John Brown v. Steve Brienen

BROWN, al., John et

Plaintiffs-Appellants, BRIENEN, al.,

Steve et

Defendants-Appellees.

No. 82-2995.

United Appeals, States Court of

Seventh Circuit.

Argued Sept. 1983.

Decided Dec. money

ate to hire additional employees, compensatory time off accrued faster than the sheriff could allow it to be taken with- out endangering public safety. By the time of trial the backlog was several thousand Satter, Beyer, John A. Ewing Beyer, & hours. Pontiac, Ill., plaintiffs-appellants. pits This suit department sheriff’s em- Bailen, Bane, Allison, John R. Saint & ployees who have accrued compensatory Ehlers, Ill., Bloomington, for defendants-ap- time against sheriff, off the the county, the pellees. board, and the board’s The suit members. charges ordinance, that the in combination FLAUM, Before and POSNER Circuit with sheriff’s the announced intention of Judges, GRANT, and Senior District granting compensatory off, time conferred Judge.* a property right on the once employees they- put announcement; in overtime after the POSNER, Judge. Circuit sheriff, and the by refusing to allow employees’ State suits under 1 of section off, them take their accrued time and the Rights the Civil Act (now of 1871 42 U.S.C. board, by refusing to fund a staff large 1983) alleging breach § of an employment enough to enable the to honor sheriff his contract have become important part of promise, deprived them of that the business of the federal courts. right process without due They of law. recent this court months has decided seven asked the district court to the defend- order such cases (excluding cases decided by un ants either to grant them forthwith the published order): Elliott, Turnquist v. 706 time off or to pay earned (7th F.2d 809 Cir.1983); Vail v. Board of them wages time, for that and for the Educ., 706 (7th F.2d 1435 Cir.1983); Lyz future to grant compensatory off time nicki Educ., v. of Board promptly as it accrues. judge The district Cir.1983); Educ., Smith v. Board of 708 concluded, after a bench trial on liability, F.2d 258 Cir.1983); Grimes v. Eastern that there had deprivation indeed been a of Univ., Illinois F.2d 386 Cir.1983); property, but no denial of since Hadley v. County of DuPage, 715 F.2d 1238 get could fully adequate (7th Cir.1983); and Green v. Board of by suing the defendants in state Comm’rs, School 716 F.2d 1191 (7th Cir. contract; court for breach of and he dis- 1983) (per curiam). The specific question the complaint. missed F.Supp. 561. for decision in this case is such a whether The agree that parties if the defendants breach is actionable under section 1983 even broke give a contract to the plaintiffs com though the employee has not fired been pensatory off, can obtain even though he litigate could relief same seeking breach in state court under state law. present suit from a breach-of-contract suit The board McLean County, en- Illinois Ill.Rev.Stat.1981, court. ch. acted an ordinance which provided that 601; ¶ Bd., County Scutt LaSalle 97 Ill. county who work employees more than a App.3d 53 Ill.Dec. 423 N.E.2d 213 certain per number hours “may week be (1981); County Stephenson Bradley & granted time off in an amount equal Inc., 2 Ill.App.3d Bradley, overtime worked.” sheriff announced N.E.2d appeal This thus that, ordinance, as by authorized he acutely question raises whether 42 grant would compensatory time to em- off displaces U.S.C. whole § ployees in department who over- worked law into the feder contracts time. But because the work- department’s al through courts characterization grew load appropri- board failed to breach of such a contract as a * Indiana, sitting by designation. Hon. Robert District A. Grant Northern law, they may not cut off be without due property without disputes have noth- of law. See id. at 262 and S.Ct. at though most such n. even ordinarily and n. rights to do with ing civil Eastman, Cf. Eisen

