Veterans Legal Defense Fund v. Schwartz , 330 F.3d 937 ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2143
VETERANS LEGAL DEFENSE FUND,
an Illinois not-for-profit corporation,
TOM FOSTER, and STEVEN C. TERRY,
Plaintiffs-Appellants,
v.
MICHAEL S. SCHWARTZ, in his official capacity
as Director of the Department of Central
Management Services of the State of Illinois,
individually and on behalf of all State agencies
and political subdivisions of the State of Illinois,
and JESSE WHITE, in his official capacity as
Secretary of State of the State of Illinois,
individually and on behalf of all State agencies
and all political subdivisions of the State of Illinois,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 97 C 3380—Richard Mills, Judge.
____________
ARGUED APRIL 15, 2003—DECIDED MAY 30, 2003
____________
Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS,
Circuit Judges.
2 No. 02-2143
FLAUM, Chief Judge. Tom Foster and Steven Terry,
joined by the Veterans Legal Defense Fund (“VLDF”),
brought this action under 42 U.S.C. § 1983 against
the Illinois Secretary of State and the Director of the
Illinois Department of Central Management Services. The
plaintiffs claim that their due process rights were vio-
lated when the defendants deprived them of their civil-
service hiring preference, which they were entitled to as
veterans of the armed services. The plaintiffs sought to
represent a class of similarly passed over veterans. The
district court denied the motion for class certification and
later granted summary judgment for the defendants. For
the reasons stated herein, we affirm.
I. Background
The hiring for civil service positions in Illinois is central-
ized through the Illinois Department of Central Manage-
ment Services (“CMS”). CMS receives applications indicat-
ing the general type of position the candidate is inter-
ested in. Based on various factors, CMS grades candidates
and places them in categories such as A, B, and C. An
eligibility list is then compiled and the applicants are
ranked according to their grade category. Agencies that
have hiring needs choose candidates from the highest
category to interview.
When making the final hiring decision, the agency must
conform with § 8b.7(f) of the Illinois Personnel Code: “When
the Director [of CMS] establishes eligible lists on the
basis of category ratings such as ‘superior’, ‘excellent’, ‘well-
qualified’, and ‘qualified’, the veteran eligibles in each
such category shall be preferred for appointment before
the non-veteran eligibles in the same category.” 20 ILCS
415/8b.7(f) (2003). The Illinois Supreme Court held in
Denton v. Civil Serv. Comm’n, 176 Ill.2d 144, 153 (1997),
that § 8b.7(f) “provides veterans an absolute hiring prefer-
No. 02-2143 3
ence over nonveterans within the same grade category.” The
court explained, “[W]hen the Director of CMS chooses to
organize eligibility lists on the basis of category ratings,
a veteran must receive an offer for the job before nonveter-
ans of the same grade category.” Id. at 150. Shortly after
this decision the Governor’s office issued a memorandum
to the directors and chief counsels of state agencies stat-
ing that “[e]ffective immediately, all agencies, depart-
ments, bureaus, boards and commissions subject to the
control or direction of the Governor shall conform their
personnel practices to the ruling of the Illinois Supreme
Court.”
Foster and Terry are both veterans of the armed services.
They applied to CMS for civil service jobs during 1995 and
1996 and received “A” category rankings for a number of
jobs. Neither Foster nor Terry was hired and nonveterans
were hired for some of the jobs for which Foster and Terry
received “A” rankings and were turned down.
Foster, Terry, and the VLDF then brought this suit
alleging a violation of their due process rights and seeking
injunctive relief against the defendants. The plaintiffs
sought to certify a class of veterans who were entitled to
but denied the absolute veteran’s preference in state hir-
ing. The district court rejected the motion for class certif-
ication. Subsequently, the court granted the defendant’s
motion for summary judgment on the grounds that the
Eleventh Amendment barred the suit under Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984).
Plaintiffs now appeal.
II. Discussion
Although this appeal raises various complex legal ques-
tions, its resolution is straightforward because plaintiffs
cannot show that the state failed to provide adequate
remedies—a showing that is fundamental to their due
4 No. 02-2143
process claims, both procedural and substantive. Thus, we
need not decide such questions as whether the Eleventh
Amendment bars this suit,1 whether the hiring preference
created a constitutionally protected property right, cf.
