MANION, Circuit Judge.
Wisconsin Governor Scott Walker planned to appoint Becky Chasensky interim Marinette County Register of Deeds but decided against it after learning she had filed for bankruptcy. In response, Chasensky sued Walker and his then-spokesperson, Cullen Werwie, alleging that Walker's decision not to appoint her along with their public statements concerning that decision violated her constitutional and statutory rights. The district court held that the defendants waived qualified immunity by failing to raise it as a defense until their motion to dismiss Chasensky's amended complaint. The defendants then filed this interlocutory appeal claiming they did not waive and are entitled to qualified immunity. We agree, and reverse.
In Wisconsin, the state constitution makes the Register of Deeds an elected position. See Wis. Const. art. VI, § 4. However, if a vacancy occurs mid-term, the governor is authorized to appoint an interim Register to complete the remainder of any unexpired portion of the term until a successor is elected. See Wis. Const. art. VI, § 4(5).
Chasensky alleges the following facts which, given the procedural posture of this case, we accept as true. See Serino v. Hensley, 735 F.3d 588, 590 (7th Cir.2013) (citing Parish v. City of Elkhart, 614 F.3d 677, 678 n. 1 (7th Cir.2010)) ("In reviewing a motion to dismiss, we accept the facts of the plaintiff's complaint as true."). On December 29, 2010, the Register of Deeds for Marinette County announced her midterm retirement. By letter dated January 11, 2011, Chasensky applied directly to Governor Walker seeking this interim appointment. Am. Compl. Because Chasensky was employed as Chief Deputy Register of Deeds, she was elevated and served as the acting Register of Deeds for Marinette County, effective January 14, 2011. On February 18, 2011, Chasensky was personally interviewed by Eric Esser, Governor Walker's appointments official, and Esser informed Chasensky that he would forward her application directly to Governor Walker for appointment to the Register of Deeds position. Thereafter, Esser learned that Chasensky was involved in a personal bankruptcy proceeding. On April 5, 2011, Esser called Chasensky to inform her that Governor Walker would not be appointing her as interim Register of Deeds. Chasensky subsequently received a letter from Governor Walker confirming that he would not be appointing her as interim Register of Deeds.
According to Chasensky's amended complaint, Cullen Werwie, as Governor Walker's official spokesperson, publically broadcast statewide that Governor Walker did not appoint her to the position because the governor had been informed that she was in a bankruptcy proceeding. In addition to her non-appointment, Chasensky complained that "[d]erogatory comments and innuendo regarding [her] bankruptcy, personal financial matters and character which impugned and harmed [her] professional and personal reputation were intentionally publically disclosed by Governor Walker and Mr. Werwie." Am. Compl. ¶ 15. She insisted that this occurred when
Am. Compl. ¶ 21. Finally, in May 2011, she was threatened with "employment retaliation" if she did not continue to cover and perform core Register of Deeds duties which the appointee was incapable of performing. As a result of these actions, she has "suffer[ed] lost employment, salary, and other employment benefits, damage to her professional and personal reputation, and emotional and physical pain and suffering." Am. Compl. ¶ 23.
This interlocutory appeal comes to us with a complicated procedural history that we distill as follows. Chasensky filed her complaint on December 21, 2011, alleging that Walker and Werwie (the "defendants") violated her privacy rights and employment rights and that Walker violated 11 U.S.C. § 525(a) (the "bankruptcy discrimination claim") by failing to appoint her as interim Register of Deeds of Marinette County upon learning of her bankruptcy proceeding. Pretrial litigation ensued including intervention by the United States Department of Justice resulting in the dismissal of the employment claims and the bankruptcy discrimination claim.
Chasensky v. Walker, Case No. 11-C-1152, 2013 WL 3928988, *1, 2013 U.S. Dist. LEXIS 105698, *2-3 (E.D.Wis., July 28, 2013). Defendants timely filed an interlocutory appeal contesting the district court's July 28, 2013, order.
Initially, Chasensky argues that we lack jurisdiction over this interlocutory appeal. It is well-settled law that we "treat [] the rejection of an immunity defense as a final decision for the purpose of 28 U.S.C. § 1291." Bond v. Atkinson, 728 F.3d 690, 691 (7th Cir.2013); see also Mitchell v. Forsyth, 472 U.S. 511, 524-25, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). When, as here, the district court rejects the defense of qualified immunity raised in a defendant's motion to dismiss under Fed. R.Civ.P. 12(b)(6), we review the district court's ruling de novo, accepting as true the plaintiff's factual allegations and drawing all reasonable inferences in her favor. May v. Sheahan, 226 F.3d 876, 882 (7th Cir.2000).
