In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 14-1792 

ROBIN ALLMAN, et al., 

Plaintiffs-Appellees, 

v.

KEVIN SMITH, et al., 

Defendants-Appellants. 

____________________ 

Appeal from the United States District Court for the 

Southern District of Indiana, Indianapolis Division. 

No. 1:12-cv-00568-TWP-DML — Tanya Walton Pratt, Judge. 

____________________ 

SUBMITTED JULY 16, 2014 — DECIDED AUGUST 19, 2014 

____________________ 

Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges. 

POSNER, Circuit Judge. The plaintiffs, former employees of 

a city in Indiana, sued the mayor, and the city itself, under 

42 U.S.C. § 1983. They claimed that the mayor had fired 

them because of their political affiliations and thus in violation of their First Amendment rights. The mayor riposted 

that political affiliation was a permissible qualification for 

their jobs. The district judge granted summary judgment in 

favor of the mayor with respect to nine of the eleven plain-
2 No. 14-1792 

tiffs, on the ground that his argument concerning political 

qualification for their jobs was sufficiently arguable to entitle 

him to qualified immunity. But the judge denied summary 

judgment with respect to the two other plaintiffs because she 

didn’t think the mayor’s claim of immunity from their suit 

arguable, given the differences between their jobs and those 

of the other nine plaintiffs. 

The judge refused to certify for interlocutory appeal her 

denial of the mayor’s claim of qualified immunity with respect to those two plaintiffs, on the ground that the issue of 

his qualified immunity involves a question of fact—namely 

whether he should have known that his conduct was unlawful (if it was). The judge also refused to stay the district court 

proceedings pending his appeal. The mayor asks us to grant 

the stay. 

Whether a “job is one for which political affiliation is a 

permissible criterion ... presents a question of law,” Riley v. 

Blagojevich, 425 F.3d 357, 361 (7th Cir. 2005), which makes it a 

proper basis for an interlocutory appeal from a denial of 

qualified immunity, Mitchell v. Forsyth, 472 U.S. 511, 526–30 

(1985); Marshall v. Allen, 984 F.2d 787, 789 (7th Cir. 1993); Lopez-Quinones v. Puerto Rico National Guard, 526 F.3d 23, 25 

(1st Cir. 2008), and consequently for a stay of further proceedings in the district court pending that appeal. “Qualified 

immunity is an entitlement not to stand trial or face the other 

burdens of litigation. The privilege is an immunity from suit 

rather than a mere defense to liability; and, like an absolute 

immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Siegert v. Gilley, 500 U.S. 226, 232–33 

(1991); see also Mitchell v. Forsyth, supra, 472 U.S. at 526. And 

so “when a public official takes an interlocutory appeal to 
No. 14-1792 3 

assert a colorable claim to absolute or qualified immunity 

from damages, the district court must stay proceedings.”

Goshtasby v. Board of Trustees of University of Illinois, 123 F.3d 

427, 428 (7th Cir. 1997); see also Apostol v. Gallion, 870 F.2d 

1335 (7th Cir. 1989). 

The district judge also denied the city’s motion for summary judgment. The defense of qualified immunity is limited to individuals, but as the city’s liability is derivative 

from the mayor’s it wanted to show that he had not violated 

the plaintiffs’ constitutional rights. All the mayor had to 

show in order to prevail was that even if he did violate those 

rights he was excused from liability by the doctrine of qualified immunity. The city, which cannot invoke qualified immunity, in order to prevail had to show that the mayor 

hadn’t violated any constitutional rights, a showing that 

would eliminate the city’s liability because its liability is derivative from the mayor’s. 

The city claims that the doctrine of “pendent appellate 

jurisdiction” allowed it to appeal. It moved in the district 

court to stay further proceedings in that court until we resolved its appeal. But the motion was denied. The two motions to stay (the mayor’s and the city’s) are the only matters 

before our panel, a motions panel. 

The mayor is entitled to a stay because he’s claiming 

qualified immunity. But is the city entitled to a stay? Or even 

to ask us for a stay? Can it be considered a party to this appeal? These are the interesting questions, and the answers 

depend on the applicability of the doctrine of pendent appellate jurisdiction, for it is the only possible ground for the 

city’s claim to be a party to this appeal. 
4 No. 14-1792 

It is an embattled doctrine. As explained in Abelesz v. 

OTP Bank, 692 F.3d 638, 647 (7th Cir. 2012), “the Supreme 

Court sharply restricted the use of pendent appellate jurisdiction in Swint v. Chambers County Commission, 514 U.S. 35, 

43–51 ... (1995), but left a narrow path that the Court later 

followed in Clinton v. Jones, 520 U.S. 681, 707 n. 41 ... (1997), 

holding that an appealable collateral order denying presidential immunity was ‘inextricably intertwined’ with an order staying discovery and postponing trial.” The narrow 

path allows only a small class of interlocutory appeals, consisting of cases in which an appeal from one ruling in a district court proceeding creates a compelling practical reason 

to allow an appeal from another ruling in that proceeding 

even though there is no independent jurisdictional basis for 

the second appeal, as in this case. 

