                                                                              FILED
                     UNITED STATES COURT OF APPEALS                             JUL 12 2011

                                                                           MOLLY C. DWYER, CLERK
                             FOR THE NINTH CIRCUIT                          U.S . CO U RT OF AP PE A LS




RICK EATON,                                        No. 09-17907

              Plaintiff - Appellee,                D.C. No.
                                                   2:07-cv-00315-FCD-KJM
  v.
                                                   Eastern District of California,
MARK J SIEMENS; CARLOS A.                          Sacramento
URRUTIA; CITY OF ROCKLIN,

              Defendants - Appellants.             ORDER


Before: REINHARDT, HAWKINS, and GOULD, Circuit Judges.

       Judges Reinhardt and Gould have voted to deny the petition for rehearing en

banc, and Judge Hawµins has so recommended. The full court has been advised of

the petition for rehearing en banc and no judge has requested a vote on whether to

rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing en banc

is denied.

       The memorandum disposition in the above-captioned matter filed on May 4,

2011, and available at 2011 WL 1666830, is amended as follows:

       At page 3, between lines 8 and 9, insert the following additional paragraph:

äSiemens and Urrutia argue, for the first time in a Rule 28(j) letter, that the district

court's denial of summary judgment is contrary to authority from other circuits
that, they say, bars equal protection claims by public employees suing for

retaliation. This argument is waived, so we need not consider it. See Pawlyµ v.

Wood, 248 F.3d 815, 822 n.5 (9th Cir. 2001) ('[R]ais[ing] [an] issue before

argument by submitting a supplemental citation, pursuant to Federal Rule of

Appellate Procedure 28(j), . . . is too late; the issue is waived.'). But we note that

the cases on which they rely provide only that a public employee's equal protection

claim must arise from discrimination based on membership in a group, and that a

bare act of retaliation, without the element of class-based discrimination, will not

give rise to a viable equal protection claim. E.g, Bernheim v. Litt, 79 F.3d 318, 323

(2d Cir. 1996); Gray v. Lacµe, 885 F.2d 399, 414 (7th Cir. 1989). Here, denial of

summary judgment is not contrary to the cited cases because Eaton alleges

discrimination based on group membership.â

      No future petitions for rehearing or rehearing en banc will be entertained.

      IT IS SO ORDERED.




                                           2
                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                            JUL 12 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S . CO U RT OF AP PE A LS

RICK EATON,                                      No. 09-17907

              Plaintiff - Appellee,              D.C. No.
                                                 2:07-cv-00315-FCD-KJM
  v.
                                                 AMENDED
MARK J. SIEMENS; CARLOS A.                       MEMORANDUM *
URRUTIA; CITY OF ROCKLIN,

              Defendants - Appellants.


                    Appeal from the United States District Court
                       for the Eastern District of California
                 Franµ C. Damrell, Senior District Judge, Presiding

                       Argued and Submitted April 14, 2011
                              Pasadena, California

Before: REINHARDT, HAWKINS, and GOULD, Circuit Judges.

       Ricµ Eaton, a former Rocµlin Police Department sergeant, was subjected to

discipline and termination because, he alleges, he was part of a group of employees

that was uncooperative with, or declined to join, prevalent misconduct in the

department. Eaton sued Marµ Siemens, the police chief, Carlos Urrutia, the city


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
manager, and the City of Rocµlin, pursuant to 42 U.S.C. y 1983, alleging

deprivation of equal protection, among other things. Siemens and Urrutia sought

summary judgment on the ground of qualified immunity, and the City sought

summary judgment on the ground that Eaton lacµed evidence to establish liability

under Monell v. Department of Social Services, 436 U.S. 658 (1978). The district

court denied the motions. Eaton v. Siemens, No. 07-315, 2009 WL 4929262, at

*2-7 (E.D. Cal. Dec. 14, 2009). Defendants appeal pursuant to our jurisdiction

under 28 U.S.C. y 1291, as interpreted by Mitchell v. Forsyth, 472 U.S. 511, 527

(1985). We affirm.

      Siemens and Urrutia argue that they are entitled to qualified immunity.

First, they contend that Eaton's allegations do not establish an actionable

constitutional violation because, they say, the class of employees that Eaton claims

was subjected to discrimination--dubbed 'non-team players' by the district

court--is not a 'discrete and objectively identifiable' group. But Engquist v.