understood. retrospect It is apparent Cir.1969)(Friendly, J.). (2d 564-65 broadened be “property” going was be boundaries, the line yond have its common Although the defendants ruling fray. judge’s district between and contract from the appealed confirmed, after Gold property, years This was two was a Roth, berg Kelly, Regents Board of affirmance any ground for we consider 564, 576-78, Brown Mar supports. the record Perry v. Sinder Ass’n, & Loan quette Savings mann, 599, 601-02, 92 whether (7th Cir.1982). question 2694, 2698, 2699-2700, 33 L.Ed.2d logi there was a said, “To have a (1972). The Court in Roth whether there cally prior question benefit, . property person interest in a a .. we shall process, of due and was a denial entitle legitimate must ... have a claim of that impression address lest we leave to . are Property ment interests .. it.... question. it is an insubstantial by created and their dimensions are defined line recently, the be comparatively Until stem existing understandings or that rules rights, property tween contract and as state independent from an source such pur as for other Fourteenth Amendment ” 577, at 2709. law .... 408 at 92 S.Ct. clearly was drawn. McCormick poses, test, property a By this Roth did not have 657, 35 City, of 236 City Oklahoma interest, expectation, for he had no based 455, (1915), example, 59 L.Ed. 771 law, employment. of on state continued city’s a breach Supreme Court held that was entitled to show that But Sindermann a to its was not pave of contract streets tenure, i.e., of implied promise he had an to of the deprivation property. of basis only for employment terminable permanent complainant “allegation contractor’s cause; the common and so an interest that binding city with the contracts classified as a law have perform. city permit refused him right was for Fourteenth Amend treated more, nothing Their breach is and right. In Hos purposes property ment as a or quality no other allegation gets and Dist. No. trop College v. Board of Junior complainant the assertion that by character Cir.1972), 488, 515, (7th 471 494 and F.2d in the con right property’ had a ‘vested of (7th Educ., 706 1435 v. Board of F.2d Vail or performance, tracts their and — U.S.-, 104 Cir.1983), granted, cert. property is a of away take this (1983), this circuit 659, at 35 without due of law.” Id. limited could not be held Sindermann Hartigan S.Ct. at 456. To similar effect see contracts, to term but extended tenure 14, 38 S.E. Regents, 49 W.Va. Board ' Thus, least in this contracts as well. at State, 154 Tenn. (1901), Scopes and Court circuit, Supreme until the unless and (1927), both S.W. Vail, in- some breaches decides otherwise But dealing contracts. employment with to be con contracts are employment public Goldberg Kelly, the time within the property deprivations sidered was meaning of the Fourteenth decided, Supreme was evident not, as in Roth though the contract is even law definition Court considered the common Sindermann, contract. a lifetime tenure to achieve confining too “property” cases where breach That But in the clause. objectives with equated contract has been welfare case the termination involved discharged was employee age property, benefits, held that and the Court discharged, in McAdoo (constructively are so benefits state such the welfare 1221 (N.D.Ill.1983)). Lane, F.Supp. sense conventional like in its One of our recent Prosser, decisions expressly leaves Handbook of the Law of Torts open question whether demotion of a 1971). 580-83 ed. The tort rights that without employee reduction in pay is nuisance gives' law against landowner of property, Lyznicki v. Board polluter do not have the solidity of common Educ., supra, at F.2d and anoth rights, and the er states: “There is reason to doubt wheth protect is not under the Four er the Fourteenth Amendment was intend teenth Amendment. York v. City See ed to allow every person with a breach of Cedartown, F.2d 232-33 Cir. against contract claim a state to bring that 1981) (per curiam); cf. Panagis, Barbian v. Court,” claim in federal Green v. Board of (7th Cir.1982). 484-86 Comm’rs, School supra, at F.2d citing the McCormick decision. also Both security of tenure and im Casey DePetrillo, (1st F.2d portance to the of the right holder Cir.1983) (per curiam); Manning v. Lock illustrated by the right teacher’s tenure hart, Cir.1980) (per Sindermann. For most their people, human curiam). seems, then, It there is no capital particular earning ca —and rule that every of a public employ pacity greater their physical capi than —is ment contract is a deprivation of property tal. And losing job may one’s one’s impair within the meaning of the due process capital; human one may find it difficult clause. protracted without costly search to find equivalent job, in the end have In deciding particular whether a to settle job for an inferior at lower pay. breach should be a deprivation deemed Most Americans do not have the security of property we must bear in mind that tenure contracts. Most do not even have Fourteenth Amendment was not intended term contracts but are employees at will to shift the whole public of the law of the job with no security at they all. Yet have a states into the federal courts. Most com expectation realistic mon law continued wrongs employ are not actionable under ment, and the section loss of though expectation they definition in through arbitrary volve the deprivation of a state action can be a legally protected bit Davis, so, interest. Paul ter blow. See Even Both teaches that U.S. (1976) (defa is no under mation); Bravo, Wise v. 666 F.2d Fourteenth Amendment when the employee (10th 1332-33 Cir.1981) (visitation rights); has no interest protected by state law in his (assault id. at 1333-35 and trespass prop to continued employment, he and would have erty); Educ., Elbert v. Board no such interest if he were an employee at 512-14 Cir.1980) (defamation); will. But an employee fired in breach of Thomas, White v. 684 (5th contract has been deprived of a legally pro Cir.1981) (same). Only interests substantial tected interest that Hostrop and Vail hold enough to warrant the protection of federal be under the Fourteenth law and federal courts are Fourteenth Amendment. Amendment property interests. Id. at 684. A

