Appeal from the United States District Courtfor the Central District of CaliforniaDickran Tevrizian, District Judge, presidingArgued and SubmittedApril 9, 1998--Pasadena, CaliforniaFiled June 5, 1998Before: Jerome Farris, Diarmuid F. O'Scannlain, andFerdinand F. Fernandez, Circuit Judges.Opinion by Judge O'Scannlain;Concurrence by Judge Farris
_____________________________COUNSEL Russell J. Cole, Law Offices of Paul R. DePasquale, LosAngeles, California, for the appellants.Leslie E. Brown, Assistant City Attorney, Los Angeles, Cali-fornia, for the appellees.
_____________________________OPINION O'SCANNLAIN, Circuit Judge:We must decide whether a Los Angeles police officer hasa constitutionally protected property or liberty interest in pro-motion to higher rank.IThe Los Angeles Police Department ("LAPD") administersan examination for police officers who wish to be promotedto the position of lieutenant. The test contains written and oralcomponents. If a candidate scores high enough -- 65% on thewritten portion and 70% overall -- his or her name is addedto a list of qualified prospects. The list is organized by bands,or groups, of scores; the Chief of Police must exhaust the can-didates within a given band before selecting anyone from alower band. As positions become available, candidates arechosen until such time as the list expires.Not just any officer can take the examination. According toofficial policy, a candidate must have, among other creden-tials, at least one year of supervisory experience. It is undis-puted that officers David Nunez, Alex Gomez, and ClydeAnthony Vlaskamp (collectively, the "police officers") all ful-filled this requirement and each took the examination at leastonce. None, however, got promoted. The problem, they assert,is that several applicants lacking supervisory experience satfor the exam, received top scores, and eventually became lieu-tenants. Allegedly, the LAPD, the City of Los Angeles, andseveral members of the police force (collectively, the"LAPD") waived the experience requirement for thesefavored candidates in violation of the official policy. Thiscontention forms the basis of the police officers' substantivedue process claims, which were brought in April 1994, in anaction under 42 U.S.C. S 1983.1 In addition, Nunez arguesthat, after he objected to the LAPD's alleged practice of pro-moting unqualified applicants, he suffered retaliation. Thisallegation forms the basis of his First Amendment claim, alsobrought pursuant to 42 U.S.C. S 1983.Upon motion, the district court granted summary judgmentto the LAPD. Nunez, Gomez, and Vlaskamp timely appealed.IIAs to Gomez, the district court held that the statute of limi-tations barred all but one of his substantive due process claims.2Gomez applied for the promotion five times -- in 1985, 1987,1989, 1991, and 1994 -- and alleges that, every time, theLAPD allowed inexperienced candidates to take the examina-tion. According to the district court, if this favoritism wereunconstitutional, Gomez's claims would have accrued one ata time when the exams were administered, see Grimes v. Cityand County of San Francisco, 951 F.2d 236, 238-39 (9th Cir.1991) (holding that violation accrues when discriminatory actoccurred); upon accrual, the statute of limitations would havestarted to run. Because the limitations period is only one year,see Usher v. City of Los Angeles, 828 F.2d 556, 558 (9th Cir.1987), it would have expired well before this action was filedin April 1994 -- for all claims except the one arising out ofthe 1994 examination.Gomez's only response is that the "discovery rule " shouldhave tolled the statute of limitations until he had knowledgeof his injury and its cause. The district court did not disagree.Neither do we. However, as Gomez's own deposition unmis-takably shows, he had the requisite knowledge as soon as anallegedly favored candidate took the exam and got promoted;consequently, the discovery rule does not help him: Q: When did you first become aware or when did you first believe that people who did not have the necessary supervisorial experience were sit- ting for the lieutenant's exam? A: I was assigned to internal affairs, and there were two women there who were detectives, and they were D-II's, Detective II's, working with sergeant II's. They both took the lieuten- ant's exam and weren't qualified because they didn't meet the supervisory requirement, passed, and made lieutenant. Q: When was this? A: 1985. . . . Q: You said that every examination after 1985, that there would be people who sat for the lieuten- ant's exam who were not qualified? A: Right, and promoted to lieutenant. Q: Who were those persons, what year did they sit, and when did you find out about that? A: Every exam, I knew who those people were. . . . Q: So just making sure I understand it, as these exams were being administered and at the time you were participating in them, you were aware of individuals who were sitting for the exam who were