                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   December 6, 2007
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                 TENTH CIRCUIT



 ANNETTE APODACA JONES,
 individually and on behalf of all
 similarly situated individuals,                        No. 07-2042

               Plaintiff-Appellant,
          v.                                       District of New Mexico
 JUAN HERNANDEZ, individually                 (D.C. No. CIV-05-929 BB/ACT )
 and in his official capacity, BRIAN D.
 HAINES, individually and in his
 official capacity, ARTURO
 RODRIGUEZ, individually and in his
 official capacity, VICKI LUSK,
 individually and in her official
 capacity, and THE BOARD OF
 COUNTY COMMISSIONERS FOR
 DOÑA ANA COUNTY,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10 th Cir. R. 32.1.
      Appellant Annette Apodaca Jones filed suit under 42 U.S.C. § 1983

alleging that her denial of a promotion violated due process. The district court

granted motions for dismissal as to one defendant and summary judgment for the

remaining defendants, holding that because promotion decisions were based on

subjective factors, Ms. Jones did not have a constitutionally protected property

right in a promotion. Ms. Jones argues on appeal that the district court erred in

determining that there was no material issue of fact remaining to be resolved.

      We previously issued an order to show cause whether we had jurisdiction to

hear an appeal from the denial of summary judgment, as an additional, unresolved

claim remained before the district court. However, this claim has since been

dismissed, and the district court’s order is now final. We therefore take

jurisdiction, reverse the orders of dismissal and summary judgment, and remand

for further proceedings.

                                  I. Background

      In 2001 Ms. Jones sought a position as the Records Supervisor for the

Sheriff’s Department of Doña Ana County, New Mexico. The County used a

competitive interview process to select the Records Supervisor. In the interview,

panel members asked the aspirants preselected questions and then numerically

scored their answers by comparing them to a provided “best” answer. Ms. Jones

received the second highest score; the County gave the position to the highest

scoring applicant.

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         According to evidence submitted by Ms. Jones, 1 however, the process was

rigged. She states that some four years after her unsuccessful application to

become Records Supervisor, she was cleaning out the desk of the successful

applicant, who had left the office, when she discovered an envelope containing

both the questions and “best” answers for the 2001 interview.

         Current and former employees subsequently disclosed that the questions,

answers, and grading information for interviews were routinely provided to

applicants favored by Sheriff Hernandez, with his knowledge and consent. These

applicants used the information to obtain the highest scores on both written exams

and oral interviews. Sheriff Hernandez always hired the highest scoring

applicants. In at least one instance, an applicant’s answers to the interview

questions matched the provided answers word-for-word, earning the highest

interview score for that applicant from among all the applicants that met that

panel.




         1
        As the district court noted, Ms. Jones submitted testimony in the form of a
document that was notarized, but that does not indicate she swore an oath to its
truthfulness. Such a submission is not admissible for purposes of summary
judgment. See 28 U.S.C. § 1746. Rather than giving Ms. Jones the opportunity to
correct this mistake, the district court granted summary judgment on the ground
that, even if it accepted Ms. Jones’ purported affidavit, it would not rule
differently. Accordingly, we treat the submission as if it were an affidavit on the
understanding that, on remand, if she does not submit evidence in proper form the
district court may revisit its ruling on summary judgment. The same also applies
to the unsworn “affidavit” of Robert L. Jones.

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      Ms. Jones filed suit under 42 U.S.C. § 1983 against Sheriff Hernandez and

four other county officials, claiming violations of her procedural and substantive

due process rights and a breach of contract. Sheriff Hernandez, but not the other

defendants, moved to dismiss Ms. Jones’ suit on the basis of qualified immunity

and other grounds. In an order dated February 8, 2006, the district court

dismissed Ms. Jones’ due process claim against Sheriff Hernandez on the ground

that her complaint did not demonstrate a binding mutual understanding that she

would receive a promotion if she met certain conditions, which is a prerequisite to

the recognition of a property interest under the Due Process Clause. On March

20, 2006, Ms. Jones filed a motion to compel the County to release detailed

information regarding the interview and testing process. The court granted this

motion on April 4, 2006. The next day the remaining defendants filed a motion

for summary judgment based on the law of the case, arguing that the same

deficiencies in the complaint that led to the dismissal of Ms. Jones’ claims against

Sheriff Hernandez compelled summary judgment in their favor. They also sought

a stay of discovery based on qualified immunity. The court granted their motion

for a stay pending resolution of their motion for summary judgment. The court

then granted summary judgment in favor of the remaining defendants on all

claims. Ms. Jones appeals this decision.




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                                   II. Discussion

      We review de novo the district court’s grant of summary judgment. Kaul v.

Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996). When defendants in a § 1983 suit

assert qualified immunity, the court must determine whether, taken in the light

most favorable to the party asserting the injury, the evidence shows that the

defendant’s conduct violated a constitutional right, and if so, “whether the law

clearly established that the officer's conduct was unlawful in the circumstances of

the case.” Saucier v. Katz, 533 U.S. 194, 201 (2001).

      A state may not deprive a person of property without due process of law.