Whether an is that substantial de does pends not terminate on the security employment with relationship which it is held is different. under state A deputy law and its sheriff asks his importance to the boss holder. for permission to Friday Conventional take next off to property rights illus do trate security some shopping. The boss not you put only agrees tenure: cannot your your car in but neighbor’s solemnly promises that he will let garage and if he complains ask deputy have thé balance the value afternoon off. But when your Friday use of the rolls garage against changes his. But he around mind. is just deputy is type balancing process bitterly disappointed, is used to conceivably might decide whether to abate he have some administra pollution as a law nuisance. tive judicial See or even remedy common under state not be them to take the compensatory But must time law. Constitution off dragged every per parties agree into had accrued. The by being trivialized govern local dispute plaintiffs prove in state and that if the can a contractu- sonnel overtime, off, work over over can Disputes right get ment. al time over lunch and coffee breaks assignments, remedy they seeking same in this case great objects implicate do not in a suit state court under law. A public employ Amendment. Fourteenth a suit fact more Such would be —in employee an in order to er who harassed elaborate than the would give up him to a substantive consti given induce the defendants have received had speech, freedom of right, tutional such as hearing. them an administrative issue violating be the Fourteenth Amend entitled is thus whether the were Telford, ment and section 1983. Bart v. in the form of an remedy, to an additional Cir.1982). But such no F.2d hearing administrative before sheriff A right present public employer is here. them take their accrued refused let a contract employee having who drove off. life employment resign by making a “pre-depri- There is no rule him, excessive de through unbearable hearing every required vation” case. for overtime or other breaches of the mands held a post-deprivation Mathews adminis contract, employment might violating be hearing constitutionally adequate trative and section the Fourteenth Amendment e disability off cutting payments, whil a case of constructive 1983. This would be 680-82, Wright, 430 Ingraham v. discharge, Bourque see Powell Co., Cir. Mfg. Elec. held that a state tort suit would (at 1980), would be tested least in this to a child who provide had been circuit) Hostrop principles under the for a spanked by employee school always provided employee Vaii— discipline; pre-spanking breach of admin Lane, supra, valid contract. McAdoo v. required. istrative was not Parratt at 1221. But one has re F.Supp. no 527, 542-44, Taylor, signed in this case. 1916-17, (1981), held 68 L.Ed.2d Notwithstanding our doubts availability the tort remedies deprived the of contract requirements the of due satisfied mean property within the plaintiffs the that he had complained a who prisoner Amendment, the Fourteenth we need ing of of the carelessness lost because issue, any was in not resolve the for there True, Zimmerman Logan officers. prison This con process. no denial of due event 422, 436-37, Co., 455 Brush unrelated, however, to our clusion is not (1982), held 71 L.Ed.2d 265 analysis of the issue. Mathews did remedy a tort post-deprivation Eldridge, but requirements the of due satisfy process, (1976), to con tells us plain the would not have made .remedy the deciding whether sider three factors whole, case. Recent present unlike the tiff The process. there has been a denial of due ad post-deprivation circuit held a ly this (to analysis per first which our constitutionally ade ministrative tains) the interest of importance is the involving towing the in a case quate The deprived. has been plaintiff which cars, of Mil City illegally parked Sutton was are the risk that the others Cir.1982), waukee, procedural a particular erroneous because con judicial remedies post-deprivation held burden provided, was not and the safeguard in two cases involv stitutionally adequate providing the state of it. to children. custody deprivation of ing Hamilton, (7th Cir. 669 F.2d 510 claim Ellis safeguard Pekarske, 707 F.2d 288 1982); Lossman v. ad- hearing in were entitled to is a Coughlin, Cir.1983). Bonner v. also not to allow decision

