In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1791
KATHLEEN HAGAN, et al.,
Plaintiffs‐Appellants,
v.
PATRICK J. QUINN, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 13‐3357 — Sue E. Myerscough, Judge.
____________________
SUBMITTED FEBRUARY 2, 2016* — DECIDED AUGUST 14, 2017
____________________
Before FLAUM, MANION, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Plaintiffs are former arbitrators
for the Illinois Workers’ Compensation Commission. In 2011,
plaintiffs and another arbitrator brought a due process action
* This appeal is successive to No. 14‐2746 and has been submitted to
the original panel under Operating Procedure 6(b). We have agreed to de‐
cide the case without oral argument because argument would not signifi‐
cantly aid our decision‐making process. See Fed. R. App. P. 34(a)(2)(C).
2 No. 15‐1791
challenging the implementation of House Bill 1698, a workers’
compensation reform statute that had terminated their six‐
year appointments under prior law. The district court granted
summary judgment for defendants, and we affirmed, con‐
cluding that plaintiffs failed to demonstrate a clearly estab‐
lished right that was violated by legislation ending their six‐
year terms as arbitrators. Dibble v. Quinn, 793 F.3d 803, 814 (7th
Cir. 2015) (the “Due Process Suit”).1
In October 2011, while the Due Process Suit was pending,
the Illinois governor declined to reappoint plaintiffs, which
ended their employment. Two years later, plaintiffs filed this
action against the governor and two of his advisors in their
individual and official capacities. Plaintiffs alleged that the
defendants had retaliated against them for filing the prior suit
and that the retaliation violated the First Amendment to the
United States Constitution and Illinois state law. Plaintiffs
sought damages and an injunction providing either reinstate‐
ment or comparable state employment.
The district court dismissed plaintiffs’ First Amendment
claims, holding that the Due Process Suit was not protected
speech under the Connick–Pickering line of cases. See Connick
v. Myers, 461 U.S. 138 (1983); Pickering v. Board of Education of
Township High School District 205, 391 U.S. 563 (1968). The
1 Plaintiffs here did not participate in the appeal of the Due Process
Suit. Former arbitrator Peter Akemann (not a party here) pursued that ap‐
peal pro se, and we consolidated his action with an appeal in a related case
brought by former arbitrator John Dibble, No. 14‐2328.
No. 15‐1791 3
court declined to exercise supplemental jurisdiction over
plaintiffs’ state‐law claims.2
We affirm, but by a different path. We need not and do not
decide whether the Due Process Suit was speech on a matter
of public concern as is required for a government employee
to show retaliation in violation of the First Amendment. Plain‐
tiffs’ claims fail for a more fundamental reason. Plaintiffs were
policymakers who could be terminated—or, more precisely,
not reappointed—for engaging in “speech on a matter of pub‐
lic concern in a manner that is critical of superiors or their
stated policies.” Kiddy‐Brown v. Blagojevich, 408 F.3d 346, 358
(7th Cir. 2005) (citations omitted). A logical outgrowth of the
Elrod–Branti line of cases, see Elrod v. Burns, 427 U.S. 347
(1976), and Branti v. Finkel, 445 U.S. 507 (1980), this policy‐
maker corollary to the standard Pickering analysis allows
2 The district court did not address plaintiffs’ demand for injunctive
relief. In Dibble, however, we rejected as moot a similar claim for reinstate‐
ment. By the time that case reached us, plaintiffs’ six‐year terms would
have expired even apart from House Bill 1698. 793 F.3d at 807. Likewise
here, even if Governor Quinn had renewed plaintiffs’ appointments in Oc‐
tober 2011, those appointments would have expired years ago. Under the
Workers’ Compensation Act as amended, arbitrators are generally ap‐
pointed to three‐year terms, with initial appointments having expired in
July of 2012, 2013, and 2014. See 820 Ill. Comp. Stat. 305/14.
In the best case scenario for plaintiffs, then, even if the governor had
renewed their appointments, those appointments would have expired
over three years ago. Because plaintiffs’ claim for injunctive relief is moot,
they have no claim against defendants in their official capacities, and we
need not substitute the current office holders for the named defendants
under Federal Rule of Civil Procedure 25(d). This action is now only
against the defendants in their individual capacities for damages.
4 No. 15‐1791
elected officials to replace high‐level and confidential em‐
ployees not only when those employees merely belong to the
“wrong” political party or faction but also when they engage
in speech or other First Amendment activity that could un‐
dermine the policy or political goals of the officials accused of
the retaliation. In this case, plaintiffs publicly challenged the
implementation of House Bill 1698 as unconstitutional. They
had a constitutional right to do so, but their exercise of that
right came with consequences for their positions in state gov‐
ernment that the Constitution also permits. In filing their law‐
suit, plaintiffs sought to undercut a key component of the ad‐
ministration’s workers’ compensation reform initiative. That
was reason enough for the governor to choose not to reap‐
point them as arbitrators. Given their positions in govern‐
ment, the First Amendment offers them no redress for the
governor’s choice.