U.S. Const. amend. XIV, §1. Whether state law creates a right that “constitutes a

property interest for purposes of the Fourteenth Amendment . . . is ultimately [a

question] of federal constitutional law.” Town of Castle Rock, Colo. v. Gonzales,

545 U.S. 748, 757 (2005). An interest in a promotion “is a ‘property’ interest for

due process purposes if there are such rules or mutually explicit understandings

that support [the] claim of entitlement . . . .” Perry v. Sindermann, 408 U.S. 593,

601 (1972). A hiring process that allows for discretion and subjectivity cannot

create a mutually explicit understanding. Nunez v. City of Los Angeles, 147 F.3d

867, 873 n. 8 (9th Cir. 1998). Conversely, a hiring process that imposes

“significant limitation on the discretion of the decision maker” can create a

mutually explicit understanding that gives rise to a protected property right.

Goodisman v. Lytle, 724 F.2d 818, 820 (9th Cir. 1984). State law or settled

                                         -5-
hiring practices can create mutually explicit understandings. Clinger v. New

Mexico Highlands Univ. Bd. of Regents, 215 F.3d 1162, 1167 (10th Cir. 2000);

Lovato v. City of Albuquerque, 742 P.2d 499, 502; 106 N.M. 287, 290 (N.M.

1987).

         A. Did the Sheriff Have Discretion?

         Doña Ana County’s merit system ordinance governs the process of filling

the position of Records Supervisor in the Sheriff’s Department. On its face, it

allows for discretion in the hiring process. Under the ordinance, selection by the

interview panel confers only a “panel recommended” status to the highest scoring

applicant, following which the Sheriff may choose whether or not to hire the

applicant.

         Settled hiring practices, however, can reveal that discretion is illusory.

Perry, 408 U.S. at 599-600. According to Vicki Lusk, the employee at the

county’s Human Resources Department responsible for the testing and

interviewing process, the County always gave jobs to the applicants with the

highest numerical scores. This practice was so settled that the Sheriff, who is

vested with discretion to accept or reject the recommendation of the interview

panel, nevertheless provided favored applicants with the interview questions and

answers in an effort to ensure they obtained the highest scores. Even in cases

where scores were separated by only hundredths of a point, the Sheriff offered the

job to the highest scoring applicant even if he or she was not the “favorite.” A

                                            -6-
reasonable jury could infer from this evidence that the County’s settled practice

was always to extend the job offer to the highest scoring applicant and that this

settled practice overrides the discretionary provisions of the County’s merit

system ordinance.

      Ms. Jones was not the highest scoring applicant for the 2001 Records

Supervisor position, but she was the second highest. Her claim to a property

interest in the 2001 promotion rests on the theory that the County, aware of the

cheating, should have disqualified the cheater and hired her. Her claim has merit,

as Doña Ana County’s policies required the disqualification of any job applicant

who had access to the questions and answers.

      B. Did the Interview Panel Have Discretion?

      In response, the defendants argue that the scoring during the interview

stage of the process was discretionary. They maintain that the interview panel

members had discretion in scoring the applicants, and that this discretion, as a

matter of law, precludes a finding that an applicant has a property interest in

promotion. See Goodisman, 724 F.2d at 820 (holding that no property interest is

created when hiring procedures do not impose “significant limitation on the

discretion of the decision maker”).

      One Sheriff’s Department employee provided evidence that the oral

interviews were scored by comparing responses to the “best” answers for selected

questions. From this, the district court inferred that scoring was subjective rather

                                         -7-
than objective, and therefore discretionary, because comparison to the “best”

answer rather than the “correct” answer made evaluation subjective. This is not

the only possible inference. A comparison of the applicant’s answer to the “best”

answer is common in grading, and need not carry any implication of subjectivity.

If an applicant on a driving test is asked how much following distance to allow on

the highway, it would not be subjective to give the highest score to the applicant

who gives the answer closest to one car length per every ten miles per hour. The

district court’s assumption that scoring based on “best” or “worst” is more

subjective than scoring based on “right” or “wrong” may sometimes be true, but

not always.

      Moreover, Ms. Jones filed a motion to compel discovery regarding the

content of the interviewing process, including the questions and the model

answers. This evidence presumably would resolve whether the questions were

more subjective or objective in nature. After first granting that motion, the court

stayed discovery pending resolution of the defendants’ motion for summary

judgment and then granted summary judgment on the ground that there was no

disputed issue of material fact bearing on the issue.

      This, we think, was premature. While a ruling on qualified immunity

“should be made early in the proceedings,” Saucier, 533 U.S. at 200, discovery as

to evidence central to the qualified immunity analysis must be allowed. See Fed.

R. Civ. P. 56(c) (summary judgment should only be entered when the evidence

                                         -8-
shows “no genuine issue as to any material fact”). On the record before the

district court, there was doubt as to whether the scoring protocol employed by the

interview panel was subjective or objective. The district court should not have

granted summary judgment while that factual dispute was still unresolved.

      C. The Order Dismissing Claims Against Sheriff Hernandez

      For the same reason, the court’s dismissal of Ms. Jones’ claims against

Sheriff Hernandez was erroneous. Ms. Jones has alleged and may be able to

prove that she had a property interest in promotion, based on a nondiscretionary

mode of selection. Ms. Jones’ claims against Sheriff Hernandez cannot be

resolved in his favor as a matter of law, but require factual development, along

with the claims against the other defendants.

                                 III. Conclusion

      The judgment of the United States District Court for the District of New

Mexico is REVERSED and the case is REMANDED for further proceedings.

                                              Entered for the Court,

                                              Michael W. McConnell
                                              Circuit Judge




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