holding that “[e]ven if the interview process was biased in Blessing’s favor, four other applicants for the position received higher scores than Tarpley’s and, thus, would presumably have been preferred to Tarpley, even if Blessing had not been in the running for the position. Tarpley has provided us with no information about these candidates which could support a jury finding that their scores were unjustified by their qualifications or that they were favored over Tarpley for political reasons.”
How later courts described this case
- holding that “[e]ven if the interview process was biased in Blessing’s favor, four other applicants for the position received higher scores than Tarpley’s and, thus, would presumably have been preferred to Tarpley, even if Blessing had not been in the running for the position. Tarpley has provided us with no information about these candidates which could support a jury finding that their scores were unjustified by their qualifications or that they were favored over Tarpley for political reasons.”
- “Thus Tarpley could presumably establish standing to challenge the hiring process for the temporary positions by showing that he would have been ‘able and ready’ to apply for the temporary position, had he not been prevented from doing so by the patronage hiring practice.”
- remanding for findings of jurisdictional fact on whether factual requirements for claim were met to establish jurisdiction
- "The First Amendment bars patronage hiring of independent contractors.”
Written by the judges who cited it.
The opinion
FLAUM, Circuit Judge,
concurring in the judgment.
I fully agree with the majority’s conclusion that the plaintiff Robert Tarpley has failed to raise a genuine issue of material fact regarding whether he would have been awarded the permanent maintenance worker job in a “party-blind” hiring process. The four other interviewees that were ranked above Tarp-ley, though below Harold Blessing, rebut his claim that he would have gotten the job but for his politics. I also agree that Tarpley did not adequately substantiate his claim that the defendants used the temporary position as a way of getting the politically favored into a subsequent permanent position, i.e., that they engaged in a deliberate scheme to avoid the dictates of Rutan v. Republican Party of Illinois, 497 U.S. 62 , 110 S.Ct. 2729 , 111 L.Ed.2d 52 (1990). Furthermore and most significantly, I join the majority’s conclusion that Tarpley has not yet established that he has standing to challenge the filling of the temporary position, since it is not clear that he would have been “ready and able” to apply for it had it not been filled by a patronage hiring.
At this point in the litigation, however, I am unable to join the majority opinion to the extent that it advances commentary on issues that are not before us for decision. I agree that if the district court determines that Tarpley can establish “injury in fact,” and hence standing, to contest the temporary hiring, the court will have to address the challenging question of the legality of patronage hiring for temporary positions in light of the teachings of both Rutan, 497 U.S. 62 , 110 S.Ct. 2729 , and O’Hare Truck Service, Inc. v. City of Northlake, - U.S. -, 116 S.Ct. 2353 , 135 L.Ed.2d 874 (1996). Prudentially, I would refrain from currently exploring the possible parameters of this issue until assured of a live controversy. In addition, I would avoid engaging in any preliminary *932 fact-finding regarding the comparative validity of the Blessing and Tarpley interviews for the permanent position, particularly since this court concludes that the higher scores of four other interviewees (about which Tarpley submitted no evidence of bias) appropriately led to summary judgment against the plaintiff on this claim.
The party defendants in this case do not yet “bear the burden of proving that Tarpley was not deprived of the permanent position solely because of the predictable advantage Blessing garnered by filling the interim slot.” Supra at 930. This issue does not arise until there is an initial adjudication that Rutan applies to temporary positions — an issue that, in my judgment, should only be addressed if Tarpley has standing in the first place. Therefore, because of the posture of the case before us, any unqualified endorsement of the majority’s analysis must be reserved for another day.