reasoning that a customer service supervisor at the city’s utility department likely fell outside the Elrod-Branti exception because she did not report to the head of the department, she primarily interacted with co-workers and the general public rather than high-level city officials, the confidential information to which she had access was not politically sensitive, and she mainly complied with department policies and rules instead of developing such policies
How later courts described this case
- reasoning that a customer service supervisor at the city’s utility department likely fell outside the Elrod-Branti exception because she did not report to the head of the department, she primarily interacted with co-workers and the general public rather than high-level city officials, the confidential information to which she had access was not politically sensitive, and she mainly complied with department policies and rules instead of developing such policies
- observing that our cases had clearly established that a person who has limited operational discretion but no significant policymak‐ ing discretion cannot be fired on political grounds
- ac‐ knowledging that trial could show plaintiff had more discretion than job description implied
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-‐‑1792
ROBIN ALLMAN, et al.,
Plaintiffs-‐‑Appellees,
v.
KEVIN SMITH and CITY OF ANDERSON, INDIANA,
Defendants-‐‑Appellants.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:12-‐‑cv-‐‑0568-‐‑TWP-‐‑DML — Tanya Walton Pratt, Judge.
____________________
ARGUED MAY 22, 2015 — DECIDED JUNE 24, 2015
____________________
Before EASTERBROOK, WILLIAMS, and HAMILTON, Circuit
Judges.
EASTERBROOK, Circuit Judge. After being elected Mayor of
Anderson, Indiana, a city of about 56,000 people, Kevin
Smith replaced many members of the City’s staff with his
political supporters or persons he deemed trustworthy.
Eleven of the fired workers filed this suit under 42 U.S.C.
§1983, contending that the discharges violated the First
Amendment as understood in Elrod v. Burns, 427 U.S. 347
2 No. 14-‐‑1792
(1976). The district judge concluded that all plaintiffs have
enough evidence to require a trial but that Mayor Smith is
entitled to qualified immunity with respect to nine of the
eleven plaintiffs’ claims. 6 F. Supp. 3d 889 (S.D. Ind. 2014).
The Mayor has appealed from the adverse portion of this
interlocutory decision, relying on Mitchell v. Forsyth, 472 U.S.
511 (1985), and its successors. Surprisingly, the City also has
appealed, even though as a municipal body it is not entitled
to any form of immunity and is outside Mitchell’s ambit. The
City invokes the doctrine of “pendent appellate jurisdic-‐‑
tion,” which barely survived its scathing treatment in Swint
v. Chambers County Commission, 514 U.S. 35 (1995), and today
allows a court of appeals to review an interlocutory order
only when it is “inextricably intertwined” with an appeala-‐‑
ble decision. Clinton v. Jones, 520 U.S. 681, 707 n.41 (1997).
The City maintains that its attempt to have the plaintiffs’
claims dismissed on the merits is “inextricably intertwined”
with the Mayor’s attempt to be free of the risk of damages
liability, but the contentions are not “intertwined” at all, let
alone “inextricably” so. Mitchell described an immunity ap-‐‑
peal as “conceptually distinct from the merits” (472 U.S. at
527), which the Court saw as an essential condition of inter-‐‑
locutory review. It is not only possible but also normal to re-‐‑
solve a defendant’s request for qualified immunity without
deciding the merits of a plaintiff’s claim. See Pearson v. Calla-‐‑
han, 555 U.S. 223, 231–43 (2009).
The principal question in an immunity appeal is whether
uncertainty in legal doctrine makes it inappropriate to
award damages against a public official—that is, whether
the law was “clearly established” before the official acted.
See, e.g., San Francisco v. Sheehan, 135 S. Ct. 1765, 1774–78
No. 14-‐‑1792 3
(2015); Wilson v. Layne, 526 U.S. 603, 618 (1999). A general
principle does not support personal liability; instead the
law’s application to a type of situation must be developed
enough to “place[] the statutory or constitutional question
beyond debate.” Ashcroft v. al-‐‑Kidd, 131 S. Ct. 2074, 2083
(2011), quoted in Sheehan, 135 S. Ct. at 1774. The question on
the merits, by contrast, concerns who is in the right, not how
much legal uncertainty must be cleared away to find the an-‐‑
swer. The district judge held that factual investigation, per-‐‑
haps including a trial, is necessary to determine whether the
plaintiffs’ rights under the First Amendment have been vio-‐‑
lated. We therefore limit the appeal to Mayor Smith’s argu-‐‑
ments about the only two plaintiffs with respect to whom
the district judge denied his request for immunity: Robin
Allman and Margaret Baugher.