vance of the sheriff’s modified en tive hearing would not have significantly bane, 545 F.2d 565 Cir.1976); Bator, reduced the probability of the sheriff’s Some Thoughts Applied Federalism, 6 breaking (if his promise indeed that is what Harv.J.L. & Pub. Policy did) he plaintiffs. to these Since he could not, without Cutting violating his duty off one’s disability maintain benefits or taking away safety, one’s allow children the plaintiffs are more serious to take deprivations than breaking promise compensatory when they off compensate one for to, overtime work. The wanted the outcome of such a hearing latter deprivation stands in relation to the would have virtually been a foregone con- employee’s interest in job approximately clusion. As an procedural additional safe- spanking school child (Ingraham) guard, therefore, it would have been of stands in relation to the child’s interest in little value plaintiffs. But it would his bodily integrity. If is a there difference have been costly public. The burden between case Ingraham this it is that on local officials would be heavy the spanking deprivation of liberty, as —the grant a hearing every time they wanted the Court found —was complete before the to change any contractual term of employ- remedy Court thought constitu- ment any public employee. tionally adequate could brought be into summarize, To the “property” of which play, whereas this case it is doubtful were deprived, if property it whether any yet. occurred is in a Fourteenth (which sense plaintiffs’ counsel remarked at argu- as we have doubt), said we is far down on ment that damages were not the only reme- the scale of Fourteenth Amendment inter- dy that whole; would make his clients an- ests. addition, the deprivation was other would be to let them take their ac- merely a postponement. Indeed, since the crued time off at last. He can seek either plaintiffs’ loss was of a readily kind com- remedy in court, and until he has done pensable in monetary terms, so it may even be been turned down it is doubtful doubted whether whether any deprivation his clients can be said to have occurred, suffered a constitutional deprivation, yet sense has or implying finality will occur the mere unless postponement and until claimed state courts turn benefit does not down have. But if meritorious contract claim. And was, it inflicted a so loss tenuous —a procedural additional safeguard that loss measured not by the value of the com- the plaintiffs seek, a pre-deprivation admin- pensatory time off that the plaintiffs have istrative hearing, would have been burden- accrued but by the get- difference between some to the local officials who would have ting that as, time off as soon and later had to conduct but of utility to little than, promised was to them —that plaintiffs in inducing the change sheriff to contract law of the Illinois, State of admin- his mind. istered fairly and reasonably as we must assume it be, will surely give will the plain- It remains only consider the tiffs all the process that is constitutionally plaintiffs’ claim that they been have de due them. prived of “substantive due process,” as well as of due process in its primary Even sense of fair if deprivation the this in case had procedure. process” been of a “Substantive due is a more substantial of property form shorthand the and had for fact the Supreme had greater it would not finality, Court has interpreted follow process the due the clause entitled to a were of the pre-deprivation Fourteenth Amendment to confer hearing administrative certain addition to rights substantive judicial mainly common reme- law based dy. the Bill of Rights. other elements For example, the Mathews the of due test process would have to be is of the considered. One clause Fourteenth Amend the probable hearing effect in ment of such a has been held to incorporate and thus reducing the risk of error. An administra- make applicable to the the states First

