Goros, Louis v. Cook County ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3880
LOUIS GOROS, et al.,
Plaintiffs-Appellants,
v.
COUNTY OF COOK and MICHAEL SHEAHAN,
as Sheriff of Cook County,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 04 C 883—Virginia M. Kendall, Judge.
____________
ARGUED MAY 22, 2007—DECIDED JUNE 11, 2007
____________
Before EASTERBROOK, Chief Judge, and WILLIAMS and
SYKES, Circuit Judges.
EASTERBROOK, Chief Judge. According to the litigants,
this appeal presents the question whether Cook County’s
Ordinance 00-O-8 supersedes Ordinance 5-325. If it does,
then the Sheriff of Cook County is entitled to adopt a
policy under which a newly promoted worker becomes
eligible for a further raise (a “step increase” in the
County’s parlance) after waiting a time that varies with
each step. If Ordinance 5-325 remains in force, and a
collective bargaining agreement has the meaning that
plaintiffs give it, then the promoted worker becomes
eligible for the first six step increases on the anniversary
date of his employment.
2 No. 06-3880
An example illustrates. Perkins is hired as a member of
the Sheriff ’s Police on February 1, 2001, at the base wage
level of PO1 Step 1. The next six years bring step in-
creases, until the officer reaches Step 6 on February 1,
2006. Step 7 and its accompanying raise comes on the
tenth anniversary of employment (February 1, 2011), Step
8 at Anniversary 15, and the remaining steps at Anniver-
saries 20, 25, and 29. Suppose that Green, also hired on
February 1, 2001, has an initial wage set at PO1 Step 6 in
order to match or exceed his salary in his former employ-
ment. When does Green get a step increase? Plaintiffs
say that he should go to Step 7 on February 1, 2002, with
the ensuing steps one year apart; Green will reach Step 11
(the highest possible level for PO1) on February 1, 2006.
The Sheriff maintains, however, that Green must wait
until his tenth anniversary to reach Step 7, just as Perkins
does; on this understanding Perkins will catch up with
Green’s salary on February 1, 2011, when both will
achieve Step 7. Neither Perkins nor Green will reach Step
11 until 2029. Yet another possibility is that Green should
be placed in Step 7 after spending five years at Step 6, just
as Perkins will. On that approach Green will receive
his first raise on February 1, 2005, and will reach Step 11
in 2024, earning more than Perkins in every year until
2029.
Federal courts regularly resolve disputes of this kind
under the diversity jurisdiction. 28 U.S.C. §1332. That
jurisdiction is available, however, only when the stakes
for at least one plaintiff exceed $75,000 and all plaintiffs
have a citizenship different from that of each defendant. In
this case, however, every litigant is a citizen of Illinois,
and none of the plaintiffs alleges that his stakes exceed
$75,000. So what is the litigation doing here?
Plaintiffs’ answer is that the case arises under federal
law, so that 28 U.S.C. §1331 supplies jurisdiction. The
“federal law” that plaintiffs invoke is 42 U.S.C. §1983, but
No. 06-3880 3
that statute covers only “the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws” of the United States. Neither Ordinance 5-325 nor
the collective bargaining agreement is part of the Con-
stitution or laws of the United States. Plaintiffs’ theory
is that the Ordinance and collective bargaining agree-
ment create a “property interest” within the scope of the
due process clause of the fourteenth amendment. The
Sheriff ’s personnel practices, according to plaintiffs,
deprive them of this property interest. The district court
held, however, that plaintiffs’ understanding of the local
ordinances and collective bargaining agreements is
incorrect and entered summary judgment for the County
and the Sheriff. 2006 U.S. Dist. LEXIS 68932 (N.D. Ill.
Sept. 25, 2006).
If this approach to §1983 and the federal-question
jurisdiction is right, however, then every claim against any
state actor may be litigated in federal court, no matter how
small the stakes and no matter the parties’ citizenships.
One wonders why the Supreme Court bothered to hold
in Moor v. County of Alameda, 411 U.S. 693 (1973), that
a county is a “citizen” of its state for purposes of the
diversity jurisdiction, if §1332 never were necessary to
litigate against a county in federal court. The reason Moor
was important is that §1983 and §1331 in combination do
not allow state-law claims to be litigated in federal court
just because the defendant is a state actor and the plain-
tiff takes care to assert that state law creates a “property
interest.”
