                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             JUL 26 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SHERRI L. SCHRUDER,                              No. 14-35840

              Plaintiff - Appellee,              D.C. No. 1:13-cv-00309-REB

  v.
                                                 MEMORANDUM*
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.


                    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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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,




                                            2
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].’”


                                           3
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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