In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1567

WILLIAM H. MOSS,

Plaintiff-Appellant,

v.

TIMOTHY MARTIN, et al.,

Defendants-Appellees.

Appeal from the United States District Court 

for the Central District of Illinois.

No. 04-3217—Jeanne E. Scott, Judge.

ARGUED FEBRUARY 11, 2010—DECIDED AUGUST 2, 2010

Before KANNE, WOOD, and HAMILTON, Circuit Judges.

WOOD, Circuit Judge. Political patronage lies at the

heart of this case—this time, favoritism based on political

party affiliation in the Highway Sign Shop of the Illinois

Department of Transportation (“IDOT”). William H.

Moss worked as the Chief of that shop from 2000 until

April 2004, when he was fired to make room for an employee chosen by the administration of then-Governor

Rod Blagojevich. Moss sued a number of state officials
2 No. 09-1567

under 42 U.S.C. § 1983, asserting that his rights under

the First Amendment and the due process clause were

violated. The district court dismissed all claims on

the pleadings, see FED. R. CIV. P. 12(c), but this court

ruled that Moss was entitled to go forward with his First

Amendment theory. See Moss v. Martin, 473 F.3d 694

(7th Cir. 2007) (“Moss I”). On remand, the district court

ruled that the defendants were entitled to qualified

immunity because they relied on the conclusion of

Illinois’s Central Management Services (“CMS”) agency

that Moss’s job was “exempt” from the rule banning

politically-based firings established in Rutan v. Republican

Party of Illinois, 497 U.S. 62 (1990). The court therefore

granted summary judgment to the defendants, and Moss’s

second appeal is now before us. Although we find that the

decision to fire Moss probably fell afoul of the Rutan

principle, we agree with the district court that the defendants were entitled to qualified immunity. We therefore

affirm.

I

Most of the details concerning Moss’s job and the

events leading to his firing were set out in Moss I, 473 F.3d

at 697-98, and so we provide only a summary here. Moss

began working as the Chief of IDOT’s Highway Sign

Shop in Springfield in September 2000. His immediate

supervisor was Joe Hill, the Bureau Chief of Operations;

Hill reported to Jack Hook, the Deputy Director of Highways. Moss was responsible for overseeing the fabrication and repair of all the highway signs scattered across
No. 09-1567 3

the State of Illinois; in that capacity, he supervised about

25 employees.

In January 2003, Illinois ended a long run of Republican governors when Rod Blagojevich, a Democrat, took

office. About a year later, a personnel manager at IDOT

named Jacob Miller happened to run across a newspaper article that mentioned that Moss was running for

a position as a Republican precinct committeeperson

for Sangamon County. Miller checked a few human resources records and discovered that Moss was on

IDOT’s list of so-called double-exempt employees. In

plain English, that means that CMS, the state agency

responsible for administering almost all state hiring, had

concluded that his position was subject neither to the

Illinois Personnel Code nor the Supreme Court’s Rutan

decision. Briefly, Rutan held that governments may not

base employment decisions such as promotions, transfers, and recalls for low-level employees on political

affiliation or support; to do so would be an impermissible infringement on the public employees’ First

Amendment rights. People in non-exempt positions,

where political loyalty is a bona fide requirement, do not

enjoy comparable protection. After Miller learned that

Moss was double-exempt, he quickly shot off an email

on December 22, 2003, to Robert Millette, the Director of

Finance and Administration for IDOT, asking if Millette

thought that Moss should be fired for supporting the

political opposition. Millette answered yes and told

Miller to start preparing the necessary paperwork.

A few months later, Scott Doubet replaced Miller. As

far as this record shows, the two men never discussed
4 No. 09-1567

Moss’s situation. But around that time a legislative

liaison for the Blagojevich administration told Doubet

to find a job for Joe Athey, whom Moss describes as a

political loyalist for the Blagojevich team. Doubet looked

around and decided to give Athey the job of Chief of the

Highway Sign Shop. Millette and Timothy Martin, the

Secretary of IDOT, signed off on Doubet’s decision.

Moss was fired on April 26, 2004, and Athey replaced

him. Moss responded with this suit, which he filed

against Martin (in both his individual and official capacities), Millette, and another IDOT employee. Gary

Hannig, the current Secretary of the Department, has

been substituted for Millette with respect to the official

capacity claims.

II

As we noted above, the First Amendment claim in

Moss’s case survived one round of appeal. Back in the

district court, the parties filed cross-motions for summary judgment. Defendants’ motion relied on qualified

immunity, and so that is what the district court focused

on. It recognized that there are two elements of a

qualified immunity claim—first, that the defendants

violated Moss’s constitutional rights, and second, that

those rights were clearly established at the time the

defendants acted—and that it had discretion to address

the second element first. See Pearson v. Callahan, 129 S. Ct.

808 (2009). Finding that judicial economy would be promoted by doing so in Moss’s case, the court put to one

side the question whether the defendants had violated
No. 09-1567 5

Moss’s First Amendment rights and moved immediately

to the issue whether they had done so in disregard of

clearly established law.

