Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87 C 2175, Prentice H. Marshall, Judge.
Donald Petru appeals from the district court's refusal to vacate a summary judgment order in favor of the defendant, City of Berwyn, Illinois, in a civil rights action under 42 U.S.C. § 1983, and claims that the City denied him his procedural due process rights in failing to appoint him to the position of fire fighter. We affirm.
Donald Petru received the highest combination of test scores for the position of fire fighter on an examination administered by the City of Berwyn Board of Fire and Police Commissioners in the fall of 1985.*fn1 Based upon the results of this examination, an eligibility list for fire fighters' positions was posted on January 17, 1986, and Petru ranked first.
The City is required to hire replacements for fire fighter vacancies from the hiring eligibility list only after receiving the approval of the mayor and the department head. Authorization to hire is provided only if there is a consensus that there is a need for a replacement and sufficient funds to pay the replacement.*fn2 During 1981 and 1985 the City appointed five new fire fighters within thirty days of the retirement of their predecessors. In April, May and June 1986, Fire Chief John Keating informed Mayor Joseph J. Lanzillotti that he anticipated three openings resulting from the expected retirement of three fire fighters. Ultimately, only one employee retired, with his retirement effective July 1, 1986. When Chief Keating asked Mayor Lanzillotti to authorize the hiring of fire fighters in May and June 1986, the Mayor informed the Chief that the City was at present fiscally strapped and unable to hire replacements. The Mayor's refusal to authorize the appointment of replacements for fire fighters was part of an economic austerity program that involved the refusal to approve the hiring of any full-time employees in city departments during the 1986 year. Accordingly, the City appointed no fire fighter from August 1985 through July 17, 1986. On the latter date, the City retired the eligibility list on which Petru was ranked first.
During the first part of 1986, the City's fire fighter hiring practices were also subject to a lawsuit the United States brought against the City under Title VII of the Civil Rights Act of 1964, alleging, inter alia, that the City's hiring eligibility lists, including those utilized by the fire department, were based upon discriminatory voter and residency requirements. During negotiations between the City and the Justice Department concerning the possible settlement of this lawsuit, a Justice Department attorney informed the City's attorneys that the Justice Department expected the City to cease and desist from hiring until the entry of a consent decree. The Justice Department also stated that it would immediately move for the issuance of an injunction if the City did not agree to refrain from hiring, including fire fighters, during the course of settlement negotiations. In late March or early April 1986, the City agreed to the Justice Department's request not to hire during the course of the negotiations and reaffirmed this commitment in May 1986. In April and May 1986, the City Attorney informed various City officials, including the Mayor, of the City's commitment to refrain from any hiring during the course of negotiations. The City complied with this agreement and did not hire fire fighters between March 1986 and the July 17, 1986, entry of the consent decree between the City and the United States. The consent decree ultimately enjoined the City from using any current hiring eligibility list, in any department, on the basis that "such lists were based upon voter and residence requirements that have been eliminated by . . . this decree."
The City moved for summary judgment on January 19, 1988, in Petru's civil rights suit alleging that the plaintiff-appellant lacked a property interest under state law in an appointment to a position of fire fighter, that any such interest which might exist was preempted by federal law and that any alleged deprivation was premised under color of federal, rather than state law. Petru was given until March 15, 1988, to file a response. Upon Petru's request, the trial court extended the plaintiff-appellant's time for filing his response to March 31, 1988, but Petru failed to file a response to the summary judgment motion.
On May 18, 1988, the district court entered summary judgment in the City's favor. In its decision the court noted the hiring freeze, the pending civil rights action and the cancellation of the January 1986 hiring eligibility list upon the entry of the consent decree in the civil rights action. The trial court concluded that: "In these circumstances, assuming [Petru] had an enforceable right in his position on the eligibility list, it cannot be said that he was deprived of his right to due processes of law by actions of the [City]."
Petru filed a timely motion to vacate the judgment under Rule 59(e) on May 31, 1986. The district court denied the motion to vacate, ruling that "Petru was not deprived of any arguable property interest." Petru filed a notice of appeal from the order denying vacation of the summary judgment, rather than from the order granting summary judgment.
The City contends that because the notice of appeal stated that Petru appealed from the district court's order denying his motion to vacate judgment under Federal Rule of Civil Procedure 59(e), review should be limited to this order or, if consideration of the summary judgment order be deemed proper, it should proceed under the abuse of discretion standard the City asserts is applicable to review of a district court's denial of a motion to vacate judgment under Rule 59(e). See generally Danenberger v. Johnson, 821 F.2d 361, 362 (7th Cir. 1987) ("Danenberger argues that the trial court abused its discretion in refusing to vacate its judgment dismissing Danenberger's complaint").
We have previously held that the review of an underlying judgment will be permitted in certain cases in which an appeal is mistakenly taken from an order denying a motion for a new trial brought under Rule 59(b) rather than from the underlying judgment. We observed:
"Plaintiff's appeal from the district court's denial of her motion for a new trial is also flawed, though not fatally so. This flaw lies not with the original motion but rather with the appeal. Plaintiff appeals from an order denying her motion for a new trial, but the generally accepted rule is that the appeal should be taken from the judgment itself rather than the order denying the motion for a new trial. However, the general practice, which we have previously approved, is to treat this error as harmless and view the appeal as instead taken from the judgment, so long as (1) the judgment from which the moving party intended to appeal is final; (2) it is clear what judgment is involved; (3) the motion and appeal were timely made; and (4) ...