Andrew Mitchell v. City of Cincinnati ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0389n.06
No. 21-4061
UNITED STATES COURT OF APPEALS
FILED
Sep 29, 2022
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
)
ANDREW MITCHELL; DAVID SCHOFIELD,
)
Plaintiffs-Appellants, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
CITY OF CINCINNATI; AFTAB PUREVAL, ) THE SOUTHERN DISTRICT OF
) OHIO
Defendants-Appellees,
)
) OPINION
BRIAN NORRIS,
)
Intervenor-Appellee. )
Before: GIBBONS, ROGERS, and MURPHY, Circuit Judges.
ROGERS, J., delivered the opinion of the court in which GIBBONS, J., joined. MURPHY,
J. (pp. 9–16), delivered a separate opinion concurring in the judgment.
ROGERS, Circuit Judge. Plaintiffs Andrew Mitchell and David Schofield, two white men,
filed suit against the City of Cincinnati and Mayor John Cranley under 42 U.S.C. § 1983, arguing
that the pro-diversity promotion policies of the police department violate the Fourteenth
Amendment’s Equal Protection Clause. The plaintiffs challenge the “rule of four,” which creates
a new captain position for a Black or female applicant if the previous four officers promoted to
captain did not include any Black or female officers. Plaintiffs sought to enjoin the promotion of
a Black candidate to such a new position even though such an injunction might never result in the
promotion of either plaintiff. The district court properly denied the plaintiffs’ motion for a
preliminary injunction due to the plaintiffs’ failure to demonstrate imminent harm.
No. 21-4061, Mitchell, et al. v. City of Cincinnati, et al.
The City of Cincinnati has a ranking system that determines when lieutenants in the police
department are promoted to the rank of captain. There are typically fifteen captains, and when the
“complement” of captains drops below fifteen due to a retirement or other departure, the city must
hold a promotional exam. The lieutenants who sat for the promotional exam are then ranked on a
list based on a combination of their exam grade and seniority points. When a captain vacancy
occurs, the top-ranked lieutenant on the list is promoted, and the city pulls from the list (following
the order of the rankings) to fill further vacancies that may occur. The list expires one year after
the date of the first promotion from the list. If all fifteen captain spots have been filled, a new
promotional exam is not held until the complement once again drops below fifteen at a future date.
Once a future vacancy occurs, a promotional exam is held to create a new list, and lieutenants who
were not promoted from the expired list must sit for the exam again if they want to be included on
the new list.
In 1987, the city entered into the Consent Decree to settle a lawsuit alleging discrimination
against Black and female officers. This Consent Decree establishes the “rule of four,” which alters
the above procedure by providing that if the four previous officers promoted to the rank of captain
from a list were all white men, then at the time of the promotion of the fourth officer, an additional
captain position will be created and filled by the highest-ranked female or Black officer on the list.
This creation of an extra captain position is referred to as a “double-fill.” The additional captain
position is not counted towards the complement of captains while the relevant list is in effect. As
a result, the use of a double-fill on a particular promotion list does not impact the promotion of
other officers from the same list, because a subsequent departure before the list expires would still
create a vacancy and an accompanying promotion.
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No. 21-4061, Mitchell, et al. v. City of Cincinnati, et al.
The plaintiffs took the promotional exam in March 2021. On the resulting list (the “spring
2021 promotion list”), plaintiff Mitchell was ranked fifth, and plaintiff Schofield ranked sixth.
Intervenor Brian Norris, a Black officer, ranked seventh on the list. The first promotion from the
list occurred on May 16, 2021. The candidates ranked first through third on the spring 2021 list
were also all promoted in May 2021. The next captain vacancy occurred in October 2021, and the
fourth officer on the list was promoted to captain. The promotion of the fourth officer triggered
the rule of four, because the first four officers on the list were all white men. Accordingly, the city
created an extra captain position and promoted intervenor Norris at the same time that the fourth
officer was promoted. Norris’s promotion increased the number of captains to sixteen, but the
complement remained fixed at fifteen for the duration of the spring 2021 promotion list. If a fifth
vacancy had occurred during the duration of the spring 2021 promotion list, it would have gone to
plaintiff Mitchell as the fifth-ranked officer on the list. However, the spring 2021 list expired on
May 16, 2022 before any further vacancies occurred, so neither plaintiff was promoted from the
list.
When the spring 2021 list expired in May 2022, the double-fill position was “absorbed into
the complement,” meaning that Norris’s spot began to count towards the complement of fifteen
captains. The result is that when the next vacancy occurs, there will not be a new examination and
promotion from the resulting list, because the number of captains (fifteen including Norris) will
not have dropped below the complement. A new examination and promotion will not occur until
the following vacancy brings the number of captains to fourteen, so the absorption in effect delays
the next promotion by the amount of time that passes between the first and second vacancies.