I. Factual and Procedural Background
We review de novo the district court’s dismissal of plain‐
tiffs’ First Amendment claims, accepting as true plaintiffs’
well‐pled factual allegations and drawing reasonable infer‐
ences in their favor. E.g., Simpson v. Brown County, 860 F.3d
1001, 1005 (7th Cir. 2017); Jakupovic v. Curran, 850 F.3d 898, 901
(7th Cir. 2017). We review for abuse of discretion the district
court’s decision under 28 U.S.C. § 1367(c)(3) not to exercise
supplemental jurisdiction over plaintiffs’ state‐law claims.
Burritt v. Ditlefsen, 807 F.3d 239, 252 (7th Cir. 2015).
A. The Due Process Suit
Plaintiffs were employed as arbitrators with the Illinois
Workers’ Compensation Commission from 1989 (plaintiffs
Kathleen Hagan and Gilberto Galicia), 1990 (plaintiff Joseph
No. 15‐1791 5
Prieto), and 2003 (plaintiff Richard Peterson), until October
14, 2011. Plaintiffs allege that during the spring and early
summer of 2011, articles published by Illinois media outlets
drew public attention to problems with the state workers’
compensation scheme. The legislature responded to these
concerns. On June 28, 2011, then–Governor Quinn signed
House Bill 1698 (as enacted, Public Act 97–18), amending the
Workers’ Compensation Act. See 820 Ill. Comp. Stat. 305/1 et
seq.
A press release issued by the governor’s office (and ap‐
pended as an exhibit to plaintiffs’ complaint) highlighted
some of the key changes in the law. These included a substan‐
tial reduction in the medical fee schedule, implementation of
new provider networks, enhanced enforcement mechanisms,
and an electronic billing system. Most relevant here, the new
legislation also changed the appointment scheme for arbitra‐
tors who decide employer/employee disputes. Notwithstand‐
ing prior law that established six‐year terms for arbitrators
and protected them from early discharge except for cause, the
amended Act terminated all appointments effective July 1,
2011, but with the proviso that incumbents would “continue
to exercise all of their duties until they are reappointed or
their successors are appointed.” 820 Ill. Comp. Stat. 305/14.
Going forward, appointments were to be made by the gover‐
nor with the advice and consent of the state senate. Initial ap‐
pointments would last for one, two, or three years to set up
classes of arbitrators with staggered terms. Thereafter, arbi‐
trators would be appointed to three‐year terms.
Unhappy with some of these changes—including the ab‐
rupt dissolution of their six‐year terms—plaintiffs here and
6 No. 15‐1791
fellow arbitrator Peter Akemann sued the governor and mem‐
bers of the Workers’ Compensation Commission. In their Due
Process Suit, plaintiffs alleged principally that the amended
law unconstitutionally deprived them of their property inter‐
est in their employment. Plaintiffs sought damages, a decla‐
ration that House Bill 1698 was unconstitutional as applied to
them, and an injunction prohibiting defendants from remov‐
ing them from office or “taking any other action in retaliation
for the Plaintiffs’ protection of their civil rights.”
The district court granted summary judgment for defend‐
ants, rejecting plaintiffs’ due process claim on its merits. Ha‐
gan v. Quinn, No. 11‐CV‐3213, 2014 WL 3052631, at *3 (C.D. Ill.
July 7, 2014). We affirmed on alternative grounds, holding
that plaintiffs “failed to demonstrate a clearly established
right that was violated by legislation ending their six‐year
terms as arbitrators” and that defendants were thus entitled
to qualified immunity. Dibble, 793 F.3d at 814.
B. The Retaliation Suit
On October 14, 2011, after plaintiffs filed the Due Process
Suit but long before that case was decided, Governor Quinn
decided which arbitrators would continue with their employ‐
ment and which would be terminated. Plaintiffs were among
those who were not reappointed. Two years later, plaintiffs
filed this action alleging retaliation in violation of the First
Amendment and the Illinois State Officials and Employees
Ethics Act, 5 Ill. Comp. Stat. 430/1‐1 et seq. Plaintiffs sued Gov‐
ernor Quinn; his chief of staff, Jerome Stermer; and an advi‐
sor, Velisha Haddox, in their individual and official capaci‐
ties.
No. 15‐1791 7
In their retaliation complaint, plaintiffs allege that their
participation in the Due Process Suit was the “sole reason”
they were not reappointed as arbitrators. Though plaintiffs
concede that they each had a “personal motivation” in bring‐
ing the Due Process Suit, they insist that “their justifications
for doing so were not limited to their personal interest.” Ra‐
ther, they felt it was “important to, in a public forum, hash out
concerns … regarding the workers’ compensation reforms
and to outline that the governor of the State of Illinois had vi‐
olated the United States Constitution.” According to plain‐
tiffs, their speech/petitioning was their way of participating in
a “significant public debate on an issue of importance to the
people of the State of Illinois.”
The district court disagreed. In granting defendants’ mo‐
tion to dismiss, the court held that, as a “matter of law, Plain‐
tiffs’ lawsuit to protect their jobs was not constitutionally pro‐
tected speech.” Hagan v. Quinn, 84 F. Supp. 3d 826, 827 (C.D.
