                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           FEB 21 2003
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    EVERETT ALLEN and BETTY
    ALLEN, husband and wife,

                  Plaintiffs - Appellants,
                                                          No. 01-7162
    v.                                              (D.C. No. 00-CV-638-S)
                                                       (E.D. Oklahoma)
    CITY OF HENRYETTA, a municipal
    corporation; HENRYETTA PUBLIC
    WORKS, a municipal trust,

                  Defendants - Appellees.


                               ORDER AND JUDGMENT         *




Before SEYMOUR , EBEL , and O’BRIEN , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiffs-appellants, Everett and Betty Allen, appeal the district court’s

order granting summary judgment in favor of defendants-appellees, City of

Henryetta, Oklahoma, and Henryetta Public Works, on their complaint brought

under 42 U.S.C. § 1983. Our jurisdiction arises under 28 U.S.C. § 1291. We

reverse and remand this case to the district court.

      In August 1999, Everett Allen was terminated from his position as Chief of

Police of Henryetta, Oklahoma, by the City Manager. The City Manager’s

authority to terminate Allen was based on Okla. Stat. tit. 11, § 10-113(1), which

provides that a city manager has the power to “[a]ppoint, and when necessary for

the good of the service, remove, demote, lay off or suspend all heads of

administrative departments and other administrative officers and employees of the

city except as otherwise provided by law.”

      In his § 1983 complaint, Allen claims he had a protected property interest

in his employment as Chief of Police, and that his termination violated his right to

procedural due process under the Fourteenth Amendment because it was without

cause and he did not receive a post-termination hearing. The district court

granted defendants summary judgment on Allen’s procedural due process claim,

concluding that, under § 10-113(1), the City Manager could terminate Allen

without cause or a hearing. The district court also declined to exercise

supplemental jurisdiction over the Allens’ state-law claims for wrongful


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termination and loss of consortium, and the court dismissed both the federal and

state claims.

       It is undisputed that Allen was a member of the Oklahoma Police Pension

and Retirement System (System),         see Okla. Stat. tit. 11, § 50-101,   et seq. , at the

time of his termination. According to § 50-123(B), “[n]o member [of the System]

may be discharged except for cause.” In addition, under § 50-123(A), as

a participating municipality in the System, the City of Henryetta is required to

“establish a board of review to hear appeals concerning the discharge of

members,” and, under subsection (B), “[a]ny member who is discharged may

appeal to the board of review.” § 50-123(B).

       On their face, § 50-123(A) and (B) appear to create a property interest in a

member’s employment. However, in            Rains v. City of Stillwater , 817 P.2d 753,

756 (Okla. Ct. App. 1991), the Oklahoma Court of Appeals held that the “for

cause” provision in § 50-123(B) created a property interest “only in the pension

and retirement benefits granted pursuant to the statutes governing the [System],

and not in continued employment itself.”         Id. In other words, “[t]he statute only

creates a legitimate expectation that      benefits will continue absent discharge for

cause,” id. , and it “therefore does not affect a city’s right to terminate an officer’s

employment pursuant to its own charter,”         id.




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      In opposing defendants’ motion for summary judgment, Allen attempted to

distinguish Rains on the ground that he had exercised his option under a separate

provision of the System,    see § 50-111.3, to postpone his retirement from the

police force and defer receipt of his pension benefits for five years. As a result of

exercising his deferred pension option, Allen claimed he was statutorily entitled

to continue his employment as Chief of Police for a five-year period, and he

claimed that a property interest in his employment had therefore been created.

The district court rejected Allen’s argument regarding his deferred pension

option, concluding that    Rains controlled the issue of whether § 50-123(A) and (B)

created a property interest in his employment, and that Allen’s exercise of the

deferred pension option under § 50-111.3 had no bearing on that issue.

      After the parties had fully briefed this appeal, the Oklahoma Supreme

Court decided In re City of Durant , 50 P.3d 218 (Okla. 2002). In   Durant , a

terminated police officer who was a member of the System claimed that

§ 50-123(A) and (B) required the city that employed him to convene a board of

review to hear an appeal of his discharge and determine whether he was fired for

cause. The Oklahoma Supreme Court agreed, and the court overruled        Rains and

held as follows:

      Section 50-123 is not ambiguous, and it is clearly intended to protect
      policemen who are members of the [System] from arbitrary discharge
      from employment. Contrary to the City’s assertions that these
      members are at-will employees, the statute restricts the reason for

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      their discharge to “for cause” and ensures that all members will have
      a right to appeal the discharge from employment. This accords
      members a legitimate expectation of continued employment until
      “cause” for discharge is shown.

             ....

      We hold that section 50-123 protects a member’s right to continue in
      his employment in the absence of a showing of cause, and the board
      of review has the authority to pass on the merits of the discharge
      decision. . . . To the extent Rains states the “for cause” provision
      creates an interest only in a member’s pension and retirement
      benefits, and not in the continued employment itself, it is overruled.