When the second vacancy occurs, both plaintiffs will need to retake the promotional exam to be
placed on the new list, and any vacancies that open up will be filled in order from the new list until
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No. 21-4061, Mitchell, et al. v. City of Cincinnati, et al.
it expires. The police chief estimated that the promotional exam is held “on average every
[eighteen] months to two years,” and said that performance on a previous exam is not a predictor
of success on a later exam.
Plaintiffs Mitchell and Schofield filed suit under 42 U.S.C. § 1983 against the City of
Cincinnati and Mayor John Cranley, alleging that the promotional process violates the Equal
Protection Clause of the Fourteenth Amendment. The plaintiffs sought declaratory and injunctive
relief, as well as compensatory damages. The district court granted Brian Norris’s motion to
intervene. The court denied the plaintiffs’ motion for a preliminary injunction based on the court’s
conclusion that the plaintiffs were unable to meet the irreparable injury requirement. The court
noted that even if the Consent Decree did not exist, neither plaintiff would have been promoted to
captain to fill the October 2021 vacancy, and if there had been any further vacancies before the list
expired, the plaintiffs would have been promoted in order based on their rank. Accordingly, the
court concluded that the plaintiffs would only be impacted if a speculative sequence of future
events occurred, including a future vacancy and the plaintiffs’ future decision to retake the
promotional exam. The court thus held that “[p]laintiffs might be able to establish harm, but any
such harm is both speculative and theoretical and neither certain nor immediate at this time.”
A motions panel of the Sixth Circuit denied the plaintiffs’ motion for an injunction pending
appeal. The panel held that the district court did not abuse its discretion by denying the preliminary
injunction based on the lack of irreparable injury. The panel concluded that the plaintiffs’ injuries
were not imminent because “the parties cannot predict whether [p]laintiffs will be promoted from
the current list before it expires on May 16, 2022, because future promotions hinge on a number
of undetermined factors,” and “[i]f there are additional vacancies before the list expires, one or
both [p]laintiffs will be promoted regardless of the double fill.”
4
No. 21-4061, Mitchell, et al. v. City of Cincinnati, et al.
The plaintiffs are not entitled to a preliminary injunction because they have not shown a
threat of imminent harm, which is required as part of the irreparable injury prong. “A plaintiff
seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he
is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities
tips in his favor, and that an injunction is in the public interest.” Sunless, Inc. v. Palm Beach Tan,
Inc., 33 F.4th 866, 868 (6th Cir. 2022) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
20 (2008)). “Even the strongest showing on the other three factors cannot ‘eliminate the
irreparable harm requirement.’” D.T. v. Sumner Cnty. Sch., 942 F.3d 324, 326-27 (6th Cir. 2019)
(quoting Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982)). The
irreparable harm prong also requires the injury to be imminent, meaning that the plaintiffs’ injury
be “both certain and immediate, not speculative or theoretical.” Memphis A. Philip Randolph Inst.
v. Hargett, 978 F.3d 378, 391 (6th Cir. 2020) (quoting Sumner Cnty. Sch., 942 F.3d at 327 (internal
quotations omitted)).
The plaintiffs cannot show imminence because they have not yet been injured, and a
speculative chain of events must occur before they are injured in the future. First, it was not an
abuse of discretion for the district court to conclude that the plaintiffs have not yet been injured.
The plaintiffs were ranked fifth and sixth on the spring 2021 promotion list, but only four vacancies
became available. The first four people on the list were accordingly promoted ahead of both
plaintiffs. The double-fill rule, which was used to create an extra captain position to promote
Norris (who had been ranked seventh on the list), did not impact either plaintiff’s potential
promotion. The double-fill created an extra position for Norris, outside of the existing complement
of fifteen captains, so Norris was not moved ahead on the list or promoted ahead of the plaintiffs.
Without the Consent Decree and the double-fill rule, the plaintiffs still would not have been
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No. 21-4061, Mitchell, et al. v. City of Cincinnati, et al.
promoted, because only four vacancies occurred and plaintiffs were ranked fifth and sixth on the
list.1 If there had been further vacancies during the duration of the spring 2021 promotion list, the
plaintiffs would have been promoted in order according to their position on the list.