Ill. 2015). Applying the Connick–Pickering framework for as‐
sessing First Amendment claims by government employees,
the district court concluded that the Due Process Suit was not
speech on a matter of public concern. Citing the admonition
in Connick that courts must take account of the “content, form,
and context” of an employee’s speech, 461 U.S. at 147–48, the
district court reasoned that the Due Process Suit “cannot
fairly be said to be about worker’s compensation reform from
a public view standpoint” but was instead a “purely per‐
sonal” attempt by plaintiffs to “protect their jobs and reputa‐
tions.” Hagan, 84 F. Supp. 3d at 831–32. The court held in the
alternative that defendants were entitled to qualified immun‐
ity. Id. at 832–33.
8 No. 15‐1791
The district court dismissed plaintiffs’ First Amendment
claims with prejudice. The court dismissed their state Ethics
Act claims without prejudice, declining to exercise supple‐
mental jurisdiction over those state‐law claims. Id. at 833.
Plaintiffs have appealed both dismissals.3
II. Analysis
A. First Amendment Retaliation Doctrine
Employees do not give up all First Amendment rights
when they accept government employment. See Lalowski v.
City of Des Plaines, 789 F.3d 784, 790 (7th Cir. 2015). Rather, the
First Amendment “protects a public employee’s right, in cer‐
tain circumstances, to speak as a citizen about matters of pub‐
lic concern. Whether the First Amendment protects the
speech is a question of law that we review de novo.” Matrisci‐
ano v. Randle, 569 F.3d 723, 730 (7th Cir. 2009) (citations omit‐
ted), abrogated in part on other grounds by Gross v. FBL Fi‐
nancial Services, Inc., 557 U.S. 167 (2009).
To establish a First Amendment retaliation claim, a public
employee must show that “(1) she engaged in constitutionally
protected speech; (2) she suffered a deprivation because of her
3 Oddly, the judgment order entered by the clerk states that the case
was dismissed without prejudice. That was plainly a clerical error. While
the district judge declined to exercise supplemental jurisdiction over the
Ethics Act claims and thus dismissed that count without prejudice, she
held that the First Amendment count was dismissed “for failure to state a
federal claim.” Hagan, 84 F. Supp. 3d at 833. She added that the “case is
closed,” and she directed the clerk to enter a judgment pursuant to Federal
Rule of Civil Procedure 58. Id. Perhaps the clerk simply misread the order
appended to the district judge’s opinion, but it is the district judge’s re‐
sponsibility to ensure that the judgment accurately reflects the judge’s in‐
tentions. In any event, our appellate jurisdiction is secure.
No. 15‐1791 9
employer’s action; and (3) her protected speech was a but‐for
cause of the employer’s action.” Diadenko v. Folino, 741 F.3d
751, 755 (7th Cir. 2013); see also Kidwell v. Eisenhauer, 679 F.3d
957, 965 (7th Cir. 2012) (“Initially, to establish a prima facie
case of retaliation, the plaintiff must produce evidence that
his speech was at least a motivating factor … of the employer’s
decision to take retaliatory action against him. Then, the bur‐
den shifts to the employer to rebut the causal inference raised
by the plaintiff’s evidence. If the employer fails to counter the
plaintiff’s evidence, then … the plaintiff has established the
but‐for causation needed to succeed on his claim.”) (citations
omitted).
While the speech at issue in government employment
cases often involves controversial remarks by employees in
the workplace or directed to the media, the First Amendment
reaches many forms of expression. In Borough of Duryea v.
Guarnieri, 564 U.S. 379, 383 (2011), a former police chief filed
a union grievance challenging his termination. An arbitrator
ordered the chief reinstated. The borough council then issued
a series of directives that the chief considered unfair (and that
the arbitrator later ordered the council to modify or rescind).
Id. at 383–84. The chief filed a federal § 1983 action claiming
that his union grievance was protected under the First
Amendment’s Petition Clause and that the directives were re‐
taliation for that protected activity. After the chief filed his
suit, the borough council denied his request for overtime com‐
pensation, and he amended his complaint to allege that the
§ 1983 suit was itself protected under the Petition Clause and
that the overtime denial was another instance of unconstitu‐
tional retaliation. Id. at 384.
10 No. 15‐1791
In reviewing the chief’s First Amendment claims, the Su‐
preme Court recognized that he “just as easily could have al‐
leged that his employer retaliated against him for the speech
contained within his grievances and lawsuit.” Id. at 387. The
Court held that the ordinary framework for assessing retalia‐
tion claims applies with equal force when the speech at issue
is conveyed through a lawsuit or other petition. Id. at 398; see
Gibson v. Kilpatrick, 838 F.3d 476, 481 (5th Cir. 2016) (retaliation
claims brought by government employees under the Speech
Clause and the Petition Clause are “analyzed in the same
way”).
It makes good sense to take the same approach to retalia‐
tion claims arising under the Speech and Petition Clauses.