When Smith was elected, Allman was Office Manager for
the Utility Department. That position includes planning, or-‐‑
ganization, and other tasks that the parties agree are vital to
an elected official’s ability to carry out his platform, and so
entitle elected officials to use political criteria to decide who
holds the job. See generally Branti v. Finkel, 445 U.S. 507, 518
(1980) (describing the sort of positions for which “party affil-‐‑
iation is an appropriate requirement for the effective per-‐‑
formance of the public office”). Smith told Allman that he
would not retain her as the Office Manager; she then exer-‐‑
cised her seniority (she had worked for the City for 20 years)
to move to an open position as a cashier in the Utility De-‐‑
partment. That transfer took effect on December 27, 2011.
When Mayor Smith took office on January 3, 2012, he “pro-‐‑
moted” her back to Office Manager and immediately sacked
her.
4 No. 14-‐‑1792
The parties agree that the position of cashier is not politi-‐‑
cally sensitive and that Elrod forbids the use of politics when
filling it. Mayor Smith does not contend that he would be
entitled to immunity had he cashiered a cashier. But he con-‐‑
tends that Allman was not properly a cashier because politi-‐‑
cal considerations influenced both her hiring as Office Man-‐‑
ager and her transfer to the cashier’s position; according to
Mayor Smith, this meant that Allman was still the Office
Manager when he took office and could be removed con-‐‑
sistent with Elrod and Branti. Allman maintains, to the con-‐‑
trary, that the cashier’s position had been properly posted as
open in November 2011, that her transfer satisfied all of the
City’s rules, and that the reason she sought the transfer is
irrelevant.
This description of the controversy shows that it has
nothing to do with uncertainty in federal law, and thus noth-‐‑
ing to do with qualified immunity. The only disputed ques-‐‑
tion is one of state or local law (which may be influenced by
the resolution of factual disputes about how and why the
transfer occurred): whether Allman properly occupied a
cashier’s position. It follows that Mayor Smith is not entitled
to interlocutory review with respect to Allman’s situation.
Johnson v. Jones, 515 U.S. 304 (1995), holds that qualified-‐‑
immunity appeals under Mitchell are limited to determining
whether the legal issue is subject to uncertainty and do not
support review of antecedent questions. The antecedent
question in Johnson was whether the plaintiff or the defend-‐‑
ant had correctly described the facts of the controversy; the
Court held that resolution of factual questions had to await
appeal from a final judgment, even if one possible resolution
would have brought a legal issue to the fore. In Allman’s
situation the antecedent question is whether her appoint-‐‑
No. 14-‐‑1792 5
ment to the cashier’s position was valid. No matter how that
comes out, the court will not need to resolve a disputed
question of federal law. Johnson makes it easy to see that
Mayor Smith is not entitled to interlocutory review of the
question whether Allman was entitled to be a cashier. That’s
the whole case, not (as Mitchell requires) an issue conceptual-‐‑
ly distinct from the merits.
Margaret Baugher, the other ex-‐‑employee involved in
this appeal, “worked as Customer Service Supervisor in the
City’s Utility Department. She reported to the Assistant
Manager for the Utility Department. As Customer Service
Supervisor, Ms. Baugher was responsible for directing per-‐‑
sonnel, assisting customers, and making billing adjustments,
as well as receiving and responding to customer inquiries
and complaints, assisting customers in initiating and termi-‐‑
nating services, and coordinating new sewer and storm wa-‐‑
ter accounts with the appropriate City department.” 6 F.
Supp. 3d at 894. This customer-‐‑service job was not the top of
the Utility Department, or even a deputy, but the third level
on the organization chart. The district judge wrote: “Ms.
Baugher mainly interacted with co-‐‑workers and members of
the general public, not high level city officials. Her main du-‐‑
ties consisted of complying with department policies and
rules, not developing such policies, and the information she
was charged with keeping confidential was not politically
sensitive information. Unless there is additional evidence
provided to the contrary at trial, it appears that Ms. Baugh-‐‑
er’s position falls outside of the exemption for First
Amendment protection, thus summary judgment on her
claim is not warranted.” Id. at 902.
6 No. 14-‐‑1792
This court has urged district judges to use job descrip-‐‑
tions, whenever possible, to apply Elrod and Branti, see Riley
v. Blagojevich, 425 F.3d 357 (7th Cir. 2005), and Mayor Smith
observes that the job description for Baugher’s position men-‐‑
tions the possibility that the Customer Service Supervisor
might have to run the Department if all higher positions
should be unfilled or unable to act. The record does not
show that this has ever happened, however, and if a remote
possibility that a subordinate might need to act as a caretak-‐‑
er were enough to make politics a legitimate qualification for
the post, then Elrod would be overthrown—for if a disaster
of sufficient proportions struck, even a garbage collector
might find himself the highest remaining worker in a city’s
department of sanitation.
Branti holds that an assistant public defender cannot be
fired on political grounds, although the public defender,
charged with setting policy for the office, might be. By
Mayor Smith’s lights, Branti should have come out the other
way, because it was possible that an assistant might have to
perform the chief’s duties if that office became vacant or the
chief was unable to act. But that’s not how the Court ap-‐‑
proached the case. Nor is it how we approached the question
whether the #2 position in a large bureaucracy (Chicago’s
Water Department) could be removed on political grounds.
