United States Court of Appeals

For the Eighth Circuit

___________________________

No. 12-1516

___________________________

Catherine Leapheart

lllllllllllllllllllll Plaintiff - Appellee

v.

Tyrone Williamson, Individually and as Mayor for the City of Russellville,

Arkansas; Cliff Kirchner, Individually and as city council for the City of

Russellville, Arkansas; Phillip Carruth, Individually and as city council for the City

of Russellville, Arkansas; Freddie Harris, Individually and as city council for the

City of Russellville, Arkansas; Bill Eaton, Individually and as city council for the

City of Russellville, Arkansas; Robert Wiley, Individually and as city council for

the City of Russellville, Arkansas; Kevin Freeman, Individually and as city council

for the City of Russellville, Arkansas; Randal Crouch, Individually and as city

council for the City of Russellville, Arkansas; Garland Steuber, Individually and as

city council for the City of Russellville, Arkansas

lllllllllllllllllllll Defendants - Appellants

Larry Holman, Individually and as city council for the City of Russellville, Arkansas

lllllllllllllllllllll Defendant

____________

 Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

____________

 Submitted: November 14, 2012

 Filed: January 29, 2013

____________
Before RILEY, Chief Judge, WOLLMAN and MELLOY, Circuit Judges.

____________

MELLOY, Circuit Judge.

Catherine Leapheart sued the former Mayor of the City of Russellville,

Arkansas, and the members of the Russellville City Council in federal district court,

alleging age and race discrimination. The City Council members (hereinafter

"Defendants") filed a motion for summary judgment, asserting legislative immunity

with respect to the claims against them in their individual capacities. The district

court denied the claim of legislative immunity, finding that the elimination of

Leapheart's position was not legislative action and therefore not protected by

legislative immunity.1

 The Defendants filed an interlocutory appeal, seeking a

reversal of the district court's denial of legislative immunity. For the reasons stated

below, we reverse the denial of legislative immunity and remand for proceedings

consistent with this opinion.

I. Background

In February 2010, the City of Russellville posted a job advertisement for a

Director of Human Resources position. At the time, the Director of Human Resources

was classified as a department head. The Mayor, in this case Mayor Tyrone

Williamson, had the final decision-making authority on who to appoint for

department-head positions. The City Council could override the Mayor's appointment

with a two-thirds vote under Ark. Code Ann. § 14-142-110(a).

Twenty people, including Leapheart, applied for the position. Leapheart is an

African American woman who, at the time, was sixty-seven years old. The Mayor

1

The district court dismissed Leapheart's claim against Russellville City Council

member Larry Holman because he was not a member during the relevant time period.

-2-
selected five people, including Leapheart, for the Defendants to interview. The

Defendants interviewed Leapheart during the week of February 22, 2010. The

Defendants interviewed the last finalist on Monday, March 1. 

On Thursday, March 4, three of the Defendants called a special meeting for the

next day. The purpose of the meeting was to tell Mayor Williamson whom they

recommended for the position. Mayor Williamson could not attend the meeting. 

Mayor Williamson told one of the Defendants that he would take the weekend to

decide who to hire and let the Defendants know his decision on Monday. However,

Mayor Williamson hired Leapheart as Director of Human Resources on Friday,

March 5.

On Friday, March 5, two of the Defendants called another special meeting for

Sunday, March 7.2

 At the Sunday meeting, the Defendants passed Ordinance No.

2073 — "An Ordinance Restructuring the Human Resources Personnel of the City of

Russellville and For Other Purposes." Ordinance No. 2073 eliminated the Department

of Human Resources and created a nondepartment-head position in the city

government titled "Human Resources." As the position was now a nondepartmenthead position, the Defendants had the sole authority to hire and fire for the position. 

In short, Ordinance No. 2073 moved authority over the position from the Mayor to the

City Council. Ordinance No. 2073 made no other changes to the duties associated

with the position.3

2

The parties dispute whether the Defendants had knowledge of Leapheart's

hiring when scheduling the March 7 meeting or at the meeting itself.

3

Previously, the position had included human resources and administrative

assistant duties, with a salary of $50,000. Now, the position entailed solely human

resources duties, with a salary of $40,000. However, these changes were made either

before or during the interview process and not via Ordinance No. 2073.

