### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 1791

K ATHLEEN H AGAN

, et al.,

Plaintiffs

‐ Appellants

,

v.

P ATRICK J. Q UINN

, et al.,

Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 13

‐ 3357

— Sue E. Myerscough

, Judge

.

____________________

S UBMITTED F EBRUARY 2, 2016 *

— D ECIDED A UGUST 14, 2017

____________________

Before F LAUM

, M ANION

, and H AMILTON

, Circuit Judges

.

H AMILTON

, Circuit Judge

. Plaintiffs are former arbitrators

for the Illinois Workers’ Compensation Commission. In 2011,

plaintiffs and another arbitrator brought a due process action

* This appeal is successive to No. 14

‐ 2746 and has been submitted to

the original panel under Operating Procedure 6(b). We have agreed to de

‐

cide the case without oral argument because argument would not signifi

‐ cantly aid our decision

‐ making process. See Fed. R. App. P. 34(a)(2)(C).2 No. 15

‐ 1791

challenging the implementation of House Bill 1698, a workers’

compensation reform statute that had terminated their six

‐

year appointments under prior law. The district court granted

summary judgment for defendants, and we affirmed, con

‐ cluding that plaintiffs failed to demonstrate a clearly estab

‐

lished right that was violated by legislation ending their six

‐

year terms as arbitrators. Dibble v. Quinn

, 793 F.3d 803, 814 (7th

Cir. 2015) (the “Due Process Suit”). 1

In October 2011, while the Due Process Suit was pending,

the Illinois governor declined to reappoint plaintiffs, which

ended their employment. Two years later, plaintiffs filed this

action against the governor and two of his advisors in their

individual and official capacities. Plaintiffs alleged that the

defendants had retaliated against them for filing the prior suit

and that the retaliation violated the First Amendment to the

United States Constitution and Illinois state law. Plaintiffs

sought damages and an injunction providing either reinstate

‐

ment or comparable state employment.

The district court dismissed plaintiffs’ First Amendment

claims, holding that the Due Process Suit was not protected

speech under the Connick

– Pickering line of cases. See Connick

v. Myers

, 461 U.S. 138 (1983); Pickering v. Board of Education of

Township High School District 205

, 391 U.S. 563 (1968). The

1 Plaintiffs here did not participate in the appeal of the Due Process

Suit. Former arbitrator Peter Akemann (not a party here) pursued that ap

‐ peal pro se

, and we consolidated his action with an appeal in a related case

brought by former arbitrator John Dibble, No. 14

‐ 2328.No. 15

‐ 1791 3

court declined to exercise supplemental jurisdiction over

plaintiffs’ state

‐ law claims. 2

We affirm, but by a different path. We need not and do not

decide whether the Due Process Suit was speech on a matter

of public concern as is required for a government employee

to show retaliation in violation of the First Amendment. Plain

‐

tiffs’ claims fail for a more fundamental reason. Plaintiffs were

policymakers who could be terminated—or, more precisely,

not reappointed—for engaging in “speech on a matter of pub

‐

lic concern in a manner that is critical of superiors or their

stated policies.” Kiddy

‐ Brown v. Blagojevich

, 408 F.3d 346, 358

(7th Cir. 2005) (citations omitted). A logical outgrowth of the

Elrod

– Branti line of cases, see Elrod v. Burns

, 427 U.S. 347

(1976), and Branti v. Finkel

, 445 U.S. 507 (1980), this policy

‐

maker corollary to the standard Pickering analysis allows

2 The district court did not address plaintiffs’ demand for injunctive

relief. In Dibble

, however, we rejected as moot a similar claim for reinstate

‐

ment. By the time that case reached us, plaintiffs’ six

‐ year terms would

have expired even apart from House Bill 1698. 793 F.3d at 807. Likewise

here, even if Governor Quinn had renewed plaintiffs’ appointments in Oc

‐

tober 2011, those appointments would have expired years ago. Under the

Workers’ Compensation Act as amended, arbitrators are generally ap

‐ pointed to three

‐ year terms, with initial appointments having expired in

July of 2012, 2013, and 2014. See 820 Ill. Comp. Stat. 305/14.

In the best case scenario for plaintiffs, then, even if the governor had

renewed their appointments, those appointments would have expired

over three years ago. Because plaintiffs’ claim for injunctive relief is moot,

they have no claim against defendants in their official capacities, and we

need not substitute the current office holders for the named defendants

under Federal Rule of Civil Procedure 25(d). This action is now only

against the defendants in their individual capacities for damages.4 No. 15

‐ 1791

elected officials to replace high

‐ level and confidential em

‐ ployees not only when those employees merely belong to the

“wrong” political party or faction but also when they engage

in speech or other First Amendment activity that could un

‐

dermine the policy or political goals of the officials accused of

the retaliation. In this case, plaintiffs publicly challenged the

implementation of House Bill 1698 as unconstitutional. They

had a constitutional right to do so, but their exercise of that

right came with consequences for their positions in state gov

‐

ernment that the Constitution also permits. In filing their law

‐

suit, plaintiffs sought to undercut a key component of the ad

‐

ministration’s workers’ compensation reform initiative. That

was reason enough for the governor to choose not to reap

‐ point them as arbitrators. Given their positions in govern

‐

ment, the First Amendment offers them no redress for the

governor’s choice.

