Hanson v. Levan

• Decision Date: 21 July 2020
• Docket Number: No. 19-1840,19-1840
• Citation: 967 F.3d 584
• Parties: Dawn HANSON, et al., Plaintiffs-Appellees, v. Chris LEVAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

967 F.3d 584

Dawn HANSON, et al., Plaintiffs-Appellees,

v.Chris LEVAN, Defendant-Appellant.

No. 19-1840

United States Court of Appeals, Seventh Circuit.

Argued May 28, 2020

Decided July 21, 2020

Keith Lee Hunt, Attorney, Hunt & Associates, Chicago, IL, for Plaintiffs-Appellees

Sean Patrick Conway, Attorney, Bond, Dickson & Associates, Wheaton, IL, for Defendant-Appellant

Before Manion, Kanne, and Wood, Circuit Judges.

Kanne, Circuit Judge.

For some government jobs, political affiliation is an appropriate position requirement. But that's generally not the case. And unless political affiliation is an appropriate job requirement, the First Amendment forbids government officials from discharging employees based on their political affiliation. Rutan v. Republican Party of Ill. , 497 U.S. 62, 64, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990) (citing Elrod v. Burns , 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) ; Branti v. Finkel , 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) ).

After stepping into his elected office as Milton Township Assessor, Chris LeVan dismissed a group of employees who were Deputy Assessors, allegedly because they supported his political rival and predecessor. The fired deputies sued LeVan, claiming the terminations violated their First Amendment rights. In a motion to dismiss for failure to state a claim, LeVan asserted a qualified-immunity defense. The district court concluded that LeVan is not entitled to qualified immunity at this pleading stage, and LeVan appealed.

We affirm because, taking as true the plaintiffs’ well-pleaded allegations about the characteristics of the Deputy Assessor position, a reasonable actor in LeVan's position would have known that dismissing the deputies based on their political affiliation violated their constitutional rights.

I. BACKGROUND

According to the plaintiffs’ complaint, in 2013 Chris LeVan was elected to the office of Milton Township Assessor, displacing his predecessor and political rival, Bob Earl. Shortly after he took office, LeVan discharged a group of employees—Deputy Assessors¹ —who had publicly supported Earl in his run for reelection.

The dismissed employees sued LeVan in his personal and official capacities for discharging them on improper bases. At issue now are the plaintiffs’ challenges that LeVan, under color of state law, violated their rights guaranteed by the First Amendment (applicable to Illinois through the Fourteenth Amendment) by firing them because of their political affiliation. See 42 U.S.C. § 1983. They alleged that the Deputy Assessor position is not one for which political affiliation is a valid job requirement, as the position did not authorize the employees to have meaningful input in policy decisions, yet LeVan discharged them based on their political affiliation.

For these challenges against LeVan in his individual capacity, LeVan asserted qualified immunity as a defense. See Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit , 507 U.S. 163, 166, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (recognizing that qualified immunity is afforded only to individual officials, not to units of government); Ruffino v. Sheahan , 218 F.3d 697, 700 (7th Cir. 2000). He did so in a motion to dismiss, under Rule 12(b)(6), for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The district court concluded that LeVan is not entitled to qualified immunity at the pleading stage and allowed the claims to proceed. LeVan sought interlocutory review of that decision.

II. ANALYSIS

A. Appellate Jurisdiction

The first order of business is our jurisdiction to review the district court's qualified-immunity decision. The former Deputy Assessors contend that we lack jurisdiction, reasoning that the district court's order is nonfinal and falls outside the collateral-order doctrine. We disagree.

Appellate courts’ jurisdiction under 28 U.S.C. § 1291 is indeed limited to appeals from "final decisions" of district courts. But some "final decisions" are made before the district court enters a final judgment: certain "collateral orders" are immediately reviewable because they " ‘[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] [are] effectively unreviewable on appeal from a final judgment.’ " Johnson v. Jones , 515 U.S. 304, 310, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (bracketed numbers in original) (quoting Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) ).