The plaintiffs’ claims against the city may, as we have indicated, hinge on the outcome of the mayor’s appeal. If the 

merits panel that will decide that appeal concludes that the 

mayor did not violate the plaintiffs’ constitutional rights (his 

principal contention), then the suit against the city collapses. 

But if the panel concludes that although the mayor may have 

violated those rights they were not sufficiently well established when he did so to defeat his immunity, the plaintiffs’ 

claims against the city will survive his (successful) appeal. 

That is, a finding that the mayor is immune from liability 

may leave the merits of the plaintiffs’ claims against the city 

unresolved. 

The posture of the city’s case is a compelling reason to 

stay the proceedings in the district court involving the city 

until the merits panel decides the mayor’s appeal. If the panel finds that there was no constitutional violation by the 
No. 14-1792 5 

mayor at all (rather than that qualified immunity saves him, 

but of course not the city, from being held liable to the plaintiffs), then any proceedings that had taken place in the district court regarding the plaintiffs’ claim against the city will 

have been a waste of time. This possibility provides a compelling reason for allowing the city to appeal from the denial 

of the stay that it sought in the district court. 

The plaintiffs, in contrast, want to try their case against 

the city, and then, if the merits panel rejects the mayor’s appeal from the denial of qualified immunity, hold a second 

trial, to resolve their claims against the mayor. The trial of 

the claims against the city has been scheduled for the fall of 

this year; there is no guarantee that the mayor’s appeal will 

have been briefed, argued, and decided by the merits panel 

by then. There is thus no guarantee that the panel’s decision 

will come in time to head off the trial should the merits panel decide that the mayor did not violate the plaintiffs’ constitutional rights, in which event the claims against the city, being derivative, will evaporate. 

The prospect of two trials involving the same facts and 

witnesses is not an attractive one. If the district court proceedings against the city are stayed, and the merits panel decides that the mayor did not violate the plaintiffs’ constitutional rights, there will be no trial. If (with the stays granted) 

the merits panel decides that the mayor did violate the plaintiffs’ constitutional rights but is entitled to qualified immunity, there will be one trial, against the city. Finally, if the 

merits panel rejects the mayor’s appeal, the plaintiffs can try 

their claims against both the mayor and the city in a single 

proceeding. Each of these outcomes is preferable to allowing 

the proceedings in the district court against the city to con-
6 No. 14-1792 

tinue while the mayor’s appeal is under consideration by 

this court. 

A further danger if the city’s case isn’t stayed is that of 

conflicting findings between our court and the district court 

on whether the mayor violated the constitutional rights of 

the two remaining plaintiffs. That would be an issue in a trial of the claim against the city, since if the answer was negative the city would be off the hook. It might also be an issue 

for our court in the mayor’s appeal, as he will be arguing not 

only that he had qualified immunity from being sued by the 

two plaintiffs for violating their constitutional rights but also 

that he hadn’t violated them at all, in which event immunity 

would be moot. 

The city’s claimed status as a party to the mayor’s appeal 

thus is indeed “pendent” because of its interdependence 

with the mayor’s appeal. In identical circumstances four 

other circuits have upheld pendent appellate jurisdiction. 

Hidden Village, LLC v. City of Lakewood, 734 F.3d 519, 523–24 

(6th Cir. 2013); Demoret v. Zegarelli, 451 F.3d 140, 152 (2d Cir. 

2006); Avalos v. City of Glenwood, 382 F.3d 792, 801–02 (8th 

Cir. 2004); Altman v. City of High Point, 330 F.3d 194, 207 n. 10 

(4th Cir. 2003). None has denied it. We can’t think of any 

reason to reject this consensus. And it is significant that the 

cases we just cited all postdate Swint, the case that shrunk 

the doctrine of pendent appellate jurisdiction to its current 

slim proportions. 

But the scope of our pendent jurisdiction of the city’s 

claim is exceedingly narrow. The city is a party only for the 

purpose of being able to ask us to reverse the district court’s 

denial of a stay of proceedings against it in that court. We 

have no jurisdiction over its appeal from any rulings by the 
No. 14-1792 7 

district court other than that denial. It will be the business of 

the merits panel to decide the mayor’s appeal from the denial of summary judgment regarding the two plaintiffs 

whom the district judge declined to dismiss. 

We hereby stay the district court proceedings both 

against the mayor and against the city.