I. Factual and Procedural Background

We review de novo the district court’s dismissal of plain

‐

tiffs’ First Amendment claims, accepting as true plaintiffs’

well

‐ pled factual allegations and drawing reasonable infer

‐

ences in their favor. E.g., Simpson v. Brown County

, 860 F.3d

1001, 1005 (7th Cir. 2017); Jakupovic v. Curran

, 850 F.3d 898, 901

(7th Cir. 2017). We review for abuse of discretion the district

court’s decision under 28 U.S.C. § 1367(c)(3) not to exercise

supplemental jurisdiction over plaintiffs’ state

‐ law claims.

Burritt v. Ditlefsen

, 807 F.3d 239, 252 (7th Cir. 2015).

A. The Due Process Suit

Plaintiffs were employed as arbitrators with the Illinois

Workers’ Compensation Commission from 1989 (plaintiffs

Kathleen Hagan and Gilberto Galicia), 1990 (plaintiff JosephNo. 15

‐ 1791 5

Prieto), and 2003 (plaintiff Richard Peterson), until October

14, 2011. Plaintiffs allege that during the spring and early

summer of 2011, articles published by Illinois media outlets

drew public attention to problems with the state workers’

compensation scheme. The legislature responded to these

concerns. On June 28, 2011, then–Governor Quinn signed

House Bill 1698 (as enacted, Public Act 97–18), amending the

Workers’ Compensation Act. See 820 Ill. Comp. Stat. 305/1 et

seq.

A press release issued by the governor’s office (and ap

‐ pended as an exhibit to plaintiffs’ complaint) highlighted

some of the key changes in the law. These included a substan

‐

tial reduction in the medical fee schedule, implementation of

new provider networks, enhanced enforcement mechanisms,

and an electronic billing system. Most relevant here, the new

legislation also changed the appointment scheme for arbitra

‐

tors who decide employer/employee disputes. Notwithstand

‐ ing prior law that established six

‐ year terms for arbitrators

and protected them from early discharge except for cause, the

amended Act terminated all appointments effective July 1,

2011, but with the proviso that incumbents would “continue

to exercise all of their duties until they are reappointed or

their successors are appointed.” 820 Ill. Comp. Stat. 305/14.

Going forward, appointments were to be made by the gover

‐

nor with the advice and consent of the state senate. Initial ap

‐ pointments would last for one, two, or three years to set up

classes of arbitrators with staggered terms. Thereafter, arbi

‐

trators would be appointed to three

‐ year terms.

Unhappy with some of these changes—including the ab

‐

rupt dissolution of their six

‐ year terms—plaintiffs here and6 No. 15

‐ 1791

fellow arbitrator Peter Akemann sued the governor and mem

‐

bers of the Workers’ Compensation Commission. In their Due

Process Suit, plaintiffs alleged principally that the amended

law unconstitutionally deprived them of their property inter

‐

est in their employment. Plaintiffs sought damages, a decla

‐

ration that House Bill 1698 was unconstitutional as applied to

them, and an injunction prohibiting defendants from remov

‐ ing them from office or “taking any other action in retaliation

for the Plaintiffs’ protection of their civil rights.”

The district court granted summary judgment for defend

‐

ants, rejecting plaintiffs’ due process claim on its merits. Ha

‐

gan v. Quinn

, No. 11

‐ CV

‐ 3213, 2014 WL 3052631, at *3 (C.D. Ill.

July 7, 2014). We affirmed on alternative grounds, holding

that plaintiffs “failed to demonstrate a clearly established

right that was violated by legislation ending their six

‐ year

terms as arbitrators” and that defendants were thus entitled

to qualified immunity. Dibble

, 793 F.3d at 814.

B. The Retaliation Suit

On October 14, 2011, after plaintiffs filed the Due Process

Suit but long before that case was decided, Governor Quinn

decided which arbitrators would continue with their employ

‐

ment and which would be terminated. Plaintiffs were among

those who were not reappointed. Two years later, plaintiffs

filed this action alleging retaliation in violation of the First

Amendment and the Illinois State Officials and Employees

Ethics Act, 5 Ill. Comp. Stat. 430/1

‐ 1 et seq. Plaintiffs sued Gov

‐

ernor Quinn; his chief of staff, Jerome Stermer; and an advi

‐

sor, Velisha Haddox, in their individual and official capaci

‐

ties.No. 15

‐ 1791 7

In their retaliation complaint, plaintiffs allege that their

participation in the Due Process Suit was the “sole reason”

they were not reappointed as arbitrators. Though plaintiffs

concede that they each had a “personal motivation” in bring

‐ ing the Due Process Suit, they insist that “their justifications

for doing so were not limited to their personal interest.” Ra

‐

ther, they felt it was “important to, in a public forum, hash out

concerns

... regarding the workers’ compensation reforms

and to outline that the governor of the State of Illinois had vi

‐

olated the United States Constitution.” According to plain

‐

tiffs, their speech/petitioning was their way of participating in

a “significant public debate on an issue of importance to the

people of the State of Illinois.”

The district court disagreed. In granting defendants’ mo

‐

tion to dismiss, the court held that, as a “matter of law, Plain

‐

tiffs’ lawsuit to protect their jobs was not constitutionally pro

‐

tected speech.” Hagan v. Quinn

, 84 F. Supp. 3d 826, 827 (C.D.