“Petitions, no less than speech, can interfere with the efficient
and effective operation of government.” Borough of Duryea,
564 U.S. at 389. Yet petitions such as lawsuits are important
mechanisms for citizens (including government employees)
to make their voices heard and to seek to hold public officials
accountable. See id. at 395–97 (tracing the history of the right
to petition from the Magna Carta through the founding era
and the modern civil rights movement).4
4 In an analogous context of First Amendment retaliation claims by
prisoners, we apply the same test whether the expressive activity is in the
nature of a petition or some other form of speech. E.g., Bridges v. Gilbert,
557 F.3d 541, 551–52 (7th Cir. 2009) (inmate stated First Amendment claim
for retaliation in response to his submission of an affidavit in a separate
suit filed by fellow inmate’s mother); Pearson v. Welborn, 471 F.3d 732, 741
(7th Cir. 2006) (inmate may state valid First Amendment claim for retalia‐
tion in response to grievance regardless whether inmate reduced his com‐
plaints “to writing on an official grievance form” or expressed them
orally). In the prison context, “we examine whether the prisoner engaged
in speech in a manner consistent with legitimate penological interests,”
No. 15‐1791 11
As this discussion shows, for purposes of assessing these
plaintiffs’ First Amendment retaliation claims, it makes no
difference that plaintiffs’ expressive activity took the form of
a complaint in federal court rather than a conversation in the
workplace, a press conference, a Facebook post, or a tweet on
Twitter. Plaintiffs can prevail if, but only if, they can demon‐
strate that the Due Process Suit was protected speech/peti‐
tioning activity and that defendants took an adverse action
against them because of that protected activity. As we explain
below, plaintiffs cannot carry their burden.
B. The Policymaker Corollary to the Pickering Analysis
In evaluating plaintiffs’ retaliation claims, the district court
focused on the first element of the claims, i.e., whether the
Due Process Suit was constitutionally protected speech on a
matter of public concern. We also consider whether plaintiffs’
speech/petition was constitutionally protected, but our ap‐
proach differs from the district court’s. Because we conclude
that plaintiffs were “policymakers” and that the governor
could lawfully decline to reappoint them for speaking out
against his administration’s workers’ compensation reform
though we do not require the prisoner to show that he spoke on a matter
of public concern (even if the prisoner was employed by the prison, as
many inmates are), and in that respect prisoner claims are analyzed some‐
what differently than public‐employee claims. See Watkins v. Kasper, 599
F.3d 791, 795 (7th Cir. 2010). Compare Herron v. Meyer, 820 F.3d 860, 864
(7th Cir. 2016) (observing that “decisions in the prison‐grievance line do
not explain why the First Amendment offers greater protection to prison‐
ers than to public employees”), with Ogurek v. Gabor, 827 F.3d 567, 569 (7th
Cir. 2016) (citing Watkins, 599 F.3d at 795, for proposition that “the dynam‐
ics of the government’s relationships with prisoner‐employees and with
public employees are too dissimilar to transfer the public concern test to
the prison context”).
12 No. 15‐1791
initiative, we need not and do not decide whether the Due
Process Suit was speech on a matter of public concern.
In Elrod v. Burns and Branti v. Finkel, the Supreme Court
prohibited government employers from dismissing most
public employees on the basis of partisan affiliation, holding
that the age‐old practice of patronage firings violated the First
Amendment. At the same time, the Court recognized an ex‐
ception for employees who occupy policymaking or confiden‐
tial positions. Elected officials may require political loyalty
from such employees so that representative government is not
“undercut by tactics obstructing the implementation of poli‐
cies … presumably sanctioned by the electorate.” Elrod, 427
U.S. at 367 (plurality opinion); see also Branti, 445 U.S. at 517
(“[I]f an employee’s private political beliefs would interfere
with the discharge of his public duties, his First Amendment
rights may be required to yield to the State’s vital interest in
maintaining governmental effectiveness and efficiency.”); cf.
Rutan v. Republican Party of Illinois, 497 U.S. 62, 75 (1990) (ex‐
tending Elrod and Branti to hold that “promotions, transfers,
and recalls after layoffs based on political affiliation or sup‐
port are an impermissible infringement on the First Amend‐
ment rights of public employees”).
While acknowledging that “[n]o clear line can be drawn
between policymaking and nonpolicymaking positions,” the
plurality in Elrod emphasized that the “nature of the respon‐
sibilities is critical,” and that an employee whose responsibil‐
ities are broad in scope, who acts as an adviser, and/or who
“formulates plans for the implementation of broad goals”
likely occupies a policymaking role. 427 U.S. at 367–68 (plu‐
rality opinion). In Branti, the Court said again that it is “not
always easy to determine whether a position is one in which
No. 15‐1791 13
political affiliation is a legitimate factor to be considered.” 445
U.S. at 518. The Court reasoned that under some circum‐
stances, a job “may be appropriately considered political even
though it is neither confidential nor policymaking in charac‐
ter” (e.g., an election judge hired pursuant to a state law re‐
quiring one Republican and one Democrat to monitor each
precinct). Id. Conversely, “party affiliation is not necessarily
relevant to every policymaking or confidential position” (e.g.,
a university football coach). Id. The ultimate inquiry, the
Court concluded, is “whether the hiring authority can
demonstrate that party affiliation is an appropriate require‐
ment for the effective performance of the public office in‐
volved.” Id. The policymaker label is thus shorthand for a
broad category of public employees whose work is politically
sensitive and who exercise significant discretion in the perfor‐
mance of their duties.