Carter v. City of Philadelphia, 989 F.2d 117, 122 (3d Cir.
1993) (holding statutory promotion preference for veter-
ans to be constitutionally protected), or whether the dis-
trict court erred in denying class certification.2
Even if we assume that the hiring preference in question
created a constitutionally protected property interest, to
establish a violation of procedural due process plaintiffs
need to show that they were deprived of that interest
without due process of law. For some deprivations due
process includes a predeprivation hearing, but “[p]ost-
deprivation remedies are a constitutionally acceptable
substitute for predeprivation remedies in many procedural
due process cases.” Wudtke v. Davel, 128 F.3d 1057, 1063
(7th Cir. 1997). In this case the state provided no pre-
deprivation remedies. Thus we must ask two questions: 1)
1
Defendants have waived all Eleventh Amendment arguments
and argued the case on the merits.
2
The district court denied class certification on the grounds that
the members of the class had competing interests. The court
reasoned that for any given position only one veteran can prove
that she would have been hired had the preference been enforced.
The class members, according to the district court’s reasoning,
were only “potentially deprived of their absolute preference”
and therefore each must try to prove that they were more
qualified than the other class members. We have reservations
about this analysis. It is the preference and not the job that
the plaintiffs argue they were deprived of; by showing that a
nonveteran was hired when veterans ranked equally, the class
would have shown that all members were actually denied the
preference. Each class member is better off when the preference
is being enforced than when it isn’t. They may not get the job,
but they are guaranteed the preference.
No. 02-2143 5
are postdeprivation remedies an adequate substitute here?
And if so 2) were the specific postdeprivation remedies
sufficient in this case?
As to the first question, we must determine whether
the state was responsible for providing a predeprivation
hearing under the circumstances of this case. The Supreme
Court has decided a series of cases dealing with when
predeprivation hearings are required. See Parratt v. Taylor,
451 U.S. 527 (1981); Logan v. Zimmerman Brush Co., 455
U.S. 422 (1982); Hudson v. Palmer, 468 U.S. 517 (1984);
Zinermon v. Burch, 494 U.S. 113 (1990). Parratt essentially
stands for the rule that when predeprivation hearings are
impractical because the actions of the state officers were
“random and unauthorized” the state is only responsible
for providing postdeprivation remedies. Zinermon on the
other hand found that the state had failed in providing
adequate predeprivation procedures when those procedures
could have prevented a predictable “abuse of broadly
delegated, uncircumscribed power to effect the depriva-
tion at issue.” 494 U.S. at 136. The Court’s decisions in
these cases have been construed by some to be in direct
tension with each other, see, e.g., Easter House v. Felder,
910 F.2d 1387, 1408 (7th Cir. 1990) (Easterbrook, J.,
concurring); this circuit however has had the opportunity
to address this apparent tension in Easter House v.
Thomas and concluded that Zinermon did nothing more
than refine and narrow the scope of the Parratt rule. We
explained,
The Supreme Court has attempted to strike a balance
between the competing interests of providing a rem-
edy for injuries sustained in connection with violations
of constitutional rights and avoiding the use of § 1983
as just another opportunity for parties to shop between
state and federal forums. The Court’s decision in
Zinermon does not appear to alter this balance.
6 No. 02-2143
Easter House, 910 F.2d at 1404. In distinguishing Zinermon
from cases where Parratt would apply, we explained that
the dispositive factor in determining whether Parratt
will indeed apply in a given situation is still whether
the state actor’s conduct is “random and unauthorized”
or, as the Court has rephrased it, whether the state
actor’s conduct is “predictable and authorized.”
Id. at 1400. Looking at the specific facts of Easter House,
where the plaintiff was claiming that the defendants had
conspired to deprive it of an operating license, we found
that predeprivation procedures were not necessitated
because the defendants’ actions were “patently inconsis-
tent with Illinois law and constituted an outright depar-
ture from the authority which the [state official] was
granted under governing statutes and regulations.” Id. at
1401. We focused on whether the discretion of the decision
makers was “uncircumscribed or otherwise unregulated.”