Ill. 2015). Applying the Connick

– Pickering framework for as

‐ sessing First Amendment claims by government employees,

the district court concluded that the Due Process Suit was not

speech on a matter of public concern. Citing the admonition

in Connick that courts must take account of the “content, form,

and context” of an employee’s speech, 461 U.S. at 147–48, the

district court reasoned that the Due Process Suit “cannot

fairly be said to be about worker’s compensation reform from

a public view standpoint” but was instead a “purely per

‐

sonal” attempt by plaintiffs to “protect their jobs and reputa

‐

tions.” Hagan

, 84 F. Supp. 3d at 831–32. The court held in the

alternative that defendants were entitled to qualified immun

‐ ity. Id. at 832–33.8 No. 15

‐ 1791

The district court dismissed plaintiffs’ First Amendment

claims with prejudice. The court dismissed their state Ethics

Act claims without prejudice, declining to exercise supple

‐

mental jurisdiction over those state

‐ law claims. Id. at 833.

Plaintiffs have appealed both dismissals. 3

II. Analysis

A. First Amendment Retaliation Doctrine

Employees do not give up all First Amendment rights

when they accept government employment. See Lalowski v.

City of Des Plaines

, 789 F.3d 784, 790 (7th Cir. 2015). Rather, the

First Amendment “protects a public employee’s right, in cer

‐

tain circumstances, to speak as a citizen about matters of pub

‐

lic concern. Whether the First Amendment protects the

speech is a question of law that we review de novo.” Matrisci

‐

ano v. Randle

, 569 F.3d 723, 730 (7th Cir. 2009) (citations omit

‐ ted), abrogated in part on other grounds by Gross v. FBL Fi

‐

nancial Services, Inc.

, 557 U.S. 167 (2009).

To establish a First Amendment retaliation claim, a public

employee must show that “(1) she engaged in constitutionally

protected speech; (2) she suffered a deprivation because of her

3 Oddly, the judgment order entered by the clerk states that the case

was dismissed without prejudice. That was plainly a clerical error. While

the district judge declined to exercise supplemental jurisdiction over the

Ethics Act claims and thus dismissed that count without prejudice, she

held that the First Amendment count was dismissed “for failure to state a

federal claim.” Hagan

, 84 F. Supp. 3d at 833. She added that the “case is

closed,” and she directed the clerk to enter a judgment pursuant to Federal

Rule of Civil Procedure 58. Id. Perhaps the clerk simply misread the order

appended to the district judge’s opinion, but it is the district judge’s re

‐ sponsibility to ensure that the judgment accurately reflects the judge’s in

‐

tentions. In any event, our appellate jurisdiction is secure.No. 15

‐ 1791 9

employer’s action; and (3) her protected speech was a but

‐ for

cause of the employer’s action.” Diadenko v. Folino

, 741 F.3d

751, 755 (7th Cir. 2013); see also Kidwell v. Eisenhauer

, 679 F.3d

957, 965 (7th Cir. 2012) (“Initially, to establish a prima facie

case of retaliation, the plaintiff must produce evidence that

his speech was at least a motivating factor

... of the employer’s

decision to take retaliatory action against him. Then, the bur

‐

den shifts to the employer to rebut the causal inference raised

by the plaintiff’s evidence. If the employer fails to counter the

plaintiff’s evidence, then

... the plaintiff has established the

but

‐ for causation needed to succeed on his claim.”) (citations

omitted).

While the speech at issue in government employment

cases often involves controversial remarks by employees in

the workplace or directed to the media, the First Amendment

reaches many forms of expression. In Borough of Duryea v.

Guarnieri

, 564 U.S. 379, 383 (2011), a former police chief filed

a union grievance challenging his termination. An arbitrator

ordered the chief reinstated. The borough council then issued

a series of directives that the chief considered unfair (and that

the arbitrator later ordered the council to modify or rescind).

Id. at 383–84. The chief filed a federal § 1983 action claiming

that his union grievance was protected under the First

Amendment’s Petition Clause and that the directives were re

‐

taliation for that protected activity. After the chief filed his

suit, the borough council denied his request for overtime com

‐ pensation, and he amended his complaint to allege that the

§ 1983 suit was itself protected under the Petition Clause and

that the overtime denial was another instance of unconstitu

‐

tional retaliation. Id. at 384.10 No. 15

‐ 1791

In reviewing the chief’s First Amendment claims, the Su

‐

preme Court recognized that he “just as easily could have al

‐ leged that his employer retaliated against him for the speech

contained within his grievances and lawsuit.” Id. at 387. The

Court held that the ordinary framework for assessing retalia

‐

tion claims applies with equal force when the speech at issue

is conveyed through a lawsuit or other petition. Id. at 398; see

Gibson v. Kilpatrick

, 838 F.3d 476, 481 (5th Cir. 2016) (retaliation

claims brought by government employees under the Speech

Clause and the Petition Clause are “analyzed in the same

way”).

It makes good sense to take the same approach to retalia

‐

tion claims arising under the Speech and Petition Clauses.