Despite the unusual cases contemplated in Branti and the
Supreme Court’s emphasis on a functional rather than a defi‐
nitional approach to assessing patronage dismissals, this
court has “recognized that the terms ‘[p]olicymaking’ and
‘confidential’ do accurately describe the vast majority of of‐
fices that fall within the realm of legitimate patronage under
the Branti formulation.” Kiddy‐Brown, 408 F.3d at 355 (altera‐
tions in original; internal quotation marks omitted), quoting
Meeks v. Grimes, 779 F.2d 417, 420 (7th Cir. 1985); accord, Davis
v. Ockomon, 668 F.3d 473, 477 (7th Cir. 2012); Matlock v. Barnes,
932 F.2d 658, 662 (7th Cir. 1991).
We have held that the “test for whether a position involves
policymaking is ‘whether the position authorizes, either di‐
rectly or indirectly, meaningful input into government deci‐
14 No. 15‐1791
sionmaking on issues where there is room for principled dis‐
agreement on goals or their implementation.’” Kiddy‐Brown,
408 F.3d at 355, quoting Nekolny v. Painter, 653 F.2d 1164, 1170
(7th Cir. 1981). To make this determination, we consider the
“powers inherent in a given office, as opposed to the functions
performed by a particular occupant of that office.” Id., quot‐
ing Tomczak v. City of Chicago, 765 F.2d 633, 640 (7th Cir. 1985);
see also Embry v. City of Calumet City, 701 F.3d 231, 236 (7th
Cir. 2012) (“We examine the powers inherent in the office …
even if the employee never actually exercises those powers.”).
“We further ask whether the position entails the exercise
of a substantial amount of political (as distinct from profes‐
sional) discretion.” Powers v. Richards, 549 F.3d 505, 510 (7th
Cir. 2008). This inquiry is not always straightforward. See Ri‐
ley v. Blagojevich, 425 F.3d 357, 360 (7th Cir. 2005) (“In general
… employees whose discretion is channeled by professional
rather than political norms … are not within the exception for
policymakers. But the line between professional and policy
judgment is often blurred; for example, is the physician who
runs a county hospital making a professional judgment or a
policy judgment if he decides to authorize the hospital’s phy‐
sicians to assist suicides, prescribe ‘medical marijuana,’ or
perform abortions?”).
In this case, of course, we may not assume that the plaintiff
arbitrators were terminated because of their partisan affilia‐
tion. Rather, plaintiffs allege that the “sole reason” for their
termination was their participation in the Due Process Suit,
i.e., their speech/petition. Taking that allegation as true, we
nonetheless conclude that the policymaker exception bars
plaintiffs from pursuing their First Amendment retaliation
claim.
No. 15‐1791 15
In Wilbur v. Mahan, 3 F.3d 214, 215 (7th Cir. 1993), we con‐
sidered the “intersection” between the Connick–Pickering
cases that concern the rights of public officials to “discipline
an employee who speaks out on a matter of public signifi‐
cance in a way displeasing to them” and the Elrod–Branti cases
that concern the rights of such officials to “hire or fire an em‐
ployee on the basis of his affiliation with a political party or
faction.”
Wilbur was a deputy sheriff, which is deemed a policy‐
making position in Illinois. He suffered an adverse employ‐
ment action not because of his political affiliation (he and the
sheriff were both Democrats) but because of his political
speech and activity. 3 F.3d at 215. After the sheriff decided to
run for re‐election, Wilbur announced his own candidacy. The
sheriff then amended office regulations to provide that any
employee who ran for sheriff could be placed on unpaid
leave. According to Wilbur, the sheriff’s actions not only
harmed him financially but crippled his campaign.
We recognized that, at “first blush the facts … present[ed]
a blatant case of retaliation for the exercise of the right of free
speech,” id., but we concluded that the district court rightly
dismissed Wilbur’s First Amendment claim. Id. at 217. Wil‐
bur’s expressive conduct (campaigning against his boss)
brought him within the “scope of the concern that gave rise to
the exceptions in the patronage cases.” Id. The concern “is
with the effects on the operations of government of forcing a
public official to hire, or retain, in a confidential or policymak‐
ing job, persons who are not his political friends.” Id. at 217–
18. It would be a strange rule, we reasoned, that “gave more
job protection to policymaking employees who vociferously
attack their superiors than to policymaking employees who
16 No. 15‐1791
do their best to serve … but have the misfortune to belong to
the wrong party.” Id. at 219. In effect, the policymaker excep‐
tion to the Elrod–Branti line of cases protects elected officials
from the risk that employees politically opposed to them
might undermine their policies. The policymaker corollary to
the Connick–Pickering line of cases allows those elected offi‐
cials to respond to actual political attacks from those employ‐
ees, at least as a matter of First Amendment law.
