In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1567
W ILLIAM H. M OSS,
Plaintiff-Appellant,
v.
T IMOTHY M ARTIN , et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 04-3217—Jeanne E. Scott, Judge.
A RGUED F EBRUARY 11, 2010—D ECIDED A UGUST 2, 2010
Before K ANNE, W OOD , and H AMILTON, Circuit Judges.
W OOD , Circuit Judge. Political patronage lies at the
heart of this case—this time, favoritism based on political
party affiliation in the Highway Sign Shop of the Illinois
Department of Transportation (“IDOT”). William H.
Moss worked as the Chief of that shop from 2000 until
April 2004, when he was fired to make room for an em-
ployee chosen by the administration of then-Governor
Rod Blagojevich. Moss sued a number of state officials
2 No. 09-1567
under 42 U.S.C. § 1983, asserting that his rights under
the First Amendment and the due process clause were
violated. The district court dismissed all claims on
the pleadings, see FED. R. C IV . P. 12(c), but this court
ruled that Moss was entitled to go forward with his First
Amendment theory. See Moss v. Martin, 473 F.3d 694
(7th Cir. 2007) (“Moss I”). On remand, the district court
ruled that the defendants were entitled to qualified
immunity because they relied on the conclusion of
Illinois’s Central Management Services (“CMS”) agency
that Moss’s job was “exempt” from the rule banning
politically-based firings established in Rutan v. Republican
Party of Illinois, 497 U.S. 62 (1990). The court therefore
granted summary judgment to the defendants, and Moss’s
second appeal is now before us. Although we find that the
decision to fire Moss probably fell afoul of the Rutan
principle, we agree with the district court that the defen-
dants were entitled to qualified immunity. We therefore
affirm.
I
Most of the details concerning Moss’s job and the
events leading to his firing were set out in Moss I, 473 F.3d
at 697-98, and so we provide only a summary here. Moss
began working as the Chief of IDOT’s Highway Sign
Shop in Springfield in September 2000. His immediate
supervisor was Joe Hill, the Bureau Chief of Operations;
Hill reported to Jack Hook, the Deputy Director of High-
ways. Moss was responsible for overseeing the fabrica-
tion and repair of all the highway signs scattered across
No. 09-1567 3
the State of Illinois; in that capacity, he supervised about
25 employees.
In January 2003, Illinois ended a long run of Repub-
lican governors when Rod Blagojevich, a Democrat, took
office. About a year later, a personnel manager at IDOT
named Jacob Miller happened to run across a news-
paper article that mentioned that Moss was running for
a position as a Republican precinct committeeperson
for Sangamon County. Miller checked a few human re-
sources records and discovered that Moss was on
IDOT’s list of so-called double-exempt employees. In
plain English, that means that CMS, the state agency
responsible for administering almost all state hiring, had
concluded that his position was subject neither to the
Illinois Personnel Code nor the Supreme Court’s Rutan
decision. Briefly, Rutan held that governments may not
base employment decisions such as promotions, trans-
fers, and recalls for low-level employees on political
affiliation or support; to do so would be an im-
permissible infringement on the public employees’ First
Amendment rights. People in non-exempt positions,
where political loyalty is a bona fide requirement, do not
enjoy comparable protection. After Miller learned that
Moss was double-exempt, he quickly shot off an email
on December 22, 2003, to Robert Millette, the Director of
Finance and Administration for IDOT, asking if Millette
thought that Moss should be fired for supporting the
political opposition. Millette answered yes and told
Miller to start preparing the necessary paperwork.
A few months later, Scott Doubet replaced Miller. As
far as this record shows, the two men never discussed
4 No. 09-1567
Moss’s situation. But around that time a legislative
liaison for the Blagojevich administration told Doubet
to find a job for Joe Athey, whom Moss describes as a
political loyalist for the Blagojevich team. Doubet looked
around and decided to give Athey the job of Chief of the
Highway Sign Shop. Millette and Timothy Martin, the
Secretary of IDOT, signed off on Doubet’s decision.
Moss was fired on April 26, 2004, and Athey replaced
him. Moss responded with this suit, which he filed
against Martin (in both his individual and official ca-
pacities), Millette, and another IDOT employee. Gary
Hannig, the current Secretary of the Department, has
been substituted for Millette with respect to the official
capacity claims.
II
As we noted above, the First Amendment claim in
Moss’s case survived one round of appeal. Back in the
district court, the parties filed cross-motions for sum-
mary judgment. Defendants’ motion relied on qualified
immunity, and so that is what the district court focused
on. It recognized that there are two elements of a
qualified immunity claim—first, that the defendants
violated Moss’s constitutional rights, and second, that
those rights were clearly established at the time the
defendants acted—and that it had discretion to address
the second element first. See Pearson v. Callahan, 129 S. Ct.
808 (2009). Finding that judicial economy would be pro-
moted by doing so in Moss’s case, the court put to one
side the question whether the defendants had violated
No. 09-1567 5
Moss’s First Amendment rights and moved immediately
to the issue whether they had done so in disregard of
clearly established law.
