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Carver v. Foerster

December 12, 1996




On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 93-cv-00912)

Before: BECKER, NYGAARD and ROTH, Circuit Judges

Roth, Circuit Judge

Argued September 17, 1996

Filed December 12, 1996)


Plaintiffs brought suit under 42 U.S.C. Section(s) 1983 against Allegheny County and Tom Foerster, Chairman of the Board of Commissioners of Allegheny County and a member of the Allegheny County Salary Board, charging that Foerster had eliminated their jobs with Allegheny County because they supported Joe Brimmeier in the Democratic primary for Prothonotary. Allegheny County and Foerster moved for summary judgment based on absolute legislative immunity because plaintiffs' positions had been eliminated by a vote of the Salary Board. Foerster also claimed qualified immunity for his actions as a member of the Salary Board. The district court denied the motions on the ground that Foerster was not entitled to absolute or qualified immunity for his pre-vote activities and that municipalities do not enjoy legislative immunity from Section 1983 suits. *fn1 Both defendants appeal the denial of absolute legislative immunity. We agree with the district court's reasoning and will affirm.

I. Facts

Tom Foerster was Chairman of the County Board of Commissioners and a member of the Salary Board throughout the time the events in question took place. The Allegheny Salary Board is composed of four members: three County Commissioners and the County Controller. The Board sets the maximum and minimum salary range for County jobs. It is also the only entity within the County with the power to create or eliminate positions.

In May 1991, Joe Brimmeier, a former aide to Foerster, ran in the Democratic primary for the position of Prothonotary of Allegheny County. Foerster vocally opposed Brimmeier's candidacy. The four plaintiffs actively supported Brimmeier in the primary election. Brimmeier lost.

Foerster was re-elected Commissioner in November, 1991. Following the election, James Dodaro, the County Solicitor, notified Foerster of his plan to resign at the end of the year. Foerster appointed Ira Weiss to replace Dodaro as of January 6, 1992. On January 3, three days before his appointment was effective, Weiss fired plaintiffs, Roberta Rudolph and April Moore, and told them that their positions as administrative assistant and Risk Manager were being eliminated. When Dodaro intervened to ask Weiss to keep Rudolph and Moore, Weiss reportedly replied, "No, they want them out now." Rudolph and Moore were offered alternate positions as typists at approximately half their salaries. They rejected these positions. On January 8, 1992, five days after notifying Rudolph and Moore that their jobs were eliminated, Weiss signed a request asking the Salary Board to eliminate nine positions, including those held by Rudolph and Moore. On January 16, 1992, the Salary Board unanimously approved the request.

Plaintiffs Phyllis Carver and Thomas Fox held positions in the Department of Development. Carver was a planning and evaluation specialist, and Fox was manager of marketing. Shortly after Brimmeier's candidacy for Prothonotary failed, Foerster allegedly had Wayne Fusaro, one of his Executive Aides, compile a "hit list" of Brimmeier supporters. The list reportedly included Carver and Fox.

On June 19, 1992, George Braun, the Director of Development, notified Carver and Fox that he was eliminating their positions because of budgetary concerns. Two other positions within the Department of Development were eliminated at the same time. Braun submitted his request for Salary Board action on June 12, and the Salary Board unanimously approved his recommendation for termination on June 18. Neither Fox nor Carver were offered positions elsewhere in county government.

According to the defendants, Braun's elimination of the positions was spurred by a Federal Housing and Urban Development audit, which had found excessive administration expenses by the department. The defendants assert that the positions were eliminated as part of a larger attempt to keep down administrative costs. The defendants further contend that at the same two sessions that the plaintiffs lost their positions, the Salary Board took additional actions affecting 19 other county departments, resulting in the elimination of twenty two other positions. In her Report and Recommendation, however, the magistrate judge noted that about the time Fox and Carver's positions were eliminated, three new positions were created in the Department of Development and other employees received raises.

