Brown v. Brienen

• Decision Date: 08 December 1983
• Docket Number: No. 82-2995,82-2995
• Parties: John BROWN, et al., Plaintiffs-Appellants, v. Steve BRIENEN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 360

722 F.2d 360

John BROWN, et al., Plaintiffs-Appellants, v. Steve BRIENEN, et al., Defendants-Appellees.

No. 82-2995.

United States Court of Appeals Seventh Circuit.

Argued Sept. 13, 1983.

Decided Dec. 8, 1983.

John A. Beyer, Satter, Ewing & Beyer, Pontiac, Ill., for plaintiffs-appellants.

John R. Bailen, Bane, Allison, Saint & Ehlers, Bloomington, Ill., for defendants-appellees.

Before POSNER and FLAUM, Circuit Judges, and GRANT, Senior District Judge. ^*

POSNER, Circuit Judge.

State employees' suits under section 1 of the Civil Rights Act of 1871 (now 42 U.S.C. Sec. 1983) alleging breach of an employment contract have become an important part of the business of the federal courts. In recent months this court has decided seven such cases (excluding cases decided by unpublished order): Turnquist v. Elliott, 706 F.2d 809 (7th Cir.1983); Vail v. Board of Educ., 706 F.2d 1435 (7th Cir.1983); Lyznicki v. Board of Educ., 707 F.2d 949 (7th Cir.1983); Smith v. Board of Educ., 708 F.2d 258 (7th Cir.1983); Grimes v. Eastern Illinois Univ., 710 F.2d 386 (7th Cir.1983); Hadley v. County of DuPage, 715 F.2d 1238 (7th Cir.1983); and Green v. Board of School Comm'rs, 716 F.2d 1191 (7th Cir.1983) (per curiam). The specific question for decision in this case is whether such a breach is actionable under section 1983 even though the employee has not been fired and even though he could litigate the alleged breach in state court under state law.

The board of McLean County, Illinois enacted an ordinance which provided that county employees who work more than a certain number of hours per week "may be granted time off in an amount equal to the overtime worked." The sheriff announced that, as authorized by the ordinance, he would grant compensatory time off to employees in his department who worked overtime. But because the department's workload grew and the board failed to appropriate money to hire additional employees, compensatory time off accrued faster than the sheriff could allow it to be taken without endangering public safety. By the time of trial the backlog was several thousand hours.

This suit pits sheriff's department employees who have accrued compensatory time off against the sheriff, the county, the board, and the board's members. The suit charges that the ordinance, in combination with the sheriff's announced intention of granting compensatory time off, conferred a property right on the employees once they put in overtime after the announcement; and that the sheriff, by refusing to allow them to take their accrued time off, and the board, by refusing to fund a staff large enough to enable the sheriff to honor his promise, deprived them of that property right without due process of law. They asked the district court to order the defendants either to grant them forthwith the time off that they had earned or to pay them their wages for that time, and for the future to grant compensatory time off promptly as it accrues. The district judge concluded, after a bench trial on liability, that there had indeed been a deprivation of property, but no denial of due process since the plaintiffs could get a fully adequate hearing by suing the defendants in state court for breach of contract; and he dismissed the complaint. 553 F.Supp. 561.

The parties agree that if the defendants broke a contract to give the plaintiffs compensatory time off, the plaintiffs can obtain the same relief that they are seeking in the present suit from a breach-of-contract suit in state court. See Ill.Rev.Stat.1981, ch. 34, p 601; Scutt v. LaSalle County Bd., 97 Ill.App.3d 181, 53 Ill.Dec. 21, 423 N.E.2d 213 (1981); County of Stephenson v. Bradley & Bradley, Inc., 2 Ill.App.3d 421, 426, 275 N.E.2d 675, 679 (1971). This appeal thus raises acutely the question whether 42 U.S.C. Sec. 1983 displaces the whole of the state law of public contracts into the federal courts through the characterization of a breach of such a contract as a deprivation of property without due process of law, even though most such disputes have nothing to do with civil rights as ordinarily understood. Cf. Eisen v. Eastman, 421 F.2d 560, 564-65 (2d Cir.1969) (Friendly, J.).

Although the defendants have not appealed from the district judge's ruling that there was a deprivation of property, we may consider any ground for affirmance that the record supports. Brown v. Marquette Savings & Loan Ass'n, 686 F.2d 608, 611 (7th Cir.1982). The question whether there was a deprivation of property is logically prior to the question whether there was a denial of due process, and we shall address it lest we leave the impression that it is an insubstantial question.