“Petitions, no less than speech, can interfere with the efficient

and effective operation of government.” Borough of Duryea

,

564 U.S. at 389. Yet petitions such as lawsuits are important

mechanisms for citizens (including government employees)

to make their voices heard and to seek to hold public officials

accountable. See id. at 395–97 (tracing the history of the right

to petition from the Magna Carta through the founding era

and the modern civil rights movement). 4

4 In an analogous context of First Amendment retaliation claims by

prisoners, we apply the same test whether the expressive activity is in the

nature of a petition or some other form of speech. E.g., Bridges v. Gilbert

,

557 F.3d 541, 551–52 (7th Cir. 2009) (inmate stated First Amendment claim

for retaliation in response to his submission of an affidavit in a separate

suit filed by fellow inmate’s mother); Pearson v. Welborn

, 471 F.3d 732, 741

(7th Cir. 2006) (inmate may state valid First Amendment claim for retalia

‐

tion in response to grievance regardless whether inmate reduced his com

‐ plaints “to writing on an official grievance form” or expressed them

orally). In the prison context, “we examine whether the prisoner engaged

in speech in a manner consistent with legitimate penological interests,”No. 15

‐ 1791 11

As this discussion shows, for purposes of assessing these

plaintiffs’ First Amendment retaliation claims, it makes no

difference that plaintiffs’ expressive activity took the form of

a complaint in federal court rather than a conversation in the

workplace, a press conference, a Facebook post, or a tweet on

Twitter. Plaintiffs can prevail if, but only if, they can demon

‐

strate that the Due Process Suit was protected speech/peti

‐ tioning activity and that defendants took an adverse action

against them because of that protected activity. As we explain

below, plaintiffs cannot carry their burden.

B

. The Policymaker Corollary to the Pickering Analysis

In evaluating plaintiffs’ retaliation claims, the district court

focused on the first element of the claims, i.e., whether the

Due Process Suit was constitutionally protected speech on a

matter of public concern. We also consider whether plaintiffs’

speech/petition was constitutionally protected, but our ap

‐ proach differs from the district court’s. Because we conclude

that plaintiffs were “policymakers” and that the governor

could lawfully decline to reappoint them for speaking out

against his administration’s workers’ compensation reform

though we do not require the prisoner to show that he spoke on a matter

of public concern (even if the prisoner was employed by the prison, as

many inmates are), and in that respect prisoner claims are analyzed some

‐

what differently than public

‐ employee claims. See Watkins v. Kasper

, 599

F.3d 791, 795 (7th Cir. 2010). Compare Herron v. Meyer

, 820 F.3d 860, 864

(7th Cir. 2016) (observing that “decisions in the prison

‐ grievance line do

not explain why the First Amendment offers greater protection to prison

‐

ers than to public employees”), with Ogurek v. Gabor

, 827 F.3d 567, 569 (7th

Cir. 2016) (citing Watkins

, 599 F.3d at 795, for proposition that “the dynam

‐

ics of the government’s relationships with prisoner

‐ employees and with

public employees are too dissimilar to transfer the public concern test to

the prison context”).12 No. 15

‐ 1791

initiative, we need not and do not decide whether the Due

Process Suit was speech on a matter of public concern.

In Elrod v. Burns and Branti v. Finkel

, the Supreme Court

prohibited government employers from dismissing most

public employees on the basis of partisan affiliation, holding

that the age

‐ old practice of patronage firings violated the First

Amendment. At the same time, the Court recognized an ex

‐ ception for employees who occupy policymaking or confiden

‐

tial positions. Elected officials may require political loyalty

from such employees so that representative government is not

“undercut by tactics obstructing the implementation of poli

‐

cies

... presumably sanctioned by the electorate.” Elrod

, 427

U.S. at 367 (plurality opinion); see also Branti

, 445 U.S. at 517

(“[I]f an employee’s private political beliefs would interfere

with the discharge of his public duties, his First Amendment

rights may be required to yield to the State’s vital interest in

maintaining governmental effectiveness and efficiency.”); cf.

Rutan v. Republican Party of Illinois

, 497 U.S. 62, 75 (1990) (ex

‐ tending Elrod and Branti to hold that “promotions, transfers,

and recalls after layoffs based on political affiliation or sup

‐

port are an impermissible infringement on the First Amend

‐

ment rights of public employees”).

While acknowledging that “[n]o clear line can be drawn

between policymaking and nonpolicymaking positions,” the

plurality in Elrod emphasized that the “nature of the respon

‐

sibilities is critical,” and that an employee whose responsibil

‐

ities are broad in scope, who acts as an adviser, and/or who

“formulates plans for the implementation of broad goals”

likely occupies a policymaking role. 427 U.S. at 367–68 (plu

‐ rality opinion). In Branti

, the Court said again that it is “not

always easy to determine whether a position is one in whichNo. 15

‐ 1791 13

political affiliation is a legitimate factor to be considered.” 445

U.S. at 518. The Court reasoned that under some circum

‐

stances, a job “may be appropriately considered political even

though it is neither confidential nor policymaking in charac

‐

ter” (e.g., an election judge hired pursuant to a state law re

‐ quiring one Republican and one Democrat to monitor each

precinct). Id. Conversely, “party affiliation is not necessarily

relevant to every policymaking or confidential position” (e.g.,

a university football coach). Id. The ultimate inquiry, the

Court concluded, is “whether the hiring authority can

demonstrate that party affiliation is an appropriate require

‐

ment for the effective performance of the public office in

‐

volved.” Id. The policymaker label is thus shorthand for a

broad category of public employees whose work is politically

sensitive and who exercise significant discretion in the perfor

‐

mance of their duties.