Second, the district court did not abuse its discretion when it concluded that the plaintiffs’
potential future injury is too speculative to satisfy the irreparable injury requirement. A speculative
chain of events must occur here before the plaintiffs are injured. As explained above, the plaintiffs
1
Plaintiffs argue that the extra spot created by the Consent Decree should essentially be treated as
a sixteenth captain spot that could be filled by any prospective captain. In that case, the argument
goes, the new captain position should go to plaintiff Mitchell (who is next in line on the list), so
Norris’s promotion necessarily involved ignoring the order and skipping over Mitchell. That
argument has a basic flaw—the relevant point of comparison is what would have occurred if the
Consent Decree did not exist, and in the absence of the Consent Decree, there would only have
been four openings that would have been filled by the first four candidates on the list, not the
plaintiffs. At oral argument, the plaintiffs further asserted that vacant senior leadership positions
at the police department could create more captain openings if captains were promoted. But the
plaintiffs did not develop that argument in their opening brief, and the failure to raise an argument
in an opening brief forfeits that argument, see Island Creek Coal Co. v. Wilkerson, 910 F.3d 254,
256 (6th Cir. 2018). In any event, the fact remains that only four vacancies occurred during the
duration of the spring 2021 promotion list and so the plaintiffs would not have been promoted
during the ordinary operation of the list.
The concurring opinion presents two hypotheticals that effectively suggest the following
question: Why isn’t the creation of a new captain slot exclusively for a minority analogous to a
simple grant of an employment benefit for which only whites are eligible? The concurrence gives
a Jim Crow example where a new temporary position is only open to whites, and an employment-
benefit example of an award bonus that is available only to whites. Such actions would surely be
unconstitutional, and Black employees who might get the benefit absent the racist requirement
presumably have standing to challenge it. But that does not mean that the Black employee is
necessarily entitled to a preliminary injunction based on imminent harm to him, before or after the
benefit is actually awarded to the white person. The final order in the case might order the white
beneficiary to give up the benefit, might instead give the Black plaintiff the chance to apply for
the benefit, or might provide some other type of relief. None of these possibilities is certain to be
imposed, even though we know in advance that the practice is clearly unconstitutional. That is the
situation in this case as well, if for purposes of this appeal we assume the unconstitutionality of
filling the created slot with a Black employee. The plaintiffs as movants for preliminary relief
would not necessarily obtain in the end the relief that is preliminarily sought. Thus, the plaintiffs
have not shown that their chance to remedy the injury to them would be irreparably lost if relief is
not granted preliminarily.
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No. 21-4061, Mitchell, et al. v. City of Cincinnati, et al.
would not have been promoted during the duration of the spring 2021 promotion list even without
the Consent Decree in place, because there were only four vacancies and the plaintiffs were ranked
fifth and sixth on the list.
As for later injury, the plaintiffs rely on the injury they claim will occur during the next
promotional cycle, but that injury requires a sequence of speculative events to occur. First, another
captain vacancy has to actually occur. Both parties agree that it is difficult to predict when the
next vacancy may occur. Given that there are currently sixteen captains (five of whom were
recently promoted), it is possible that a lengthy delay could occur before another captain retires or
otherwise departs. Upon the next vacancy, Norris’s position will be absorbed into the complement
and the next promotional exam might be delayed. There is no guarantee that such a delay would
occur—it is possible that two vacancies could occur around the same time and so the promotional
exam would not be delayed at all.2 The district court described the full chain of events as follows:
a vacancy occurs; Defendant Cincinnati does not hold a promotional exam until
Movant Norris’ double fill is absorbed [by the next vacancy]; Movant Norris’
double fill is absorbed [i.e., the extra space is not filled]; a [subsequent] vacancy
occurs that brings the complement for the rank of Captain below 15; Defendant
Cincinnati holds a promotional exam; Plaintiffs each take that exam; and Plaintiffs
each do well enough on that exam to be numerically ranked highly enough such
that each Plaintiff is then promoted in the span of that promotional list’s existence.
R.27, PID.720-21.
It was not an abuse of discretion for the district court to conclude that given the speculative
chain of events that must occur, the plaintiffs have failed to demonstrate the imminence required.
As we explained in D.T. v. Sumner County Schools, “[i]f the plaintiff isn’t facing imminent
and irreparable injury, there’s no need to grant relief now as opposed to at the end of the lawsuit.”
2
For example, the candidates ranked first through third on the spring 2021 list were all promoted
on the same day in May 2021 due to multiple vacancies.
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No. 21-4061, Mitchell, et al. v. City of Cincinnati, et al.
942 F.3d at 327. We held that the plaintiffs could not meet the imminence requirement because
the chain of events leading to injury would be “if D.T. regresses at his new private school,
and if they choose to disenroll him, and if they choose not to enroll him in another state-approved
school, the state may choose to prosecute them for truancy again.” Id. Consequently, this court
held that “all those ‘ifs’ rule out the ‘certain and immediate’ harm needed for a preliminary
injunction.” Id.
