Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80 C 2373 -- John F. Grady, Judge.
Before Wood and Posner, Circuit Judges, and Weigel, Senior District Judge.*fn*
POSNER , Circuit Judge. In 1978 Robert Hameetman, a fireman employed by the City of Chicago, was charged by his superiors with violating a city ordinance which requires that "all officers and employees in the classified civil service of the City shall be actual residents of the City." A hearing officer of the city's Personnel Board conducted a hearing on whether Hameetman was as he claimed a resident of Chicago although his wife and children lived in Indiana. After summarizing the sharply conflicting evidence, the hearing officer's report stated under "findings and recommendations": "The City met its' [sic] burden of proving that [Hameetman] was not an actual resident of the City of Chicago on April 10, 1978. It is respectfully submitted that [Hameetman] be discharged." The report was forwarded to the Personnel Board together with a transcript of the testimony at the hearing. The Board's opinion repeats the hearing officer's conclusion and adds: "On the basis of the foregoing and upon the review of the transcript, and after a full discussion, the decision of the Personnel Board is as follows" That the Respondent, Robert Hameetman, be discharged." and so, in 1979, he was discharged.
He brought suit against various officials and agencies of the city, under section 1 of the Civil Rights Act of 1871, now 42 U.S.C. § 1983, alleging that the discharge had deprived him of liberty and property without due process of law, in violation of the Fourteenth Amendment. After a bench trial, the district judge concluded that although Hameetman, as a tenured public employee, had had a "property" interest in his job within the meaning of due process clause and had been deprived of it, the hearing before the Personnel Board's hearing officer had produced enough evidence that Hameetman was not an actual resident of Chicago to sustain his discharge. The judge rejected Hameetman's contentions that the term "actual resident" was too vague, that the Personnel Board and hearing officer had operated without standards, and that enforcement of the ordinance was selective and capricious and also interfered with Hameetman's constitutional right to live with his family. The judge agreed with Hameetman, however, that the findings made by the hearing officer and parroted by the Board had been too skimpy to satisfy the requirements of due process, and vacated Hameetman's discharge and "remanded" the case to the Personnel Board with instructions that it either prepare new findings within 60 days or reinstate Hameetman.
Hameetman filed a timely notice of appeal to his court. The city filed a cross-appeal complaining about the "remand" order, but went ahead and complied with the order and issued new findings, again concluding that Hameetman was not an actual resident of Chicago and should be discharged. Since by issuing new findings within 60 days the Board had complied with the district court's condition precedent to firing Hameetman, it was not required to reinstate him . So he remains fired. There have been no further proceedings in the district court; the parties did not even submit the Board's new findings to that court.
The unusual action of the judge in attempting to remand the case before him to a state administrative agency raises question about our appellate jurisdiction. The first concerns the appealability of the "remand" order by the defendants. Ordinarily an order remanding a case to the court or agency from which it has been appealed is not a final order, and is therefore no appealable under 28 U.S.C. § 1291. See Freeman United Coal Mining Co. v. Director, Office of Workers' Compensation Programs, 721 F.2d 629 (7th F.2d 1983), and other cases cited in In re Riggsby, 745 F.2d 1153, 1156 (7th Cir. 1984). Nor is it appealable (despite lack of finality) under 28 U.S.C. § 1292 (a) (1) as an injunction, though it is in a literal sense an order to do something. See Silver v. Secretary of the Army, 554 F.2d 664, 665 (5th Cir. 1977) (per curiam).
In this case, however, the district judge's use of the word "remand" was a misnomer. A suit under 42 U.S.C. § 1983 is not a mode of judicial review of a state administrative agency's or state court's action even if the plaintiff is complaining about a denial of due process in the proceedings before the agency or the court and is asking the federal court to enjoin the action. Such a suit resembles but is crucially different from what is misleadingly called "nonstatutory" review of federal administrative action. When an administrative action is judicially reviewable but no statute specifies the route to take to get judicial review, and aggrieved party can bring a suit against the responsible officials in a federal district court under 28 U.S.C. § 1331, the general federal-question statute. See 5 U.S.C. § 703; 14 Wright, Miller & Cooper, Federal Practice and Procedure § 3659 (2d ed. 1985). Such a suit resembles an equity suit but is actually a review proceeding rather than an original proceeding. The court thus can remand the case to the agency, and its order of remand, with immaterial exceptions, is not appealable to the court of appeals; Freeman was such a case. But a suit under 42 U.S.C. § 1983 is not a review proceeding even when as here it challenges administrative action that has an adjudicative component. Federal courts have no general appellate authority over state courts or state agencies. By virtue of statutes such as 42 U.S.C. § 1983 they can decree injunctive and other relief against state officers, including hearing officers and other adjudicators, who violate federal rights; but when in the exercise of that power they order a state officer or agency to grant a hearing to someone or to give him a fuller statement of the basis of the agency's action they are not "remanding" the case. The case that is in federal court did not begin in the state agency but is an independent as well as an original federal action.
What the district judge called a "remand" really was mandatory injunction that the Personnel Board give Hameetman procedural relief in the form of a new set of findings. The state therefore could have appealed under section 1292(a) (1), without regard to whether the judge's order wound up the entire litigation in the district court. There is a practical as well as the already explained logical ground for this result. If a federal court orders a state agency to do something, the agency ought to have a right to appeal immediately and not be so much at the mercy of a single federal judge that it might have to go through long and expensive proceedings on "remand" before being able to challenge the judge's order.