367 Furthermore, Supreme as the United enact a States may not a state Amendment. So in the certiorari recently granted matter speech, of no Court abridging freedom Education, 706 F.2d Vail v. Board of pro- case of safeguards many procedural how - U.S. (7th Cir.), granted, cert. erroneously. the law applying against vides 66, (1983) L.Ed.2d 81 -, 104 S.Ct. not break a contract may therefore it And to which contractual him to the extent to induce consider order employee with an interests un constitute rights. rights may Cf. First Amendment give up his amendment, I find it der the fourteenth Telford, But there is noth- supra. Bart the issue of whether unnecessary to reach protecting about Rights the Bill of ing in in this a of rights deprivation are there was rights as such. Such contractual case, portion join of I do not process the due clause under protected In this issue. majority opinion discussing only if at all the Fourteenth addition, to restrict appropriate I can- deem which the property, a form of has been of whether there the examination process without due deprive person not specific facts process a denial of due law; the due protected by not they are of this case. ap- as a for clause viewed conduit process the Rights the Bill of

plying portions have been allege Appellants sub- thus no denial of states. There was compensatory of their accrued deprived (cid:127) here. process stantive due Both process of law. time off without bring could parties agree appellants the constitutional rejecting plaintiffs’ suit for of contract. state court breach the claims, we no view of merits express Thus, by this specific presented issue the claims, free to their contract clause whether the due appeal in state court. pursue post-deprivation than a requires more Affirmed. involving a lawsuit breach contract off. compensatory denial accrued FLAUM, concurring. Judge, Circuit some requires clause The due states, ante at opinion majority As the hearing before final form 362, appealed have not from appellees . Logan state ruling that the district court Co., Brush 455 U.S. Zimmerman deprivation of was a (1982); L.Ed.2d meaning of four property within Taylor, 451 U.S. Parratt majority opinion teenth amendment. 68 L.Ed.2d any consider states this required However, always the state is will that the record grounds affirmance initial hearing before provide Savings Marquette Brown v. citing support, Parratt property. Cir. Ass’n, 686 F.2d Loan & 1915; at at Taylor, 451 however, Brown, to state 1982). I read 651, 97 S.Ct. Wright, Ingraham if judgment affirm a court will this (1977); Mathews 51 L.Ed.2d the dis where supports affirmance record 319, 96 S.Ct. Eldridge, wrong ground or on a trict court relied has been (1976). Where there judg its reasoning for wrong applied postponing merely property, Field & Panter v. Marshall ment. See also deny does not (7th Cir.), cert. de Co., given for opportunity adequate is an 658, 1092, 70 nied, 102 454 S.Ct. U.S. liability. Par determination of ultimate an the ma (1981). I understand L.Ed.2d 631 at at S.Ct. Taylor, 451 U.S. ratt v. decision here to affirm the jority opinion Co., Grant Mitchell W.T. (quoting 1915 by the grounds on the relied on very below 1902, 1895, 40 600, 611, 94 S.Ct. 416 U.S. was no denial of court —that there district (1974)). 406 L.Ed.2d I there at 364-365. ante process. See be held before must grounds other Whether to address see no need fore initial court. before this not raised affirmance 368 depends three factors: private inter- currently grant compensatory time off and involved;

