Becky Chasensky v. Scott Walker

In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1761

BECKY S. CHASENSKY,

Plaintiff-Appellee,

v.

SCOTT WALKER, et al.,

Defendants-Appellants.

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 11-C-1152 — Rudolph T. Randa, Judge.

ARGUED NOVEMBER 13, 2013 — DECIDED JANUARY 22, 2014

Before MANION, KANNE, and HAMILTON, Circuit Judges.

MANION, Circuit Judge. Wisconsin Governor Scott Walker

planned to appoint Becky Chasensky interim Marinette County

Register of Deeds but decided against it after learning she had

filed for bankruptcy. In response, Chasensky sued Walker and

his then-spokesperson, Cullen Werwie, alleging that Walker’s

decision not to appoint her along with their public statements

concerning that decision violated her constitutional and

2 No. 13-1761

statutory rights. The district court held that the defendants

waived qualified immunity by failing to raise it as a defense

until their motion to dismiss Chasensky’s amended complaint.

The defendants then filed this interlocutory appeal claiming

they did not waive and are entitled to qualified immunity. We

agree, and reverse.

I. BACKGROUND

In Wisconsin, the state constitution makes the Register of

Deeds an elected position. See Wis. Const. art. VI, § 4. How-

ever, if a vacancy occurs mid-term, the governor is authorized

to appoint an interim Register to complete the remainder of

any unexpired portion of the term until a successor is elected.

See Wis. Const. art. VI, § 4(5).

Chasensky alleges the following facts which, given the

procedural posture of this case, we accept as true. See Serino v.

Hensley, 735 F.3d 588, 590 (7th Cir. 2013) (citing Parish v. City of

Elkhart, 614 F.3d 677, 678 n.1 (7th Cir. 2010) (“In reviewing a

motion to dismiss, we accept the facts of the plaintiff’s com-

plaint as true.”). On December 29, 2010, the Register of Deeds

for Marinette County announced her mid-term retirement. By

letter dated January 11, 2011, Chasensky applied directly to

Governor Walker seeking this interim appointment. Am.

Compl. Because Chasensky was employed as Chief Deputy

Register of Deeds, she was elevated and served as the acting

Register of Deeds for Marinette County, effective January 14,

2011. On February 18, 2011, Chasensky was personally

interviewed by Eric Esser, Governor Walker’s appointments

official, and Esser informed Chasensky that he would forward

her application directly to Governor Walker for appointment

No. 13-1761 3

to the Register of Deeds position. Thereafter, Esser learned that

Chasensky was involved in a personal bankruptcy proceeding.

On April 5, 2011, Esser called Chasensky to inform her that

Governor Walker would not be appointing her as interim

Register of Deeds. Chasensky subsequently received a letter

from Governor Walker confirming that he would not be

appointing her as interim Register of Deeds.

According to Chasensky’s amended complaint, Cullen

Werwie, as Governor Walker’s official spokesperson,

publically broadcast statewide that Governor Walker did not

appoint her to the position because the governor had been

informed that she was in a bankruptcy proceeding. In addition

to her non-appointment, Chasensky complained that

“[d]erogatory comments and innuendo regarding [her]

bankruptcy, personal financial matters and character which

impugned and harmed [her] professional and personal

reputation were intentionally publically disclosed by Governor

Walker and Mr. Werwie.” Am. Compl. ¶ 15. She insisted that

this occurred when Governor Walker spoke statewide on the

FOX television network. There he demeaned her professional

and personal character by implying that information learned

during an investigation was the reason he did not appoint her.

About the same time, Werwie publically announced that

Governor Walker had planned to appoint her until he learned

of her 2009 bankruptcy proceeding. Chasensky further alleges

that the individual ultimately appointed Register of Deeds was

unqualified and “[c]onsequently, [she] was professionally

disparaged, humiliated and demoted for a period of time from

her Chief Deputy Register of Deeds position.” Am. Compl. ¶

18. Chasensky claims this sequence subjected her to an

4 No. 13-1761

unwanted, highly embarrassing and intrusive

media-fest [at work] on April 20–21, 2011 … [when]

[t]elevision reporters and camera crews, newspaper

and radio reporters and curious members of the

public confronted her and other Marinette County

employees with highly intrusive questions about her

bankruptcy and professional and personal character

and sought derogatory details implied in the defen-

dants’ public broadcasts.