The undisputed evidence, the court found, showed

that the defendants, all from IDOT, relied on the decision

of CMS to classify the position of Chief of the Highway

Sign Shop as Rutan-exempt when they decided to fire

Moss. CMS had made that designation in 1992, long

before Moss took the position, at a time when Illinois

had a Republican governor, and long before the

Blagojevich administration took office. The court found

that there was no rule requiring the IDOT personnel

to second-guess the job description that CMS was using.

In fact, the court concluded that even the decision in

Riley v. Blagojevich, 425 F.3d 357 (7th Cir. 2005), which

was handed down after the events in this case, supported the idea that political leaders were entitled to

rely on existing state personnel descriptions unless the

job description is systematically unreliable. Moss urged

that he was eligible for the latter exception (disregarding

the timing problem), but he presented no evidence that

an unreliable process was used to develop the description for his position. The court also noted that the employing agency—here, IDOT—did not have the authority

to change a designation by CMS that a position was Rutanexempt. It also observed that none of the defendants

independently evaluated Moss’s position to determine

whether political affiliation was a proper consideration

for job actions.
6 No. 09-1567

III

A

Moss urges that the position of Chief of the Highway

Sign Shop is too low on the totem pole to be classified

as Rutan-exempt. This is the question that the district

court did not reach, but because the inquiry into

how clearly established these rules are touches on the

underlying issue, we take a moment to discuss it.

The First Amendment prohibits a state employer from

terminating the employment of a worker on the basis of

her political beliefs unless political affiliation is an appropriate requirement for the position. See Gunville v.

Walker, 583 F.3d 979, 983-84 (7th Cir. 2009) (citing Branti v.

Finkel, 445 U.S. 507 (1980)). The only serious question

here is whether Moss’s job was one in which political

affiliation was a valid consideration. The record is clear

that he was a member of the Republican Party and

that Millette knew this fact. Whether any of the other

defendants knew is less clear.

The state argues that the exchange between Millette

and Miller at the end of 2003 more or less dissipated,

and nothing came of it. Miller testified that he was not

sure what became of the paperwork he initiated to fire

Moss. Only after Doubet took office and the legislative

liaison approached him, looking for a job for Athey,

did Moss finally lose his job. This, the state says, places

an intervening cause between Millette and Miller’s plan

and the actual firing.

Moss counters that Millette hired Athey only to please

the Democratic administration. Unfortunately, there is
No. 09-1567 7

little evidence to back up this assertion. All Moss has

is Doubet’s testimony that he told Millette and Martin

that a legislative liaison in the administration had recommended Athey for a job. Doubet speculated that the

liaison may have wanted to place Athey there because

of his loyalty to the administration, but there is no evidence to substantiate that theory. For all anyone

knows, Athey’s appointment may have been motivated

by nepotism, or by the desire to please a particularly

powerful Republican legislator. If it were the latter, then

Moss would be out of luck. He cannot succeed unless

he can show that he was replaced by someone with different ideological beliefs. See Hall v. Babb, 389 F.3d 758,

765 (7th Cir. 2004). Even taking the evidence in the

light most favorable to Moss, as we must on summary

judgment, it is hard to find a genuine factual dispute on

the question whether Millette’s decision to hire Athey

was based on Athey’s political loyalties. Cf. Cusson-Cobb

v. O’Lessker, 953 F.2d 1079, 1081 (7th Cir. 1992) (rejecting

plaintiff’s unsubstantiated claim that savvy government officials knew that she was a Republican because

she had been appointed by the last administration).

The record nevertheless might permit a fact-finder to

decide that Millette agreed to fire Moss because of

Moss’s active role in the local Republican party. When

Doubet recommended hiring Athey in February or

March 2004, the IDOT defendants may have been in the

process of terminating Moss’s employment because of

his partisan comments. Miller testified that the hiring

process for Rutan-exempt positions requires some 20 to

30 different steps; it is thus likely that the process
8 No. 09-1567

required to fire employees in those positions is equally

protracted. Athey’s appearance on the scene may have

been just what Millette needed to complete the job of

dismissing Moss.

The defendants’ story requires one to believe that

Millette agreed to fire Moss on political grounds, then

backed away from that decision, and finally fired

him a few months later because Doubet serendipitously

selected Moss’s position as the one Rutan-exempt spot

that he felt fit Athey’s skills. The connection between

Millette’s knowledge of Moss’s political connections

and Moss’s discharge thus might raise the kind of question of intent that, on the merits, would best be left to the

trier of fact. See Darchak v. City of Chicago Bd. of Educ., 580

F.3d 622, 633 (7th Cir. 2009); Casna v. City of Loves Park,

574 F.3d 420, 427 (7th Cir. 2009).

Moss’s case against Martin is on shakier ground.

No direct evidence, and nothing but speculative circumstantial evidence, indicates that Martin ever knew about

Moss’s political affiliation. Moreover, nothing indicates

that Martin was aware of the content of the email exchange in December 2003 between Millette and Miller.

