                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       APR 18 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JOHN WALKER,                                    No.    18-35106

                Plaintiff-Appellee,             D.C. No.
                                                4:15-cv-00498-BLW
 v.

CITY OF POCATELLO, IDAHO, et al.,               MEMORANDUM*

                Defendants-Appellants.

                   Appeal from the United States District Court
                             for the District of Idaho
                   B. Lynn Winmill, District Judge, Presiding

                       Argued and Submitted March 7, 2019
                                Portland, Oregon

Before: GRABER and BERZON, Circuit Judges, and ROBRENO,** District
Judge.

      Police Chief Scott Marchand, Mayor Brian Blad, and Captain Roger Schei

(the “Individual Defendants”) and the City of Pocatello appeal the district court’s

denial of qualified immunity to the Individual Defendants on Lieutenant John



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
Walker’s: (1) 42 U.S.C. § 1983 due process claim asserting that he had a

constitutional property right in a promised promotion and was deprived of it

without due process; and (2) FMLA interference claim and FMLA and

Rehabilitation Act retaliation claims. Because this appeal rests only on legal issues,

we have jurisdiction pursuant to 28 U.S.C. § 1291. See Ortiz v. Jordan, 562 U.S.

180, 188 (2011) (providing that an interlocutory appeal of a denial of summary

judgment on qualified immunity is proper if it presents a purely legal issue).

       1. To determine whether an officer is entitled to qualified immunity, a court

must evaluate two independent questions: (1) whether the officer’s conduct

violated a constitutional or statutory right, and (2) whether that right was clearly

established at the time of the incident. Pearson v. Callahan, 555 U.S. 223, 232

(2009). Courts may use their discretion in deciding which of the two prongs to

analyze first. Id. at 236.

       Walker’s § 1983 claim is premised on his contention that he has a protected

property right in a promotion allegedly promised to him by Mayor Blad. An

individual does not typically have a property right in an anticipated or expected

promotion. Nunez v. City of Los Angeles, 147 F.3d 867, 872-73 (9th Cir. 1998).

However, a property interest can arise when the individual receives “a binding

assurance of a forthcoming promotion.” Id. at 873. The assurance “need not be

formally expressed in a statute or a written contract; it can be implied from words


                                           2                                     18-35106
or conduct.” Id. at 873 n.7. “Nevertheless, there must be rules or mutually clear

understandings securing the commitment.” Id.

      A review of the evidence establishes that Mayor Blad lacked the authority to

provide Walker with a binding promise of a promotion. Therefore, Mayor Blad

could not have had a clear understanding that he was offering a binding assurance

and Walker does not have a protected property interest in the anticipated

promotion. Id. at 873 & n.7.

      Mayor Blad’s lack of authority is evidenced by applicable statutes and

regulations. The Pocatello Civil Service Commission Rules explain that the Chief

of Police is the “Appointing Authority” under Idaho Code § 50-1602 who shall

appoint, inter alia, police captains. State and local statutes also establish that the

mayor does not have the sole discretion to make employment decisions. See Idaho

Code § 50-204 (providing that the mayor requires the approval of the City Council

to appoint officials); Pocatello City Code § 2.06.010 (same).

      Declarations and testimony by city personnel confirm that: (1) although the

mayor appoints the heads of various governmental offices, the Chief of Police

chooses whom to promote within the City of Pocatello Police Department; and (2)

in any event, all employment decisions made by the mayor are subject to the

approval of the City Council. Walker has not proffered any facts that seriously




                                            3                                     18-35106
challenge this evidence or give us reason to doubt the applicability of the Civil

Service Commission Rules or the state and local statutes.

       Because of the dearth of evidence supporting Walker’s contention that

Mayor Blad had authority to promise him a promotion, no reasonable jury could

return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247

(1986). Because no constitutional violation occured, the Individual Defendants are

entitled to qualified immunity on Walker’s § 1983 claim. Pearson, 555 U.S. at

232.

       2. The district court was not required to analyze whether it should grant

qualified immunity to the Individual Defendants on Walker’s FMLA and

Rehabilitation Act claims. Because the record clearly establishes that these claims

will proceed only against the City and not against the Individual Defendants, there

was no need for the district court to perform a qualified immunity analysis.

       We reverse and remand for proceedings consistent with this decision,

including the dismissal of Walker’s due process claim premised on the promotion.

       REVERSED and REMANDED.




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