Despite the unusual cases contemplated in Branti and the

Supreme Court’s emphasis on a functional rather than a defi

‐

nitional approach to assessing patronage dismissals, this

court has “recognized that the terms ‘[p]olicymaking’ and

‘confidential’ do accurately describe the vast majority of of

‐

fices that fall within the realm of legitimate patronage under

the Branti formulation.” Kiddy

‐ Brown

, 408 F.3d at 355 (altera

‐

tions in original; internal quotation marks omitted), quoting

Meeks v. Grimes

, 779 F.2d 417, 420 (7th Cir. 1985); accord, Davis

v. Ockomon

, 668 F.3d 473, 477 (7th Cir. 2012); Matlock v. Barnes

,

932 F.2d 658, 662 (7th Cir. 1991).

We have held that the “test for whether a position involves

policymaking is ‘whether the position authorizes, either di

‐ rectly or indirectly, meaningful input into government deci

‐14 No. 15

‐ 1791

sionmaking on issues where there is room for principled dis

‐

agreement on goals or their implementation.’” Kiddy

‐ Brown

,

408 F.3d at 355, quoting Nekolny v. Painter

, 653 F.2d 1164, 1170

(7th Cir. 1981). To make this determination, we consider the

“powers inherent in a given office, as opposed to the functions

performed by a particular occupant of that office.” Id.

, quot

‐ ing Tomczak v. City of Chicago

, 765 F.2d 633, 640 (7th Cir. 1985);

see also Embry v. City of Calumet City

, 701 F.3d 231, 236 (7th

Cir. 2012) (“We examine the powers inherent in the office

...

even if the employee never actually exercises those powers.”).

“We further ask whether the position entails the exercise

of a substantial amount of political (as distinct from profes

‐ sional) discretion.” Powers v. Richards

, 549 F.3d 505, 510 (7th

Cir. 2008). This inquiry is not always straightforward. See Ri

‐ ley v. Blagojevich

, 425 F.3d 357, 360 (7th Cir. 2005) (“In general

... employees whose discretion is channeled by professional

rather than political norms

... are not within the exception for

policymakers. But the line between professional and policy

judgment is often blurred; for example, is the physician who

runs a county hospital making a professional judgment or a

policy judgment if he decides to authorize the hospital’s phy

‐

sicians to assist suicides, prescribe ‘medical marijuana,’ or

perform abortions?”).

In this case, of course, we may not assume that the plaintiff

arbitrators were terminated because of their partisan affilia

‐

tion. Rather, plaintiffs allege that the “sole reason” for their

termination was their participation in the Due Process Suit,

i.e., their speech/petition. Taking that allegation as true, we

nonetheless conclude that the policymaker exception bars

plaintiffs from pursuing their First Amendment retaliation

claim.No. 15

‐ 1791 15

In Wilbur v. Mahan

, 3 F.3d 214, 215 (7th Cir. 1993), we con

‐

sidered the “intersection” between the Connick

– Pickering

cases that concern the rights of public officials to “discipline

an employee who speaks out on a matter of public signifi

‐

cance in a way displeasing to them” and the Elrod

– Branti cases

that concern the rights of such officials to “hire or fire an em

‐ ployee on the basis of his affiliation with a political party or

faction.”

Wilbur was a deputy sheriff, which is deemed a policy

‐ making position in Illinois. He suffered an adverse employ

‐

ment action not because of his political affiliation (he and the

sheriff were both Democrats) but because of his political

speech and activity. 3 F.3d at 215. After the sheriff decided to

run for re

‐ election, Wilbur announced his own candidacy. The

sheriff then amended office regulations to provide that any

employee who ran for sheriff could be placed on unpaid

leave. According to Wilbur, the sheriff’s actions not only

harmed him financially but crippled his campaign.

We recognized that, at “first blush the facts

... present[ed]

a blatant case of retaliation for the exercise of the right of free

speech,” id.

, but we concluded that the district court rightly

dismissed Wilbur’s First Amendment claim. Id

. at 217. Wil

‐

bur’s expressive conduct (campaigning against his boss)

brought him within the “scope of the concern that gave rise to

the exceptions in the patronage cases.” Id. The concern “is

with the effects on the operations of government of forcing a

public official to hire, or retain, in a confidential or policymak

‐ ing job, persons who are not his political friends.” Id. at 217–

18. It would be a strange rule, we reasoned, that “gave more

job protection to policymaking employees who vociferously

attack their superiors than to policymaking employees who16 No. 15

‐ 1791

do their best to serve

... but have the misfortune to belong to

the wrong party.” Id. at 219. In effect, the policymaker excep

‐

tion to the Elrod–Branti line of cases protects elected officials

from the risk that employees politically opposed to them

might undermine their policies. The policymaker corollary to

the Connick–Pickering line of cases allows those elected offi

‐

cials to respond to actual political attacks from those employ

‐

ees, at least as a matter of First Amendment law.