Am. Compl. ¶ 21. Finally, in May 2011, she was threatened

with “employment retaliation” if she did not continue to cover

and perform core Register of Deeds duties which the appointee

was incapable of performing. As a result of these actions, she

has “suffer[ed] lost employment, salary, and other employ-

ment benefits, damage to her professional and personal

reputation, and emotional and physical pain and suffering.”

Am. Compl. ¶ 23.

II. PROCEDURAL HISTORY

This interlocutory appeal comes to us with a complicated

procedural history that we distill as follows. Chasensky filed

her complaint on December 21, 2011, alleging that Walker and

Werwie (the “defendants”) violated her privacy rights and

employment rights and that Walker violated 11 U.S.C. § 525(a)

(the “bankruptcy discrimination claim”) by failing to appoint

her as interim Register of Deeds of Marinette County upon

learning of her bankruptcy proceeding. Pretrial litigation

ensued including intervention by the United States Depart-

ment of Justice resulting in the dismissal of the employment

No. 13-1761 5

claims and the bankruptcy discrimination claim.1 On January

14, 2013, Chasensky filed an amended complaint reasserting all

of her initial claims and adding an equal protection claim

against Walker. On January 28, 2013, defendants filed a motion

to dismiss Chasensky’s amended complaint based on qualified

immunity.2 However, the district court concluded that defen-

dants had waived the defense of qualified immunity by not

raising it earlier in the proceeding.3 Defendants timely filed an

interlocutory appeal. We then issued an order directing the

district court to explain its reasons for failing to address

qualified immunity in its March 14, 2013, order. On July 28,

2013, the district court issued a second order explaining its

March 14, 2013, order. The district court’s July 28, 2013, order

states, in pertinent part:

Defendants never raised the issue of qualified

immunity—not in their initial motion to dismiss, not

in their supplemental briefing in relation to the

United States’ motion to intervene, not in their brief

1

Neither Chasensky’s bankruptcy discrimination claim nor her employ-

ment claims are implicated by this appeal.

2

After the district court’s order, the defendants filed their answer to the

first amended complaint on March 27, 2013, wherein they reiterated their

qualified immunity defense.

3

The district court’s March 14, 2013, order did not dismiss the bankruptcy

discrimination claim and employment claims that Chasensky re-alleged in

her amended complaint. The district court, though, had previously

dismissed them. On remand, the district court should enter an order

reaffirming its dismissal of Chasensky’s bankruptcy discrimination claim

and employment claims.

6 No. 13-1761

in opposition for leave to file an amended com-

plaint, and not even in their answer to the original

complaint. It was only after the Court granted leave

to file an amended complaint, and after over a year

of extensive motion practice, that the defendants

raised qualified immunity. The Court’s subsequent

order was terse because the Court had already

issued rulings allowing [plaintiff’s] claims to go

forward, and the defendants were clearly engaged

in dilatory tactics to either delay or avoid discovery.

Defendants waived the qualified immunity defense,

at least with respect to the pre-discovery stage of

this litigation. See, e.g., English v. Dyke, 23 F.3d 1086,

1090 (6th Cir. 1994) (“the trial court has discretion to

find a waiver if a defendant fails to assert the de-

fense within time limits set by the court or if the court

otherwise finds that a defendant has failed to exercise due

diligence or has asserted the defense for dilatory pur-

poses”) (emphasis added).

Chasensky v. Walker, Case No. 11-C-1152, 2013 U.S. Dist. LEXIS

105698, *2–3 (E.D. Wis., July 28, 2013). Defendants timely filed

an interlocutory appeal contesting the district court’s July 28,

2013, order.

III. ANALYSIS

A. Interlocutory appellate jurisdiction

Initially, Chasensky argues that we lack jurisdiction over

this interlocutory appeal. It is well-settled law that we “treat [ ]

the rejection of an immunity defense as a final decision for the

purpose of 28 U.S.C. § 1291.” Bond v. Atkinson, 728 F.3d 690,

No. 13-1761 7

691(7th Cir. 2013); see also Mitchell v. Forsyth, 472 U.S. 511,

524–25 (1985). When, as here, the district court rejects the

defense of qualified immunity raised in a defendant’s motion

to dismiss under Fed. R. Civ. P. 12(b)(6), we review the district

court’s ruling de novo, accepting as true the plaintiff’s factual

allegations and drawing all reasonable inferences in her favor.

