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Nunez v. City of Los Angeles

June 05, 1998


Before: Jerome Farris, Diarmuid F. O'Scannlain, and Ferdinand F. Fernandez, Circuit Judges.

The opinion of the court was delivered by: Opinion by Judge O'Scannlain

D.C. No. CV-95-2446-DT

Appeal from the United States District Court for the Central District of California Dickran Tevrizian, District Judge, presiding

Argued and Submitted April 9, 1998--Pasadena, California

Concurring by Judge Farris

O'SCANNLAIN, Circuit Judge:

We must decide whether a Los Angeles police officer has a constitutionally protected property or liberty interest in promotion to higher rank.


The Los Angeles Police Department ("LAPD") administers an examination for police officers who wish to be promoted to the position of lieutenant. The test contains written and oral components. If a candidate scores high enough -- 65% on the written portion and 70% overall -- his or her name is added to a list of qualified prospects. The list is organized by bands, or groups, of scores; the Chief of Police must exhaust the candidates within a given band before selecting anyone from a lower band. As positions become available, candidates are chosen until such time as the list expires.

Not just any officer can take the examination. According to official policy, a candidate must have, among other credentials, at least one year of supervisory experience. It is undisputed that officers David Nunez, Alex Gomez, and Clyde Anthony Vlaskamp (collectively, the "police officers") all fulfilled this requirement and each took the examination at least once. None, however, got promoted. The problem, they assert, is that several applicants lacking supervisory experience sat for the exam, received top scores, and eventually became lieutenants. Allegedly, the LAPD, the City of Los Angeles, and several members of the police force (collectively, the "LAPD") waived the experience requirement for these favored candidates in violation of the official policy. This contention forms the basis of the police officers' substantive due process claims, which were brought in April 1994, in an action under 42 U.S.C. S 1983.*fn1 In addition, Nunez argues that, after he objected to the LAPD's alleged practice of promoting unqualified applicants, he suffered retaliation. This allegation forms the basis of his First Amendment claim, also brought pursuant to 42 U.S.C. S 1983.

Upon motion, the district court granted summary judgment to the LAPD. Nunez, Gomez, and Vlaskamp timely appealed.


As to Gomez, the district court held that the statute of limitations barred all but one of his substantive due process claims.*fn2 Gomez applied for the promotion five times -- in 1985, 1987, 1989, 1991, and 1994 -- and alleges that, every time, the LAPD allowed inexperienced candidates to take the examination. According to the district court, if this favoritism were unconstitutional, Gomez's claims would have accrued one at a time when the exams were administered, see Grimes v. City and County of San Francisco, 951 F.2d 236, 238-39 (9th Cir. 1991) (holding that violation accrues when discriminatory act occurred); upon accrual, the statute of limitations would have started 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 filed in April 1994 -- for all claims except the one arising out of the 1994 examination.

Gomez's only response is that the "discovery rule " should have tolled the statute of limitations until he had knowledge of his injury and its cause. The district court did not disagree. Neither do we. However, as Gomez's own deposition unmistakably shows, he had the requisite knowledge as soon as an allegedly 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 sitting 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 lieutenant's exam and weren't qualified because they didn't ...

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