Appeal from the United States District Court for the Southern District of Illinois. No. 93 C 4092 J. Phil Gilbert, Chief Judge.
Before CUDAHY, FLAUM and RIPPLE, Circuit Judges.
DECIDED SEPTEMBER 19, 1996
Plaintiff Tarpley appeals the grant of summary judgment in his suit under 28 U.S.C. sec. 1983 alleging state intrusion into his right to freedom of political association. In 1992, Tarpley applied for a permanent job as a power plant maintenance worker at a state-run facility. He was denied the job in favor of Harold Blessing. Blessing had been filling the job for several months on a temporary basis, upon the recommendation of the Chairman of the Union County Republican Central Committee, Frank Keistler. The interim appointment was made after the two permanent power plant maintenance worker positions were left vacant due to the promotion of one of the workers and the serious illness of the other.
Several individuals, including Tarpley and Blessing, were interviewed for the permanent position. Blessing was awarded the permanent position, at least partly because of the experience he had gained in the preceding months. Tarpley alleges that Blessing obtained the temporary position as well as the permanent one because of his affiliation with the Republican party, in violation of Tarpley's First Amendment right to freedom of political association. Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990).
The district court granted summary judgment to all defendants as to both the temporary and permanent hiring decisions. It held, with respect to the allegation of direct bias in the permanent hiring process, that, because several other interviewees received higher rankings, Tarpley had failed to raise an issue of material fact whether he would have been granted the job in a party-blind hiring process. We agree. We also find that Tarpley did not present sufficient evidence of the existence of a deliberate scheme to avoid Rutan by using the interim position as a ploy to fill the permanent position. Thus the district court correctly granted summary judgment to all defendants on the claim of direct bias in hiring for the permanent position.
Turning to the temporary hiring, the first question presented is one not raised by any of the parties nor addressed by the district court. It is the issue of standing. Tarpley, as a subsequent applicant for the job (on a permanent basis), certainly acquired standing later, but was he a proper plaintiff to challenge the temporary award? The record before us is not sufficient to allow us to determine whether Tarpley has standing to challenge the temporary hiring process. To have standing, Tarpley must demonstrate an " 'injury in fact,' by which [is meant] an invasion of a legally protected interest that is '(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.' " Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656, 663 (1993), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The standing issue here is analogous to that arising in Northeastern Florida, which involved a challenge by an association of general contractors to a program giving preferential treatment to minority-owned businesses. There the Supreme Court clarified that:
[w]hen the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. Northeastern Florida, 508 U.S. at 666.
Thus, for standing purposes, Tarpley need not prove that, had the hiring decision been untainted by political bias, he would have obtained the position. Here, as "in the context of a challenge to a set-aside program, the 'injury-in-fact' is the inability to compete on an equal footing . . . ." Id.
In Northeastern Florida, the Court held that, to establish standing, a majority contractor "need[ed] only [to] demonstrate that it [was] able and ready to bid on contracts and that a discriminatory policy prevent[ed] it from doing so on an equal basis." Id. Thus Tarpley could presumably establish standing to challenge the hiring process for the temporary positions by showing that he would have been "able and ready" to apply for the temporary position, had he not been prevented from doing so by the patronage hiring practice. This is a jurisdictional question, and we remand to the district court for a finding of jurisdictional fact whether these requirements were met.
Looking beyond the jurisdictional claim, we note that the district court opined that patronage hiring for temporary positions violates the First Amendment, but held that this principle was not clearly established. Thus, the court ruled that the state defendants had qualified immunity with respect to the temporary position. The district court also concluded, for reasons which are unclear, that the party defendants should be granted summary judgment as to the temporary position as well.
Since argument was heard in the present appeal, the Supreme Court has decided O'Hare Truck Service, Inc. v. City of Northlake, 116 S. Ct. 2353 (1996). That decision overruled earlier case law of this circuit which had distinguished independent contractors from government employees. Contrary to our earlier precedent, the Court held that the First Amendment bars patronage hiring of independent contractors as well. The Court reasoned:
We cannot accept the proposition, however, that those who perform the government's work outside the formal employment relationship are subject to what we conclude is the direct and specific abridgement of First Amendment rights described in his complaint. Id. at 2358.
