Chasensky v. Walker

• Decision Date: 22 January 2014
• Docket Number: No. 13–1761.,13–1761.
• Parties: Becky S. CHASENSKY, Plaintiff–Appellee, v. Scott WALKER, et al., Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

740 F.3d 1088

Becky S. CHASENSKY, Plaintiff–Appellee,

v.Scott WALKER, et al., Defendants–Appellants.

No. 13–1761.

United States Court of Appeals,Seventh Circuit.

Argued Nov. 13, 2013.

Decided Jan. 22, 2014.

James P. End, Attorney, First, Albrecht & Blondis, Milwaukee, WI, for Plaintiff–Appellee.

F. Mark Bromley, Attorney, Charlotte Gibson, Attorney, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Defendants–Appellants.

Before MANION, KANNE, and HAMILTON, Circuit Judges.

MANION, Circuit Judge.

Wisconsin Governor Scott Walker planned to appoint Becky Chasensky interim Marinette County Register of Deeds but decided against it after learning she had filed for bankruptcy. In response, Chasensky sued Walker and his then-spokesperson, Cullen Werwie, alleging that Walker's decision not to appoint her along with their public statements concerning that decision violated her constitutional and statutory rights. The district court held that the defendants waived qualified immunity by failing to raise it as a defense until their motion to dismiss Chasensky's amended complaint. The defendants then filed this interlocutory appeal claiming they did not waive and are entitled to qualified immunity. We agree, and reverse.

I. BACKGROUND

In Wisconsin, the state constitution makes the Register of Deeds an elected position. SeeWis. Const. art. VI, § 4. However, if a vacancy occurs mid-term, the governor is authorized to appoint an interim Register to complete the remainder of any unexpired portion of the term until a successor is elected. SeeWis. Const. art. VI, § 4(5).

Chasensky alleges the following facts which, given the procedural posture of this case, we accept as true. See Serino v. Hensley, 735 F.3d 588, 590 (7th Cir.2013) (citing Parish v. City of Elkhart, 614 F.3d 677, 678 n. 1 (7th Cir.2010)) (“In reviewing a motion to dismiss, we accept the facts of the plaintiff's complaint as true.”). On December 29, 2010, the Register of Deeds for Marinette County announced her mid-term retirement. By letter dated January 11, 2011, Chasensky applied directly to Governor Walker seeking this interim appointment. Am. Compl. Because Chasensky was employed as Chief Deputy Register of Deeds, she was elevated and served as the acting Register of Deeds for Marinette County, effective January 14, 2011. On February 18, 2011, Chasensky was personally interviewed by Eric Esser, Governor Walker's appointments official, and Esser informed Chasensky that he would forward her application directly to Governor Walker for appointment to the Register of Deeds position. Thereafter, Esser learned that Chasensky was involved in a personal bankruptcy proceeding. On April 5, 2011, Esser called Chasensky to inform her that Governor Walker would not be appointing her as interim Register of Deeds. Chasensky subsequently received a letter from Governor Walker confirming that he would not be appointing her as interim Register of Deeds.

According to Chasensky's amended complaint, Cullen Werwie, as Governor Walker's official spokesperson, publically broadcast statewide that Governor Walker did not appoint her to the position because the governor had been informed that she was in a bankruptcy proceeding. In addition to her non-appointment, Chasensky complained that “[d]erogatory comments and innuendo regarding [her] bankruptcy, personal financial matters and character which impugned and harmed [her] professional and personal reputation were intentionally publically disclosed by Governor Walker and Mr. Werwie.” Am. Compl. ¶ 15. She insisted that this occurred when Governor Walker spoke statewide on the FOX television network. There he demeaned her professional and personal character by implying that information learned during an investigation was the reason he did not appoint her. About the same time, Werwie publically announced that Governor Walker had planned to appoint her until he learned of her 2009 bankruptcy proceeding. Chasensky further alleges that the individual ultimately appointed Register of Deeds was unqualified and “[c]onsequently, [she] was professionally disparaged, humiliated and demoted for a period of time from her Chief Deputy Register of Deeds position.” Am. Compl. ¶ 18. Chasensky claims this sequence subjected her to an

unwanted, highly embarrassing and intrusive media-fest [at work] on April 20–21, 2011 ... [when] [t]elevision reporters and camera crews, newspaper and radio reporters and curious members of the public confronted her and other Marinette County employees with highly intrusive questions about her bankruptcy and professional and personal character and sought derogatory details implied in the defendants' public broadcasts.