May v. Sheahan, 226 F.3d 876, 882 (7th Cir. 2000).

Nevertheless, Chasensky asserts that we lack interlocutory

appellate jurisdiction to review the district court’s denial of

qualified immunity regarding her privacy claims because the

defendants waived this defense by not timely raising it.

However, “a finding of waiver is a legal determination which

enables appellate review of the denial of qualified immunity.”

Hernandez v. Cook Cnty. Sheriff’s Office, 634 F.3d 906, 912–13 (7th

Cir. 2011); see also Pasco v. Knoblauch, 566 F.3d 572, 575 (5th Cir.

2009) (exercising appellate jurisdiction over denial of summary

judgment based on the district court’s finding that qualified

immunity had been waived); Eddy v. V.I. Water & Power Auth.,

256 F.3d 204, 209 (3d Cir. 2001) (same). Accordingly, we have

interlocutory appellate jurisdiction to consider the defendants’

defense of qualified immunity.

B. Defendants did not waive the defense of qualified

immunity

Because we have concluded that we have appellate jurisdic-

tion, we now turn to the issue of whether defendants’ failure

to raise the defense of qualified immunity until their motion to

dismiss Chasensky’s amended complaint (filed fourteen days

after her amended complaint was filed) was waiver. The

district court ruled that defendants

8 No. 13-1761

never raised the issue of qualified immunity—not in

their initial motion to dismiss, not in their supple-

mental briefing in relation to the United States’

motion to intervene, not in their brief in opposition

for leave to file an amended complaint, and not even

in their answer to the original amended complaint.

It was only after the Court granted leave to file an

amended complaint, and after over a year of exten-

sive motion practice, that the defendants raised

qualified immunity.

Chasensky, 2013 U.S. Dist. LEXIS 105698, at *2. This ruling

sidesteps basic pleading principles. After obtaining leave of

court, Chasensky filed her amended complaint on January 14,

2013. Defendants filed their brief in support of their motion to

dismiss her amended complaint on January 28, 2013. “When a

plaintiff files an amended complaint, the new complaint

supersedes all previous complaints and controls the case from

that point forward … [b]ecause a plaintiff’s new complaint

wipes away prior pleadings, the amended complaint opens the

door for defendants to raise new and previously unmentioned

affirmative defenses.” Massey v. Helman, 196 F.3d 727, 735 (7th

Cir. 1999) (citation omitted); see also Charles Alan Wright,

Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure § 1476 at 636 (3d ed. 2010).4 That the defendants did

not raise qualified immunity earlier in response to Chasensky’s

4

Chasensky asserts that the defendants raised qualified immunity for the

first time in their reply brief, see Appellee Br. 18, but a review of defendants’

pleadings filed after Chasensky filed her amended complaint makes clear

that this assertion is incorrect.

No. 13-1761 9

original complaint is irrelevant because the defendants raised

the defense of qualified immunity at the very first opportunity

after Chasensky filed her amended complaint. They then

raised it again later in their answer to her amended complaint.

Accordingly, as a matter of law, defendants did not waive the

defense of qualified immunity. See English v. Dyke, 23 F.3d

1086, 1089 (6th Cir. 1994) (reversing district court’s holding that

defendants’ failure to raise the defense of qualified immunity

in their pre-answer motion to dismiss operated as a waiver of

that defense).

C. Defendants have qualified immunity from

Chasensky’s privacy and equal protection claims

i. Qualified Immunity

“The doctrine of qualified immunity protects government

officials from liability for civil damages when their conduct

does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Rabin

v. Flynn, 725 F.3d 628, 632 (7th Cir. 2013) (citation omitted).

“Immunity has of course two parts: the right not to be tried,

and the right not to pay damages.” Abel v. Miller, 904 F.2d 394,

397 (7th Cir. 1990). “To be clearly established, at the time of the

challenged conduct, the right’s contours must be sufficiently

clear that every reasonable official would have understood that

what he is doing violates that right [and] … and existing

precedent must have placed the statutory or constitutional

question beyond debate.” Humphries v. Milwaukee Cnty., 702

F.3d 1003, 1006 (7th Cir. 2012) (internal quotation marks and

citation omitted). This standard “protects the balance between

vindication of constitutional rights and government officials’

10 No. 13-1761

effective performance of their duties by ensuring that officials

can reasonably … anticipate when their conduct may give rise

to liability for damages.” Reichle v. Howards, 132 S. Ct. 2088,

2093 (2012) (internal quotation marks and citations omitted).

