February 14, 2017
from the United States District Court for the Eastern
District of Wisconsin No. 2:15-cv-00809-Charles N. Clevert,
Rovner, Williams, and Hamilton Circuit Judges.
Williams, Circuit Judge.
Vidmar, Christopher Manney, and Rudolfo Gomez, Jr. were
discharged from the Milwaukee Police Department, for cause,
by Police Chief Edward Flynn. Their benefits and pay stopped
immediately. They appealed their terminations to the Board of
Fire and Police Commissioners (the "Board"), which
rejected their appeals and they were permanently discharged.
The former officers claimed that their employment did not end
when they were discharged by the chief because they were
entitled to employment until the conclusion of their appeals.
Along with the Milwaukee Police Association, they brought
this lawsuit alleging that they were denied constitutional
due process and wages. The district court rejected their
claims and granted judgment on the pleadings, finding that
under Wisconsin law the former officers were not entitled to
employment or pay and benefits between discharge by the chief
and affirmation of discharge by the Board.
appeal followed, and we affirm. Under Wisconsin law, the
former officers had no property interest in employment once
they were discharged for cause by Chief Flynn. They were
provided a full and adequate appellate process, and their
discharges were upheld in accordance with Wisconsin law. And,
they were not entitled to wages for the period of time
between their discharge and the conclusion of their appeal
under Wisconsin law as they were not employed during this
time. So we affirm the district court's judgment.
Vidmar was employed as a police officer for the City of
Milwaukee. On January 1, 2014, City Police Chief, Edward
Flynn, ordered that Vidmar be discharged from employment, and
his pay and benefits were terminated immediately. Vidmar
appealed his termination to the Board of Fire and Police
Commissioners (the "Board"), which conducted a
trial on May 12 and June 17, 2014 and affirmed, concluding
that his discharge was appropriate.
October 15, 2014, Christopher Manney was discharged from his
employment as a police officer by the City of Mil- waukee by
Chief Flynn, and his pay and benefits were terminated
immediately. Manney appealed, and the Board conducted a trial
from March 19 through March 23, 2015, and concluded that
discharge was appropriate.
December 3, 2013, Chief Flynn ordered that Milwaukee Police
Department detective Rudolfo Gomez, Jr. be discharged from
employment, and Gomez's pay and benefits were terminated
immediately. As of the filing of this suit, Gomez's trial
before the Board was incomplete. However, the Board concluded
that discharge was appropriate, and affirmed the discharge
decision on July 24, 2015.
6, 2015, the Milwaukee Police Association ("MPA"),
the labor organization that represents certain
non-supervisory Milwaukee police officers as a party in the
Collective Bargaining Agreement with the City, with Vidmar,
Manney, and Gomez (collectively the MPA and former officers
are referred to as the "Officers") filed this
lawsuit against Chief Flynn and the City of Milwaukee
(collectively referred to as the "City") alleging a
violation of procedural due process pursuant to 42 U.S.C.
§ 1983, and seeking unpaid wages pursuant to Wis.Stat.
§ 109.03. The Officers alleged that Wis.Stat. §
62.50(11) and (18) provided them with a legal entitlement to
employment and "pay and benefits" after the police
chief discharged them, continuing until the Board affirmed
their discharges from the force. The relevant time periods of
their alleged deprivations are January 1, 2014 - June 17,
2014 (Vidmar), October 15, 2014 - March 23, 2015 (Manney),
and December 3, 2013 - July 24, 2015 (Gomez).
district court granted judgment in the City's favor,
finding that, once discharged by Chief Flynn, the Officers
were not entitled to continued employment. Basing its order
on the statutory interpretation and legislative history of
§ 62.50, the district court concluded that the Officers
had no property interest in employment following discharge,
and therefore, were not denied due process or owed additional
wages. This appeal followed.
MPA has Standing to Sue
we address the merits, we need to address whether the MPA has
standing to sue. Article III, § 2 of the Constitution
limits the jurisdiction of federal courts to cases or
controversies. Arizonansfor Official English v.
Arizona, 520 U.S. 43, 64 (1997). The standing
requirements imposed by the Constitution are three-fold; a
litigant must show (1) that she "suffered a concrete and
particularized injury that is either actual or
imminent"; (2) "that the injury is fairly traceable
to the defendant"; and (3) that a favorable decision
will likely redress the injury. Massachusetts v.
EPA, 549 U.S. 497, 517 (2004) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
That Vidmar, Manney, and Gomez have standing is not disputed.
Each alleged that he suffered concrete financial injuries,
namely deprivation of wages, and financial injuries are
prototypical of injuries for the purposes of Article III
standing. See, e.g., United States v. Kerner, 895
F.2d 1159, 1162 (7th Cir. 1990). However, it is less clear
that the MP A, an organization that does not claim financial
harm, has standing here.
has not pled any injury to itself, but instead asserts that
it is a labor organization that has been recognized by the
City of Milwaukee as the exclusive bargaining representative
for certain officers in the Collective Bargaining Agreement
with the city. It alleges that "the MPA possesses a
tangible interest in knowing the law as it may impact its
members, as well as ensuring that its members are afforded
due process ... ." However, an interest in the
underlying law does not equal an injury. Neither can the MPA
plead an injury to itself merely by pleading injury to some
of its members. See Milwaukee Police Assn'n v. Bd. of
Fire & Police ...