Schroeder v. City of Chicago

• Decision Date: 13 March 1991
• Docket Number: No. 90-1144,90-1144
• Parties: Bernard SCHROEDER, Plaintiff-Appellant, v. CITY OF CHICAGO, John J. Tully, and Audley Connor, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 957

927 F.2d 957

Bernard SCHROEDER, Plaintiff-Appellant, v. CITY OF CHICAGO, John J. Tully, and Audley Connor,

Defendants-Appellees.

No. 90-1144.

United States Court of Appeals,

Seventh Circuit.

Argued Nov. 7, 1990.

Decided March 13, 1991.

J. Peter Dowd, Janet B. Johnson-Vinion, Dowd & Bloch, Chicago, Ill., for plaintiff-appellant.

L. Anita Richardson, Corp. Counsel, Jean Dobrer, Asst. Corp. Counsel, Laura Hutchinson, Kelly R. Welsh, Asst. Corp. Counsel, Office of the Corp. Counsel, Appeals Div., Chicago, Ill., for defendants-appellees.

Before BAUER, Chief Judge, and POSNER and RIPPLE, Circuit Judges.

POSNER, Circuit Judge.

This is a suit under the ubiquitous 42 U.S.C. Sec. 1983 by a former employee of the Chicago fire department who is complaining about delay in the receipt of disability benefits. The suit was dismissed for failure to state a claim, so we are confined to the facts stated in the complaint. On October 23, 1985, Bernard Schroeder was injured while fighting a fire. He was placed on medical leave at full pay and remained in that status for more than a year, during which time he was examined by a number of doctors all of whom concluded that he would be unable to resume his duties as a fireman. On November 16, 1986, the fire department stopped paying him and the next month he applied to the Retirement Board of the Fireman's Annuity and Benefit Fund of Chicago--a public agency separate from the City of Chicago, Ill.Rev.Stat. ch. 108 1/2, p 22-402--for permanent "duty disability" benefits, that is, benefits for a disability incurred in the line of duty.

The complaint states that the law of Illinois prohibits the Retirement Board from acting on an application for benefits until it receives a medical certificate from the fire department indicating the reason why the fireman has been struck off the department's payroll. The defendants counter that the statute expressly gives the Board "exclusive original jurisdiction" over all claims for benefits, Ill.Rev.Stat. ch. 108 1/2, p 6-185, and further provides that the necessary proof of a duty disability is to be furnished to the Board by a physician appointed by it. p 6-153. The Board can require additional evidence of disability, id., but is under no duty to do so--certainly no duty to await a medical certification from the fire department. To this Schroeder ripostes that an earlier paragraph of the statute provides that "whenever an active fireman is or becomes so injured or sick, as to require medical or hospital attention, the chief officer of the fire department of the city shall file, or cause to be filed, with the [Retirement Board] a report of the nature and cause of his disability, together with the certificate or report of the physician attending or treating.... Any injury ... for which a physician's report or copy of the hospital record is not on file with the board shall not be considered for the payment of duty disability benefits." p 6-151. So maybe the submission of a medical report or certificate by the fire department is a condition precedent to the Board's "exclusive original jurisdiction" attaching. And whether it is or not, the Board customarily asks the fire department for a medical certificate (so at least the complaint alleges); it did here. It got no response, and in consequence did not process Schroeder's application. Eventually he demanded a hearing before the Board. It was held on August 19, 1987, eight months after he had applied for benefits. At the hearing it was revealed that John Tully, the fire department's director of personnel, and Audley Connor, its medical director, had refused to furnish the medical certificate because they believed that the real reason for Schroeder's inability to work was alcoholism rather than any work-related injury. The complaint says that they knew better, and in fact were acting maliciously. However this may be, the Board disagreed with the opinion of Tully and Connor and either at the conclusion of the hearing or directly afterward awarded Schroeder duty disability benefits retroactive to the date on which he had applied for them. It did this even though the fire department never did furnish the medical certificate that Schroeder contends is a condition precedent to an award of benefits. If in doing this the Board violated the law, it violated it in Schroeder's favor and he can't complain.