Until comparatively recently, the line between contract and property rights, for Fourteenth Amendment as for other purposes, was clearly drawn. In McCormick v. City of Oklahoma City, 236 U.S. 657, 35 S.Ct. 455, 59 L.Ed. 771 (1915), for example, the Supreme Court held that a city's breach of a contract to pave its streets was not a deprivation of property. The basis of the contractor's "allegation is that complainant had binding contracts with the city which the city refused to permit him to perform. Their breach is alleged and nothing more, and the allegation gets no other quality or character by the assertion that complainant had a 'vested right of property' in the contracts or their performance, and that to take this away is a deprivation of property without due process of law." Id. at 659, 35 S.Ct. at 456. To similar effect see Hartigan v. Board of Regents, 49 W.Va. 14, 38 S.E. 698 (1901), and Scopes v. State, 154 Tenn. 105, 112, 289 S.W. 363, 365 (1927), both dealing with employment contracts. But by the time Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), was decided, it was evident that the Supreme Court considered the common law definition of "property" too confining to achieve the objectives of the due process clause. That case involved the termination of welfare benefits, and the Court held that in the age of the welfare state such benefits are so like property in its conventional sense that they may not be cut off without due process of law. See id. at 262 and n. 8, 90 S.Ct. at 1017, and n. 8.

It is apparent in retrospect that if "property" was going to be broadened beyond its common law boundaries, the line between property and contract would fray. This was confirmed, two years after Goldberg v. Kelly, by Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-09, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 599, 601-02, 92 S.Ct. 2694, 2698, 2699-2700, 33 L.Ed.2d 570 (1972). The Court in Roth said, "To have a property interest in a benefit, a person ... must ... have a legitimate claim of entitlement to it.... Property interests ... are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law ...." 408 U.S. at 577, 92 S.Ct. at 2709. By this test, Roth did not have a property interest, for he had no expectation, based on state law, of continued employment. But Sindermann was entitled to show that he had an implied promise to tenure, i.e., of permanent employment terminable only for cause; and so an interest that the common law would have classified as a contract right was treated for Fourteenth Amendment purposes as a property right. In Hostrop v. Board of Junior College Dist. No. 515, 471 F.2d 488, 494 (7th Cir.1972), and Vail v. Board of Educ., 706 F.2d 1435 (7th Cir.1983), cert. granted, --- U.S. ----, 104 S.Ct. 66, 76 L.Ed.2d ---- (1983), this circuit held that Sindermann could not be limited to tenure contracts, but extended to term contracts as well. Thus, at least in this circuit, unless and until the Supreme Court decides otherwise in Vail, some breaches of public employment contracts are to be considered deprivations of property within the meaning of the Fourteenth Amendment even though the contract is not, as in Roth and Sindermann, a lifetime tenure contract.

But in the cases where breach of contract has been equated with deprivation of property, the employee was discharged (constructively discharged, in McAdoo v. Lane, 564 F.Supp. 1215, 1221 (N.D.Ill.1983)). One of our recent decisions expressly leaves open the question whether demotion of a public employee without reduction in pay is a deprivation of property, Lyznicki v. Board of Educ., supra, 707 F.2d at 951, and another states: "There is reason to doubt whether the Fourteenth Amendment was intended to allow every person with a breach of contract claim against a state to bring that claim in federal Court," Green v. Board of School Comm'rs, supra, 716 F.2d at 1192, citing the McCormick decision. See also Casey v. DePetrillo, 697 F.2d 22, 23 (1st Cir.1983) (per curiam); Manning v. Lockhart, 623 F.2d 536, 538 (8th Cir.1980) (per curiam). It seems, then, that there is no rule that every breach of a public employment contract is a deprivation of property within the meaning of the due process clause.

In deciding whether a particular breach should be deemed a deprivation of property we must bear in mind that the Fourteenth Amendment was not intended to shift the whole of the public law of the states into the federal courts. Most common law wrongs are not actionable under section 1983, though by definition they involve the deprivation of a legally protected interest. See Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (defamation); Wise v. Bravo, 666 F.2d 1328, 1332-33 (10th Cir.1981) (visitation rights); id. at 1333-35 (assault and trespass to property); Elbert v. Board of Educ., 630 F.2d 509, 512-14 (7th Cir.1980) (defamation); White v. Thomas, 660 F.2d 680, 684 (5th Cir.1981) (same). Only interests substantial enough to warrant the protection of federal law and federal courts are Fourteenth Amendment property interests. Id. at 684. Whether an interest is that substantial depends on the security...