Koch v. Stanard

• Decision Date: 29 April 1992
• Docket Number: No. 91-1841,91-1841
• Parties: James KOCH, et al., Plaintiffs-Appellants, v. Steven STANARD, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 605

962 F.2d 605

22 Fed.R.Serv.3d 1207

James KOCH, et al., Plaintiffs-Appellants, v. Steven STANARD, et al., Defendants-Appellees.

No. 91-1841.

United States Court of Appeals, Seventh Circuit.

Argued April 9, 1992.

Decided April 29, 1992.

Joseph V. Roddy, Mark T. Zubor, and Thomas Pleines (argued), Chicago, Ill., for plaintiffs-appellants.

Edward M. Kay, James O. Nolan, James T. Ferrini, Sonia V. Odarczenko, Susan Condon, Kevin J. Glenn, Kimberly A. Wilkins, Imelda Terrazino (argued), Clausen, Miller, Gorman, Caffrey & Witous; Nina Puglia, Asst. Corp. Counsel, Office of the Corp. Counsel, Appeals Div., John T. Wardrope, Robert A. Chaney, Purcell & Wardrope; and Mary L. Smith, Corp. Counsel, Office of the Corp. Counsel, Kelly R. Welsh, Benna R. Solomon, and Joan Flynn (argued), Asst. Corp. Counsel (argued), Office of the Corp. Counsel, Appeals Div., Chicago, Ill., for defendants-appellees.

Before FLAUM, EASTERBROOK, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Six disappointed applicants for positions on Chicago's police force filed this action under 42 U.S.C. § 1983. Each passed a test of aptitude and knowledge but failed a psychological test. They demand access to the results and an opportunity to contest the judgment that they would not make good officers. Although they acknowledge that an applicant for the force has neither "liberty" nor "property" in a hope to be hired, they insist that by saying no on psychological grounds the City so stigmatized them that they are entitled to hearings to clear their names. The district court dismissed the complaint under Fed.R.Civ.P. 12(b)(6), concluding that being screened out on psychological grounds is not such a calumny that plaintiffs would be barred from other employment. 1991 U.S.Dist.LEXIS 3081 (N.D.Ill.).

Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), holds that defamation by a public official does not deprive the victim of liberty or property. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), holds that failure to hire (or renew the appointment of) an applicant for employment likewise does not deprive that person of liberty or property when there is no "legitimate claim of entitlement" to be hired. See also, e.g., Upadhya v. Langenberg, 834 F.2d 661 (7th Cir.1987). Yet several courts of appeals, including this one, have said that simultaneous defamation and non-appointment deprives the applicant of liberty or property, at least when the disparaging word closes other opportunities for employment in that line of work. E.g., Perry v. FBI, 781 F.2d 1294, 1300 (7th Cir.1986) (in banc). Last year's decision in Siegert v. Gilley, --- U.S. ----, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), raises the question whether Perry and similar decisions--on which plaintiffs' case depends--are sound. Siegert's employer reassigned him in a way that amounted to constructive discharge. He quit. Another employer withdrew an offer on learning the stated reason for his earlier separation. Even after assuming that the first employer was lying about the reasons, maliciously preventing Siegert from obtaining other employment, the Court held that the slander did not call for a hearing given "the lack of any constitutional protection for the interest in reputation." 111 S.Ct. at 1794.

Whether Siegert has pulled the rug out from under plaintiffs' theory is a question we need not resolve. For unless the defendants published the defamatory material, the plaintiffs have no case. Bishop v. Wood, 426 U.S. 341, 348-49, 96 S.Ct. 2074, 2079-80, 48 L.Ed.2d 684 (1976). The complaint alleges that disclosure is inevitable because other potential employers will inquire why Chicago turned them down. It does not allege, however, that another police force has inquired of Chicago about any of the plaintiffs, let alone that Chicago has divulged derogatory information in response. A potential for future questions and answers is just that--a potential. Clark v. Maurer, 824 F.2d 565, 567 (7th Cir.1987), referred to the information in the files as a ticking time bomb but added that until the bomb explodes there is no defamation, and hence no claim. Johnson v. Martin, 943 F.2d 15 (7th Cir.1991), applied this principle to hold that a probationary officer of the Chicago police force let go after failing a drug test could not sue until the force revealed that information to someone outside the government. Plaintiffs do not try to distinguish Bishop, Clark, or Johnson; they do not acknowledge the existence of those cases. At oral argument counsel for plaintiffs opined that this case is "just like" the problem presented when an applicant for employment fails a drug test--apparently not recognizing that Johnson involved drug tests. Indeed plaintiffs' situation is just like testing positive for drugs, which is why they must lose.

Plaintiffs filed this case on behalf of a class. The district court delayed ruling on the propriety of maintaining this case as a class action until the parties had briefed the motion to dismiss. At the same time as he dismissed the complaint on the merits, the judge struck the class allegations from the complaint. Although the judge did not explain this delay, the only reason we can imagine for departing from the mandate of Fed.R.Civ.P. 23(c)(1) that the court act on the subject "[a]s soon as practicable after the commencement of an action brought as a class action" is a belief that a class should not be certified when the case is doomed on the merits. See Illinois State Rifle Ass'n v. Illinois, 717 F.Supp. 634, 639 n. 12 (N.D.Ill.1989). Nothing in Rule 23 supports such a bias. Defendants no less than plaintiffs are entitled to the fruits of victory. A string of cases in this circuit reinforces the message of Rule 23(c)(1): The court must decide promptly whether the case should proceed as a representative action, without regard to the virtues of the plaintiffs' legal theory. Rutan v. Republican Party of Illinois, 868 F.2d 943, 947 (7th Cir.1989) (in banc), reversed on other grounds, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Bennett v. Tucker, 827 F.2d 63, 66-67 (7th Cir.1987); Hickey v. Duffy, 827 F.2d 234, 237 (7th Cir.1987). Plaintiffs gain nothing by this conclusion, however. Any error in striking the class...