not qualified? A: Yes, sir.Deposition of Alex Gomez 16-20 (Mar. 20, 1996) (emphasisadded).Gomez's own words betray him. He had actual knowledgeof his alleged injury: inexperienced candidates were takingthe examination and receiving promotions over him. He alsohad at least presumptive knowledge of the alleged cause of hisinjury, the LAPD's favoritism.3 Despite this overwhelmingevidence, however, Gomez argues that the district court over-looked a genuine issue of fact, which arose when he madecontradictory statements in a subsequent declaration. Alas,not good enough: a party cannot create a triable issue by con-tradicting his own sworn testimony. See Radobenko v. Auto-mated Equip. Corp., 520 F.2d 540, 543-44 (9th Cir. 1975);see also Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266(9th Cir. 1991). Finding the subsequent declaration to be asham, the district court correctly held that the only test Gomezcan challenge is the one administered in 1994.III[1] The central question on appeal is whether the LAPDviolated the police officers' substantive due process rights bypromoting inexperienced candidates in disregard of officialpolicy. The concept of "substantive due process, " semanti-cally awkward as it may be, forbids the government fromdepriving a person of life, liberty, or property in such a waythat "shocks the conscience" or "interferes with rights implicitin the concept of ordered liberty." United States v. Salerno,
481 U.S. 739, 746
(1987) (quoting, respectively, Rochin v.California,
342 U.S. 165, 172
(1952), and Palko v. Connecti-cut,
302 U.S. 319, 325
-26 (1937)) (citations and internal quo-tation marks omitted).ATo establish a substantive due process claim, a plaintiffmust, as a threshold matter, show a government deprivationof life, liberty, or property.4See Jeffries v. Turkey Run Con-sol. Sch. Dist., 492 F.2d 1, 4 (7th Cir. 1974) (opinion by Ste-vens, J.) ("[T]he absence of any claim by the plaintiff that aninterest in liberty or property has been impaired is a fataldefect in her substantive due process argument."). Accordingto Nunez, Gomez, and Vlaskamp, the cronyism in the LAPDdeprived them of both property and liberty. The propertyinterest, they contend, is the promotion to lieutenant. The twoasserted liberty interests are the right to engage in one's cho-sen profession and the right "to be free from wholly unreason-able and arbitrary" government conduct.1[2] Do these police-officer plaintiffs have a property inter-est in promotion? Although one's actual job as a tenured civilservant is property, see, e.g., Cleveland Bd. of Educ. v.Loudermill,
470 U.S. 532, 538
-39 (1985), the prospect of apromotion is not in the same category. Several of our sistercircuits have already reached the issue and rejected attemptsto classify an expectancy in a promotion as a property interest.5See, e.g., Wu v. Thomas, 847 F.2d 1480, 1485 (11th Cir.1988); Griffith v. Federal Labor Relations Auth., 842 F.2d487, 500-01 (D.C. Cir. 1988); Bigby v. City of Chicago, 766F.2d 1053, 1056-57 (7th Cir. 1985); Robb v. City of Philadel-phia, 733 F.2d 286, 293 (3d Cir. 1984); Burns v. Sullivan, 619F.2d 99, 104 (1st Cir. 1980); Clark v. Whiting, 607 F.2d 634,641 (4th Cir. 1979); Schwartz v. Thompson, 497 F.2d 430,433 (2d Cir. 1974). On one occasion, so has this court, albeitin a cursory manner. See Blevins v. Plummer, 613 F.2d 767,768 (9th Cir. 1980) (per curiam).[3] We see no reason to buck the trend. As the SupremeCourt has explained, property interests are not created by theConstitution, but rather by "existing rules or understandingsthat stem from an independent source such as state law."Board of Regents v. Roth,
408 U.S. 564, 577
(1972). In Cali-fornia, the terms and conditions of public employment aregenerally "fixed by the statute, rules or regulations creating it,not by contract (even if one is involved)." Williams v. LosAngeles City Department of Water and Power, 130Cal.App.3d 677, 680 (1982); see also Miller v. California, 18Cal.3d 808, 813-14 (1977). No such law creates a propertyinterest in a promotion. To be sure, the Los Angeles CityCharter grants tenured police officers "a substantial propertyright" in his "office or position"; however, it merely precludesarbitrary "suspen[sions], demot[ions ] in rank, . . . remov[als],"or other separation from the LAPD. Charter of the City of LosAngeles, Art. XIX, S 202, at 323 (1990). It does not addresspromotions. Cf. Shoemaker v. County of Los Angeles, 37Cal.App.4th 618, 632 (1995) ("The civil service rules [of LosAngeles County] may have created a legitimate expectationthat, absent good cause, the County would not terminateShoemaker's employment altogether or impose other disci-plinary measures (e.g., demotion) that would adversely affecthis compensation," but "the County retained the discretion toreassign or transfer employees without cause.").