                                                                           FILED
                           NOT FOR PUBLICATION                             DEC 26 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MARGARET VUKSANOVICH-DUNN, a                     No. 12-15350
married woman, and DONNIE BROWN, a
single woman                                     D.C. No. 2:10-cv-01180-RRB

              Plaintiff-counter-defendant -      MEMORANDUM *
Appellant,

  v.

MIAMI UNIFIED SCHOOL DISTRICT
NO. 40, of Gila County, a political
subdivision of the State of Arizona

             Defendant-counter-claimant -
Appellee.


                      Appeal from the United District Court
                            for the District of Arizona
                 Ralph R. Beistline, Chief District Judge, Presiding

                     Argued and Submitted December 6, 2013
                            San Francisco, California




       *     This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GOULD and PAEZ, Circuit Judges, and BURNS, District Judge.**

      Vuksanovich-Dunn and Brown appeal the district court’s entry of summary

judgment against them on their federal constitutional claims. They argue that

being required to contribute to the cost of health insurance pursuant to an early

retirement agreement that promised to “furnish” it—and after the Miami Unified

School District had paid for it entirely for almost three years—constitutes a

violation of the Due Process Clause, Takings Clause, and Contract Clause. The

district court disagreed, holding that they had no constitutionally protected

property interest in no-cost health insurance. We affirm.

      A claim under the Due Process Clause and the Takings Clause requires, in

the first instance, a constitutionally protected property interest in whatever has

been deprived by state action. See Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014,

1019 (9th Cir. 2011) (Due Process Clause); McIntyre v. Bayer, 339 F.3d 1097,

1099 (9th Cir. 2003) (Takings Clause). A contract can create a constitutionally

protected property interest. San Bernardino Physicians’ Servs. Med. Grp, Inc. v.

Cnty. of San Bernardino, 825 F.2d 1404, 1407–08 (9th Cir. 1987). So can



       **
              The Honorable Larry A. Burns, District Judge for the
U.S. District Court for the Southern District of California, sitting by designation.


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“policies and practices that create a legitimate claim of entitlement to a government

benefit.” Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1020 (9th Cir. 2011).

      In both instances, however, there must be a clear and mutual understanding

that the entitlement exists. See id.; Cnty. of San Bernardino, 825 F.2d at 1408; see

also Hyland v. Wonder, 972 F.2d 1129, 1140 (9th Cir. 1992) (“First, an

understanding must be mutually explicit before it can rise to the level of an

entitlement.” (internal quotation marks omitted)). In this case, the parties contest

the property interest Dunn and Brown assert, and their need to present parol

evidence to clarify the meaning of “furnish,” is fatal to their Due Process and

Takings Clause claims. Alday v. Raytheon Co., 693 F.3d 772, 783 (9th Cir. 2012),

is distinguishable. In that case, the collective bargaining agreement at issue

established a clear right to no-cost health insurance for retirees.

      Dunn and Brown’s Contract Clause claim fails for similar reasons. Federal

law requires that a contracting government entity must “evince a clear and

unmistakable indication” that it “intends to bind itself” as alleged for the purposes

of the Contract Clause. San Diego Police Officers’ Ass’n v. San Diego City Emps.’

Ret. Sys., 568 F.3d 725, 737 (9th Cir. 2009). The meaning of the word “furnish” in

Dunn and Brown’s contract with the District is contested by the parties, and the

fact that each offers a reasonable interpretation of the word demonstrates that its


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meaning isn’t so clear and unmistakable as to establish a Contract Clause violation.

Moreover, breaching a contract and impairing one aren’t the same thing. As long

as a party can recover damages for a breach, the Contract Clause’s ban on

“impairing the Obligation of Contracts” is not implicated. Univ. of Haw. Prof’l

Assembly v. Cayetano, 183 F.3d 1096, 1102–03 (9th Cir. 1999).

      We have previously recognized the need to preserve the distinction between

the state law of public contracts and federal constitutional law, lest every contract

dispute with a government entity be elevated into a case of constitutional

consequence. Cnty. of San Bernardino, 825 F.2d at 1409–10. And we have

previously favored the dismissal of federal constitutional claims where state breach

of contract claims were adequate to vindicate a plaintiff’s interests. See DeBoer v.

Pennington, 287 F.3d 748, 749–50 (9th Cir. 2002). This is just that kind of case.

The district court properly entered summary judgment for the District on Dunn and

Brown’s constitutional claims, and also properly remanded their surviving state

law claims to state court. Nothing in our opinion, or that of the district court,

should be read as a comment on the merits of those surviving contract claims.

      AFFIRMED.




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