In Warzon v. Drew, 60 F.3d 1234, 1235, 1237 (7th Cir. 1995),
we extended the reasoning of Wilbur to a case in which a
county controller, who was responsible for the “financial
management and administration” of the county healthcare
plan, was fired after speaking out publicly against the
county’s healthcare policy. Noting again that the goals under‐
lying the Connick–Pickering and Elrod–Branti cases are “really
very closely linked,” we held that “if Warzon was a confiden‐
tial or policymaking employee, her superiors could, con‐
sistent with the First Amendment, fire her for advocating po‐
sitions in conflict with their stated policies.” Id. at 1238–39.
Finding that Warzon’s pleadings were “replete with infor‐
mation showing that she had significant input into and au‐
thority over” the healthcare plan, we concluded that she was
a policymaker and affirmed dismissal of her First Amend‐
ment claim. Id. at 1239–40.
Following Wilbur and Warzon, we have recognized that “in
cases involving the dismissal of an employee in a policymak‐
ing position, ‘there is no need for a fact‐specific analysis of the
circumstances of each case’ mandated by Pickering.” Kiddy‐
Brown, 408 F.3d at 358 (citation omitted). Instead, under the
“policy‐maker corollary to the Pickering analysis, the First
No. 15‐1791 17
Amendment does not prohibit the discharge of a policy‐mak‐
ing employee when that individual has engaged in speech on
a matter of public concern in a manner that is critical of supe‐
riors or their stated policies.” Id. (citations and internal quota‐
tion marks omitted). Accord, e.g., Embry, 701 F.3d at 235
(“Connick–Pickering does not apply [where policymaker] iden‐
tifies no statement of public concern unconnected to political
affiliation or policy views that led to his dismissal.”); Vargas‐
Harrison v. Racine Unified School District, 272 F.3d 964, 971 (7th
Cir. 2001) (“In essence, we have determined that, with respect
to [policymaking] employees, the Pickering analysis regularly
will result in a determination that ‘the government em‐
ployer’s need for political allegiance from its policymaking
employee outweighs the employee’s freedom of expression to
such a degree that it obviates Pickering balancing.’”), quoting
Bonds v. Milwaukee County, 207 F.3d 969, 977 (7th Cir. 2000); cf.
Matrisciano, 569 F.3d at 731 (“We have not limited th[e] ‘pol‐
icy‐maker corollary’ to instances where the plaintiff’s political
views led to the adverse action.”) (citations omitted).
C. Application
Plaintiffs’ First Amendment retaliation claims are barred
by the policymaker corollary to the Pickering analysis. In ap‐
plying the policymaker corollary, we consider two criteria:
“First, the employee must have occupied a policy‐making po‐
sition. If so, his speech must have been of the kind that falls
within the scope of the corollary.” Matrisciano, 569 F.3d at 731
(citations omitted). Plaintiffs’ complaint shows that both cri‐
teria are satisfied here.
First, the plaintiffs were policymakers for First Amend‐
ment purposes. As noted above, the test for determining
18 No. 15‐1791
whether a position involves policymaking is “whether the po‐
sition authorizes … meaningful input into government deci‐
sionmaking on issues where there is room for principled dis‐
agreement on goals or their implementation.” Kiddy‐Brown,
408 F.3d at 355 (citation omitted); see also Allen v. Martin, 460
F.3d 939, 944 (7th Cir. 2006) (finding informative the “degree
of discretion and responsibility exercised in the position”).
The test is flexible, and we have recognized a variety of
roles, not all at the highest levels of management hierarchies
or at the center of the political limelight, that qualify as poli‐
cymaking positions or otherwise fall within the scope of the
Elrod–Branti patronage exception. E.g., Embry, 701 F.3d at 236
(city commissioner of streets and alleys); Davis, 668 F.3d at 480
(senior humane officer for city board of public safety); Allen,
460 F.3d at 945–46 (accounting bureau chief for state transpor‐
tation department); Vargas‐Harrison, 272 F.3d at 973 (elemen‐
tary school principal); Bonds, 207 F.3d at 977 (senior fiscal an‐
alyst for city block grant committee); Selch v. Letts, 5 F.3d 1040,
1047 (7th Cir. 1993) (subdistrict superintendent for state high‐
way department); Heck v. City of Freeport, 985 F.2d 305, 310 (7th
Cir. 1993) (general inspector for local health department); Up‐
ton v. Thompson, 930 F.2d 1209, 1218 (7th Cir. 1991) (deputy
sheriff); Bicanic v. McDermott, 867 F.2d 391, 395 (7th Cir. 1989)
(administrator of city parks and recreation); Livas v. Petka, 711
F.2d 798, 801 (7th Cir. 1983) (assistant state’s attorney).
At the Rule 12(b)(6) stage, we do not have materials such
as an employment manual or a detailed job description listing
the tasks plaintiffs were required to perform while employed
as arbitrators. However, we do have the statutes establishing
and governing these positions, and where a statute estab‐
No. 15‐1791 19
lishes a position, the statute is likely to provide the best foun‐
dation for classifying it for these First Amendment purposes.