The undisputed evidence, the court found, showed
that the defendants, all from IDOT, relied on the decision
of CMS to classify the position of Chief of the Highway
Sign Shop as Rutan-exempt when they decided to fire
Moss. CMS had made that designation in 1992, long
before Moss took the position, at a time when Illinois
had a Republican governor, and long before the
Blagojevich administration took office. The court found
that there was no rule requiring the IDOT personnel
to second-guess the job description that CMS was using.
In fact, the court concluded that even the decision in
Riley v. Blagojevich, 425 F.3d 357 (7th Cir. 2005), which
was handed down after the events in this case, sup-
ported the idea that political leaders were entitled to
rely on existing state personnel descriptions unless the
job description is systematically unreliable. Moss urged
that he was eligible for the latter exception (disregarding
the timing problem), but he presented no evidence that
an unreliable process was used to develop the descrip-
tion for his position. The court also noted that the em-
ploying agency—here, IDOT—did not have the authority
to change a designation by CMS that a position was Rutan-
exempt. It also observed that none of the defendants
independently evaluated Moss’s position to determine
whether political affiliation was a proper consideration
for job actions.
6 No. 09-1567
III
A
Moss urges that the position of Chief of the Highway
Sign Shop is too low on the totem pole to be classified
as Rutan-exempt. This is the question that the district
court did not reach, but because the inquiry into
how clearly established these rules are touches on the
underlying issue, we take a moment to discuss it.
The First Amendment prohibits a state employer from
terminating the employment of a worker on the basis of
her political beliefs unless political affiliation is an ap-
propriate requirement for the position. See Gunville v.
Walker, 583 F.3d 979, 983-84 (7th Cir. 2009) (citing Branti v.
Finkel, 445 U.S. 507 (1980)). The only serious question
here is whether Moss’s job was one in which political
affiliation was a valid consideration. The record is clear
that he was a member of the Republican Party and
that Millette knew this fact. Whether any of the other
defendants knew is less clear.
The state argues that the exchange between Millette
and Miller at the end of 2003 more or less dissipated,
and nothing came of it. Miller testified that he was not
sure what became of the paperwork he initiated to fire
Moss. Only after Doubet took office and the legislative
liaison approached him, looking for a job for Athey,
did Moss finally lose his job. This, the state says, places
an intervening cause between Millette and Miller’s plan
and the actual firing.
Moss counters that Millette hired Athey only to please
the Democratic administration. Unfortunately, there is
No. 09-1567 7
little evidence to back up this assertion. All Moss has
is Doubet’s testimony that he told Millette and Martin
that a legislative liaison in the administration had recom-
mended Athey for a job. Doubet speculated that the
liaison may have wanted to place Athey there because
of his loyalty to the administration, but there is no evi-
dence to substantiate that theory. For all anyone
knows, Athey’s appointment may have been motivated
by nepotism, or by the desire to please a particularly
powerful Republican legislator. If it were the latter, then
Moss would be out of luck. He cannot succeed unless
he can show that he was replaced by someone with dif-
ferent ideological beliefs. See Hall v. Babb, 389 F.3d 758,
765 (7th Cir. 2004). Even taking the evidence in the
light most favorable to Moss, as we must on summary
judgment, it is hard to find a genuine factual dispute on
the question whether Millette’s decision to hire Athey
was based on Athey’s political loyalties. Cf. Cusson-Cobb
v. O’Lessker, 953 F.2d 1079, 1081 (7th Cir. 1992) (rejecting
plaintiff’s unsubstantiated claim that savvy govern-
ment officials knew that she was a Republican because
she had been appointed by the last administration).
The record nevertheless might permit a fact-finder to
decide that Millette agreed to fire Moss because of
Moss’s active role in the local Republican party. When
Doubet recommended hiring Athey in February or
March 2004, the IDOT defendants may have been in the
process of terminating Moss’s employment because of
his partisan comments. Miller testified that the hiring
process for Rutan-exempt positions requires some 20 to
30 different steps; it is thus likely that the process
8 No. 09-1567
required to fire employees in those positions is equally
protracted. Athey’s appearance on the scene may have
been just what Millette needed to complete the job of
dismissing Moss.
The defendants’ story requires one to believe that
Millette agreed to fire Moss on political grounds, then
backed away from that decision, and finally fired
him a few months later because Doubet serendipitously
selected Moss’s position as the one Rutan-exempt spot
that he felt fit Athey’s skills. The connection between
Millette’s knowledge of Moss’s political connections
and Moss’s discharge thus might raise the kind of ques-
tion of intent that, on the merits, would best be left to the
trier of fact. See Darchak v. City of Chicago Bd. of Educ., 580
F.3d 622, 633 (7th Cir. 2009); Casna v. City of Loves Park,
574 F.3d 420, 427 (7th Cir. 2009).
Moss’s case against Martin is on shakier ground.
No direct evidence, and nothing but speculative circum-
stantial evidence, indicates that Martin ever knew about
Moss’s political affiliation. Moreover, nothing indicates
that Martin was aware of the content of the email ex-
change in December 2003 between Millette and Miller.