“[A] court may grant qualified immunity on the ground that a

purported right was not ‘clearly established’ by prior case law

without first resolving whether the purported right exists.”

Humphries, 702 F.3d at 1006 (quoting Pearson v. Callahan, 555

U.S. 223, 236 (2009)). The plaintiff carries the burden of

defeating the qualified immunity defense. Id.

We review the validity of a qualified immunity defense de

novo. Estate of Rudy Escobedo v. Martin, 702 F.3d 388, 404 (7th

Cir. 2012) (citing Elder v. Holloway, 510 U.S. 510, 516 (1994)).

Further, “[b]ecause ‘the district court’s refusal to address the

merits of [defendants’] motion asserting qualified immunity

constitutes a conclusive determination for the purposes of

allowing an interlocutory appeal,’ and the record permits this

court to resolve some of [d]efendants’ immunity claims, this

court will reach the merits of those claims rather than remand

them to the district court.” Smith v. Leis, 407 Fed. Appx. 918,

927 (6th Cir. 2011) (unpublished) (citing Summers v. Leis, 368

F.3d 881, 887 (6th Cir. 2004)). Accordingly, we now examine

the merits of the defendants’ qualified immunity defense.

ii. Chasensky’s privacy allegations in her amended

complaint fail to allege a violation of clearly established

law

First, we consider Chasensky’s privacy allegations.

Chasensky’s amended complaint alleged that defendants

recklessly “broadcast[ed] throughout the State of Wisconsin

No. 13-1761 11

derogatory and demeaning information about her professional

and personal character and reputation … .” Am. Compl. ¶ 24

(Walker); ¶ 26 (Werwie). Defendants respond that the allega-

tions in Chasensky’s amended complaint do not survive the

pleading requirements of Ashcroft v. Iqbal, 556 U.S. 662 (2009),

which requires the plaintiff to “state a claim to relief that is

plausible on its face.” Id. at 678 (internal quotation marks and

citation omitted).

Initially, we note that it is difficult to see where in

Chasensky’s complaint or amended complaint she alleged a

privacy claim,5 since neither her complaint (nor her subse-

quently filed amended complaint) contained the word

“privacy.” To survive a motion to dismiss, “a complaint need

not plead legal theories, which can be learned during discov-

ery,” Alito v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011)

(citations omitted). Yet, we cannot see why a plaintiff would

elect not to include the word “privacy” when alleging—or at

least titling the counts when alleging—a violation of the right

to privacy in a complaint. Nevertheless, we consider whether

the allegations lodged in Chasensky’s complaints at ¶¶ 14–17,

if true, give rise to a violation of a clearly established right to

privacy.

Chasensky argues that they do based on Denius v. Dunlap,

209 F.3d 944, 955–56 (7th Cir. 2000); Malleus v. George, 641 F.3d

560, 564–66 (3d Cir. 2011); and Whalen v. Roe, 429 U.S. 589,

599–600 (1977). These cases, she asserts, recognize a “clearly

established right to informational privacy,” Appellee Br. 23,

5

At oral argument, Chasensky directed us to ¶¶ 14–17 of her complaints.

12 No. 13-1761

which defendants violated by “recklessly broadcasting

throughout the State of Wisconsin derogatory and demeaning

information about her professional and personal character and

reputation … .” Am. Compl. ¶ 24 (Walker); ¶ 26 (Werwie).

Indeed, it is true that

[t]he courts of appeals, including this court, have

interpreted Whalen to recognize a constitutional

right to the privacy of medical, sexual, financial, and

perhaps other categories of highly personal

information—information that most people are

reluctant to disclose to strangers—and have held

that the right is defeasible only upon proof of a

strong public interest in access to or dissemination

of the information.

Wolfe v. Schaefer, 619 F.3d 782, 785 (7th Cir. 2010) (citing Denius,

209 F.3d at 955–58; other citations omitted).

But the Denius case does not help Chasensky. In Denius, the

director of a GED school refused to renew plaintiff’s employ-

ment contract unless he signed an authorization releasing

information, including financial information. 209 F.3d at

955–56. Although we recognized that the director violated the

teacher’s privacy rights by requiring disclosure of his medical

records, we nonetheless “conclude[d] that Dunlap [wa]s

shielded by qualified immunity for requiring Denius to

disclose confidential financial information. …” Id. at 958.

