Daniel Medici, et al v. City of Chicago

Filing

Filed opinion of the court by Judge Posner. The case is REMANDED to the district court with instructions to vacate its judgment as moot. Richard A. Posner, Circuit Judge; Kenneth F. Ripple, Circuit Judge and Diane S. Sykes, Circuit Judge. [6840156-1] [6840156] [15-3610]

Case: 15-3610

Document: 46

Filed: 05/10/2017

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3610
DANIEL MEDICI, DENNIS LEET, and JOHN KUKIELKA, on behalf
of themselves and all others similarly situated,
Plaintiffs [Medici and Kukielka are also Appellants],
v.
CITY OF CHICAGO,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 5891 — Charles P. Kocoras, Judge.

____________________
ARGUED APRIL 7, 2017 — DECIDED MAY 10, 2017
____________________
Before POSNER, RIPPLE, and SYKES, Circuit Judges.
POSNER, Circuit Judge. On July 2, 2015, the three plaintiffs
filed this suit against the City of Chicago. Eventually they
lost in the district court and two of them—Medici and
Kukielka—have appealed.
The plaintiffs are military veterans currently employed as
Chicago police officers. All three have tattoos relating to

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their military service and to their religion. Medici’s is a tattoo of a pair of wings with a halo, a symbol he displays to
honor members of the U.S. military services killed in combat.
Leet’s and Kukielka’s tattoos depict St. Michael, the archangel who is the patron saint of warriors, including (in modern
times) police officers, paramedics, and firefighters.
The plaintiffs’ suit had been precipitated by an order issued by the Chicago Police Department on June 8, 2015
(slightly more than a month before the suit was filed), with
no prior notice to, or discussion with, the plaintiffs or other
tattooed police officers. The order required all police officers
on duty or otherwise “representing” the police department
(it’s not clear what is meant by “representing”) to cover all
their tattoos, either with clothing, or on parts of the body not
covered by clothing with either a bandage or what is called
“cover-up tape.” The order was not limited to offensive tattoos, such as those conveying a racist or sexist message; all
visible tattoos were outlawed. The announced reason for the
order was to “promote uniformity and professionalism.”
The plaintiffs complain that covering their tattoos with
clothing causes overheating in warm weather and that cover-up tape irritates their skin. But these complaints are not
the basis of the suit. Rather the basis is a claim that the police
department’s order violates the plaintiffs’ right to free
speech, which in the context of public employment means
their right as citizens to communicate to the public their
views on matters of public interest or concern, Pickering v.
Board of Education of Township High School District 205, 391
U.S. 563 (1968), such as the heroism and suffering of members of the armed services. The complaint sought both a declaratory judgment that the order violates the plaintiffs’ First

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Amendment rights, and attorneys’ fees and costs, plus “such
other legal and/or equitable relief as [the court] may deem
proper.” The complaint also asked that the suit be converted
to a class action on behalf of all Chicago police officers affected by and opposed to the department’s order.
Without reaching the issue of class certification and before any discovery, the district court dismissed the suit on
the merits, basically on two grounds: that the wearing of the
tattoos was a “personal expression” rather than an effort at
communicating with the public on matters of public concern,
and hence was not protected by the First Amendment, and
that the challenged order would promote uniformity and
professionalism and thus was a good thing—so good as not
to be outweighed by the plaintiffs’ interest in communicating with the public by means of their tattoos.
Complicating the controversy—and in fact as we’ll see
rendering the lawsuit moot—the police union filed a grievance against the City claiming that the tattoo order violated
the union’s collective bargaining agreement with the City,
which had issued the order without bargaining over the issue with the union as it should have done because the order
affected the police officers’ working conditions. The grievance was referred to arbitration and the arbitrator ruled that
the tattoo order violated the collective bargaining agreement
because of the absence of any bargaining over the order, and
the City would therefore have to revoke the order and compensate the officers for any costs incurred by them in complying with it. The City folded—and having done so moved
our court to dismiss the plaintiffs’ appeal as moot on the
ground that as a result of the arbitration the plaintiffs had
obtained the relief they had sought.

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Aside from seeking a declaratory judgment that would
require the City to revoke its order, the plaintiffs’ complaint
had sought attorneys’ fees, costs, and disbursements—but
also “such other legal and/or equitable relief as [the court]
may deem proper,” an umbrella term that could include
damages, although damages were not mentioned specifically. After the arbitration the City agreed to reimburse its police officers for money they had spent to comply with the
now-invalidated policy, so any direct financial loss the plaintiffs suffered has presumably been remedied. And remember
that they had never asked the district court to award damages, and as a result there’s no mention of damages in that
court’s opinion. Although “Rule 54(c) of the civil rules entitles a prevailing plaintiff to the relief proper to his claim
even if he did not request that relief, … there is … an exception … for cases in which a damages claim is added at the
last minute in a desperate effort to stave off the dismissal of
the case as moot.” Chicago United Industries, Ltd. v. City of
Chicago, 445 F.3d 940, 948 (7th Cir. 2006); Arizonans for Official
English v. Arizona, 520 U.S. 43, 71 (1997). That’s this case.
So what should be done with the district judge’s grant of
judgment in favor of the City? The answer is “vacatur [that
is, erasing a judgment so that its legal effect is as if it had
never been written, vacatur being Latin for “it is made void”]
is in order when mootness occurs through … the ‘unilateral
action of the party who prevailed in the lower court.’” Arizonans for Official English v. Arizona, supra, 520 U.S. at 71–72,
citing U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership,
513 U.S. 18, 23 (1994). That’s this case, the unilateral action of
the City, which remember prevailed in the district court,
having been its decision not to appeal the arbitration award
obtained by the plaintiffs. Vacating a judgment when the

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appeal from it is moot (moot here because the plaintiffs prevailed as a result of the arbitration) saves the losers below
(the plaintiffs, on the First Amendment issue in their complaint) from having a binding judgment against them on an
issue they can no longer appeal because of mootness. The
City, which would prefer to retain its favorable ruling on the
law books, protests that the mootness came about through
the plaintiffs’ act of filing the grievance, and was therefore
not their own unilateral act, but it was the City that elected
not to appeal the arbitration award.
The case is remanded to the district court with instructions to vacate its judgment as moot.