est of government risk error maintain minimum staffing levels. The and the probable value of other procedural sheriff is well aware that the appellants safeguards; and the interest, state’s includ- want to take their accrued time off forth- ing the fiscal and administrative burdens with. The parties in essence are at a stale- the proposed procedural safeguards. Logan mate; a hearing would do little to advance Co., Zimmerman 434, Brush 455 at U.S. a resolution of the dispute. This is not a 1157; 102 S.Ct. at Mathews v. Eldridge, 424 requiring case individualized determinations 335, at U.S. 96 S.Ct. at 903. law, of fact or see Goss v. Lopez, 419 U.S. 565, 729, 95 S.Ct. 42 L.Ed.2d 725 (1975); An analysis the private interest in hence individualized opportunities for hear- volved focuses on importance ings should not be required. interest and the finality of deprivation. Logan v. Co., Zimmerman Brush 455 at U.S. Finally, the state’s interest in not provid- 434, 102 S.Ct. at Appellants’ 1157. ing predeprivation numerous is hearings in having their employment contracts hon substantial. To require a hearing for each is ored not However, insubstantial. not is breach could place well an undue adminis- clear the deprivation of property trative burden on the sheriff and county. charged here is final. Apparently, Moreover, if this court were to require any has been no decision appellants procedures can other than an “informal give- never receive their accrued compensatory and-take” between parties, see Goss leave, merely that current Lopez, do 584, conditions not 419 U.S. at 741; 95 S.Ct. at permit taking time Ingraham off at present.1 v. Wright, 430 U.S. at 97 Additionally, may well be S.Ct. at appellants (White, J., 1425 concurring), hear- will not have been finally ings could deprived any impose also an unwarranted fis- property rights until a cal upon burden re the appellees. jected their breach of claims. balance, then, On individual predepriva- Bonner Coughlin, 1320 n. tion hearings not should be required. A Cir.1975), banc, modified en state court suit for breach of contract pro- cert. denied, 435 U.S. 98 vides adequate protection of the appellants’ S.Ct. 529 (1978). L.Ed.2d Cf. Par interests. The provided relief by a state ratt v. Taylor, 451 at 543, at S.Ct. court suit might not be identical to that 1916; Ingraham v. Wright, 430 U.S. appellants could receive under sec- L.Ed.2d Compare tion 1983. However, state court relief is Logan v. Co., Zimmerman Brush at adequate for due purposes if it fully 434, 102 S.Ct. at (deprivation was final compensates a plaintiff because plaintiff had no opportunity ob loss. Parratt v. Taylor, 451 U.S. at judicial tain review). 101 S.Ct. at 1917-18. The risk of government error and the Appellants also allege that they have value of a predeprivation hearing in reduc- been deprived of their property without ing that risk here appears insubstantial. substantive of law. The Su- The alleged deprivation in this case ais preme Court, however, has analyzed the breach of contract that occurs each time the issue involving sheriff refuses to allow one the appel- only procedural due process rights. Logan lants to take compensatory time off. To Co., Brush Zimmerman 455 U.S. require a hearing before each breach would (1982); L.Ed.2d 265 Parratt produce positive few appel- results. The Taylor, lants are well aware that the sheriff cannot (1981).2 Similarly, this court appellees 1. argument Counsel for stated at oral granting of the accrued off will personnel policy place still staffing in effect. take requirements permit. Doc- umentation of worked overtime continues. Parratt, majority opinion did not dis- Further, record reflects no indication that process. cuss White, substantive due Justices procedural issue as one analyzed the has CHANDLER, Appellant, Lloyd v. Board A. See, e.g., Vail process. due Cir.), cert. Education, F.2d 1485 - -, granted, AND HEALTH OF SECRETARY Thus, due substantive (1983). L.Ed.2d SERVICES, Appellee. HUMAN here. process inapplicable 83-1855. No. held recently Moreover, this Appeals, Court of causing United States local administration that an Eighth Circuit. implicate does plaintiffs where process due substantive 7, 1983. Nov. Submitted Albery v. remedy. state adequate have an 14, Nov. Decided Albery, Reddig, administra- complained denied zoning ordinance local tion of the of law. process due substantive

them adequate an

court found noted: remedy ad- have been laws zoning

That the ap- or without negligently

ministered plain- concern sensitive

propriately of their a violation is not

tiffs’ interest if state rights

Fourteenth Alberys adequate....

remedies are uncertain, and to an subjected

have been aof administration frustrating,

perhaps they have regulation. But local

typically aof

not been deprived liberty inter- clearly more

(or even law. process due

est) without omit- (footnote reference F.2d at Here, Albery, appellants

ted). the administration

complaining about provides remedy state court law. A

local is due. with all

them reasons, affirm I foregoing

For the court. district

the decision of However, found sub- of the Court member no Each each Powell concurred. Blackmun and implicated in to be stantive clause generally found case. action. limits on embodies substantive

Case Details

Case Name: John Brown v. Steve Brienen

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Dec 8, 1983

Citation: 722 F.2d 360

Docket Number: 82-2995

Court Abbreviation: 7th Cir.