There, the teacher was commanded to produce private medical

information or face termination. Id. at 949. Here, all the

defendants allegedly did was publicize the already-published

fact that Chasensky had filed bankruptcy. Chasensky’s desire

No. 13-1761 13

to avoid the broad public disclosure of already-published

financial information so that she might secure a discretionary

political appointment is simply not similar to compulsory

disclosure of private medical information in the face of

termination. The right of privacy Chasensky asserts in her

financial situation was not recognized in Denius. The fact that

the school director in Denius received qualified immunity for

requiring the disclosure of plaintiff’s financial records under-

scores this point. Id. at 958. Chasensky fails to allege sustain-

able privacy claims against the defendants.

Chasensky fares no better with Malleus v. George, 641 F.3d

560 (3d Cir. 2011). The Malleus decision concluded that

information voluntarily disclosed may not form the basis of a

constitutional privacy claim, even when it is subsequently

passed on to a much wider audience than the one that initially

received it. Id. at 565 (“She may not have intended wide-

dissemination of her opinion but she volunteered it to others

…”). Here, Chasensky acknowledges that she voluntarily

signed a waiver authorizing the disclosure of private informa-

tion to the Wisconsin Department of Justice in exchange for

being considered for the appointment she sought.6 Although

6

Defendants filed a motion to dismiss Chasensky’s complaint. In her

opposition, Chasensky asserted that her complaint at ¶¶ 16–17 alleged that

she was “required to sign an extremely broad authorization for release of

financial and other private information.” Br. in Op. 20. Although we were

not able to discover this allegation in her complaint (or amended complaint,

wherein these paragraphs remain identical), we may consider representa-

tions drawn from Chasensky’s opposition to defendants’ motion to dismiss

insofar as they are consistent with her complaint. Geinosky v. City of Chicago,

(continued...)

14 No. 13-1761

we need not—and do not—decide whether Malleus accurately

states the law regarding constitutional privacy claims, that

decision’s reasoning certainly does not support Chasensky’s

claim in this instance.

Moreover, Chasensky overlooks the fact that the defendants

did not need her consent in the first place to learn that she filed

bankruptcy. Bankruptcy proceedings, like most unsealed legal

proceedings, are public record. This information is frequently

published in newspapers and is easily accessible in cyberspace.

“For example, all bankruptcy court dockets can be searched

simultaneously through the federal courts’ PACER service.”7

Pippen v. NBCUniversal Media, LLC, 734 F.3d 610, 614 (7th Cir.

2013). At its core, Chasensky’s privacy claim is merely the

assertion of a right to the limited publicity of an already-

published fact. Here, that claim must fail because the informa-

tion about her financial history that she claims defendants

unlawfully publicized was not private even before she signed

a waiver authorizing defendants to explore it.

For Chasensky’s privacy allegations to defeat defendants’

defense of qualified immunity, “existing precedent must have

placed the statutory or constitutional question beyond debate.”

6

(...continued)

675 F.3d 743, 745–46 n.1 (7th Cir. 2012) (collecting cases).

7

“Public Access to Court Electronic Records (PACER) is an electronic

public access service that allows users to obtain case and docket information

from Federal Appellate, District and Bankruptcy courts, and from the

PACER Case Locator via the Internet.” See PACER - Frequently Asked

Questions, http://www.pacer.gov/psc/faq.html (last visited January 14,

2014).

No. 13-1761 15

Humphries, 702 F.3d at 1006 (citations and internal quotation

marks omitted). We recognize that “‘a case directly on point is

not required for a right to be clearly established’ and ‘officials

can still be on notice that their conduct violates established law

even in novel factual circumstances.’” Phillips v. Cmty. Ins.

Corp., 678 F.3d 513, 528 (7th Cir. 2012) (quoting Hope v. Pelzer,

536 U.S. 730, 741 (2002)). But for the purpose of defeating

qualified immunity in this instance, Chasensky has not proven

that her right to the limited publicity of an already-published

fact is “clearly established” so that an individual may be held

civilly liable for publicizing already-published information.