Denials of qualified immunity often fall into this category of immediately appealable orders. They are reviewable when "the issue appealed concerned, not which facts the parties might be able to prove, but, rather, whether or not certain given facts showed a violation of ‘clearly established’ law." Id. at 311, 115 S.Ct. 2151 (quoting Mitchell v. Forsyth , 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ); see, e.g. , Leiser v. Kloth , 933 F.3d 696, 700–01 (7th Cir. 2019), cert. denied , No. 19-7508, ––– U.S. ––––, 140 S.Ct. 2722, 206 L.Ed.2d 856 (Apr. 27, 2020). In other words, the denial of qualified immunity is within our jurisdiction to review before a final judgment if that denial turns on "abstract" questions of law. Ashcroft v. Iqbal , 556 U.S. 662, 674, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Johnson , 515 U.S. at 317, 115 S.Ct. 2151 ). By contrast, interlocutory review is unavailable for a district court's "fact-based" decision—for example, that the evidence in the pretrial record shows a genuine issue of fact on which qualified immunity depends. Id. (quoting Johnson , 515 U.S. at 317, 115 S.Ct. 2151 ); see Johnson , 515 U.S. at 307, 313, 115 S.Ct. 2151 (no appellate jurisdiction to review district court's order determining that evidence is sufficient to permit a particular finding of fact after trial).

The district court's decision here was on a motion to dismiss, under Rule 12(b)(6), for failure to state a claim. As we see it, LeVan essentially contended that the plaintiffs did not assert a constitutional violation upon which relief can be granted because LeVan is qualifiedly immune. Fed. R. Civ. P. 12(b)(6) ; see Jacobs v. City of Chicago , 215 F.3d 758, 765 n.3 (7th Cir. 2000).

We have accepted that dismissal under Rule 12(b)(6) can preserve an official's right, under qualified-immunity doctrine, "not to stand trial or face the other burdens of litigation," including pretrial discovery. Mitchell , 472 U.S. at 526, 105 S.Ct. 2806 ; see Pearson v. Callahan , 555 U.S. 223, 231–32, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ; Reed v. Palmer , 906 F.3d 540, 548–49 (7th Cir. 2018). But dismissal under Rule 12(b)(6) is not the only way to preserve that right. See Jacobs , 215 F.3d at 774–75 (Easterbrook, J., concurring in part and in the judgment) (identifying other means by which immunity may be decided without protracted discovery). Nor is it always (if ever) the most suitable procedural setting to determine whether an official is qualifiedly immune, because immunity may depend on particular facts that a plaintiff need not plead to state a claim. Alvarado v. Litscher , 267 F.3d 648, 651–52 (7th Cir. 2001).

Ultimately, dismissal under Rule 12(b)(6) is appropriate based on qualified immunity only when the plaintiffs’ well-pleaded allegations, taken as true, do not "state a claim of violation of clearly established law." Behrens v. Pelletier , 516 U.S. 299, 306, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (quoting Mitchell , 472 U.S. at 526, 105 S.Ct. 2806 ). We elaborate and apply this standard later on, but for now it is enough to reiterate that "a complaint may be dismissed under Rule 12(b)(6) on qualified immunity grounds where the plaintiff asserts the violation of a broad constitutional right that had not been articulated at the time the violation is alleged to have occurred." Jacobs , 215 F.3d at 765 n.3. And the familiar plausibility standard governs.² See Reed , 906 F.3d at 548.

The district court concluded that the plaintiffs stated a claim for a violation of a clearly established right, barring qualified immunity at this point in the litigation. The court reached this conclusion by taking the plaintiffs’ well-pleaded allegations as true and answering two questions: First, did the plaintiffs’ allegations add up to a claim that a constitutional right was violated? And second, was the right clearly established when LeVan discharged the employees? As far as jurisdiction is concerned, these are "abstract" legal questions about "the substance and clarity of pre-existing law," given the facts as alleged. Ortiz v. Jordan , 562 U.S. 180, 190, 131 S.Ct. 884, 178 L.Ed.2d 703 (2011) ; cf. Leiser , 933 F.3d at 700–01.

The plaintiffs argue that the first question is fact-based, nonfinal, and thus unreviewable. They point to the district court's remark that whether LeVan will be entitled to qualified immunity on a further-developed record "cannot be resolved on the pleadings." This remark, they reason, indicates that the district court's decision both (a) turns on facts not yet determined and (b) is not necessarily the last qualified-immunity determination the court will make.

The merits inquiry embedded in the first question—whether political affiliation is an appropriate requirement for a certain position—certainly calls for a case-specific assessment of the government job at hand. See Branti , 445 U.S. at 518, 100 S.Ct. 1287. And it is true that we have generally classified this inquiry as a matter of fact that in some cases ought to be resolved as a matter of law³ —depending on how clearly statutes, ordinances, regulations, and a reliable job description establish the position responsibilities.⁴

But we have treated the issue as an "abstract" matter of law, for purposes of jurisdiction, when antecedent facts are taken as given and we are asked to review only the application of a legal...