See Davis, 668 F.3d at 478 (“The starting point of our inquiry
should be the ordinances, and not the job description, because
‘[u]nlike job descriptions, which may bear little resemblance
to a position’s actual duties, the ordinance’s terms are not
open to contest.’”) (alteration in original) (citation omitted);
Vargas‐Harrison, 272 F.3d at 972 (“[W]hen the duties and re‐
sponsibilities of a particular position are clearly defined by
law and regulations, a court may resolve this [policymaker]
issue without the aid of a finder of fact.”); Pleva v. Norquist,
195 F.3d 905, 912 (7th Cir. 1999) (“Because [plaintiff’s] position
… was clearly defined by state statute and city ordinance …
the district court’s determination as a matter of law of the pol‐
icymaking status of [plaintiff’s] position was proper … .”).
The statutes here confirm that plaintiffs were policymak‐
ers. Under both the current version of the Workers’ Compen‐
sation Act and the version in effect when Governor Quinn de‐
clined to reappoint the plaintiffs, arbitrators are selected by
the governor with the advice and consent of the state senate.
820 Ill. Comp. Stat. 305/14. Newly appointed arbitrators are
subject to an extensive professional training program cover‐
ing substantive and procedural aspects of their position, and
all arbitrators are required to complete twenty hours of train‐
ing every two years. Id.
Arbitrators are required to “dispose of all Workers’ Com‐
pensation matters promptly, officially and fairly, without bias
or prejudice,” and to “be faithful to the law and maintain pro‐
fessional competence in it.” 820 Ill. Comp. Stat. 305/1.1(a). Ar‐
bitrators are empowered to make findings of fact “based on
inquiries, investigations, examinations, or inspections” and to
20 No. 15‐1791
enter those findings into the record of the proceeding.
305/1.1(e). Arbitrators may be assigned to serve as acting
members of the Workers’ Compensation Commission when‐
ever a duly appointed commissioner is unavailable. 305/14. In
that substitute capacity, arbitrators serve alongside other com‐
missioners in administering the Act, promulgating proce‐
dural rules, and hearing cases en banc. 820 Ill. Comp. Stat.
305/13. Arbitrators also may be elected by a vote of their fel‐
low arbitrators to serve on the Commission Review Board, an
advisory body designated to review complaints brought
against commissioners and arbitrators. 820 Ill. Comp. Stat.
305/14.1. In “matters of serious concern to the State,” the re‐
view board may “recommend that the Governor: 1) dismiss
any Arbitrator who is found unfit to serve; or 2) not reappoint
a Commissioner who it finds unfit to serve.” Id.5
Illinois workers’ compensation arbitrators are not and
never have been ministerial employees. They exercise sub‐
stantial discretion in adjudicating employer/employee dis‐
putes and may participate in rulemaking to the extent they
serve on the Workers’ Compensation Commission. As adjudi‐
cators, they are also gatekeepers. While the Illinois legislature
enacted the state’s workers’ compensation scheme, as a prac‐
tical matter it is the arbitrators who resolve conflicts over
which employees should and should not benefit from this im‐
portant state program. Over time, the decisions of the arbitra‐
tors, which are appealable to the Workers’ Compensation
5 Many of these statutory provisions were in effect even prior to en‐
actment of House Bill 1698.
No. 15‐1791 21
Commission and ultimately to the state courts, shape the di‐
rection of Illinois policy as it relates to workers’ and employ‐
ers’ rights.
Treating these plaintiffs as policymakers is consistent with
a series of our decisions recognizing that judges and hearing
officers typically occupy policymaking roles for First Amend‐
ment purposes. Compare Kurowski v. Krajewski, 848 F.2d 767,
770 (7th Cir. 1988) (“A judge both makes and implements gov‐
ernmental policy. … Holders of the appointing authority may
seek to ensure that judges agree with them on important ju‐
risprudential questions.”), with Walsh v. Heilmann, 472 F.3d
504, 505 (7th Cir. 2006) (“Neither the judge nor the hearing
officer operates in a zone where decisions are mechanical.
That’s why we held in Kurowski … that politics is a permissible
consideration for judicial positions (even those held for just a
short time); the same is true of hearing officers who possess
discretion over which laws receive how much enforcement.”);
see also Thompson v. Illinois Dep’t of Professional Regulation, 300
F.3d 750, 757 (7th Cir. 2002) (chief administrative law judge in
state department of professional regulation was policy‐
maker); Pleva, 195 F.3d at 913 (member of city board of zoning
appeals was policymaker).
As gubernatorial appointees, the arbitrators are the face of
the administration in the workers’ compensation arena. As
the governor’s 2011 press release emphasized, enhanced re‐
quirements for arbitrator performance and accountability
were among the key changes implemented by House Bill
1698. The restructuring of the arbitrator corps was a central
feature of the reform initiative. In the spirit of the exception to
the Elrod and Branti principles, the governor is entitled to ap‐
22 No. 15‐1791
point and retain only those arbitrators in whom he has confi‐
dence and who he believes will faithfully carry out their offi‐
cial mission.