[4] The police officers also direct us to an unpublished con-sent decree, known as the "Hunter-LALEA" Consent Decree,which was entered into in the Central District of California bythe City of Los Angeles and litigants from other lawsuits.6This agreement established an "affirmative action plan" con-sisting, inter alia, of promotion goals for minority police offi-cers. Nunez and Gomez, who are Hispanic, suggest that thisconsent decree grants them a property interest in a promotion.We disagree. If a consent decree could ever create propertyrights, this is not the one. The agreement, at most, bestowsrights on a group, not on any individual police officer. Indi-vidual applicants for a promotion must still establish qualifi-cation. Moreover, the city may use any qualification devicenot expressly barred, so the LAPD's written and oral tests arepermissible.[5] To have a property interest, "a person clearly must havemore than an abstract need or desire." Roth,
408 U.S. at 577
.A mere "unilateral expectation" of a benefit or privilege isinsufficient; the plaintiff must "have a legitimate claim ofentitlement to it." Id. When the police officers sat for the lieu-tenants examination, notwithstanding the Consent Decree, anypossibility of promotion was contingent upon their success onthe exam, as well as upon the number of lieutenant positionsavailable. Such contingencies belie the claim that the policeofficers had even so much as a reasonable expectation ofbeing promoted. Even if the police officers anticipated a pro-motion, any expectations were just that, and nothing more.They did not rise to the level of entitlements; they were "notso firm and definite . . . as to be `property' in a constitutionalsense." Bigby, 766 F.2d at 1056. Until someone actuallyreceives a promotion, or at least a binding assurance of aforthcoming promotion,7 he cannot claim a property interestin the promotion. Group preferences, which merely establishgroup goals, do not suffice. Thus, the police officers havefailed to establish a property interest in a promotion.82The police officers also contend that they were deprived oftwo liberty interests: a right to engage in one's chosen profes-sion and a right to be free from arbitrary and capricious gov-ernment action. We address them in turn.a[6] First, to be sure, there is a centuries-old concept of lib-erty of occupation. See Bigby, 766 F.2d at 1057 (citationsomitted). However, there is no similar notion of liberty ofposition or rank within an occupation. See id. Moreover, theSupreme Court held in Roth that a person has not suffered adeprivation of liberty "when he simply is not rehired in onejob but remains as free as before to seek another " within hischosen industry, Roth,
408 U.S. at 575
; it follows, a fortiori,that there cannot be a deprivation of liberty when even theperson's current job is still available to him. As long asemployment options within the profession remain, no dueprocess interests have been implicated. Unsurprisingly, everycircuit that has addressed the issue has rejected the claim thatthe denial of a promotion constitutes a deprivation of liberty.See, e.g., Wu, 847 F.2d at 1485; Bigby, 766 F.2d at 1057;Robb, 733 F.2d at 293-94; Beitzell v. Jeffrey, 643 F.2d 870,877-78 (1st Cir. 1981); Clark, 607 F.2d at 641-42; Blevins,613 F.2d at 768; Schwartz, 497 F.2d at 431-32. We agree withthis consensus. Whereas "preventing someone from advanc-ing in his occupation can be a cruel deprivation, it wouldstretch the idea of liberty of occupation awfully far . . . to treata bar to promotion as a deprivation of that liberty. " Bigby, 766F.2d at 1057.b[7] The second liberty interest asserted by the police offi-cers is the right "to be free from wholly unreasonable andarbitrary" government conduct bearing no relation to the pub-lic health, welfare, safety, and morals. Unfortunately for thepolice officers, the Supreme Court has already explained thata court has "no license to invalidate legislation which it thinksmerely arbitrary or unreasonable." Regents of University ofMichigan v. Ewing,
474 U.S. 214, 226
(1985) (quoting Moorev. East Cleveland,
431 U.S. 494, 543
-44 (1977) (White, J.,dissenting)); see also Albright v. Oliver,
510 U.S. 266
, 272(1974). There is no general liberty interest in being free fromcapricious government action. See Jeffries v. Turkey Run Con-sol. Sch. Dist., 492 F.2d 1, 4, n.8 (7th Cir. 1974) (opinion byStevens, J.). Otherwise, as then-Judge Stevens explained,"every time a citizen [i]s affected by governmental action, hewould have a federal right to judicial review." Id. Put simply,not every social injustice has a judicial remedy. See Bishop v.Wood,
426 U.S. 341, 349
