holding that even though a district court erroneously failed to address a class action issue it still issued a final order when it dismissed the suit because it left nothing to be decided
How later courts described this case
- holding that even though a district court erroneously failed to address a class action issue it still issued a final order when it dismissed the suit because it left nothing to be decided
- district court’s dismissal of plaintiffs’ complaint for failure to state a claim without considering the issue of class certification violated Rule 23(e)(1); court considered the motion to dismiss with respect to the named plaintiffs only
- “Because no class of plaintiffs . . . [was] certified, only the named plaintiffs . . . are before this court. Therefore, we treat plaintiffs’ claims as being brought solely by the named plaintiffs” in reviewing motion to dismiss for failure to state claim
- discusses Circuit split and adopts Delong 's "substantial equivalent to a dismissal" test
Written by the judges who cited it.
The opinion
CUDAHY, Circuit Judge,
concurring in part and dissenting in part:
With respect to the patronage hiring claim of James Moore, I agree with the result reached by the majority though not necessarily with all the reasoning. It seems to me that removing politics from the dispensation of government jobs is too daunting a task even for such all-purpose problem-solvers as the federal courts. At least the task should not be undertaken without some clearer signal from the Supreme Court. How to square this conclusion with the extensive first amendment jurisprudence which has grown up around political discharges is an even more daunting challenge, although LaFalce v. Houston, 712 F.2d 292 (7th Cir.1983), cert. denied, 464 U.S. 1044 , 104 S.Ct. 712 , 79 L.Ed.2d 175 (1984), may point the way — at least for the time being. Patronage hiring practices are of great antiquity. There may be some good in them in some circumstances but, most importantly, rooting them out is something the federal courts could not accomplish without incurring staggering and, I should think, clearly disproportionate costs. The patronage hiring practices involved here seem unvarnished and redolent of another era. They could, however, be dealt with by a properly designed civil service system. This is not a job for the federal courts — yet.
With respect to unfavorable personnel actions falling short of discharge involving *959 existing employees, I agree with Judge Ripple and would rely on his persuasive partial dissent to the original panel opinion, 848 F.2d 1396, 1412 (7th Cir.1988), as well as on his separate opinion here. It strikes me also as unrealistic to require plaintiffs to show that they were treated badly enough to quit, but for some reason did not. I would also follow Bennis v. Gable, 823 F.2d 723 (3d Cir.1987) (extending Elrod to any “disciplinary action” imposed for the exercise of first amendment rights), rather than Delong v. United States, 621 F.2d 618 (4th Cir.1980) (limiting Elrod to actions “substantially equivalent to dismissal”). We are already deeply into the business of protecting the first amendment rights of those who are already public employees and here I think we should follow the logic of our cases rather than attempt to draw the line quite unrealistically at constructive discharges.
For all these reasons I respectfully dissent to the extent indicated.