Messer v. Curci, 85-5626

• Citation: 881 F.2d 219
• Decision Date: 25 July 1989
• Docket Number: No. 85-5626,85-5626
• Parties: , 4 Indiv.Empl.Rts.Cas. 1130 Bruce MESSER and Timothy P'Simer, Plaintiffs-Appellants, v. Fran CURCI, W. Gayle Foust, Kelly Newton, and Thomas Lykins, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 219

881 F.2d 219

58 USLW 2093, 4 Indiv.Empl.Rts.Cas. 1130

Bruce MESSER and Timothy P'Simer, Plaintiffs-Appellants, v. Fran CURCI, W. Gayle Foust, Kelly Newton, and Thomas Lykins,

Defendants-Appellees.

No. 85-5626.

United States Court of Appeals,

Sixth Circuit.

Argued Aug. 5, 1987.

Decided July 25, 1989.

Deborah G. Roher (argued), Stephen Krumm, Northeast Kentucky Legal Services Ashland, Ky., for plaintiffs-appellants.

J. Patrick Abell, Dept. of Parks, Frankfort, Ky., Paul C. Gaines, III, Frankfort, Ky., Daniel F. Egbers (argued), Cabinet for Humas Resources Frankfort, Ky., for defendants-appellees.

Before ENGEL, Chief Judge ^*; KEITH, MERRITT, KENNEDY, MARTIN, JONES, KRUPANSKY, WELLFORD, MILBURN, GUY, NELSON, RYAN, BOGGS, and NORRIS, Circuit Judges; and LIVELY, Senior Circuit Judge ^**.

BOGGS, Circuit Judge.

Plaintiffs contend that an applicant for government employment states a claim for violation of the applicant's first amendment rights by alleging that preference was given to other applicants because of their political activities. We hold that such allegation of political patronage hiring, standing alone, does not state a claim for violation of 42 U.S.C. Sec. 1983, and thus we affirm the judgment of the district court dismissing the complaint.

I

Plaintiffs Bruce Messer and Timothy P'Simer challenged the decision of the Kentucky Department of Parks not to hire them for the 1984 season as seasonal maintenance workers at the Carter Caves State Resort Park in Carter County, Kentucky. The positions generally run for about eight months, during the warmer parts of the year. The exact number of positions available is established each year, and may vary. Plaintiff Messer had held such positions for the eight years preceding the 1984 season. Plaintiff P'Simer had held positions for the three preceding years. Plaintiffs note that they followed "the practice of annual reapplication" for these positions for the 1984 season, but discovered that they were not among those hired. ¹

Plaintiffs claim that the defendants, who are various Kentucky state or Democratic party officials, conspired to refuse to hire them because of their political beliefs and because they did not work in the successful 1983 gubernatorial campaign of Governor Martha Layne Collins. ² Plaintiffs' legal theory was that the decisions in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct 1287, 63 L.Ed.2d 574 (1980), which deal only with discharges based upon political affiliation, should be extended to cases of failure to hire based on similar grounds. The district judge, in a well-reasoned opinion, 610 F.Supp. 179, rejected plaintiffs' contention and granted defendants' motion to dismiss for failure to state a claim on which relief could be granted. Fed.R.Civ.P. 12(b)(6). A divided panel of this court reversed, reluctantly, on the authority of Avery v. Jennings, 786 F.2d 233 (6th Cir.), cert. denied, 477 U.S. 905, 106 S.Ct. 3276, 91 L.Ed.2d 566 (1986). Messer v. Curci, 806 F.2d 667 (1986). The panel's decision was vacated, and rehearing en banc granted, by order of January 21, 1987.

II

The major sources of law on this issue are the Supreme Court's decisions in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). In Elrod, a divided court issued three opinions, none commanding a majority, but clearly held that public employees could not be dismissed because of their political affiliation, loyalties, or beliefs, except from "policy-making" or "confidential" positions. The court rested its opinion on the belief that the first amendment rights of speech and association were violated by such specific punishment of individuals whose careers had brought them to the specific employment. 427 U.S. at 356-8, 96 S.Ct. at 2681-2; id. at 375, 96 S.Ct. at 2690 (Stewart, J., concurring). In Branti, a 6-member majority of the Court reaffirmed Elrod and extended it to cover discharge for political affiliation even of office-holders in professional positions, such as lawyers, so long as they were not in policy-making positions. 445 U.S. at 518-20, 100 S.Ct. at 1294-95.

