Hong v. Grant , 403 F. App'x 236 ( 2010 )

FILED
NOT FOR PUBLICATION NOV 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JUAN HONG, No. 07-56705
Plaintiff - Appellant, D.C. No. CV-06-00134-CJC
v.
MEMORANDUM *
STANLEY GRANT, Chairperson of the
Department of Chemical Engineering and
Materials Science; NICOLAOS
ALEXOPOULOS, Dean of the Henry
Samueli School of Engineering;
HERBERT P. KILLACKEY, Vice Provost
for Academic Personnel; MICHAEL R.
GOTTFREDSON, Provost and Executive
Vice Chancellor of the University of
California, Irvine; THE REGENTS OF
THE UNIVERSITY OF CALIFORNIA;
JOHN HEMMINGER, Chair of Academic
Senate Council on Academic Personnel;
WILLIAM SCHMITENDORF, Associate
Dean of the Henry Samueli School of
Engineering,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Cormac J. Carney, District Judge, Presiding
Argued and Submitted September 2, 2010
Pasadena, California
Before: O’SCANNLAIN, GOULD and IKUTA, Circuit Judges.
Juan Hong, a former member of the faculty at the University of California,
Irvine (“UCI”), appeals from the district court’s grant of summary judgment in
favor of six university officers and the governing Board of Regents of UCI. As the
facts are known to the parties, we repeat them here only as necessary to explain our
decision.
I
Under the Eleventh Amendment, the State of California and its official arms
are immune from suit under 42 U.S.C.§ 1983 in federal court. See Howlett v. Rose,
496 U.S. 356, 365 (1990). UCI and its Board of Regents have long been
understood to be instrumentalities of the State of California for Eleventh
Amendment purposes, Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982),
and in his official capacity, University Provost and Executive Vice Chancellor
Michael Gottfredson acts as an instrumentality of the state as well, see Mitchell v.
L.A. Cmty. Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1988). Thus, the Board of
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Regents and Vice Chancellor Gottfredson are both immune under the Eleventh
Amendment from Hong’s § 1983 action.1
All of the university officers that Hong has sued in their individual
capacities are entitled to qualified immunity. Hong has sued these officials for
their exercise of a purely discretionary function: voting on whether to award Hong
a merit salary increase. See Cohen v. San Bernardino Valley Coll., 92 F.3d 968,
973 (9th Cir. 1996) (concluding that discretionary functions, for purposes of
qualified immunity, include “demoting, evaluating and disciplining” a college
professor). It is far from clearly established today, much less in 2004 when the
university officers voted on Hong’s merits increase, that university professors have
a First Amendment right to comment on faculty administrative matters without
retaliation. See Garcetti v. Ceballos, 547 U.S. 410, 425 (2006). Accordingly, all
of the named defendants are immune from Hong’s suit.
II
Having concluded that each of the defendants is entitled to immunity from
Hong’s claims, we need not proceed to the merits of his First Amendment
1
The Board of Regents and Vice Chancellor Gottfredson are immune from
both Hong’s request for damages and his request for injunctive relief, because all
relief Hong asks for is retrospective. See Verizon Md., Inc. v. Pub. Serv. Comm’n
of Md., 535 U.S. 635, 645 (2002).
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argument. See Pearson v. Callahan, 129 S. Ct. 808, 818 (2009); see also id. at 821(stating that it is preferable for courts “not to pass on questions of constitutionality
. . . unless such adjudication is unavoidable.” (internal quotation marks omitted)).
We leave the question of whether faculty speech such as Hong’s is protected under
the First Amendment for consideration in another case. See id. at 820.
III
The district court’s grant of summary judgment is
AFFIRMED.
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