In Warzon v. Drew

, 60 F.3d 1234, 1235, 1237 (7th Cir. 1995),

we extended the reasoning of Wilbur to a case in which a

county controller, who was responsible for the “financial

management and administration” of the county healthcare

plan, was fired after speaking out publicly against the

county’s healthcare policy. Noting again that the goals under

‐ lying the Connick

– Pickering and Elrod

– Branti cases are “really

very closely linked,” we held that “if Warzon was a confiden

‐

tial or policymaking employee, her superiors could, con

‐

sistent with the First Amendment, fire her for advocating po

‐

sitions in conflict with their stated policies.” Id. at 1238–39.

Finding that Warzon’s pleadings were “replete with infor

‐

mation showing that she had significant input into and au

‐ thority over” the healthcare plan, we concluded that she was

a policymaker and affirmed dismissal of her First Amend

‐

ment claim. Id. at 1239–40.

Following Wilbur and Warzon

, we have recognized that “in

cases involving the dismissal of an employee in a policymak

‐ ing position, ‘there is no need for a fact

‐ specific analysis of the

circumstances of each case’ mandated by Pickering .” Kiddy

‐

Brown

, 408 F.3d at 358 (citation omitted). Instead, under the

“policy

‐ maker corollary to the Pickering analysis, the FirstNo. 15

‐ 1791 17

Amendment does not prohibit the discharge of a policy

‐ mak

‐ ing employee when that individual has engaged in speech on

a matter of public concern in a manner that is critical of supe

‐

riors or their stated policies.” Id. (citations and internal quota

‐

tion marks omitted). Accord, e.g., Embry

, 701 F.3d at 235

(“ Connick

– Pickering does not apply [where policymaker] iden

‐

tifies no statement of public concern unconnected to political

affiliation or policy views that led to his dismissal.”); Vargas

‐

Harrison v. Racine Unified School District

, 272 F.3d 964, 971 (7th

Cir. 2001) (“In essence, we have determined that, with respect

to [policymaking] employees, the Pickering analysis regularly

will result in a determination that ‘the government em

‐ ployer’s need for political allegiance from its policymaking

employee outweighs the employee’s freedom of expression to

such a degree that it obviates Pickering balancing.’”), quoting

Bonds v. Milwaukee County

, 207 F.3d 969, 977 (7th Cir. 2000); cf.

Matrisciano

, 569 F.3d at 731 (“We have not limited th[e] ‘pol

‐ icy

‐ maker corollary’ to instances where the plaintiff’s political

views led to the adverse action.”) (citations omitted).

C. Application

Plaintiffs’ First Amendment retaliation claims are barred

by the policymaker corollary to the Pickering analysis. In ap

‐ plying the policymaker corollary, we consider two criteria:

“First, the employee must have occupied a policy

‐ making po

‐

sition. If so, his speech must have been of the kind that falls

within the scope of the corollary.” Matrisciano

, 569 F.3d at 731

(citations omitted). Plaintiffs’ complaint shows that both cri

‐

teria are satisfied here.

First, the plaintiffs were policymakers for First Amend

‐

ment purposes. As noted above, the test for determining18 No. 15

‐ 1791

whether a position involves policymaking is “whether the po

‐

sition authorizes

... meaningful input into government deci

‐ sionmaking on issues where there is room for principled dis

‐

agreement on goals or their implementation.” Kiddy

‐ Brown

,

408 F.3d at 355 (citation omitted); see also Allen v. Martin

, 460

F.3d 939, 944 (7th Cir. 2006) (finding informative the “degree

of discretion and responsibility exercised in the position”).

The test is flexible, and we have recognized a variety of

roles, not all at the highest levels of management hierarchies

or at the center of the political limelight, that qualify as poli

‐ cymaking positions or otherwise fall within the scope of the

Elrod

– Branti patronage exception. E.g., Embry

, 701 F.3d at 236

(city commissioner of streets and alleys); Davis

, 668 F.3d at 480

(senior humane officer for city board of public safety); Allen

,

460 F.3d at 945–46 (accounting bureau chief for state transpor

‐

tation department); Vargas

‐ Harrison

, 272 F.3d at 973 (elemen

‐

tary school principal); Bonds

, 207 F.3d at 977 (senior fiscal an

‐ alyst for city block grant committee); Selch v. Letts

, 5 F.3d 1040,

1047 (7th Cir. 1993) (subdistrict superintendent for state high

‐

way department); Heck v. City of Freeport

, 985 F.2d 305, 310 (7th

Cir. 1993) (general inspector for local health department); Up

‐

ton v. Thompson

, 930 F.2d 1209, 1218 (7th Cir. 1991) (deputy

sheriff); Bicanic v. McDermott

, 867 F.2d 391, 395 (7th Cir. 1989)

(administrator of city parks and recreation); Livas v. Petka

, 711

F.2d 798, 801 (7th Cir. 1983) (assistant state’s attorney).

At the Rule 12(b)(6) stage, we do not have materials such

as an employment manual or a detailed job description listing

the tasks plaintiffs were required to perform while employed

as arbitrators. However, we do have the statutes establishing

and governing these positions, and where a statute estab

‐No. 15

‐ 1791 19

lishes a position, the statute is likely to provide the best foun

‐

dation for classifying it for these First Amendment purposes.