Oregon Department of Agriculture, 553 U.S. 591 (2008), on which Siemens and

Urrutia rely, does not provide that only discrimination against discrete and

objectively identifiable groups can give rise to a public employee's equal

protection claim. Rather, Engquist holds that public employees cannot assert

'class of one' equal protection claims against their employers. See id. at 607


                                          2
('[T]he class-of-one theory of equal protection has no application in the public

employment context--and that is all we decide . . . .' (emphasis added)). The

class of employees allegedly singled out for punishment because they were

perceived as being uncooperative with department misconduct do not lacµ an equal

protection remedy merely because their circumstances vary. Cf. Navarro v. Blocµ,

72 F.3d 712, 717 (9th Cir. 1996) (holding that for equal protection purposes,

victims of domestic violence are a cognizable class, discrimination against which is

subjected to rational basis review, notwithstanding variability within the class).

      Siemens and Urrutia argue, for the first time in a Rule 28(j) letter, that the

district court's denial of summary judgment is contrary to authority from other

circuits that, they say, bars equal protection claims by public employees suing for

retaliation. This argument is waived, so we need not consider it. See Pawlyµ v.

Wood, 248 F.3d 815, 822 n.5 (9th Cir. 2001) ('[R]ais[ing] [an] issue before

argument by submitting a supplemental citation, pursuant to Federal Rule of

Appellate Procedure 28(j), . . . is too late; the issue is waived.'). But we note that

the cases on which they rely provide only that a public employee's equal protection

claim must arise from discrimination based on membership in a group, and that a

bare act of retaliation, without the element of class-based discrimination, will not

give rise to a viable equal protection claim. E.g, Bernheim v. Litt, 79 F.3d 318, 323


                                           3
(2d Cir. 1996); Gray v. Lacµe, 885 F.2d 399, 414 (7th Cir. 1989). Here, denial of

summary judgment is not contrary to the cited cases because Eaton alleges

discrimination based on group membership.

      Second, Siemens and Urrutia argue that the law does not clearly establish

that their alleged misconduct violates equal protection. But reasonable officials

would surely µnow that they are acting unlawfully by subjecting employees

perceived as being uncooperative with department misconduct to discriminatory

discipline and termination.1 See Elliot-Parµ v. Manglona, 592 F.3d 1003, 1008-09

(9th Cir. 2010) (''The constitutional right to be free from such invidious

discrimination is so well established and so essential to the preservation of our

constitutional order that all public officials must be charged with µnowledge of

it.'' (quoting Flores v. Pierce, 617 F.2d 1386, 1392 (9th Cir. 1980))). Further, the

novel arguments of Siemens and Urrutia that are based on Engquist, which does

not govern this case, do not render the controlling law unclear or in flux. See Groh

v. Ramirez, 540 U.S. 551, 565 (2004) ('Absent any support for such an exception

in our cases, he cannot reasonably have relied on an expectation that we would

[create one].').



      1
       For purposes of this analysis, we assume the truth of Eaton's allegations.
See Crawford-El v. Britton, 523 U.S. 574, 598 (1998).

                                          4
      We taµe no position on the merits of Eaton's claims. Our jurisdiction over

this interlocutory appeal is limited to the 'purely legal issue[s]' of whether Eaton's

allegations maµe out an equal protection claim and what law is clearly established.

Ortiz v. Jordan, 131 S. Ct. 884, 891 (2011) (internal quotation omitted). We do

not review the district court's determination that Eaton's evidence of his individual

capacity claims against Siemens and Urrutia and of his Monell claim against the

City is sufficient to raise genuine issues of material fact, for we consider those

issues to be beyond our present jurisdiction.2

      AFFIRMED.




      2
        '[W]here the district judge identifies disputes of fact or maµes inferences
from the record, we do not have jurisdiction to evaluate those determinations by
maµing an independent review of the record.' Collins v. Jordan, 110 F.3d 1363,
1372 n.7 (9th Cir. 1997). Although we may exercise pendent jurisdiction over
such issues when they are 'inextricably intertwined' with the qualified immunity
issues presented for interlocutory appeal, Swint v. Chambers Cnty. Comm'n, 514
U.S. 35, 51 (1995), we conclude that the fact issues here are not inextricably
intertwined with the legal issues on qualified immunity that we resolve.

                                           5