Plaintiffs initially contend that this case should be treated as a discharge case under Elrod and Branti. However, this case is not similar to other cases in which a "failure to rehire" was treated as a discharge from continuing employment. In Branti, the Court determined that the failure to rehire the plaintiffs was a discharge even though, in form, the terms of their appointments had expired at the same time as that of their politically-appointed superior. The Court said that "the lack of a reasonable expectation of continued employment is not sufficient to justify a dismissal based solely on an employee's private political beliefs." 445 U.S. at 512 n. 6, 100 S.Ct. at 1291 n. 6. Thus, the Court simply held that what occurred in Branti was in fact still a dismissal. On Day 1 plaintiffs had a job, and on Day 2 they were to be terminated from that job.

In the present case, plaintiffs were not employed by the State for at least four months before the commencement of the positions for which they had applied. It is undisputed that state law provides no preference for appointment to such positions based on previous employment, and that the positions themselves simply do not exist during the off-season and are recreated by action of the Commissioner of Personnel for each succeeding year. See KRS Sec. 18A.005(20); Dist.Ct. opinion at 4-5. Thus, under state law, Messer and P'Simer had no continuing employment status. Plaintiffs were among a number of applicants for these positions, and the failure to hire them can in no way be denominated as a dismissal under Branti.

Similarly, all the cases that have applied the Branti doctrine to failures to rehire have involved situations where a worker was informed onnon-reappointment at the end of a term of employment, thus causing an actual discharge. See, e.g., McConnell v. Adams, 829 F.2d 1319, 1322-24 (4th Cir.1987), cert. denied sub nom. Virginia ex rel. State Board of Elections v. Kilgore, --- U.S. ----, 108 S.Ct. 1731, 100 L.Ed.2d 195 (1988); Furlong v. Gudknecht, 808 F.2d 233, 237-8 (3rd Cir.1986); Horton v. Taylor, 767 F.2d 471, 473 n. 1 (8th Cir.1985); McBee v. Jim Hogg County, Texas, 730 F.2d 1009, 1015 (5th Cir.1984) (en banc). In the case at hand, the plaintiffs were not employed by the State at the time of the contested decision, and stood in the position of applicants for recreated seasonal positions, for which they could have failed of employment for any number of reasons, including the political patronage reasons actually involved in this case. Plaintiffs' own complaint makes this distinction in speaking of defendants' action as "denying ... Messer and P'Simer their positions," but as "terminating Damron." Thus, in this appeal, plaintiffs are in the position of any applicant who is not hired because preference has been given to others for patronage reasons.

III

The plurality opinion in Elrod clearly expresses a strong disapproval of the practice of patronage in all of its manifestations. Elrod, 427 U.S. at 353-56, 364-67, 96 S.Ct. at 2679-81, 2685-86; ³ see also, Branti, 445 U.S. at 518-20, 100 S.Ct. at 1294-95. However, both cases carefully limited the reach of their majority holding. In Elrod, the two Justices whose votes were necessary to make up the five-member majority specifically stated:

In particular, [this case] does not require us to consider the constitutional validity of a system that confines the hiring of some governmental employees to those of a particular political party, and I would intimate no views whatever on that question.

Elrod, 427 U.S. at 374, 96 S.Ct. at 2690 (Stewart and Blackmun, JJ., concurring).

In Branti, the Court stated:

In light of the limited nature of the question presented, we have no occasion to address petitioner's argument that there is a compelling governmental interest in maintaining a political sponsorship system for filling vacancies in the public defender's office.

Branti, 445 U.S. at 513 n. 7, 100 S.Ct. at 1292.

The Supreme Court cases do not require us to find constitutional fault in a system permitting patronage hiring. The options do lay out a rubric for balancing the cost of patronage in the "restraint it places on freedoms of belief and association," Elrod, 427 U.S. at 355, 96 S.Ct. at 2680, with the state interests in effective government; id. at 364, 96 S.Ct. at 2685. Thus, we turn to an analysis of the comparisons between patronage hiring and patronage dismissals, and an analysis of the Elrod factors in that context.

Clearly, pure patronage hiring does involve use of the resources of government to create a potential cost (and a potential benefit) to an individual exercising the right to speak and act on political issues. This has not been viewed by the Supreme Court as a per se unconstitutional impairment, in that the Court has reaffirmed the practice of patronage dismissals for confidential and policy-making positions. See, Branti, 445 U.S. at 517-19, 100 S.Ct. at 1294-95. There are a number of distinctions, of considerable practical importance, between the first amendment costs of patronage firing of existing workers, and patronage hiring. First, dismissal from employment is inherently a specific punishment of specific people for activities or beliefs, past or present. Patronage hiring based on past activity or affiliation, as in the present case, simply recognizes a benefit or cost of past choices. Had the election gone differently (see supra n. 2), the damage to plaintiffs' employment chances might instead have turned out to be a boon.

Second, as distinct from the Communist and loyalty oath cases cited in Elrod (Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Wieman v. Updegraff, 344 U.S. 183...