See Davis

, 668 F.3d at 478 (“The starting point of our inquiry

should be the ordinances, and not the job description, because

‘[u]nlike job descriptions, which may bear little resemblance

to a position’s actual duties, the ordinance’s terms are not

open to contest.’”) (alteration in original) (citation omitted);

Vargas

‐ Harrison

, 272 F.3d at 972 (“[W]hen the duties and re

‐ sponsibilities of a particular position are clearly defined by

law and regulations, a court may resolve this [policymaker]

issue without the aid of a finder of fact.”); Pleva v. Norquist

,

195 F.3d 905, 912 (7th Cir. 1999) (“Because [plaintiff’s] position

... was clearly defined by state statute and city ordinance

... the district court’s determination as a matter of law of the pol

‐ icymaking status of [plaintiff’s] position was proper

... .”).

The statutes here confirm that plaintiffs were policymak

‐

ers. Under both the current version of the Workers’ Compen

‐

sation Act and the version in effect when Governor Quinn de

‐

clined to reappoint the plaintiffs, arbitrators are selected by

the governor with the advice and consent of the state senate.

820 Ill. Comp. Stat. 305/14. Newly appointed arbitrators are

subject to an extensive professional training program cover

‐ ing substantive and procedural aspects of their position, and

all arbitrators are required to complete twenty hours of train

‐ ing every two years. Id.

Arbitrators are required to “dispose of all Workers’ Com

‐ pensation matters promptly, officially and fairly, without bias

or prejudice,” and to “be faithful to the law and maintain pro

‐

fessional competence in it.” 820 Ill. Comp. Stat. 305/1.1(a). Ar

‐

bitrators are empowered to make findings of fact “based on

inquiries, investigations, examinations, or inspections” and to20 No. 15

‐ 1791

enter those findings into the record of the proceeding.

305/1.1(e). Arbitrators may be assigned to serve as acting

members of the Workers’ Compensation Commission when

‐

ever a duly appointed commissioner is unavailable. 305/14. In

that substitute capacity, arbitrators serve alongside other com

‐

missioners in administering the Act, promulgating proce

‐

dural rules, and hearing cases en banc. 820 Ill. Comp. Stat.

305/13. Arbitrators also may be elected by a vote of their fel

‐

low arbitrators to serve on the Commission Review Board, an

advisory body designated to review complaints brought

against commissioners and arbitrators. 820 Ill. Comp. Stat.

305/14.1. In “matters of serious concern to the State,” the re

‐

view board may “recommend that the Governor: 1) dismiss

any Arbitrator who is found unfit to serve; or 2) not reappoint

a Commissioner who it finds unfit to serve.” Id. 5

Illinois workers’ compensation arbitrators are not and

never have been ministerial employees. They exercise sub

‐

stantial discretion in adjudicating employer/employee dis

‐

putes and may participate in rulemaking to the extent they

serve on the Workers’ Compensation Commission. As adjudi

‐

cators, they are also gatekeepers. While the Illinois legislature

enacted the state’s workers’ compensation scheme, as a prac

‐

tical matter it is the arbitrators who resolve conflicts over

which employees should and should not benefit from this im

‐

portant state program. Over time, the decisions of the arbitra

‐

tors, which are appealable to the Workers’ Compensation

5 Many of these statutory provisions were in effect even prior to en

‐

actment of House Bill 1698.No. 15

‐ 1791 21

Commission and ultimately to the state courts, shape the di

‐

rection of Illinois policy as it relates to workers’ and employ

‐

ers’ rights.

Treating these plaintiffs as policymakers is consistent with

a series of our decisions recognizing that judges and hearing

officers typically occupy policymaking roles for First Amend

‐

ment purposes. Compare Kurowski v. Krajewski

, 848 F.2d 767,

770 (7th Cir. 1988) (“A judge both makes and implements gov

‐

ernmental policy.

... Holders of the appointing authority may

seek to ensure that judges agree with them on important ju

‐ risprudential questions.”), with Walsh v. Heilmann

, 472 F.3d

504, 505 (7th Cir. 2006) (“Neither the judge nor the hearing

officer operates in a zone where decisions are mechanical.

That’s why we held in Kurowski

... that politics is a permissible

consideration for judicial positions (even those held for just a

short time); the same is true of hearing officers who possess

discretion over which laws receive how much enforcement.”);

see also Thompson v. Illinois Dep’t of Professional Regulation

, 300

F.3d 750, 757 (7th Cir. 2002) (chief administrative law judge in

state department of professional regulation was policy

‐ maker); Pleva

, 195 F.3d at 913 (member of city board of zoning

appeals was policymaker).

As gubernatorial appointees, the arbitrators are the face of

the administration in the workers’ compensation arena. As

the governor’s 2011 press release emphasized, enhanced re

‐ quirements for arbitrator performance and accountability

were among the key changes implemented by House Bill

1698. The restructuring of the arbitrator corps was a central

feature of the reform initiative. In the spirit of the exception to

the Elrod and Branti principles, the governor is entitled to ap

‐22 No. 15

‐ 1791

point and retain only those arbitrators in whom he has confi

‐

dence and who he believes will faithfully carry out their offi

‐

cial mission.