Am. Compl. ¶ 21. Finally, in May 2011, she was threatened with “employment retaliation” if she did not continue to cover and perform core Register of Deeds duties which the appointee was incapable of performing. As a result of these actions, she has “suffer[ed] lost employment, salary, and other employment benefits, damage to her professional and personal reputation, and emotional and physical pain and suffering.” Am. Compl. ¶ 23.

II. PROCEDURAL HISTORY

This interlocutory appeal comes to us with a complicated procedural history that we distill as follows. Chasensky filed her complaint on December 21, 2011, alleging that Walker and Werwie (the “defendants”) violated her privacy rights and employment rights and that Walker violated 11 U.S.C. § 525(a) (the “bankruptcy discrimination claim”) by failing to appoint her as interim Register of Deeds of Marinette County upon learning of her bankruptcy proceeding. Pretrial litigation ensued including intervention by the United States Department of Justice resulting in the dismissal of the employment claims and the bankruptcy discrimination claim.¹ On January 14, 2013, Chasensky filed an amended complaint reasserting all of her initial claims and adding an equal protection claim against Walker. On January 28, 2013, defendants filed a motion to dismiss Chasensky's amended complaint based on qualified immunity.² However, the district court concluded that defendants had waived the defense of qualified immunity by not raising it earlier in the proceeding.³ Defendants timely filed an interlocutory appeal. We then issued an order directing the district court to explain its reasons for failing to address qualified immunity in its March 14, 2013, order. On July 28, 2013, the district court issued a second order explaining its March 14, 2013, order. The district court's July 28, 2013, order states, in pertinent part:

Defendants never raised the issue of qualified immunity—not in their initial motion to dismiss, not in their supplemental briefing in relation to the United States' motion to intervene, not in their brief in opposition for leave to file an amended complaint, and not even in their answer to the original complaint. It was only after the Court granted leave to file an amended complaint, and after over a year of extensive motion practice, that the defendants raised qualified immunity. The Court's subsequent order was terse because the Court had already issued rulings allowing [plaintiff's] claims to go forward, and the defendants were clearly engaged in dilatory tactics to either delay or avoid discovery. Defendants waived the qualified immunity defense, at least with respect to the pre-discovery stage of this litigation. See, e.g., English v. Dyke, 23 F.3d 1086, 1090 (6th Cir.1994) (“the trial court has discretion to find a waiver if a defendant fails to assert the defense within time limits set by the court or if the court otherwise finds that a defendant has failed to exercise due diligence or has asserted the defense for dilatory purposes ”) (emphasis added).

Chasensky v. Walker, Case No. 11–C–1152, 2013 WL 3928988, *1, 2013 U.S. Dist. LEXIS 105698, *2–3 (E.D.Wis., July 28, 2013). Defendants timely filed an interlocutory appeal contesting the district court's July 28, 2013, order.

III. ANALYSIS

A. Interlocutory appellate jurisdiction

Initially, Chasensky argues that we lack jurisdiction over this interlocutory appeal. It is well-settled law that we “treat [ ] the rejection of an immunity defense as a final decision for the purpose of 28 U.S.C. § 1291.” Bond v. Atkinson, 728 F.3d 690, 691 (7th Cir.2013); see also Mitchell v. Forsyth, 472 U.S. 511, 524–25, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). When, as here, the district court rejects the defense of qualified immunity raised in a defendant's motion to dismiss under Fed.R.Civ.P. 12(b)(6), we review the district court's ruling de novo, accepting as true the plaintiff's factual allegations and drawing all reasonable inferences in her favor. May v. Sheahan, 226 F.3d 876, 882 (7th Cir.2000).

Nevertheless, Chasensky asserts that we lack interlocutory appellate jurisdiction to review the district court's denial of qualified immunity regarding her privacy claims because the defendants waived this defense by not timely raising it. However, “a finding of waiver is a legal determination which enables appellate review of the denial of qualified immunity.” Hernandez v. Cook Cnty. Sheriff's Office, 634 F.3d 906, 912–13 (7th Cir.2011); see also Pasco v. Knoblauch, 566 F.3d 572, 575 (5th Cir.2009) (exercising appellate jurisdiction over denial of summary judgment based on the district court's finding that qualified immunity had been waived); Eddy v. V.I. Water & Power Auth., 256 F.3d 204, 209 (3d Cir.2001) (same). Accordingly, we have interlocutory appellate jurisdiction to consider the defendants' defense of qualified immunity.

B. Defendants did not waive the defense of qualified immunity

Because we have concluded that we have appellate jurisdiction, we now turn to the issue of whether defendants' failure to raise the defense of qualified immunity until their motion to dismiss Chasensky's amended complaint (filed fourteen days after her amended complaint was filed) was waiver. The district...