Defendants are, therefore, entitled to qualified immunity

because they have violated no clearly established privacy right.

iii. Walker did not violate the equal protection clause

when he declined to award a discretionary appointment

to Chasensky

Chasensky’s amended complaint also alleged that Walker

violated her equal protection rights by denying her employ-

ment because she filed for bankruptcy. Am. Compl. ¶ 25. In

United States v. Kras, the Court rejected the plaintiff’s equal

protection claim and held that challenges to government-

imposed burdens from bankruptcy are subject to rational basis

review. 409 U.S. 434, 446 (1973). Accordingly, Chasensky’s

bankruptcy equal protection challenge cannot succeed “if there

is any reasonably conceivable state of facts that could provide

a rational basis for the classification.” F.C.C. v. Beach Commc’n,

Inc., 508 U.S. 307, 313 (1993). In other words, Chasensky bears

the burden of “negat[ing] every conceivable basis which might

support [Walker’s decision not to appoint her].” Id. at 315

(citation omitted).

16 No. 13-1761

In light of this steep burden, it is unreasonable to suggest

that gubernatorial consideration of an applicant’s bankruptcy

—a component of her personal history—could not be rationally

related to legitimate governmental interests. The responsibili-

ties associated with the office at issue entail maintaining

financial and public land records and collecting and disbursing

substantial sums of money, including recording fees and

transfer taxes. The fact that a candidate for this appointment

has filed bankruptcy, coupled with the fact that the desired

public office involves management of a staff responsible for

significant sums of money, conceivably raises questions

regarding the practical—and political—wisdom of appointing

that applicant. While the parties dispute whether the position’s

duties are “ministerial” or not, it is apparent from the defini-

tion of its defined duties in Wis. Stat. § 59.43 that the position

of Register demands—at minimum—supervisory and financial

responsibility.

Chasensky cites no case law suggesting that the equal

protection clause precludes gubernatorial consideration of an

applicant’s bankruptcy when she has applied for a political

appointment. Consequently, Walker violated no “clearly

established” law by failing to appoint Chasensky for the

position she sought. Humphries, 702 F.3d at 1006 (quoting

Pearson, 555 U.S. at 236). Nor did Walker violate Chasensky’s

constitutional rights by declining to exercise his gubernatorial

discretion for her benefit. The rule in this circuit is clear. “A

governmental officer holding the power of appointment may

make any decision he pleases, unless the Constitution bars the

No. 13-1761 17

way.” Kurowski v. Krajewski, 848 F.2d 767, 770 (7th Cir. 1988).8

The Constitution does not bar Walker’s non-appointment of

Chasensky to Register of Deeds.

Alternatively, and despite the fact that the appointment in

question is awarded by the elected head of state, Chasensky

asserts that neither gubernatorial concern about the potential

appointee’s ultimate electability nor Walker’s desire to avoid

adverse political repercussions from unwise appointments is

a legitimate governmental interest. We disagree. “[I]t would

undermine the democratic process to hold that the winners at

the polls may not employ those committed to implementing

their political agenda.” Id. Chasensky argues that the Supreme

Court recognized a distinction between pure partisan political

interests and legitimate governmental interests in Elrod v.

Burns, 427 U.S. 347 (1976). But it is precisely because these

interests are aligned here that we must respect the weight

appointment decisions made by elected and politically-

accountable individuals are due. Chasensky implies that in

practice wise appointment decisions inure principally to the

benefit of the elected official, not the citizenry. But that

perspective fails to appreciate what should be obvious: both

the official and the citizenry are better off when elected officials

avoid poor appointment decisions that have the potential to

mature into public malfeasance.

8

Cf. Saikrishna Prakash, The Appointment and Removal of William J. Marbury

and When an Office Vests, 89 NOTRE DAME L. REV. 199, 231 (2013) (“Because

the Constitution never dictates how or when an appointment is made, an

appointment vests however and whenever the appointer decides that it

should vest.”).

18 No. 13-1761

There was no violation—let alone a clearly established

violation—of the equal protection clause when Walker de-

clined to award Chasensky a discretionary appointment to a

constitutional office. Consequently, Walker enjoys qualified

immunity from Chasensky’s equal protection claim.

IV. CONCLUSION

For the reasons stated above, we conclude that we have

interlocutory appellate jurisdiction to consider this appeal.

Further, we conclude that the defendants did not waive the

defense of qualified immunity when they did not raise it until

their motion to dismiss Chasensky’s amended complaint.

Finally, the defendants are entitled to qualified immunity from

Chasensky’s privacy and equal protection claims. For the

foregoing reasons, we REVERSE the March 14, 2013, and July

28, 2013, orders of the district court and REMAND this case for

proceedings consistent with this opinion.