Turning to the second criterion of the policymaker corol‐
lary, we conclude that plaintiffs’ speech/petitioning activity
(through the Due Process Suit) fits comfortably within the
scope of the corollary. In their underlying due process com‐
plaint, plaintiffs accused the governor of “an arbitrary and ca‐
pricious act allowing him to take the protected property
rights of plaintiffs without due process.” They sought to en‐
join the governor and other state defendants from removing
them from office or appointing any other person to fill their
remaining terms, and they asked the court to declare the re‐
form legislation unconstitutional as applied to them. Plaintiffs
also sought substantial damages.
In their retaliation complaint, plaintiffs confirmed that
their goal had been to “hash out concerns that they had re‐
garding the workers’ compensation reforms and to outline
that the governor of the State of Illinois had violated the
United States Constitution.” Building on that theme in their
appellate brief, plaintiffs argue that the “underlying lawsuit
… had it been successful, would have had the practical impact
of protecting not only the plaintiffs but also … all of the arbi‐
trators in the state.” Plaintiffs, in other words, “engaged in
speech … in a manner that is critical of superiors or their
stated policies,” Kiddy‐Brown, 408 F.3d at 358 (citations omit‐
ted), exactly the type of speech to which the policymaker cor‐
ollary applies.
This case is strikingly similar to Warzon v. Drew. In finding
that the county controller in that case could be fired for speak‐
ing out against healthcare policy, we reasoned that “[n]o one
No. 15‐1791 23
could argue … that the seriousness of and the appropriate
remedy for [a] perceived crisis in government‐provided med‐
ical care are not political issues.” 60 F.3d at 1239; see also Var‐
gas‐Harrison, 272 F.3d at 974 (school district could punish prin‐
cipal for speaking out against grant proposal where her stance
“placed her in square opposition to the stated goals and poli‐
cies of her superiors”).
Likewise, workers’ compensation reform, which plaintiffs
themselves have characterized as a “significant issue of public
concern” and “the upper echelon of matters of public policy,”
is inherently political and intertwined with plaintiffs’ duties
as arbitrators. Through their lawsuit, plaintiffs aimed to un‐
dercut the governor’s policy. They wanted it declared uncon‐
stitutional. A lawsuit, at least as much as public criticism or
statements to the media, could unravel a policy agenda. See
Borough of Duryea, 564 U.S. at 389–90 (“Petitions, no less than
speech, can interfere with the efficient and effective operation
of government. … When a petition takes the form of a lawsuit
against the government employer, it may be particularly dis‐
ruptive.”). Assuming, as plaintiffs have alleged, that Gover‐
nor Quinn chose not to reappoint them because of the Due
Process Suit, he acted within constitutional bounds in making
that choice.6
6 In their brief in opposition to the defendants’ motion to dismiss (but
not in their appellate brief), plaintiffs urged that if the district court should
“conclude that the complaint is factually lacking,” the court should afford
them an “opportunity to file an amended complaint.” However, plaintiffs
offered no explanation as to any revisions they might include in such an
amended complaint, nor did they submit a proposed amended complaint
or file a motion for leave to amend. While we “ordinarily hesitate before
affirming a final judgment of dismissal when the plaintiff seeks leave to
amend,” in this case, any amendment with respect to plaintiffs’ federal
24 No. 15‐1791
D. State‐Law Claims
We close with a brief word on plaintiffs’ claims under the
state Ethics Act. The district court declined to exercise supple‐
mental jurisdiction over these claims, as is expressly permit‐
ted under 28 U.S.C. § 1367(c) (“The district courts may decline
to exercise supplemental jurisdiction over a claim … if … (3)
the district court has dismissed all claims over which it has
original jurisdiction[.]”).
The usual practice in this circuit is for district courts to
“dismiss without prejudice state supplemental claims when‐
ever all federal claims have been dismissed prior to trial.”
Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999); see also
Al’s Service Center v. BP Products North America, Inc., 599 F.3d
720, 727 (7th Cir. 2010) (“When all federal claims in a suit in
federal court are dismissed before trial, the presumption is
that the court will relinquish federal jurisdiction over any
supplemental state‐law claims, which the plaintiff can then
prosecute in state court.”) (citations omitted).
Plaintiffs offer no argument in their appellate brief to jus‐
tify a departure from this usual course, and they certainly do
not show that the district court abused its discretion. On the
contrary, the court might well have abused its discretion if it
had retained jurisdiction over a strictly state‐law claim in an
area where important state policy goals may conflict. Whether
a lawsuit like the Due Process Suit, filed by state policymak‐
claim would be futile. See Doermer v. Callen, 847 F.3d 522, 528 (7th Cir.
2017); see also Foman v. Davis, 371 U.S. 178, 182 (1962) (despite liberal
pleading standard of Federal Rule of Civil Procedure 15(a), courts may
deny leave to amend where amendment would be futile).
No. 15‐1791 25
ers, should qualify as protected activity under the Illinois Eth‐
ics Act, and whether these policymakers should be entitled to
recover for their allegedly retaliatory discharge, are questions
better left for Illinois courts to resolve. See § 1367(c)(1)
(providing that district courts may decline to exercise supple‐
mental jurisdiction over a claim that raises a “novel or com‐
plex issue of State law”).
The judgment of dismissal is AFFIRMED.
Kathleen Hagan v. Patrick Quinn
Combined Opinion