Martin denied knowing that Moss was a member of the
Republican party, and Doubet does not remember ever
mentioning Moss’s politics to Martin. Even if Martin, as
Moss insists, knew that Athey had some kind of political
connections, we have already explained why this vague
knowledge is not good enough.
No. 09-1567 9
B
Even giving Moss the benefit of the doubt and
assuming that there are genuinely disputed facts about the
existence of a political motivation for his firing, there are
two other hurdles he must pass before we would be
required to reverse the district court. First, he would
need to show that the job of Chief of the Highway Sign
Shop was wrongly classified as Rutan-exempt, and second,
he would need to show that this was so plain that the
defendants should be denied qualified immunity.
On the first of those issues, Moss’s case looks promising.
Although the First Amendment prohibits government
employers from taking most employees’ political views
into consideration when making job decisions, the
Supreme Court has long recognized an exception to
that rule for positions that involve confidential or
policymaking responsibilities. See Elrod v. Burns, 427
U.S. 347, 367 (1976). In deciding whether a particular
job falls within the exception, the court examines the
inherent duties of the position. See Riley, 425 F.3d at 365.
In Moss I, we found that the job description for the Chief
of the Highway Sign Shop was inconclusive. 473 F.3d
at 699. The Chief does not have access to politically sensi-
tive information, but the defendants argue that he none-
theless is involved in “the making of policy and thus
the exercise of political judgment.” Allen v. Martin, 460
F.3d 939, 944 (7th Cir. 2006); Kiddy-Brown v. Blagojevich, 408
F.3d 346, 355 (7th Cir. 2005). They also describe the Chief’s
position as near the top of the IDOT hierarchy, since it is
four rungs below the Secretary. This may depend on
10 No. 09-1567
whether the glass is half-full or half-empty: each rung has
quite a few positions (for example, the Secretary oversees
five divisions and five offices, and then the Division
of Highways has ten different bureaus).
We could go on, but the best that we could do for
Moss would be to find that the Chief’s discretion is suffi-
ciently circumscribed and his authority removed enough
from the confidential or policymaking realm within
IDOT that the job should have been covered by Rutan
and the Personnel Code. Operating on that assumption,
however, we still need to ask whether it was clearly
established at the time the defendants fired Moss that
such an action would violate his First Amendment
rights. See Pearson, supra; Saucier v. Katz, 533 U.S. 194, 201
(2001); see also Putrell v. Mason, 527 F.3d 615, 621 (7th
Cir. 2008) (“The relevant, dispositive inquiry in deter-
mining whether a right is clearly established is whether
it would be clear to a reasonable officer that his con-
duct was unlawful in the situation he confronted.”). The
court thus cannot rely on the broad proposition that
the First Amendment protects against certain political
patronage firings; it must instead look to see if the vio-
lation was clear in the specific context of the case. See
Borello v. Allison, 446 F.3d 742, 750 (7th Cir. 2006). This
does not necessarily require the plaintiff to find a
factually indistinguishable case on point, but if there is
no such case, then he needs to offer a different explana-
tion for why the constitutional violation is obvious. See
Flenner v. Sheahan, 107 F.3d 459, 465 (7th Cir. 1997).
In concluding that the defendants reasonably believed
that their discharge of Moss was lawful, the district court
No. 09-1567 11
emphasized that they relied on CMS’s designation of the
Sign Shop Chief position as exempt. CMS reached this
conclusion by using criteria created by its outside
legal counsel. This is one factor that militates in favor
of granting qualified immunity. See Davis v. Zirkelbach,
149 F.3d 614, 619-21 (7th Cir. 1998) (citing Harlow v. Fitz-
gerald, 457 U.S. 800, 819 (1982)). It is not, however,
dispositive, particularly here where we have already
found that the job description on which both counsel
and CMS relied was inconclusive. Furthermore, the
weight that we place on CMS’s reliance on advice of
counsel depends on factors like how much information
counsel had and how closely tailored the advice was to
the position in question.
It is telling that CMS had classified the Chief’s position
as exempt under both Rutan and the Personnel Code in
1992, just two years after Rutan was decided. There is
thus not a whiff of suspicion that either CMS or IDOT
was manipulating the job description because of any
interest that the incumbent administration at the time
of Moss’s firing might have had in expanding the scope
of its own political patronage. It is also telling, given the
unfortunate number of political patronage cases that
have arisen over the years, that Moss cannot point to
any closely analogous case to support his argument. The
Sign Shop Chief’s position lies somewhere between
the extremes that have dominated our cases in this area.
See Riley, 425 F.3d at 359 (chart). Given the uncertainty
that litigants encounter in this somewhat murky area of
the law, it is difficult for a plaintiff to avoid a qualified
12 No. 09-1567
immunity defense in a case of first impression unless
she occupies a low rung on the bureaucratic ladder.
We conclude, therefore, that the defendants Moss has
sued were entitled to qualified immunity. This leaves
only one loose end to tie up. The qualified immunity
defense protects governmental defendants from an
action for money damages, but not from a suit for in-
junctive relief. Initially, Moss was asking for an injunc-
tion as well as damages. He has not pursued his request
for an injunction on appeal, however, and so we deem
it forfeited. For these reasons, the judgment of the
district court is
A FFIRMED.
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