Robin Allman v. Kevin Smith , 764 F.3d 682 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1792
ROBIN ALLMAN, et al.,
Plaintiffs-Appellees,
v.
KEVIN SMITH, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:12-cv-00568-TWP-DML — Tanya Walton Pratt, Judge.
____________________
SUBMITTED JULY 16, 2014 — DECIDED AUGUST 19, 2014
____________________
Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. The plaintiffs, former employees of
a city in Indiana, sued the mayor, and the city itself, under
42 U.S.C. § 1983. They claimed that the mayor had fired
them because of their political affiliations and thus in viola-
tion of their First Amendment rights. The mayor riposted
that political affiliation was a permissible qualification for
their jobs. The district judge granted summary judgment in
favor of the mayor with respect to nine of the eleven plain-
2 No. 14-1792
tiffs, on the ground that his argument concerning political
qualification for their jobs was sufficiently arguable to entitle
him to qualified immunity. But the judge denied summary
judgment with respect to the two other plaintiffs because she
didn’t think the mayor’s claim of immunity from their suit
arguable, given the differences between their jobs and those
of the other nine plaintiffs.
The judge refused to certify for interlocutory appeal her
denial of the mayor’s claim of qualified immunity with re-
spect to those two plaintiffs, on the ground that the issue of
his qualified immunity involves a question of fact—namely
whether he should have known that his conduct was unlaw-
ful (if it was). The judge also refused to stay the district court
proceedings pending his appeal. The mayor asks us to grant
the stay.
Whether a “job is one for which political affiliation is a
permissible criterion … presents a question of law,” Riley v.
Blagojevich, 425 F.3d 357, 361 (7th Cir. 2005), which makes it a
proper basis for an interlocutory appeal from a denial of
qualified immunity, Mitchell v. Forsyth, 472 U.S. 511, 526–30
(1985); Marshall v. Allen, 984 F.2d 787, 789 (7th Cir. 1993); Lo-
pez-Quinones v. Puerto Rico National Guard, 526 F.3d 23, 25
(1st Cir. 2008), and consequently for a stay of further pro-
ceedings in the district court pending that appeal. “Qualified
immunity is an entitlement not to stand trial or face the other
burdens of litigation. The privilege is an immunity from suit
rather than a mere defense to liability; and, like an absolute
immunity, it is effectively lost if a case is erroneously permit-
ted to go to trial.” Siegert v. Gilley, 500 U.S. 226, 232–33
(1991); see also Mitchell v. Forsyth, supra, 472 U.S. at 526. And
so “when a public official takes an interlocutory appeal to
No. 14-1792 3
assert a colorable claim to absolute or qualified immunity
from damages, the district court must stay proceedings.”
Goshtasby v. Board of Trustees of University of Illinois, 123 F.3d
427, 428 (7th Cir. 1997); see also Apostol v. Gallion, 870 F.2d
1335 (7th Cir. 1989).
The district judge also denied the city’s motion for sum-
mary judgment. The defense of qualified immunity is lim-
ited to individuals, but as the city’s liability is derivative
from the mayor’s it wanted to show that he had not violated
the plaintiffs’ constitutional rights. All the mayor had to
show in order to prevail was that even if he did violate those
rights he was excused from liability by the doctrine of quali-
fied immunity. The city, which cannot invoke qualified im-
munity, in order to prevail had to show that the mayor
hadn’t violated any constitutional rights, a showing that
would eliminate the city’s liability because its liability is de-
rivative from the mayor’s.
The city claims that the doctrine of “pendent appellate
jurisdiction” allowed it to appeal. It moved in the district
court to stay further proceedings in that court until we re-
solved its appeal. But the motion was denied. The two mo-
tions to stay (the mayor’s and the city’s) are the only matters
before our panel, a motions panel.
The mayor is entitled to a stay because he’s claiming
qualified immunity. But is the city entitled to a stay? Or even
to ask us for a stay? Can it be considered a party to this ap-
peal? These are the interesting questions, and the answers
depend on the applicability of the doctrine of pendent appel-
late jurisdiction, for it is the only possible ground for the
city’s claim to be a party to this appeal.
4 No. 14-1792
It is an embattled doctrine. As explained in Abelesz v.
OTP Bank, 692 F.3d 638, 647 (7th Cir. 2012), “the Supreme
Court sharply restricted the use of pendent appellate juris-
diction in Swint v. Chambers County Commission, 514 U.S. 35,
43–51 … (1995), but left a narrow path that the Court later
followed in Clinton v. Jones, 520 U.S. 681, 707 n. 41 … (1997),
holding that an appealable collateral order denying presi-
dential immunity was ‘inextricably intertwined’ with an or-
der staying discovery and postponing trial.” The narrow
path allows only a small class of interlocutory appeals, con-
sisting of cases in which an appeal from one ruling in a dis-
trict court proceeding creates a compelling practical reason
to allow an appeal from another ruling in that proceeding
even though there is no independent jurisdictional basis for
the second appeal, as in this case.
