Appeals from the United States District Court for the Western District of Wisconsin. No. 85 C 118 - Barbara B. Crabb, Judge.
Cummings, Cudahy, and Posner, Circuit Judges.
Dean Patterson became a tenured geography instructor at a Wisconsin state college in 1973. He was not a successful teacher, for no students enrolled in his classes in the fall of 1978, and the college administration therefore assigned him to a noninstructional project, compiling a demographic profile of the college's alumni. The project was to be done on campus. Patterson did not report to work on December 4, 1978, as he was supposed to do, and on January 18--Patterson still not having shown up--the administration sent him a letter telling him that unless he reported for work by 8:30 a.m. January 23 he would be deemed to have resigned. On January 19 Patterson wrote the chancellor, Edward Fort, that "I am willing and available to teach classes, but I refuse to accept other duties until fully cleared of all charges." Apparently by "charges" he meant students' complaints about his teaching. On January 23 he reported to work but left after a few hours without making any attempt to work on the project, instead dispatching another letter to Fort, in which he said he would not resign but added:
I find it impossible for me to work on this campus while the charges against me are as yet unresolved. I must request that you proceed immediately with any charges still pending, and drop any that are without substance. My name and reputation have been damaged considerably and it is seriously affecting my health and ability to work on this campus. I am willing to take a leave of absence, without pay, while these proceedings take place, because to continue to work not only demoralizes me, but also gives those who have attacked me more chances to find wrongdoing.
On February 5 Fort wrote Patterson, telling him to remove his personal belongings from the campus because "I have concluded that you did not report for work, as previously assigned, by 8:30 a.m. January 23, 1979. Therefore, as previously indicated to you in the letter [of January 18], we are treating your absence as a resignation from your position at the University as of January 23, 1979."
The next day Patterson requested a formal hearing, but this was refused. He sought review of the refusal in the Wisconsin court system. The Wisconsin Supreme Court held that the Board of Regents of the University of Wisconsin System was required to give Patterson an evidentiary hearing pursuant to section 6.02 of the Wisconsin Administrative Code to determine whether he had resigned or been fired. Patterson v. Board of Regents, 119 Wis. 2d 570, 350 N.W.2d 612 (1984). This hearing was held, and the board decided that Patterson had resigned voluntarily and therefore had not been entitled to a hearing to determine whether there was just cause to fire him.
In 1985 Patterson brought this suit under 42 U.S.C. § 1983 against Fort in his individual capacity and by later amendment the current chancellor, Stephen Portch, in his official capacity. The suit claims that the defendants deprived Patterson of property--his tenured employment--without due process of law, in violation of the Fourteenth Amendment. Patterson seeks reinstatement with back pay plus compensatory and punitive damages. His suit also charges a denial of equal protection of the laws but this claim represents just another verbal dress for his due process claim; it is clutter, and will not be discussed further.
On cross-motions for summary judgment the district court held the following: (1) The defendants had indeed violated Patterson's constitutional rights--he had not resigned, they had fired him, and without giving him his procedural rights. (2) Fort, however, was immune from liability for damages because in 1979 the law had not been clear that "constructive resignation" was the equivalent of discharge and was therefore actionable under the due process clause. Portch was not liable for damages, either; he had had no part in the events of that year. (3) Patterson was entitled to a new hearing before Portch on whether just cause had existed in 1979 to fire him--if not, he would be entitled to reinstatement with back pay.
On the basis of these rulings, the judge ordered the action dismissed against Fort but ordered Portch to give Patterson a hearing. Portch appeals from this order, while Patterson appeals from the grant of immunity to Fort. Patterson also challenges the adequacy of the remedy that the judge gave him against Portch, contending that unless the university gives him his back pay first, the hearing will not be fair, and asking us to order him reinstated with back pay on the ground that this is the logical remedy for improperly terminating a tenure contract. Because Patterson--who according to his counsel was emotionally devastated by his discharge (if that is what it was) back in 1979--has held no job since, the amount of back pay has mounted up to $200,000; and counsel argues that Portch would be reluctant, by holding that Patterson had been terminated unjustly, to impose this liability on the university.
There is a threshold issue: our appellate jurisdiction. The district judge entered no Rule 58 judgment order, and at the last hearing before her, when asked by Patterson's lawyer whether the proceedings were over, said, "I plan to retain jurisdiction." When he then asked her about his right to appeal she said, "I have not entered judgment," and later she noted that the "plaintiff requested that this Court retain jurisdiction over the case to ensure that plaintiff receive the hearing contemplated under the June 5 order. That request was granted." The order of June 5 was the order directing Portch to give Patterson a hearing.
The problem of deciding when an order is final and hence appealable under 28 U.S.C. § 1291, despite the absence of a formal judgment, can be a troublesome one. See, e.g., Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 463 (7th Cir. 1988). Injunctions, it is true, are appealable regardless of finality, see 28 U.S.C. § 1292(a)(1), and the order to give Patterson a hearing was an injunction, not a remand, for reasons explained in Hameetman v. City of Chicago, 776 F.2d 636, 640 (7th Cir. 1985). So we have appellate jurisdiction over Portch's appeal, and over Patterson's cross-appeal, which challenges the adequacy of the injunction entered against Portch. But that leaves the question of our jurisdiction over Patterson's appeal from the grant of summary judgment to Fort. Since this ruling ended the dispute between Patterson and Fort, the district judge could have entered a final judgment appealable under Rule 54(b) of the Federal Rules of Civil Procedure, but did not do so.
Because of the close legal and factual connection between the two disputes (Patterson against Fort seeking damages, and Patterson against Portch seeking reinstatement with back pay), this might seem a case for the principle that an order not itself appealable, but closely connected to an order that is appealable, may be reviewed as a pendant to the latter order. See, e.g., Parks v. Pavkovic, 753 F.2d 1397, 1402 (7th Cir. 1985); San Filippo v. U.S. Trust Co., 737 F.2d 246, 255 (2d Cir. 1984) (and cases cited there); United States v. Ianniello, 824 F.2d 203, 209 (2d Cir. 1987). We hesitate to ground jurisdiction over Patterson's appeal on this principle ("pendent appellate jurisdiction"), however. The principle should be narrowly construed, for reasons well stated in General Motors Corp. v. Gibson Chem. & Oil Corp., 786 F.2d 105, 108-09 (2d Cir. 1986), and the issues in the two appeals are too distinct to make this an appropriate case for invoking it. The main issue in Patterson's appeal is Fort's qualified immunity, and is not an issue in Portch's appeal. There is overlap between the appeals, of course, but that is not enough. We can review an unappealable order only if it is so entwined with an appealable one that separate consideration would involve sheer duplication of effort by the parties and this court. See, e.g., Marathon Oil Co. v. United States, 807 F.2d 759, 765 (9th Cir. 1986). Any laxer approach would allow the doctrine of pendent appellate jurisdiction to swallow up the final-judgment rule.
There may appear to be an alternative ground for asserting jurisdiction over Patterson's appeal. A district court's retention of jurisdiction merely to supervise compliance with an order does not deprive the order of finality for purposes of section 1291. In re Skil Corp., 846 F.2d 1127, 1130 (7th Cir. 1988); University Life Ins. Co. v. Unimarc Ltd., 699 F.2d 846, 849-50 (7th Cir. 1983); Robbins v. George W. Prescott Publishing Co., 614 F.2d 3, 5 (1st Cir. 1980). So if Judge Crabb had retained jurisdiction merely to ensure that Portch complied with her order to give Patterson a new hearing, this retention would not deprive her order of finality, and the entire lawsuit would be wound up and all orders in it would be appealable. The absence of ...