But the defendants did not do this. They filed a cross-appeal after Hameetman filed his appeal. The cross-appeal did not have to be and was not filed within 30 days of the judge's order of "remand," see Fed. R. App. P.4 (a)(3), as an appeal would have had to be filed in order to give us jurisdiction; but by the same token the cross-appeal is within our jurisdiction only if Hameetman's appeal, from which it depends, successfully invoked our jurisdiction. Therefore, to dispose of Hameetman's appeal as well as the cross-appeal, we must decide whether Hameetman's appeal is within our jurisdiction.
It is not so by virtue of section 1292(a) (1), at least not clearly so. A plaintiff who obtains an injunction can it is true, appeal from the order granting the injunction if he does not think it goes far enough or he has other complaints about it. In effect he is appealing from a refusal to modify an injunction, and such a refusal is expressly made appealable by section 1292 (a)(1). Cf. Steele v. Board of Public Instruction, 371 F.2d 395, 396 (5th Cir. 1967) (per curiam). In part this is what Hameetman is doing but in part he is complaining about the fact that the district court, at the same time that it issued the injunction, dismissed all of Hameetman's case except the small part that complains about the thinness of the administrative findings. Hameetman thus is complaining about the dismissal as well as about the injunction; and as a general rule one can appeal from an order of dismissal only if that order is final and therefore appealable under section 1291. Although there is some authority that the court of appeals can consider an unappealable order that is related to an order properly before the court, Parks v. Pavkovic, 753 F.2d 1397, 1402 (7th Cir. 1985), we shall not have to explore the application of that principle to the present case. The judge's order granting the mandatory injunction and dismissing the rest of the case was a final decision, and so appealable in its entirety under 28 U.S.C. § 1291; we therefore need not decide whether separate pieces of the order could have been appealed. All of Hameetman's claims were dismissed except his claim that his discharge should be vacated because of inadequate findings. Since the judge's order taken as a whole (that is, including the dismissal as well as the injunction) wound up the proceeding, Hameetman was free to appeal from anything in the order that dissatisfied him.
This assumes that the dismissal was definitive. If it had not been -- if the injunction had just been an interim order had the judge had held on to the case so that he could grant additional relief on Hameetman's claims depending on the outcome of the "remand," that is, depending on the city's compliance with the injunction -- then Hameetman would have had to wait. Cf. Save the Bay, Inc. United States Army, 639 F.2d 1100, 1103 (5th Cir. 1981); Silver v. Secretary of the Army, supra, 554 F.2d at 665. But the judge's order concludes, "plaintiff is entitled to no further relief from this court," which is pretty definitive. If Hameetman had been dissatisfied with the new set of findings made by the Personnel Board he would have had to bring a fresh lawsuit.
So we have jurisdiction, and can come to the merits. Hameetman's claim that the enforcement of the ordinance against him was arbitrary requires little discussion. He does not argue that he was singled out for an invidious reason, such as race or political beliefs. The Constitution does not require states to enforce their law (or cities their ordinances) with Prussian thoroughness as the price of being allowed to enforce them at all. See, e.g., Oyler f. Boles, 368 U.S. 448, 456, 7 L. Ed. 2d 446, 82 S. Ct. 501 (1962); Dauel v. Board of Trustees, 768 F.2d 128, 131 (7th Cir. 1985); Harrington v. United States, 673 F.2d 7, 11 (1st Cir. 1982); cf. Wayte v. United States, 470 U.S. 598, 105 S. Ct. 1524, 1531, 84 L. Ed. 2d 547 (1985); United States v. Batchelder, 442 U.S. 114, 124-26, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979). Otherwise few speeders would have to pay traffic tickets. Selective, incomplete enforcement of the law is the norm in this country.
Hameetman's claim that the key term in the ordinance, "actual resident," is unconstitutionally vague also requires little discussion. Although the term was not authoritatively construed to mean domiciliary till after Hameetman was fired, see Fagiano v. Police Bd. of City of Chicago, 98 Ill. 2d 277, 74 Ill. Dec. 525, 456 N.E.2d 27 (1983), there could have been little doubt that this is what it meant. For reasons that, whether right or wrong, are constitutionally sufficient, McCarthy v. Philadelphia Civil Service Comm'n, 424 U.S. 645, 47 L. Ed. 2d 366, 96 S. Ct. 1154 (1976) (per curiam), the City of Chicago wants its employees to have the commitment to their work for the city that comes from living there. There is not much doubt about with "living there" means. Firemen and other municipal employees, unlike wealthy cosmopolites, do not have multiple homes scattered of the globe, among which they circulate according to the dictates of high fashion with the result that it is hard to determine where they really live. Firemen are domiciled in the place where they have their permanent residence. The whole thrust of Hameetman's case was that he was domiciled in Chicago and merely visited his family at its Indiana domicile. The city was not constitutionally obligated to advise him how close to the forbidden line he could steer that he must have his permanent residence there.
Hameetman also claims that the city deprived him of liberty by refusing to let him live outside of Chicago when the well-being of a child required him to do so. He had a hyperkinetic child who was doing well in the Indiana school system and might have found adjustment to Chicago difficult, and he argues that the city may not put to a choice between living with his child and giving up his job as a fireman. he presented little evidence on this point, thus inviting us to speculate that he moved from Chicago to Indiana merely because the Chicago residency requirement was not being enforced -- in which event he could not escape the consequence of violating the ordinance by pointing out that moving his child back to Chiacgo when the ordinance began to be enforced might be stressful for the child. He would be the author of his own dilemma in that case. But in the absence of findings on his ...