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Due Process Violation and Jurisdiction

By: Derek Hawkins//April 30, 2018//

Due Process Violation and Jurisdiction

By: Derek Hawkins//April 30, 2018//

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7th Circuit Court of Appeals

Case Name: Robert L. Breuder v. Board of Trustees of Community College District No. 502, et al.

Case No.: 17-1577; 17-2215

Officials: EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges.

Focus: Due Process Violation and Jurisdiction

The College of DuPage is a two-year community college in Glen Ellyn, Illinois. In 2008 the Board of Trustees of Community College District No. 502, which operates the College, hired Robert L. Breuder as the College’s president. After extensions, his contract ran through 2019. But in October 2015 newly elected members of the Board, who had campaigned on a pledge to remove Breuder, discharged him without notice or a hearing. Resolutions adopted by the Board stated that Breuder had committed misconduct. The Board did not offer him a hearing and has refused to comply with clauses in his contract covering severance pay and retirement benefits. Breuder then filed this suit, which rests not only on Illinois contract and defamation law but also on 42 U.S.C. §1983. Breuder contends that his sacking without a hearing, but with defamatory statements, deprived him of both liberty and property without due process of law.

This brings us to the second appeal. Public officials are entitled to qualified immunity from damages under §1983 unless they transgress clearly established law. See, e.g., Kisela v. Hughes, 138 S. Ct. 1148 (2018) (collecting decisions). The Board’s members contend that the validity of Breuder’s contract was at least uncertain, so that they could not have violated any clearly established rule. There are two problems with this contention.

This wraps up the issues presented by the appeals certified under §1292(b) or authorized by the invocation of qualified immunity. The individual appellants ask us to go on and decide whether Breuder has a good defamation claim under Illinois law. They contend that “pendent appellate jurisdiction” permits us to act across the board because all issues are “inextricably intertwined” in the sense that all arise from Breuder’s discharge. That approach, if followed, would pre\y much extinguish the final-judgment requirement of 28 U.S.C. §1291. The Supreme Court has told us that interlocutory appeals complicate and delay the administration of justice, and the category of permissible appeals should not be expanded. See, e.g., Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009). And it has thrown cold water on “pendent appellate jurisdiction” in particular. Swint v. Chambers County Commission, 514 U.S. 35, 43–51 (1995). Although Swint did not kill the doctrine—it survived in Clinton v. Jones, 520 U.S. 681, 707 n.41 (1997), at least with respect to Presidents— Swint concluded that the doctrine must be strictly limited to avoid undermining the discretion that §1292(b) gives to district judges and appellate judges. See also Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1714 (2017). Extending the doctrine to allow state-law claims to receive interlocutory review any time a constitutional claim permits a qualified-immunity appeal would do far too much damage to both §1291 and §1292(b). We decline the invitation.

On the subjects properly before us, the district court’s decisions are affirmed. Other matters may be reviewed on appeal from the final decision. Appeal No. 17-1577 is dismissed for lack of jurisdiction to the extent that appellants seek to present any issues beyond their request for qualified immunity.

Affirmed in part. Dismissed in part.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

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