Turning to the second criterion of the policymaker corol

‐ lary, we conclude that plaintiffs’ speech/petitioning activity

(through the Due Process Suit) fits comfortably within the

scope of the corollary. In their underlying due process com

‐ plaint, plaintiffs accused the governor of “an arbitrary and ca

‐ pricious act allowing him to take the protected property

rights of plaintiffs without due process.” They sought to en

‐ join the governor and other state defendants from removing

them from office or appointing any other person to fill their

remaining terms, and they asked the court to declare the re

‐

form legislation unconstitutional as applied to them. Plaintiffs

also sought substantial damages.

In their retaliation complaint, plaintiffs confirmed that

their goal had been to “hash out concerns that they had re

‐ garding the workers’ compensation reforms and to outline

that the governor of the State of Illinois had violated the

United States Constitution.” Building on that theme in their

appellate brief, plaintiffs argue that the “underlying lawsuit

... had it been successful, would have had the practical impact

of protecting not only the plaintiffs but also

... all of the arbi

‐

trators in the state.” Plaintiffs, in other words, “engaged in

speech

... in a manner that is critical of superiors or their

stated policies,” Kiddy

‐ Brown

, 408 F.3d at 358 (citations omit

‐ ted), exactly the type of speech to which the policymaker cor

‐ ollary applies.

This case is strikingly similar to Warzon v. Drew

. In finding

that the county controller in that case could be fired for speak

‐ ing out against healthcare policy, we reasoned that “[n]o oneNo. 15

‐ 1791 23

could argue

... that the seriousness of and the appropriate

remedy for [a] perceived crisis in government

‐ provided med

‐

ical care are not political issues.” 60 F.3d at 1239; see also Var

‐

gas

‐ Harrison

, 272 F.3d at 974 (school district could punish prin

‐ cipal for speaking out against grant proposal where her stance

“placed her in square opposition to the stated goals and poli

‐

cies of her superiors”).

Likewise, workers’ compensation reform, which plaintiffs

themselves have characterized as a “significant issue of public

concern” and “the upper echelon of matters of public policy,”

is inherently political and intertwined with plaintiffs’ duties

as arbitrators. Through their lawsuit, plaintiffs aimed to un

‐

dercut the governor’s policy. They wanted it declared uncon

‐

stitutional. A lawsuit, at least as much as public criticism or

statements to the media, could unravel a policy agenda. See

Borough of Duryea

, 564 U.S. at 389–90 (“Petitions, no less than

speech, can interfere with the efficient and effective operation

of government.

... When a petition takes the form of a lawsuit

against the government employer, it may be particularly dis

‐ ruptive.”). Assuming, as plaintiffs have alleged, that Gover

‐

nor Quinn chose not to reappoint them because of the Due

Process Suit, he acted within constitutional bounds in making

that choice. 6

6 In their brief in opposition to the defendants’ motion to dismiss (but

not in their appellate brief), plaintiffs urged that if the district court should

“conclude that the complaint is factually lacking,” the court should afford

them an “opportunity to file an amended complaint.” However, plaintiffs

offered no explanation as to any revisions they might include in such an

amended complaint, nor did they submit a proposed amended complaint

or file a motion for leave to amend. While we “ordinarily hesitate before

affirming a final judgment of dismissal when the plaintiff seeks leave to

amend,” in this case, any amendment with respect to plaintiffs’ federal24 No. 15

‐ 1791

D. State

‐ Law Claims

We close with a brief word on plaintiffs’ claims under the

state Ethics Act. The district court declined to exercise supple

‐

mental jurisdiction over these claims, as is expressly permit

‐

ted under 28 U.S.C. § 1367(c) (“The district courts may decline

to exercise supplemental jurisdiction over a claim

... if

... (3)

the district court has dismissed all claims over which it has

original jurisdiction[.]”).

The usual practice in this circuit is for district courts to

“dismiss without prejudice state supplemental claims when

‐

ever all federal claims have been dismissed prior to trial.”

Groce v. Eli Lilly & Co.

, 193 F.3d 496, 501 (7th Cir. 1999); see also

Al’s Service Center v. BP Products North America, Inc.

, 599 F.3d

720, 727 (7th Cir. 2010) (“When all federal claims in a suit in

federal court are dismissed before trial, the presumption is

that the court will relinquish federal jurisdiction over any

supplemental state

‐ law claims, which the plaintiff can then

prosecute in state court.”) (citations omitted).

Plaintiffs offer no argument in their appellate brief to jus

‐ tify a departure from this usual course, and they certainly do

not show that the district court abused its discretion. On the

contrary, the court might well have abused its discretion if it

had retained jurisdiction over a strictly state

‐ law claim in an

area where important state policy goals may conflict. Whether

a lawsuit like the Due Process Suit, filed by state policymak

‐

claim would be futile. See Doermer v. Callen

, 847 F.3d 522, 528 (7th Cir.

2017); see also Foman v. Davis

, 371 U.S. 178, 182 (1962) (despite liberal

pleading standard of Federal Rule of Civil Procedure 15(a), courts may

deny leave to amend where amendment would be futile).No. 15

‐ 1791 25

ers, should qualify as protected activity under the Illinois Eth

‐

ics Act, and whether these policymakers should be entitled to

recover for their allegedly retaliatory discharge, are questions

better left for Illinois courts to resolve. See § 1367(c)(1)

(providing that district courts may decline to exercise supple

‐

mental jurisdiction over a claim that raises a “novel or com

‐ plex issue of State law”).

The judgment of dismissal is AFFIRMED.