The due process clauses in the fifth and fourteenth
amendments do not protect property interests uncondi-
tionally. They say that no one may “be deprived of life,
liberty, or property, without due process of law”. Due
process usually means notice and an opportunity for a
hearing. State law defines property; federal law defines
the process that is “due.” See Board of Regents v. Roth, 408
4 No. 06-3880
U.S. 564 (1972), and Cleveland Board of Education v.
Loudermill, 470 U.S. 532 (1985), among many similar
decisions. Plaintiffs do not want hearings, however; there
are no factual disputes. Their grievance concerns the
meaning of ordinances and collective bargaining agree-
ments, and it has been understood for a long time that
the due process clauses do not require hearings to
resolve disputes about the meaning and effect of laws,
regulations, and contracts. See, e.g., Atkins v. Parker, 472
U.S. 115 (1985); Bi-Metallic Investment Co. v. State Board
of Equalization, 239 U.S. 441 (1915). This circuit has held
accordingly that §1983 may not be used to determine
whether some statute or contract creates a property
interest in the abstract; unless the plaintiff maintains
that the state actor had to offer a hearing to resolve some
contested issue of fact, the dispute belongs in state court
under state law. See, e.g., Mid-American Waste Systems,
Inc. v. Gary, 49 F.3d 286 (7th Cir. 1995).
With respect to a handful of fundamental rights the
due process clause has a substantive component. See
Sacramento v. Lewis, 523 U.S. 833 (1998); Washington
v. Glucksberg, 521 U.S. 702 (1997). Plaintiffs do not
mention substantive due process, however, nor could they
do so with straight faces. The timing of step increases
under a civil-service system is not a “fundamental right.”
We know from decisions such as Collins v. Harker Heights,
503 U.S. 115 (1992); Witkowski v. Milwaukee County, 480
F.3d 511 (7th Cir. 2007); and Walker v. Rowe, 791 F.2d
507, 510 (7th Cir. 1986), that the due process clause
does not assure the officers’ personal safety. Certainly it
does not dictate the frequency of their raises. Plaintiffs do
not deny that federal law would allow Cook County to
implement the system that the Sheriff is using; they
maintain only that the Sheriff ’s method of determining
eligibility for raises is incompatible with the County’s
existing ordinances and promises.
No. 06-3880 5
So plaintiffs lack a serious claim under the Constitution
whether or not the schedule for step increases creates
a “property right.” Normally failure on the merits leads
to judgment in defendants’ favor rather than to dismissal
for lack of jurisdiction. See Bell v. Hood, 327 U.S. 678(1946). But some theories are such piffle that they fail
even to make out claims arising under federal law, and
these must be dismissed for want of jurisdiction. See, e.g.,
Hagans v. Lavine, 415 U.S. 528, 538 (1974) (no jurisdic-
tion if “prior decisions inescapably render the claims
frivolous”); Goosby v. Osser, 409 U.S. 512 (1973); Bailey v.
Patterson, 369 U.S. 31 (1962); Crowley Cutlery Co. v.
United States, 849 F.2d 273 (7th Cir. 1988).
Distinguishing between “essentially fictitious” claims
(see Bailey, 369 U.S. at 33) that do not invoke federal
jurisdiction and those in which a fairly debatable claim
fails on the merits is essential if the federal courts are to
remain tribunals of limited jurisdiction. Otherwise, as
we have observed, all state-law claims against state
actors could come to federal court, and the terms of the
diversity jurisdiction would be nullified. Only state courts
can ascertain the law of Cook County; all a federal court
can do is make an educated guess. Claims such as the
one presented here should be resolved in state court, not
in federal court under the pretext that a “property right”
need be established for purposes of the due process clause.
Plaintiffs don’t want process; they want money. To seek
it, they must litigate in the proper forum.
The judgment of the district court is vacated, and the
case is remanded with instructions to dismiss for want
of subject-matter jurisdiction.
6 No. 06-3880
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-11-07