Nevertheless, Chasensky asserts that we lack interlocutory appellate jurisdiction to review the district court's denial of qualified immunity regarding her privacy claims because the defendants waived this defense by not timely raising it. However, "a finding of waiver is a legal determination which enables appellate review of the denial of qualified immunity." Hernandez v. Cook Cnty. Sheriff's Office, 634 F.3d 906, 912-13 (7th Cir.2011); see also Pasco v. Knoblauch, 566 F.3d 572, 575 (5th Cir.2009) (exercising appellate jurisdiction over denial of summary judgment based on the district court's finding that qualified immunity had been waived); Eddy v. V.I. Water & Power Auth., 256 F.3d 204, 209 (3d Cir.2001) (same). Accordingly, we have interlocutory appellate jurisdiction to consider the defendants' defense of qualified immunity.
Because we have concluded that we have appellate jurisdiction, we now turn to the issue of whether defendants' failure to raise the defense of qualified immunity until their motion to dismiss Chasensky's amended complaint (filed fourteen days after her amended complaint was filed) was
Chasensky, 2013 WL 3928988, at *1, 2013 U.S. Dist. LEXIS 105698, at *2. This ruling sidesteps basic pleading principles. After obtaining leave of court, Chasensky filed her amended complaint on January 14, 2013. Defendants filed their brief in support of their motion to dismiss her amended complaint on January 28, 2013. "When a plaintiff files an amended complaint, the new complaint supersedes all previous complaints and controls the case from that point forward ... [b]ecause a plaintiff's new complaint wipes away prior pleadings, the amended complaint opens the door for defendants to raise new and previously unmentioned affirmative defenses." Massey v. Helman, 196 F.3d 727, 735 (7th Cir.1999) (citation omitted); see also Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1476 at 636 (3d ed.2010).
"The doctrine of qualified immunity protects government officials from liability for civil damages when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Rabin v. Flynn, 725 F.3d 628, 632 (7th Cir. 2013) (citation omitted). "Immunity has of course two parts: the right not to be tried, and the right not to pay damages." Abel v. Miller, 904 F.2d 394, 397 (7th Cir.1990). "To be clearly established, at the time of the challenged conduct, the right's contours must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right [and] ... and existing precedent must have placed the statutory or constitutional question beyond debate." Humphries v. Milwaukee Cnty., 702 F.3d 1003, 1006 (7th Cir.2012) (internal quotation marks and citation omitted). This standard "protects the balance between vindication of constitutional rights and government officials' effective performance of their duties by ensuring that officials can reasonably ... anticipate when their conduct may give rise to liability for damages." Reichle v.
We review the validity of a qualified immunity defense de novo. Estate of Rudy Escobedo v. Martin, 702 F.3d 388, 404 (7th Cir.2012) (citing Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994)). Further, "[b]ecause `the district court's refusal to address the merits of [defendants'] motion asserting qualified immunity constitutes a conclusive determination for the purposes of allowing an interlocutory appeal,' and the record permits this court to resolve some of [d]efendants' immunity claims, this court will reach the merits of those claims rather than remand them to the district court." Smith v. Leis, 407 Fed. Appx. 918, 927 (6th Cir.2011) (unpublished) (citing Summers v. Leis, 368 F.3d 881, 887 (6th Cir.2004)). Accordingly, we now examine the merits of the defendants' qualified immunity defense.
First, we consider Chasensky's privacy allegations. Chasensky's amended complaint alleged that defendants recklessly "broadcast[ed] throughout the State of Wisconsin derogatory and demeaning information about her professional and personal character and reputation...." Am. Compl. ¶ 24 (Walker); ¶ 26 (Werwie). Defendants respond that the allegations in Chasensky's amended complaint do not survive the pleading requirements of Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), which requires the plaintiff to "state a claim to relief that is plausible on its face." Id. at 678 (internal quotation marks and citation omitted).
Initially, we note that it is difficult to see where in Chasensky's complaint or amended complaint she alleged a privacy claim,
Chasensky argues that they do based on Denius v. Dunlap, 209 F.3d 944, 955-56 (7th Cir.2000); Malleus v. George, 641 F.3d 560, 564-66 (3d Cir.2011); and Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). These cases, she asserts, recognize a "clearly established right to informational privacy," Appellee Br. 23, which defendants violated by "recklessly broadcasting throughout the State of Wisconsin derogatory and demeaning information about her professional and personal character and reputation...."
Wolfe v. Schaefer, 619 F.3d 782, 785 (7th Cir.2010) (citing Denius, 209 F.3d at 955-58; other citations omitted).
But the Denius case does not help Chasensky. In Denius, the director of a GED school refused to renew plaintiff's employment contract unless he signed an authorization releasing information, including financial information. 209 F.3d at 955-56. Although we recognized that the director violated the teacher's privacy rights by requiring disclosure of his medical records, we nonetheless "conclude[d] that Dunlap [wa]s shielded by qualified immunity for requiring Denius to disclose confidential financial information...." Id. at 958. There, the teacher was commanded to produce private medical information or face termination. Id. at 949. Here, all the defendants allegedly did was publicize the already-published fact that Chasensky had filed bankruptcy. Chasensky's desire to avoid the broad public disclosure of already-published financial information so that she might secure a discretionary political appointment is simply not similar to compulsory disclosure of private medical information in the face of termination. The right of privacy Chasensky asserts in her financial situation was not recognized in Denius. The fact that the school director in Denius received qualified immunity for requiring the disclosure of plaintiff's financial records underscores this point. Id. at 958. Chasensky fails to allege sustainable privacy claims against the defendants.