The plaintiffs assert that the Salary Board would automatically approve any proposal to eliminate jobs without independent consideration and that once Foerster made it known that he wanted plaintiffs' positions eliminated, the vote of the Salary Board was a mere formality.

On June 9, 1993, the plaintiffs filed suit against Allegheny County and against Foerster, individually and in his official capacity as Chairman of the Allegheny County Board of Commissioners. After extensive discovery, defendants filed for summary judgment. The magistrate judge denied defendants' motion. The District Court adopted the magistrate judge's report and recommendation. Defendants have appealed that portion of the District Court's decision relating to absolute legislative immunity, as well as those defenses "inextricably intertwined" with their immunity claims.

II. Jurisdiction and Standard of Review

Ordinarily, this court does not have jurisdiction to review a lower court's denial of summary judgment since a denial of summary judgment does not constitute a "final decision" within the meaning of 28 U.S.C. 1291. See In re City of Philadelphia Litigation, 49 F.3d 945, 956 (3d Cir.), cert. denied, 116 S.Ct. 176 (1995). When the summary judgment motion is premised on absolute immunity, however, the district court's denial is immediately appealable because it falls within the collateral order doctrine: "that small class [of orders] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26 (1949).

Absolute immunity is an issue of law, separable from the merits of the case, which once denied cannot effectively be preserved for later review by an appellate court. "[T]he denial of a substantial claim of absolute immunity is an order appealable before final judgment, for the essence of absolute immunity is its possessor's entitlement not to have to answer for his conduct in a civil damages action." Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 2815 (1985) (ruling on qualified immunity immediately appealable). See also See also Nixon v. Fitzgerald, 457 U.S. 731, 741-43, 102 S.Ct. 2690, 2697-98 (denial of presidential immunity immediately reviewable on appeal) and Acierno v. Cloutier, 40 F.3d. 597, 606 (3d Cir. 1994): "The Nixon case makes clear that we have appellate jurisdiction to consider whether the former members of the County Council are entitled to absolute legislative immunity." A district court's denial of summary judgment, premised on absolute legislative immunity, is therefore immediately appealable. For this reason, we have jurisdiction to consider the district court's denial of summary judgment with regard to the immunity claims. Moreover, because absolute immunity is a purely legal question, we exercise plenary review over the district court's decision. Acierno, 40 F.3d at 609, citing Donivan v. Dallastown Borough, 835 F.2d 486, 487 (3d Cir. 1987) cert. denied 495 U.S. 1035, 108 S.Ct. 1596 (1988). III. Foerster's Individual Claim to Legislative Immunity According to Foerster, he is entitled in his individual capacity to absolute legislative immunity from suit because of his membership on the Salary Board, the governing body that ultimately approved the elimination of the plaintiffs' positions with the County. Plaintiffs respond that their complaint does not concern Foerster's vote as a member of the Salary Board but is directed at the actions he took prior to and independent of that vote in order to persuade his department heads to bring about the elimination of their positions. The parties focussed a great deal of their argument on the question whether the Salary Board acted legislatively or administratively when it voted to do away with the plaintiffs' positions. We do not find, however, that the status of the Salary Board is the dispositive question of individual immunity in this case. Rather, the issue is whether Tom Foerster's pre-vote actions as a Commissioner can be separated from his vote as a Salary Board member.

We will start our analysis with an examination of the general principles of legislative immunity and how it applies to local legislators in Section(s) 1983 cases. Under 42 U.S.C. Section(s) 1983, "Every person who, under color of any statute, ordinance, regulation, custom, or usage ... subjects, or causes to be subjected any citizen ... or other person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." The term "persons" includes local and state officers acting under color of state law. See Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358 (1991). The Supreme Court has recognized, however, that public officials, sued in their individual capacities, may under certain circumstances enjoy immunity from Section(s) 1983 suits. In Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783 (1951), the Supreme Court held that the doctrine of legislative immunity, as applied to state legislators, survived the enactment of Section(s) 1983. In Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171 (1971), the Court extended the doctrine of absolute legislative immunity ...

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