Martin denied knowing that Moss was a member of the

Republican party, and Doubet does not remember ever

mentioning Moss’s politics to Martin. Even if Martin, as

Moss insists, knew that Athey had some kind of political

connections, we have already explained why this vague

knowledge is not good enough.
No. 09-1567 9

B

Even giving Moss the benefit of the doubt and

assuming that there are genuinely disputed facts about the

existence of a political motivation for his firing, there are

two other hurdles he must pass before we would be

required to reverse the district court. First, he would

need to show that the job of Chief of the Highway Sign

Shop was wrongly classified as Rutan-exempt, and second,

he would need to show that this was so plain that the

defendants should be denied qualified immunity.

On the first of those issues, Moss’s case looks promising.

Although the First Amendment prohibits government

employers from taking most employees’ political views

into consideration when making job decisions, the

Supreme Court has long recognized an exception to

that rule for positions that involve confidential or

policymaking responsibilities. See Elrod v. Burns, 427

U.S. 347, 367 (1976). In deciding whether a particular

job falls within the exception, the court examines the

inherent duties of the position. See Riley, 425 F.3d at 365.

In Moss I, we found that the job description for the Chief

of the Highway Sign Shop was inconclusive. 473 F.3d

at 699. The Chief does not have access to politically sensitive information, but the defendants argue that he nonetheless is involved in “the making of policy and thus

the exercise of political judgment.” Allen v. Martin, 460

F.3d 939, 944 (7th Cir. 2006); Kiddy-Brown v. Blagojevich, 408

F.3d 346, 355 (7th Cir. 2005). They also describe the Chief’s

position as near the top of the IDOT hierarchy, since it is

four rungs below the Secretary. This may depend on
10 No. 09-1567

whether the glass is half-full or half-empty: each rung has

quite a few positions (for example, the Secretary oversees

five divisions and five offices, and then the Division

of Highways has ten different bureaus).

We could go on, but the best that we could do for

Moss would be to find that the Chief’s discretion is sufficiently circumscribed and his authority removed enough

from the confidential or policymaking realm within

IDOT that the job should have been covered by Rutan

and the Personnel Code. Operating on that assumption,

however, we still need to ask whether it was clearly

established at the time the defendants fired Moss that

such an action would violate his First Amendment

rights. See Pearson, supra; Saucier v. Katz, 533 U.S. 194, 201

(2001); see also Putrell v. Mason, 527 F.3d 615, 621 (7th

Cir. 2008) (“The relevant, dispositive inquiry in determining whether a right is clearly established is whether

it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”). The

court thus cannot rely on the broad proposition that

the First Amendment protects against certain political

patronage firings; it must instead look to see if the violation was clear in the specific context of the case. See

Borello v. Allison, 446 F.3d 742, 750 (7th Cir. 2006). This

does not necessarily require the plaintiff to find a

factually indistinguishable case on point, but if there is

no such case, then he needs to offer a different explanation for why the constitutional violation is obvious. See

Flenner v. Sheahan, 107 F.3d 459, 465 (7th Cir. 1997).

In concluding that the defendants reasonably believed

that their discharge of Moss was lawful, the district court
No. 09-1567 11

emphasized that they relied on CMS’s designation of the

Sign Shop Chief position as exempt. CMS reached this

conclusion by using criteria created by its outside

legal counsel. This is one factor that militates in favor

of granting qualified immunity. See Davis v. Zirkelbach,

149 F.3d 614, 619-21 (7th Cir. 1998) (citing Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)). It is not, however,

dispositive, particularly here where we have already

found that the job description on which both counsel

and CMS relied was inconclusive. Furthermore, the

weight that we place on CMS’s reliance on advice of

counsel depends on factors like how much information

counsel had and how closely tailored the advice was to

the position in question.

It is telling that CMS had classified the Chief’s position

as exempt under both Rutan and the Personnel Code in

1992, just two years after Rutan was decided. There is

thus not a whiff of suspicion that either CMS or IDOT

was manipulating the job description because of any

interest that the incumbent administration at the time

of Moss’s firing might have had in expanding the scope

of its own political patronage. It is also telling, given the

unfortunate number of political patronage cases that

have arisen over the years, that Moss cannot point to

any closely analogous case to support his argument. The

Sign Shop Chief’s position lies somewhere between

the extremes that have dominated our cases in this area.

See Riley, 425 F.3d at 359 (chart). Given the uncertainty

that litigants encounter in this somewhat murky area of

the law, it is difficult for a plaintiff to avoid a qualified
12 No. 09-1567

immunity defense in a case of first impression unless

she occupies a low rung on the bureaucratic ladder.

We conclude, therefore, that the defendants Moss has

sued were entitled to qualified immunity. This leaves

only one loose end to tie up. The qualified immunity

defense protects governmental defendants from an

action for money damages, but not from a suit for injunctive relief. Initially, Moss was asking for an injunction as well as damages. He has not pursued his request

for an injunction on appeal, however, and so we deem

it forfeited. For these reasons, the judgment of the

district court is

AFFIRMED.

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