-3-
Leapheart showed up for work on Monday morning, March 8. At the time, she

had no knowledge of Ordinance No. 2073. That morning, Mayor Williamson vetoed

Ordinance No. 2073. After learning of the veto, the Defendants called another special

meeting for that same day at 2:00 p.m. The Defendants voted unanimously to

override Mayor Williamson's veto. The Defendants claim they did not know Mayor

Williamson had hired Leapheart when they voted to override Mayor Williamson's

veto. Later that Monday afternoon, Mayor Williamson notified Leapheart that the

Defendants had eliminated her position. 

On Tuesday, March 9, the Defendants called a fourth special meeting. At this

meeting, the Defendants voted to override Mayor Williamson's appointment of

Leapheart. The Defendants also wrote a letter to Leapheart, explaining that her

position no longer existed and apologizing for any confusion. The City of Russellville

then reposted the position as a human resources position under the control of the City

Council. Leapheart did not apply for the new position. 

Leapheart filed a charge of discrimination with the EEOC and later filed suit

against each member of the City Council, both in their individual and official

capacities. At the district court, the Defendants moved for summary judgment on

various bases, including a claim of legislative immunity. The district court rejected

the claim of legislative immunity. The court stated:

The Council's decision to enact Ordinance No. 2073, abolishing the

Human Resources Department and director position, is a legislative act. 

However, at the March 7 meeting, the Council not only abolished the

Director of Human Resources position but also established a new human

resources position with substantially the same responsibilities. At a

special meeting on March 9, the Council elected to overrule the Mayor's

decision to hire [Leapheart] instead of moving her to a new position. 

The decision to terminate [Leapheart] rather than to assign her to a new

human resources position was not a legislative act because it targeted

-4-
[Leapheart] individually and did not "involve 'policy-making of a general

purpose.'" In re Montgomery Cnty., 215 F.3d 367, 376 (3d Cir. 2000)

(quoting Carver v. Foerster, 102 F.3d 96, 100 (3d Cir. 1996)).

The Defendants filed an interlocutory appeal of the district court's denial of summary

judgment. The Defendants appealed only the denial of legislative immunity. 

II. Discussion

"While the denial of a motion for summary judgment is generally unreviewable

as an impermissible interlocutory appeal, we have limited authority under the

collateral order doctrine to review the denial of a motion for summary judgment to the

extent the motion is based on the right to absolute . . . immunity . . . ." Hinshaw v.

Smith, 436 F.3d 997, 1002 (8th Cir. 2006). We review a district court's decision

regarding legislative immunity de novo. Redwood Vill. P'ship v. Graham, 26 F.3d

839, 840 (8th Cir. 1994). 

A. General Framework for Legislative Immunity

A local legislator is entitled to absolute legislative immunity for acts undertaken

within the "sphere of legitimate legislative activity." Bogan v. Scott-Harris, 523 U.S.

44, 54 (1998) (quoting Tenney v. Brandhove, 341 U.S. 367, 376 (1951)) (internal

quotation mark omitted). When determining whether an act is legislative, the

Supreme Court applies a functional test. Redwood Vill., 26 F.3d at 840 (citing

Harlow v. Fitzgerald, 457 U.S. 800, 810 (1982)). "Legislation . . . looks to the future

and changes existing conditions by making a new rule to be applied thereafter to all

or some part of those subject to its power." Prentis v. Atl. Coast Line Co., 211 U.S.

210, 226 (1908) (quoted in Brown v. Griesenauer, 970 F.2d 431, 437 (8th Cir. 1992)). 

For example, passing an ordinance is a legislative act. Bogan, 523 U.S. at 55.

-5-
Under this functional test, "[w]hether an act is legislative turns on the nature of

the act, rather than on the motive or intent of the official performing it." Id. at 54. A

legislator's potential or alleged motives are "wholly irrelevant to [the] determination

of whether [a legislator is] entitled to legislative immunity." State Emps. Bargaining

Agent Coal. v. Rowland, 494 F.3d 71, 90 (2d Cir. 2007) (citing Bogan, 523 U.S. at

55). The issue is "'whether, stripped of all considerations of intent and motive, [the

petitioner's] acts were legislative.'" Id. (alteration in original) (quoting Bogan, 523

U.S. at 55). 