Id. We later explained that “Illinois adopted a procedure
which provided adequate due process protection; it con-
tained no loopholes which would allow a deprivation to
occur without due process unless the state employees acted
in an unforeseen way.” Id. at 1404. The deprivation was
therefore unpredictable: “Only when the appellants took
action which went beyond the realm of the foreseeable
did [plaintiffs] suffer a property deprivation.” Id.The reasoning in Easter House is controlling here. The
deprivation of the hiring preference was random and
unauthorized. All three branches of the Illinois govern-
ment had mandated the enforcement of the preference.
The legislature enacted § 8b.7 of the Illinois Personnel
Code. The Illinois Supreme Court explicitly stated that
the statute provided an absolute preference. And the
executive issued an order directing that all hiring be done
in compliance with the mandated preference. The language
we used to describe the actions taken in Easter House
No. 02-2143 7
perfectly describe the actions taken here. The discretion of
the defendants in making the hiring decisions was cir-
cumscribed and regulated. Only by acting in a manner
“patently inconsistent with Illinois law,” could the defen-
dants deprive the plaintiffs of the hiring preference. This
represented “an outright departure from the authority”
granted to them under state law. Illinois had adopted
an absolute preference and only when the defendants “took
action which went beyond the realm of the foreseeable
did [plaintiffs] suffer a property deprivation.” The defen-
dants here acted contrary to the explicit policies and laws
of Illinois. This is specifically the sort of case excluded
by Easter House:
Section 1983 must be preserved to remedy only those
deprivations which actually occur without adequate
due process of law, such as those which result from a
state’s conscious decision to ignore the protections
guaranteed by the constitution. It should not be em-
ployed to remedy deprivations which occur at the
hands of a state employee who is acting in direct
contravention of the state’s established policies and
procedures which have been designed to guarantee the
very protections which the employee now has chosen to
ignore. Such a limitation upon § 1983 maintains the
delicate balance between the state and federal judicial
systems, leaving the former to remedy individual torts
and the latter to address property deprivations which
occur without adequate due process protection.
Id. at 1404-05.
Turning to the post-deprivation remedies in this case,
the defendants claim that plaintiffs had adequate post-
deprivation remedies available in administrative review
or in an action for mandamus. Plaintiffs do not deny
the availability of these remedies, nor do they provide
any coherent argument as to why these remedies would
8 No. 02-2143
be inadequate. Instead plaintiffs continually insist that
§ 1983 does not require that plaintiffs exhaust state rem-
edies. This is true, see Wudtke, 128 F.3d at 1063; unfortu-
nately it is completely irrelevant. While a plaintiff is
not required to exhaust state remedies to bring a § 1983
claim, this does not change the fact that no due pro-
cess violation has occurred when adequate state remedies
exist. The whole idea of a procedural due process claim is
that the plaintiff is suing because the state failed to pro-
vide adequate remedies. Therefore, we do not require a
plaintiff to pursue those remedies in order to challenge
their adequacy, but likewise we do not allow a plaintiff
to claim that she was denied due process just because
she chose not to pursue remedies that were adequate.
Given the availability of state remedies that have not
been shown to be inadequate, plaintiffs have no proce-
dural due process claim.
The analysis of the substantive due process claim is
similar. When a plaintiff brings a substantive due process
claim predicated on the deprivation of a state-created
property interest, she must show that the state violated
some other substantive constitutional right or that state-
law remedies are inadequate. Draghi v. County of Cook,
184 F.3d 689, 694 (7th Cir. 1999); Wudtke, 128 F.3d at
1062. There is no contention that this case involves some
other substantive violation. And, as we have already
discussed, plaintiffs have not shown an inadequacy of
state remedies.
III. Conclusion
Plaintiffs in this case have not demonstrated a lack of
due process, procedural or substantive, in the deprivation
of their hiring preference. As such they cannot prevail,
individually or as a class, on their claims—even if the hir-
ing preference is a constitutionally protected property
No. 02-2143 9
interest. The judgment of the district court is therefore
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-30-03