We asked in Tomczak v. Chicago, 765 F.2d 633 (7th Cir. 1985),
what the First Deputy Commissioner usually did, not what
duties were conceivable under unlikely conditions. The First
Deputy Commissioner of Chicago’s Water Department regu-‐‑
larly made policy (or exercised politically sensitive discre-‐‑
tion), and it followed that he could be replaced on political
grounds. That can’t be said about Baugher’s job (the third
tier in a small organization)—and Mayor Smith does not say
No. 14-‐‑1792 7
it. He does not contend that she regularly, or indeed ever,
made policy or exercised politically sensitive discretion, such
as which street’s potholes get filled or what ward’s snow
gets plowed.
Now if the job description said that she did do those
things, then Mayor Smith would be entitled to immunity
even if it turned out that the description was inaccurate. A
newly elected mayor needs to rely on published criteria to
know which positions can be filled on political grounds. For
the federal government, United States Government Policy and
Supporting Positions (the “Plum Book”) identifies the 7,000 or
so posts eligible for presidential selection or discretionary
replacement by presidential appointees. Many states and lo-‐‑
cal governments have similar rosters, and people whose jobs
are in such a catalog are not well situated to complain when
replaced. They certainly cannot obtain damages from an
elected official who relies on a published list. But the City of
Anderson does not have a local version of the Plum Book. A
mayor who equates a worker’s possible duties (e.g., acting
for the top official if all higher positions on the organization
chart are vacant) with the worker’s normal duties (e.g., pro-‐‑
cessing complaints about overbilling or failure to credit
payments) cannot claim immunity, because Branti and deci-‐‑
sions such as Tomczak and Riley establish that it is the posi-‐‑
tion’s normal duties that matter.
As a fallback, Mayor Smith contends that anyone respon-‐‑
sible for dealing with citizens’ complaints may be hired or
fired on political grounds, for if such a person insults people,
or is lazy, or refuses to act on legitimate grievances, that re-‐‑
flects poorly on the administration, and a loss of public con-‐‑
fidence undermines its ability to carry out its political pro-‐‑
8 No. 14-‐‑1792
gram (or be re-‐‑elected). For this, Mayor Smith relies princi-‐‑
pally on Selch v. Letts, 5 F.3d 1040 (7th Cir. 1993), which
holds that political affiliation is an appropriate requirement
for the position of subdistrict superintendent at the Indiana
Department of Highways.
Responding to complaints was one aspect of a subdistrict
superintendent’s job, but it mattered to the decision what
those complaints concerned—and how the subdistrict super-‐‑
intendents could deal with them. Each subdistrict could set
an independent agenda about road repairs and maintenance,
including snow removal. Subdistrict superintendents had
“almost unbridled authority to determine where and when
… work was to be done” (id. at 1045). The ability to deliver
public services is vital to the success of any mayor or gover-‐‑
nor, and Selch reported that the quality of public services
had been an issue in the gubernatorial election that led to
Selch’s replacement. It is therefore understandable that a
person with “unbridled authority” to determine where and
when road-‐‑related services are provided must be someone
the Governor can trust. That subdistrict superintendents
sometimes acted in response to complaints was a sidelight;
what mattered was their discretion over matters of high po-‐‑
litical salience.
Mayor Smith does not contend that the Customer Service
Supervisor of the Utility Department has unbridled, or in-‐‑
deed any significant, discretion over matters of high political
value. Customer-‐‑service positions are ubiquitous in the
economy; people who call AT&T to complain about a tele-‐‑
phone bill hope to be well treated, but they do not imagine
that they are speaking to people with policy-‐‑making discre-‐‑
tion. True, if a customer-‐‑service supervisor fouls up, that
No. 14-‐‑1792 9
will redound to the employer’s detriment. But that’s true of
almost every employee. If a road maintenance worker falls
asleep on the job, or a postal letter carrier tramples a flower
bed, citizens may be furious and the government will fall in
public esteem. Yet Elrod holds that politics may not be a
ground of replacing road maintenance workers and similar
positions that do not entail political discretion. That’s equal-‐‑
ly true of customer-‐‑service supervisors.
The district judge recognized that a trial might show that
Baugher has more discretion than her job description im-‐‑
plies, and if so it may turn out in Branti’s words that “party
affiliation is an appropriate requirement for the effective per-‐‑
formance of the public office”. All we have to go on now,
however, is the job description. Johnson v. Jones prevents any
deeper inquiry. Selch and other decisions we have men-‐‑
tioned clearly establish that a person whose main duties are
managing a clerical staff that handles customer complaints—
who has limited operational discretion but no significant
policy-‐‑making discretion—cannot be fired on political
grounds.
The appeal is dismissed to the extent it concerns the City
of Anderson or Robin Allman’s claim. The district court’s
decision that Mayor Smith is not entitled to qualified im-‐‑
munity on Margaret Baugher’s claim is affirmed.