,

                                              Defendants - Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                             (May 22, 2019)

Before WILSON, ROSENBAUM and HULL, Circuit Judges.

PER CURIAM:
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       Appellant John Keane appeals from the district court’s order granting

Appellees Jacksonville Police Fire and Pension Fund Board of Trustees and the City

of Jacksonville’s partial motion to dismiss. After careful review, we affirm the

district court’s order.

       Keane was an employee of the Jacksonville Police and Fire Pension Fund

Board of Trustees (“Board”), an independent agency of the city of Jacksonville,

Florida (“City”). During Keane’s tenure, the Board established a retirement plan for

senior staff members, such as Keane, called the Senior Staff Voluntary Retirement

Plan (“SSVRP”). Keane participated in the plan, meeting all of its requirements. In

2015 Keane retired and began receiving SSVRP benefits.

       In 2016, the City’s General Counsel concluded that the Board lacked the legal

authority under Florida law to establish the SSVRP. The City sent Keane a letter

informing him that the City would no longer pay him the benefits described in the

SSVRP but that, instead, he would receive benefits under the less-generous General

Employee Retirement Plan (“General Plan”). The change meant that Keane would

receive $7,253.37 every two weeks (approximately $188,578 annually), which was

less than he was due to receive under the SSVRP.

       Keane sued the Board and the City in federal court. Keane claimed, under 42

U.S.C. § 1983, that the change in his retirement plan violated the Due Process and

Takings Clauses. He also sought a declaration that the SSVRP was legal under


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Florida law and alleged that the change in his retirement plan was a breach of his

employment contract.

      The Board and the City moved to dismiss Keane’s federal claims for failure

to state a claim upon which relief could be granted, and for the court to decline to

exercise jurisdiction over his state-law claims. They argued that, assuming that the

SSVRP was legal under Florida law, Keane lacked a property interest in the SSVRP

under the Due Process Clause and that, even if he had one, a post-deprivation breach-

of-contract action was constitutionally sufficient process. Similarly, they argued that

Keane lacked a property interest in the SSVRP under the Takings Clause and that,

even if he had one, the change in retirement plans did not constitute a “taking” of his

property.

      The district court granted the motion to dismiss. It found that Keane lacked a

property interest protected by the Due Process Clause and that, even if he had one,

a post-deprivation breach-of-contract action is constitutionally sufficient process.

And while the district court acknowledged that a contract can give rise to a property

interest that is protected under the Takings Clause, it found that Keane had not been

deprived of that interest because he retained his ability to sue the City and the Board

for breach of contract. Having dismissed Keane’s federal-law claims, the court

declined to exercise jurisdiction over Keane’s state-law claims and dismissed them

without prejudice. Keane subsequently filed his state-law claims in Florida court.


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      This appeal followed.

      We review de novo a decision to dismiss for failure to state a claim, accepting

the allegations in the complaint as true and construing them in the light most

favorable to the plaintiff. Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC,

856 F.3d 1338, 1339 (11th Cir. 2017). Applying that standard, we affirm the district

court’s order.

      A § 1983 claim alleging a denial of procedural due process requires proof of

three elements: (1) a deprivation of a constitutionally protected liberty or property

interest; (2) state action; and (3) constitutionally inadequate process. J.R. v. Hansen,

803 F.3d 1315, 1320 (11th Cir. 2015). Even assuming without deciding that Keane’s

interest in the SSVRP benefits was protected under the Due Process Clause, Keane’s

due-process claim fails because the process available to him is constitutionally

adequate.

      Due process “is a flexible concept that varies with the particular circumstances

of each case.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003). As

articulated in Mathews v. Eldridge, we must account for “three distinct” factors” in

identifying “the specific dictates of due process”:

             First, the private interest that will be affected by the
             official action; second, the risk of an erroneous deprivation
             of such interest through the procedures used, and the
             probable value of additional or substitute procedural
             safeguards; and finally, the Government’s interest,
             including the function involved and the fiscal and
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             administrative burdens that the additional or substitute
             procedural requirement would entail.

424 U.S. 319, 335 (1976).

      When we apply those factors to the “particular circumstances” of this case,

Grayden, 345 F.3d at 1232, we conclude Keane’s post-deprivation state-law breach-

of-contract action is constitutionally sufficient to protect his interest in receiving the

SSVRP benefits rather than the General Plan benefits. Keane certainly would prefer

to receive the more-generous SSVRP benefits rather than the General Plan benefits.

But deprivation of the SSVRP benefits pending resolution of the dispute leaves

Keane with an income of about $188,578 per year. In other words, Keane is not

deprived of his livelihood in the meantime.

      Second, the core dispute is over whether the SSVRP was legal under Florida

law—a question that would need to be resolved in a breach-of-contract action,

anyway—so further process would not meaningfully reduce the risk of erroneous

deprivation. Finally, the Board and City have a strong interest in lawfully carrying

out their responsibilities, including in the administration of employee retirement

plans. In light of those circumstances, Keane’s pending breach-of-contract claim is

adequate process to protect his interest in the SSVRP. See Lujan v. G & G Fire

Sprinklers, Inc., 532 U.S. 189 (2001).

      Next, to state a claim for a violation of the Takings Clause, Keane must first

show “that he possesses a ‘property interest’ that is constitutionally protected.”

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Givens v. Ala. Dep’t of Corrs., 381 F.3d 1064, 1066 (11th Cir. 2004). If he were to

make such a showing, he would also have to demonstrate that “the deprivation or

reduction of that interest constitutes a ‘taking.’” Givens, 381 F.3d at 1066. Again,

assuming without deciding that Keane’s contract-based interest in the SSVRP is of

the protected variety, the district court properly dismissed his claim because the City

and Board did not “take” Keane’s rights under his contract.

      Where a party’s rights were “voluntarily created by contract” with a

government, “interference with such contractual rights generally gives rise to a

breach claim not a taking claim.” Baggett Transp. Co. v. United States, 969 F.2d

1028, 1034 (Fed. Cir. 1992). That is because, “despite breaking the contract, the

government did not take [Keane’s] property because [he] retained the range of

remedies associated with vindication of a contract,” such as a breach-of-contract

claim. Castle v. United States, 301 F.3d 1328, 1342 (Fed. Cir. 2002). Here, Keane

has not shown that he was deprived of the range of remedies associated with

vindication of his contract, so the district court was correct to conclude that he had

not stated a claim for a violation of the Takings Clause.

      AFFIRMED.




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