Based on the categorical analysis employed by the Court in O'Hare Truck Service, it is not readily apparent how exceptions to the patronage ban are to be justified unless some sort of de minimis principle applies. However, there are many kinds of temporary employment, and a ruling on one may not implicate all the others. Here we are dealing with a job that is awarded on a temporary basis preliminarily to its being filled permanently. It would be entirely premature to rule definitively on this sort of employment until we are assured that we are confronted with a live controversy. But we believe that O'Hare Truck Service, in conjunction with earlier cases, provides an adequate guide for the district court on remand, should guidance be required. We note, without further comment, that the plaintiff here has made the point that the plaintiffs in Rutan included a temporary employee, Ricky Standefer. But, of course, the issue of temporary status was not raised in Rutan.
It is true that, by their nature, temporary jobs can rarely be awarded fully on the basis of "merit" since time to determine it is frequently not available, nor does the subject often justify the sort of inquiry required for a "merit selection." Thus, family relationships, friendship, lodge membership or any one of a thousand other factors may affect the selection. However, temporary positions--particularly interim replacements for permanent employees such as the position at issue here--are valuable. Denial of these valuable positions because of political affiliation may very well invoke the same concerns with chilling of First Amendment protected activity as those underlying Rutan and O'Hare Truck Service.
In any event, because this is the first time the question of the constitutionality of patronage hiring of temporary employees has been presented to us, we agree that the state officials would be protected by qualified immunity as to the temporary position. The party defendants, however, have no basis for claiming qualified immunity. Rather than filing their own memorandum in support of summary judgment, the party defendants relied completely on the memorandum filed by the state officials. The portion of that memorandum dealing with the temporary position focused entirely on two arguments: that Rutan did not apply to the temporary position and that the state officials were protected by qualified immunity. The second argument is irrelevant to the party defendants' potential liability and the first is now impacted by O'Hare Truck Service. The grant of summary judgment with respect to the party defendants must be reversed and the matter remanded for a determination of standing and, if there is standing, of the merits.
In 1990 the Supreme Court, in Rutan, decreed that the use of political party affiliation as a criterion for public employment violated the First Amendment unless it was a job (generally involving policymaking) for which political affiliation was an appropriate requirement. Following that decision, Illinois state officials announced that all further hiring decisions would be based "on the merit and qualifications of the candidates," Administrative Order No. 2 (1990), except, of course, where the position fell under the Rutan policymaking exemption. On remand of the Rutan case, a Settlement Agreement between the plaintiffs and the Illinois officials was entered as the final judgment in the case. That Agreement required the State to publish a list of positions which were exempt from the Rutan holding.
In mid-1991, state officials decided that many temporary positions would be treated as exempt from the Rutan holding. These positions, including the interim power plant maintenance worker job involved here, were never included in the "exempt list" prepared in compliance with the Settlement Agreement.
The power plant position at the Choate Mental Health Center, which is operated by the Illinois Department of Mental Health and Developmental Disabilities, became vacant in the spring of 1992. Prior to that time, there were two permanent power plant maintenance workers at the facility. The position into which Blessing was eventually hired became available when one of these workers was promoted and the other developed a serious illness. One of the defendants, Alice Kerns, filled out a requisition form to fill one of the power plant positions on a permanent basis. The position was initially authorized only on a temporary basis, however. *fn1 The defendants contend that the temporary hiring was a stopgap measure, meant to provide for the emergency needs of the Choate Center long enough for the more prolonged permanent hiring process to be completed. Plaintiffs, on the other hand, charge that the temporary hiring was a deliberate scheme to circumvent the strictures of Rutan.
In any event, Roger Blessing was hired in June 1992 on the recommendation of Frank Keistler, head of the Union County Republican Central Committee. No interviews were conducted for the interim position and it was not publicized in any way. Blessing apparently performed extremely well in the interim position, which required that he put in very long hours. What relation, if any, Tarpley bore to the temporary position is unclear. The record contains no evidence whether, had he known of the position, he would have been interested in it. One might infer that, if he was ...