The plaintiffs’ claims against the city may, as we have in-
dicated, hinge on the outcome of the mayor’s appeal. If the
merits panel that will decide that appeal concludes that the
mayor did not violate the plaintiffs’ constitutional rights (his
principal contention), then the suit against the city collapses.
But if the panel concludes that although the mayor may have
violated those rights they were not sufficiently well estab-
lished when he did so to defeat his immunity, the plaintiffs’
claims against the city will survive his (successful) appeal.
That is, a finding that the mayor is immune from liability
may leave the merits of the plaintiffs’ claims against the city
unresolved.
The posture of the city’s case is a compelling reason to
stay the proceedings in the district court involving the city
until the merits panel decides the mayor’s appeal. If the pan-
el finds that there was no constitutional violation by the
No. 14-1792 5
mayor at all (rather than that qualified immunity saves him,
but of course not the city, from being held liable to the plain-
tiffs), then any proceedings that had taken place in the dis-
trict court regarding the plaintiffs’ claim against the city will
have been a waste of time. This possibility provides a com-
pelling reason for allowing the city to appeal from the denial
of the stay that it sought in the district court.
The plaintiffs, in contrast, want to try their case against
the city, and then, if the merits panel rejects the mayor’s ap-
peal from the denial of qualified immunity, hold a second
trial, to resolve their claims against the mayor. The trial of
the claims against the city has been scheduled for the fall of
this year; there is no guarantee that the mayor’s appeal will
have been briefed, argued, and decided by the merits panel
by then. There is thus no guarantee that the panel’s decision
will come in time to head off the trial should the merits pan-
el decide that the mayor did not violate the plaintiffs’ consti-
tutional rights, in which event the claims against the city, be-
ing derivative, will evaporate.
The prospect of two trials involving the same facts and
witnesses is not an attractive one. If the district court pro-
ceedings against the city are stayed, and the merits panel de-
cides that the mayor did not violate the plaintiffs’ constitu-
tional rights, there will be no trial. If (with the stays granted)
the merits panel decides that the mayor did violate the plain-
tiffs’ constitutional rights but is entitled to qualified immu-
nity, there will be one trial, against the city. Finally, if the
merits panel rejects the mayor’s appeal, the plaintiffs can try
their claims against both the mayor and the city in a single
proceeding. Each of these outcomes is preferable to allowing
the proceedings in the district court against the city to con-
6 No. 14-1792
tinue while the mayor’s appeal is under consideration by
this court.
A further danger if the city’s case isn’t stayed is that of
conflicting findings between our court and the district court
on whether the mayor violated the constitutional rights of
the two remaining plaintiffs. That would be an issue in a tri-
al of the claim against the city, since if the answer was nega-
tive the city would be off the hook. It might also be an issue
for our court in the mayor’s appeal, as he will be arguing not
only that he had qualified immunity from being sued by the
two plaintiffs for violating their constitutional rights but also
that he hadn’t violated them at all, in which event immunity
would be moot.
The city’s claimed status as a party to the mayor’s appeal
thus is indeed “pendent” because of its interdependence
with the mayor’s appeal. In identical circumstances four
other circuits have upheld pendent appellate jurisdiction.
Hidden Village, LLC v. City of Lakewood, 734 F.3d 519, 523–24
(6th Cir. 2013); Demoret v. Zegarelli, 451 F.3d 140, 152 (2d Cir.
2006); Avalos v. City of Glenwood, 382 F.3d 792, 801–02 (8th
Cir. 2004); Altman v. City of High Point, 330 F.3d 194, 207 n. 10
(4th Cir. 2003). None has denied it. We can’t think of any
reason to reject this consensus. And it is significant that the
cases we just cited all postdate Swint, the case that shrunk
the doctrine of pendent appellate jurisdiction to its current
slim proportions.
But the scope of our pendent jurisdiction of the city’s
claim is exceedingly narrow. The city is a party only for the
purpose of being able to ask us to reverse the district court’s
denial of a stay of proceedings against it in that court. We
have no jurisdiction over its appeal from any rulings by the
No. 14-1792 7
district court other than that denial. It will be the business of
the merits panel to decide the mayor’s appeal from the de-
nial of summary judgment regarding the two plaintiffs
whom the district judge declined to dismiss.
We hereby stay the district court proceedings both
against the mayor and against the city.