Chasensky fares no better with Malleus v. George, 641 F.3d 560 (3d Cir.2011). The Malleus decision concluded that information voluntarily disclosed may not form the basis of a constitutional privacy claim, even when it is subsequently passed on to a much wider audience than the one that initially received it. Id. at 565 ("She may not have intended wide-dissemination of her opinion but she volunteered it to others..."). Here, Chasensky acknowledges that she voluntarily signed a waiver authorizing the disclosure of private information to the Wisconsin Department of Justice in exchange for being considered for the appointment she sought.
Moreover, Chasensky overlooks the fact that the defendants did not need her consent in the first place to learn that she filed bankruptcy. Bankruptcy proceedings, like most unsealed legal proceedings, are public record. This information is frequently
For Chasensky's privacy allegations to defeat defendants' defense of qualified immunity, "existing precedent must have placed the statutory or constitutional question beyond debate." Humphries, 702 F.3d at 1006 (citations and internal quotation marks omitted). We recognize that "`a case directly on point is not required for a right to be clearly established' and `officials can still be on notice that their conduct violates established law even in novel factual circumstances.'" Phillips v. Cmty. Ins. Corp., 678 F.3d 513, 528 (7th Cir.2012) (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). But for the purpose of defeating qualified immunity in this instance, Chasensky has not proven that her right to the limited publicity of an already-published fact is "clearly established" so that an individual may be held civilly liable for publicizing already-published information. Defendants are, therefore, entitled to qualified immunity because they have violated no clearly established privacy right.
Chasensky's amended complaint also alleged that Walker violated her equal protection rights by denying her employment because she filed for bankruptcy. Am. Compl. ¶ 25. In United States v. Kras, the Court rejected the plaintiff's equal protection claim and held that challenges to government-imposed burdens from bankruptcy are subject to rational basis review. 409 U.S. 434, 446, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973). Accordingly, Chasensky's bankruptcy equal protection challenge cannot succeed "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." F.C.C. v. Beach Commc'n, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). In other words, Chasensky bears the burden of "negat[ing] every conceivable basis which might support [Walker's decision not to appoint her]." Id. at 315, 113 S.Ct. 2096 (citation omitted).
In light of this steep burden, it is unreasonable to suggest that gubernatorial consideration of an applicant's bankruptcy — a component of her personal history — could not be rationally related to legitimate governmental interests. The responsibilities associated with the office at issue entail maintaining financial and public land records and collecting and disbursing substantial sums of money, including recording fees and transfer taxes. The fact that a candidate for this appointment has filed bankruptcy, coupled with the fact that the desired public office involves management
Chasensky cites no case law suggesting that the equal protection clause precludes gubernatorial consideration of an applicant's bankruptcy when she has applied for a political appointment. Consequently, Walker violated no "clearly established" law by failing to appoint Chasensky for the position she sought. Humphries, 702 F.3d at 1006 (quoting Pearson, 555 U.S. at 236, 129 S.Ct. 808). Nor did Walker violate Chasensky's constitutional rights by declining to exercise his gubernatorial discretion for her benefit. The rule in this circuit is clear. "A governmental officer holding the power of appointment may make any decision he pleases, unless the Constitution bars the way." Kurowski v. Krajewski, 848 F.2d 767, 770 (7th Cir.1988).
Alternatively, and despite the fact that the appointment in question is awarded by the elected head of state, Chasensky asserts that neither gubernatorial concern about the potential appointee's ultimate electability nor Walker's desire to avoid adverse political repercussions from unwise appointments is a legitimate governmental interest. We disagree. "[I]t would undermine the democratic process to hold that the winners at the polls may not employ those committed to implementing their political agenda." Id. Chasensky argues that the Supreme Court recognized a distinction between pure partisan political interests and legitimate governmental interests in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). But it is precisely because these interests are aligned here that we must respect the weight appointment decisions made by elected and politically-accountable individuals are due. Chasensky implies that in practice wise appointment decisions inure principally to the benefit of the elected official, not the citizenry. But that perspective fails to appreciate what should be obvious: both the official and the citizenry are better off when elected officials avoid poor appointment decisions that have the potential to mature into public malfeasance.
There was no violation — let alone a clearly established violation — of the equal protection clause when Walker declined to award Chasensky a discretionary appointment to a constitutional office. Consequently, Walker enjoys qualified immunity from Chasensky's equal protection claim.
For the reasons stated above, we conclude that we have interlocutory appellate jurisdiction to consider this appeal. Further, we conclude that the defendants did not waive the defense of qualified immunity when they did not raise it until their motion to dismiss Chasensky's amended complaint. Finally, the defendants are entitled to qualified immunity from Chasensky's privacy and equal protection claims. For the foregoing reasons, we REVERSE
