Submitted July 16, 2014
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:12-cv-00568-TWP-DML -- Tanya Walton Pratt, Judge.
For ROBIN ALLMAN, MARGARET BAUGHER, MARK BAUGHER, KRISTIE BINDA, GARY DAVIS, Plaintiffs - Appellees: Barry A. Macey, Attorney, Jeffrey A. Macey, Attorney, MACEY SWANSON & ALLMAN, Indianapolis, IN.
For KEVIN SMITH, in his individual capacity and in his official capacity as Mayor of the City of Anderson, CITY OF ANDERSON, INDIANA, Defendants - Appellants: Anthony W. Overholt, Attorney, FROST BROWN TODD LLC, Indianapolis, IN.
Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
Posner, Circuit Judge.
The plaintiffs, former employees of a city in Indiana, sued the mayor, and the city itself, under 42 U.S.C. § 1983. They claimed that the mayor had fired them because of their political affiliations and thus in violation of their First Amendment rights. The mayor riposted that political affiliation was a permissible qualification for their jobs. The district judge granted summary judgment in favor of the mayor with respect to nine of the eleven plaintiffs, on the ground that his argument concerning political qualification for their
jobs was sufficiently arguable to entitle him to qualified immunity. But the judge denied summary judgment with respect to the two other plaintiffs because she didn't think the mayor's claim of immunity from their suit arguable, given the differences between their jobs and those of the other nine plaintiffs.
The judge refused to certify for interlocutory appeal her denial of the mayor's claim of qualified immunity with respect to those two plaintiffs, on the ground that the issue of his qualified immunity involves a question of fact--namely whether he should have known that his conduct was unlawful (if it was). The judge also refused to stay the district court proceedings pending his appeal. The mayor asks us to grant the stay.
Whether a " job is one for which political affiliation is a permissible criterion ... presents a question of law," Riley v. Blagojevich, 425 F.3d 357, 361 (7th Cir. 2005), which makes it a proper basis for an interlocutory appeal from a denial of qualified immunity, Mitchell v. Forsyth, 472 U.S. 511, 526-30, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Marshall v. Allen, 984 F.2d 787, 789 (7th Cir. 1993); Lopez-Quinones v. Puerto Rico National Guard, 526 F.3d 23, 25 (1st Cir. 2008), and consequently for a stay of further proceedings in the district court pending that appeal. " Qualified immunity is an entitlement not to stand trial or face the other burdens of litigation. The privilege is an immunity from suit rather than a mere defense to liability; and, like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Siegert v. Gilley, 500 U.S. 226, 232-33, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); see also Mitchell v. Forsyth, supra, 472 U.S. at 526. And so " when a public official takes an interlocutory appeal to assert a colorable claim to absolute or qualified immunity from damages, the district court must stay proceedings." Goshtasby v. Board of Trustees of University of Illinois, 123 F.3d 427, 428 (7th Cir. 1997); see also Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989).
The district judge also denied the city's motion for summary judgment. The defense of qualified immunity is limited to individuals, but as the city's liability is derivative from the mayor's it wanted to show that he had not violated the plaintiffs' constitutional rights. All the mayor had to show in order to prevail was that even if he did violate those rights he was excused from liability by the doctrine of qualified immunity. The city, which cannot invoke qualified immunity, in order to prevail had to show that the mayor hadn't violated any constitutional rights, a showing that would eliminate the city's liability because its liability is derivative from the mayor's.
The city claims that the doctrine of " pendent appellate jurisdiction" allowed it to appeal. It moved in the district court to stay further proceedings in that court until we resolved its appeal. But the motion was denied. The two motions to stay (the mayor's and the ...