                  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 nondepartment-
head 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.

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      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

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      [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-of-

      4
       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.
                        _____________________________




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