(1976) ("The federal court is not theappropriate forum in which to review the multitude of person-nel decisions that are made daily by public agencies."). Thefederal judiciary is not a good-government watchdog; the DueProcess Clause is not the "Fairness Clause."[8] Thus, the police officers have not even arrived at thesubstantive due process threshold. They have asserted no cog-nizable property or liberty interest.B[9] Moreover, we note that, even if there were a constitu-tionally protected property or liberty interest in a promotion,which there is not, the police officers still could not prevail.The Due Process Clause takes effect only if there is adeprivation of a protected interest. The police officers havenot shown any causal connection between the government'salleged cronyism and their failure to be promoted.[10] Nunez took the exam only once, in 1994. Although hedemonstrated that three of the applicants that year lacked therequisite experience to take the exam, none of the three waspromoted to the position of lieutenant, or even allowed to fin-ish the exam. Thus, even if the LAPD had a secret policy ofletting favored unqualified applicants sit for the exam, thispolicy did not preclude Nunez from being promoted.[11] Gomez took the examination five times. However, asexplained above, any claims arising from the 1985, 1987,1989, and 1991 exams are barred by the statute of limitations.The only surviving claim is the one arising out of the 1994test. Gomez cannot show causation with regard to this examfor two reasons: first, as discussed above, there is no evidencethat any inexperienced candidates were promoted that year;and second, Gomez received a failing score on the writtenexam, 56.1%, which made him ineligible for a promotion.[12] Vlaskamp sat for the exam twice, but finished it onlyonce, in 1989.9 The district court noted that he "failed to pro-vide . . . any competent admissible evidence demonstratingany unqualified individuals were allowed to take the 1989lieutenant's examination." Vlaskamp did not challenge thisconclusion on appeal.[13] Thus, Nunez, Gomez, and Vlaskamp have failed toshow any government deprivation of a protected property orliberty interest. The LAPD has not violated the police offi-cers' substantive due process rights.10 IVNunez also raises a First Amendment claim. After discov-ering that inexperienced candidates sat for the 1994 examina-tion, he complained to the Office of the Chief of Police, theCity Ethics Commission, the City Personnel Department, andthe Board of Police Commissioners. Nunez alleges that,because of these protests, his superiors retaliated by scoldinghim and threatening to transfer or to dismiss him.[14] To succeed on a wrongful-retaliation claim, a plaintiffmust show, in the first instance, that he has suffered anadverse employment action. See Pierce v. Texas Dept. ofCriminal Justice, 37 F.3d 1146, 1149 (5th Cir. 1994); Hylandv. Wonder, 972 F.2d 1129, 1134-36 (9th Cir. 1992). Only thendo we address whether the statement which motivated theretaliation is one of public concern and whether the interestsof the employee outweigh the state's interest in maintainingefficient public services. See id. at 1136-40. Although "thetype of sanction . . . `need not be particularly great in orderto find that rights have been violated,' " Hyland, 972 F.2d at1135 (quoting Elrod v. Burns,
427 U.S. 347
, 359 n.13(1976)); see also Manhattan Beach Police Officers Ass'n v.City of Manhattan Beach, 881 F.2d 816, 818-19 (9th Cir.1989) (denial of promotion); Allen v. Scribner, 812 F.2d 426,434-35 (9th Cir. 1987) (transfer to less desirable job assign-ment), the plaintiff must nonetheless demonstrate the loss of"a valuable governmental benefit or privilege."11 Hyland, 972F.2d at 1136. Mere threats and harsh words are insufficient.See Pierce, 37 F.3d at 1150; cf. Gini v. Las Vegas Metropoli-tan Police Depart., 40 F.3d 1041, 1045 (9th Cir. 1994)("[D]amage to reputation is not actionable under S 1983unless it is accompanied by `some more tangible interests.' ")(quoting Paul v. Davis,
424 U.S. 693, 701
(1976)).[15] Nunez's claim does not survive this threshold inquiry.Not only has he retained his job, he has suffered no adverseemployment action whatsoever. Despite the alleged efforts ofhis superiors, Nunez never signed or verified any allegedlyfalse reports, which could have triggered an official repri-mand. Moreover, although the LAPD did not select him forpromotion, Nunez has not provided any evidence linking thisdecision to his criticisms.12 All he has shown is that he wasbad-mouthed and verbally threatened. It would be the heightof irony, indeed, if mere speech, in response to speech, couldconstitute a First Amendment violation. Thus, Nunez's FirstAmendment claim fails.AFFIRMED.
_____________________________FARRIS, Circuit Judge, Concurring:I concur. The result is dictated by ample authority that theplaintiffs have no property interest in a promotion under thepresent facts. Despite this authority, the defendants should notread the opinion as giving them carte blanche to ignore estab-lished procedures where substantial interests are at stake. Thisis simply a matter to which the federal substantive due pro-cess clause does not speak.I am satisfied that the facts of this action did not warrantrecovery under the due process clause. Nonetheless, I concurwith the caution that the opinion not be misconstrued.