Id. at 221-22, 223.

      After the Allens filed a supplemental brief informing this court of the

Oklahoma Supreme Court’s decision in       Durant , we ordered defendants to file

a supplemental brief addressing   Durant . In their supplemental brief, defendants

argue that Durant is distinguishable from the circumstances in this case. We

disagree, and we conclude that the district court’s entry of summary judgment on

Allen’s procedural due process claim must be reversed in light of    Durant .

      First, defendants argue that police chiefs such as Allen are employees at

will who can be terminated without cause, citing     Hall v. O’Keefe , 617 P.2d 196,

200 (Okla. 1980) and Lane v. Town of Dover , 761 F. Supp. 768, 770-71 (W.D.

Okla. 1991), aff’d , 951 F.2d 291 (10th Cir. 1991) (per curiam). Defendants

reliance on Hall and Lane is misplaced. In both Hall and Lane , the courts held

that § 10-113(1) does not provide police officers with a property right in their


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employment, and the courts applied this rule to the police chiefs who were the

plaintiffs in those cases.   1
                                 See Hall , 617 P.2d at 198-200;     Lane , 761 F. Supp. at

770-71. But neither court addressed the entirely separate issue of whether police

officers who are members of the System have a property right in their

employment by virtue of § 50-123(A) and (B). In addition, in               Durant , the

Oklahoma Supreme Court specifically acknowledged its holding in                  Hall . See

Durant , 50 P.3d at 221. However, the court concluded that § 50-123(A) and (B)

take precedence over § 10-113(1) in cases involving police officers who are

members of the System since § 10-113(1) expressly provides that it is limited to

situations which are not “otherwise provided by law.”              Id. at 222.

       Second, defendants argue that        Durant is distinguishable because the police

officer in Durant lost his ability to participate in the System as a result of his

termination. By contrast, defendants claim that “[n]othing in the City’s

termination of Mr. Allen deprived him of participation in the [System].” Aplee.


1
       In their supplemental brief, defendants also argue that Durant involved a
regular police officer, as opposed to a chief of police, and defendants claim that,
under Okla. Stat. Ann. tit. 11, § 51-102(1), a chief of police does not possess the
same rights as a regular police officer. This argument is without merit because
§ 51-102(1) is part of the Oklahoma municipal code provisions that govern
collective bargaining issues among paid fire and police departments, and it has
nothing to do with the issues in this case. Further, there is no indication in
Durant or in any of the other pertinent Oklahoma decisions that § 50-123(A) and
(B) somehow provide greater protections to regular police officers than to police
chiefs. Thus, we conclude that Durant’s interpretation of § 50-123(A) and (B)
applies with full force and effect to terminated police chiefs such as Allen.

                                               -6-
Supp. Br. at 3. This argument is without merit because the court in    Durant did

not base its decision on the fact that the terminated officer’s pension rights had

been adversely impacted. Instead, the court based its holding on the plain and

unambiguous language of § 50-123(A) and (B),       see Durant , 50 P.3d at 221-22,

and the court only noted, without any specific discussion of the issue, that the

officer had alleged he was no longer able to participate in the System as a result

of his termination, see id. at 220. 2 Moreover, even if   Durant requires that

a police officer’s pension rights must be adversely affected by a termination

decision before he is entitled to the protections of § 50-123(A) and (B), we hold

that Allen’s rights under the System were sufficiently impacted by virtue of the

fact that his five-year deferred pension option, and all of the benefits under the

System that were derived therefrom, were cut short as a result of his termination.

      Finally, defendants claim that, even if    Durant is controlling, they “should

be able to show that [they] afforded Mr. Allen the process which was due him

and that he waived his right to appeal the decision of the City Manager.” Aplee.


2
        In Durant , the court concluded its analysis by noting that its interpretation
of § 50-123(A) and (B) was supported by its prior decision in       Ruddell v. City of
Jenks ex rel. Dashner , 556 P.2d 999, 1003 (Okla. 1976) (holding, under prior
statute, that terminated police officer had right to appeal termination decision to
board of review where officer alleged substantial damage to his pension rights).
See Durant , 50 P.3d at 223. However, the court simply cited        Ruddell as a case
where pension rights were “involved,” and the court did not state that a
termination decision must have an adverse impact on a police officer’s pension
rights before the protections of § 50-123(A) and (B) are triggered.      See id.

                                           -7-
Supp. Br. at 4. We agree that defendants should have the opportunity to pursue

these issues on remand, and we leave their resolution to the district court. In

addition, the court will need to again consider whether to exercise supplemental

jurisdiction over the Allens’ state-law claims.

      The judgment of the district court is REVERSED, and this matter is

REMANDED to the district court for further proceedings consistent with this

order and judgment.


                                                    Entered for the Court


                                                    Terrence L. O’Brien
                                                    Circuit Judge




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