City Manager Violated Employees Due Process By Terminating Him Without A Hearing, But City And Manager Are Immune From Liability

In Levine v. City of Alameda, (— F.3d —, 2008 WL 2025011, C.A.9 (Cal.), May 13, 2008), the United States Court of Appeals reviewed the claim of a city worker who alleged his constitutional right to due process was violated when the city manager terminated him without a hearing.

The court ruled that although the employee’s right to due process was violated, the city and the city manager were immune from liability because the city manager reasonably believed that his conduct was lawful.


In 2004, James Flint (“Flint”), the city manager of Alameda (“City”), notified City property manager Edward Levine (“Levine”) that he was going to be laid off. Levine requested a pretermination hearing, stating that he believed the layoff was a pretext and that he was actually being terminated because Flint disliked him. Flint responded that Levine was not entitled to a hearing under the terms of his union contract because he was being laid off rather than terminated for cause.

Levine filed suit and the district court ruled Levine’s procedural due process rights were violated because he was entitled to an evidentiary hearing before a neutral third party. However, the district court ruled that Flint and the City were entitled to qualified immunity from liability for that violation. Both parties appealed.


To establish a due process violation, an employee must show that he has a protected property interest and was deprived of the property interest without receiving the process to which he was constitutionally entitled. Levine was a civil servant who had a property interest in continued employment and was therefore entitled to a hearing before his layoff to offer his views. The court ruled the City failed to offer him a meaningful hearing thereby violating his due process right.

The court said, under the defense of qualified immunity, a government official is immune from civil damages unless his conduct violates a clearly established right of which a reasonable person would have known, citing Long v. City and County of Honolulu, 511 F.3d 901, (9th Cir. 2007). If an official reasonably believed his conduct is lawful, qualified immunity applies. Although Flint and the City violated Levine’s due process right, the court found there was no evidence suggesting that Flint knew or should have known that denying Levine’s request would violate his rights. The district court therefore properly concluded the defense qualified immunity applied and the judgment was affirmed.