___________________________FOOTNOTES 1 The police officers originally claimed violations of their proceduraldue process and equal protection rights. However, they dropped these con-tentions on appeal.2 Intriguingly, Vlaskamp also contends that the district court erroneouslyheld his claims to be time-barred. The district court did not so hold.Rather, it tolled the statute of limitations under the "discovery rule" andthen proceeded to reject Vlaskamp's claims on the merits.3 Under California law, " `presumptive' as well as `actual' knowledgewill commence the running of the statute [of limitations]." Sanchez v.South Hoover Hosp., 18 Cal.3d 93, 101 (1976). If a plaintiff has "noticeor information of circumstances to put a reasonable person on inquiry,"the statute runs. Id. (quoting 2 Witkin, Cal. Procedure (2d ed. 1970)Actions, S 339, at 1181) (internal quotation marks omitted).4 Obviously, merely showing such deprivation is not enough to prevail."The protections of substantive due process have for the most part beenaccorded to matters relating to marriage, family, procreation, and the rightto bodily integrity." Albright v. Oliver,
510 U.S. 266, 272
(1994). Thesefields likely represent the outer bounds of substantive due process protec-tion. See Collins v. City of Harker Heights,
503 U.S. 115, 125
(1992)("[T]he Court has always been reluctant to expand the concept of substan-tive due process because guideposts for responsible decisionmaking in thisunchartered area are scarce and open-ended.").5 The Sixth Circuit once reversed a district court which found no prop-erty interest in a promotion; however, it did so only because the districtcourt dismissed the employee's claim on the pleadings without regard tothe employee's argument that he had an implied contract entitling him toa promotion. See Paskvan v. City of Cleveland Civil Serv. Comm'n, 946F.2d 1233, 1235-36 (6th Cir. 1991). Moreover, the Sixth Circuit expresseddoubt that the employee could satisfy his "heav[y] burden" on remand. Id.at 1236.6 Hunter was the named plaintiff in one suit. "LALEA" stands for the7 When permitted by state law, this commitment need not be formallyexpressed in a statute or a written contract; it can be implied from wordsor conduct. See Perry v. Sindermann,
408 U.S. 593, 601
-02 (1972). Never-theless, there must be rules or mutually clear understandings securing thecommitment. See id. at 601.8 Nor do the plaintiffs have a property interest in the procedures for pro-moting candidates to lieutenant. Procedural requirements can give rise toproperty interests only when they impose "significant limitation[s] on thediscretion of the decision maker." Goodisman v. Lytle, 724 F.2d 818, 820(9th Cir. 1984). The procedures in the Los Angeles City Charter do notmeet this standard. They merely state that promotions are to be based on"ascertained merit and seniority." Charter of the City of Los Angeles, Art.IX, S 107, at 124. Establishing "only an outline of relevant considera-tions," Goodisman, 724 F.2d at 821, the charter does very little to elimi-nate the discretion of those who evaluate candidates on the oral portion ofthe lieutenants examination. Moreover, although the Manual of the LosAngeles Police Department imposes an experience requirement on appli-cants, it does not significantly reduce this discretion; as the LAPD notes(and the police-officer plaintiffs do not deny), it "relies predominantly onsubjective oral examinations" in selecting officers for promotion.9 Vlaskamp chose not to take the oral portion in 1991 even though hehad passed the written portion.10 Contrary to the police officers' assertions, the failure to establishinjury and causation defeats their "Monell claim" against the City of LosAngeles, as well as their S 1983 claims against the other defendants.Under Monell v. Department of Social Services,
436 U.S. 658
(1978), tosustain a S 1983 action against a municipality, a plaintiff must demonstratethat a governmental policy or custom has caused him injury. See id. at691-94. Even if Los Angeles had a policy or custom of promoting unquali-fied favorites, that policy or custom could not have caused any injury, forthe reasons explained above.11 Unlike Due Process claims, First Amendment claims need not estab-lish an entitlement to the government benefit or privilege. See Perry, 408U.S. at 597. "[E]ven though a person has no`right' to a valuable govern-ment benefit," the government "may not deny[the] benefit . . . on a basisthat infringes his constitutionally protected interests -- especially, hisinterest in freedom of speech." Id.12 Nunez has not even shown that his score on the oral portion of theexam was downgraded on account of his speech. Indeed, his oral test scoreof 86.5% was significantly higher than his barely passing score on thewritten portion of the test, 65.9%. the end