One might have thought that a full retroactive award of benefits would have ended any dispute between Schroeder and the Chicago fire department. Not so. Schroeder complains that during the eight months in which his application for disability benefits was in limbo he had no money to live on and as a result both suffered emotional injury--including a fall off the wagon after what he contends was a ten-year period of sobriety (Tully and Connor may have a different view on this matter)--and incurred legal expenses to obtain the benefits. He attributes the Board's delay and the resulting injury and expense to him to the willful and malicious conduct of Tully and Connor in withholding the vital medical certificate from the Retirement Board, conduct which he claims deprived him of property without due process of law. The complaint joins the City of Chicago, Tully's and Connor's employer, as an additional defendant, but this joinder is frivolous. The isolated misconduct of two employees in refusing to furnish a certificate to another agency is precisely the type of random and unauthorized act which, even if deliberate, is not deemed the act of their municipal employer. City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988).

The claim against Tully and Connor is more substantial but faces two steep hurdles. The first is the requirement that the plaintiff show a deprivation of property, the second that he show a denial of due process. A disability benefit that is a matter of right, not of grace, is a property right within the meaning of the due process clause. But in what sense was Schroeder deprived of his benefit? He received it in full, only some months later than he applied. If he received it after he was entitled to receive it, then he was deprived of an entitlement, and entitlements are what the due process clause has been held to protect in the name of "property." Patterson v. Portch, 853 F.2d 1399, 1405 (7th Cir.1988); Fleury v. Clayton, 847 F.2d 1229, 1231 (7th Cir.1988). If you are entitled to receive $1,000 on May 1, 1989, and you receive it on May 2, you have been deprived of an entitlement. It is a limited, temporary, and easily reparable deprivation--the loss, in effect, of a day's interest on $1,000, which is less than a dollar. But it is a deprivation nevertheless, and we may assume that it would be actionable. Tavarez v. O'Malley, 826 F.2d 671, 674 (7th Cir.1987); Sutton v. City of Milwaukee, 672 F.2d 644, 645 (7th Cir.1982). But Schroeder points to no source in positive law for an entitlement to be awarded a fireman's disability benefit on the day he applies, or on the following day, or within a month, or a year. If there is unreasonable delay the applicant can seek a writ of mandamus from an Illinois state court. People ex rel. Ulrich v. Board of Trustees, 344 Ill.App. 210, 100 N.E.2d 815 (1951) (abstract); cf. Kermeen v. City of Peoria, 65 Ill.App.3d 969, 22 Ill.Dec. 619, 382 N.E.2d 1374 (1978). But that is different from a substantive entitlement to begin receiving money within a fixed interval of the application. Probably the draftsmen of the statute assumed that between the provision for making awards retroactive and the right of an applicant to seek mandamus in an extreme case, unreasonable hardship resulting from delays in the processing of pension and disability claims would be minimized. In any event they decided not to create a legally enforceable right, an entitlement, to immediate payment, and the consequence is that a delay in the payment of Schroeder's disability benefit did not deprive him of a property right in the Fourteenth Amendment sense.

Justice delayed is justice denied, the saying goes; and at some point delay must ripen into deprivation, because otherwise a suit alleging deprivation would be forever premature. The distinction is explained in Isaacs v. Bowen, 865 F.2d 468, 477 (2d Cir.1989), which considered delays of six months and even nineteen months in the processing of a claim for social security benefits unremarkable, while citing with approval a case that had held a delay of almost four years in acting upon a request for an annuity to be a deprivation of property. Kelly v. Railroad Retirement Bd., 625 F.2d 486, 490 (3d Cir.1980). Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), which held that a hearing on whether to restore social security disability benefits that have been terminated can be held after termination, condoned a delay of more than a year, on average, in the restoration of benefits wrongfully terminated. Id. at 342, 96 S.Ct. at 906. Cf. Heckler v. Day, 467 U.S. 104, 118, 104 S.Ct. 2249, 2257, 81 L.Ed.2d 88 (1984). If there is irreparable harm from delay, then delay injures, and by injuring deprives. But a loss of the time value of money, consequent on delay in receiving money to which one is entitled, is not considered an irreparable harm, even though it is a real loss, and even if there is no way to recover it. Cf. Proimos v. Fair Automotive Repair, Inc., 808 F.2d 1273, 1277 (7th Cir.1987); Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386 (7th Cir.1984).

The cases on unreasonable delay are best understood as holding that implicit in the conferral of an entitlement is a further entitlement, to receive the entitlement within a reasonable time. The fact that mandamus might lie under Illinois law to rectify egregious stalling tactics suggests that such a further entitlement may be implicit in that law. This we need not decide. The delay was not sufficiently egregious in ...