B. Legislative Immunity and Employment Decisions

Our circuit has not considered when employment decisions may constitute

legislative action. However, many circuits distinguish "between actions that involve

the elimination of positions for policy reasons (legislative actions) and actions that

result in an individual's termination for reasons that relate to the individual

(administrative actions)." Bagley v. Blagojevich, 646 F.3d 378, 394 (7th Cir. 2011). 

First, the hiring and firing of specific individuals generally is not protected by

legislative immunity because it is an administrative action. In re Montgomery Cnty.,

215 F.3d 367, 376–77 (3d Cir. 2000) (citing Bogan, 523 U.S. at 55–56). For example,

in Montgomery County, local legislators voted to fire a County employee. Id. at 371. 

The County employee then filed a civil rights action, and the legislators claimed

legislative immunity. Id. The court held that the legislators' action was

administrative, and therefore not protected by legislative immunity, because the case

involved "a decision to eliminate a particular employee rather than the position that

employee happens to hold." Id. at 376. The court continued: "Firing a particular

employee is a personnel decision that does not involve general policymaking. 

Appellants' firing of [the County employee] did not reach beyond the particular

occupant of the office." Id. at 377.

-6-
In contrast, the wholesale elimination of a position is considered legislative

action protected by legislative immunity because it "may have prospective

implications that reach well beyond the particular occupant of the office." Bogan, 523

U.S. at 56. Most often, elimination-of-position cases involve situations where the

employing governmental body terminates many positions at once, typically through

budget-reduction legislation. See, e.g., Almonte v. City of Long Beach, 478 F.3d 100,

107 (2d Cir. 2007). However, an action can still be legislative even if the legislators

only eliminate one position. See Bogan, 523 U.S. at 55–56 (holding the elimination

of a department was legislative action even though the department consisted of one

employee and the legislators were targeting that one employee). 

We find Montgomery County is not applicable to Leapheart's case because

Montgomery County is a standard hire/fire case.4

 The Defendants did not fire

Leapheart, but eliminated her position.5

 Montgomery County is not applicable even

if the Defendants targeted Leapheart because "stripped of all considerations and

motives" the Defendants' action was not a firing.

C. Canary v. Osborn Discussion

Even though we conclude that Montgomery County does not control, this

conclusion does not end our analysis. Leapheart's case is not a typical elimination-of4

Although the Defendants did vote to override the Mayor's appointment of

Leapheart, this occurred on March 9, 2010, after the Defendants had voted to

eliminate Leapheart's position.

5

 Leapheart claims the Defendants did not eliminate her position. Instead, she

claims they "transferred the position." Leapheart does not dispute that the Defendants

passed Ordinance No. 2073 or the text of the Ordinance; she simply characterizes the

effect of Ordinance No. 2073 differently.

-7-
position situation because the Defendants not only eliminated her position, but also

instantaneously created a seemingly identical position. The Sixth Circuit addressed

facts similar to those at issue here in Canary v. Osborn, 211 F.3d 324 (6th Cir. 2000). 

In Canary, a former assistant principal sued the school board under 42 U.S.C. § 1983

for voting against renewal of his employment contract. Canary, 211 F.3d at 324. The

school board claimed that it was entitled to legislative immunity under Bogan because

it eliminated the assistant principal's position. Id. at 328. The court denied the school

board's claim for multiple reasons, but in part because the school board's actions "did

not have prospective implications that reached well beyond the particular occupant of

the office," as the job duties of the assistant principal were simply transferred to a new

position. Id. at 330–31. The court held that a "'job is not abolished under

circumstances where the appointing authority simply transfers that job's duties to a

new employee to perform.'" Id. at 331 (quoting In re Appeal of Woods, 455 N.E.2d

13, 15 (Ohio Ct. App. 1982)).

The Defendants in the present case are entitled to legislative immunity because

this case is distinguishable from Canary. Like Canary, the job duties appeared to stay

the same after the Defendants recreated the human resources position. However,

control over the position moved from the Mayor to the City Council, a quintessential

legislative decision. Therefore, in the present case, moving control over human

resources has "implications beyond the occupant of a particular office" that were

lacking in Canary. See also Bagley, 646 F.3d at 395–96 (declining to follow Canary

because the newly created position, although similar, had different job tasks than the

eliminated position at issue). 

-8-
III. Conclusion

For the foregoing reasons, we reverse and remand for proceedings consistent

with this opinion.

_____________________________

-9-