It is true that “[w]hen constitutional rights are threatened or impaired, irreparable injury is
presumed.” Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012). That presumption of
irreparability, however, does not change the fact that the plaintiff must still demonstrate
imminence. See Memphis A. Philip Randolph Inst., 978 F.3d at 391); see also Kohler v. City of
Cincinnati, No. 21-3466, slip. op. at 4 (6th Cir. Nov. 1, 2021). “A preliminary injunction is an
extraordinary remedy never awarded as of right,” Winter, 555 U.S. at 24, so a lack of imminence
does not justify such an “extraordinary remedy” when relief can be granted at the close of
litigation.
We do not address the merits of the plaintiffs’ constitutional claim, or whether equity or
the terms of the consent decree may warrant termination of that decree. Nor do we address whether
plaintiffs had standing to pursue such claims, which is a component of the likelihood of success
on the merits. “When one [preliminary injunction] factor is dispositive, a district court need not
consider the others . . . Thus, a district court is ‘well within its province’ when it denies a
preliminary injunction based solely on the lack of an irreparable injury.” Sumner Cnty. Sch., 942
F.3d at 327 (citations omitted).
We affirm the judgment of the district court.
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No. 21-4061, Mitchell, et al. v. City of Cincinnati, et al.
MURPHY, Circuit Judge, concurring in the judgment. A Consent Decree adopted in 1987
continues to require the Cincinnati Police Department to follow a unique promotion procedure that
relies on a police officer’s race and sex in certain situations. This Decree predates most of the
Supreme Court’s modern jurisprudence ordering courts to apply heightened equal-protection
scrutiny to race- and sex-based classifications. See United States v. Virginia, 518 U.S. 515, 531
(1996); Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 223–24 (1995); Richmond v. J.A.
Croson Co., 488 U.S. 469, 493–94 (1989) (plurality opinion). So it is perhaps unsurprising that
Cincinnati has not defended the Decree’s constitutionality on appeal. This appeal instead requires
us to consider whether Plaintiffs Andrew Mitchell and David Schofield have shown the need for a
preliminary injunction even assuming the Decree’s unconstitutionality.
I agree with my colleagues that we should affirm the district court’s denial of preliminary
relief. But my reasoning differs in an important respect. In my view, Mitchell and Schofield were
at risk of suffering an irreparable injury from the Department’s imminent use of this Consent
Decree when the district court denied the injunction. Yet that injury has already occurred. And
the officers have not explained why they are now entitled to preliminary relief for this past injury.
At the same time, the officers have failed to establish that they face a sufficiently immediate risk
of suffering this same injury again, such that they need a preliminary injunction during the course
of this litigation (instead of a permanent injunction at its end).
*
I start with the past injury. The Cincinnati Police Department has fifteen “captain”
positions. When a position opens up, the Department holds a competitive exam. It creates a
numeric list that ranks all applicants based on a mix of their exam results and seniority. The
highest-ranked candidate fills the vacant position. The Department uses this same list to fill all
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No. 21-4061, Mitchell, et al. v. City of Cincinnati, et al.
additional captain vacancies that arise within a year of the first promotion, choosing the next
highest-ranked candidate each time. If three more vacancies occur over that year and if white
males fill all four positions, the Department creates a temporary “sixteenth” captain position for
the highest-ranking African American or female candidate. If a fifth vacancy arises before this list
expires, the next highest-ranking candidate still gets to fill that permanent spot. But if no additional
vacancies occur before the list expires, the African American or female candidate who obtained
the temporary position fills the next permanent captain vacancy (and the temporary position
expires). Under this “rule of four,” then, the Department effectively relies on a candidate’s race
or sex to “pre-fill” a future permanent vacancy; it does not follow the normal competitive process.
The Department’s rule of four was triggered in October 2021 after a fourth captain position
became vacant in a year. Mitchell and Schofield ranked fifth and sixth on the then-existing (but
now-expired) list. Brian Norris, an African American, ranked seventh. When the Department
announced that it intended to promote Norris to the temporary sixteenth captain position, Mitchell
and Schofield sought a preliminary injunction to enjoin the Department’s imminent use of the rule
of four. The district court denied a preliminary injunction on the ground that Mitchell and
Schofield failed to show that they were about to suffer the irreparable harm required to justify that
relief. Mitchell v. City of Cincinnati, 2021 WL 5299799, at *4 (S.D. Ohio Nov. 14, 2021).
Mitchell and Schofield appealed, we denied an injunction pending appeal, and Norris has since
become a captain under the rule of four.
In a thoughtful opinion, my colleagues agree that Mitchell and Schofield did not meet the
“irreparable injury” requirement for obtaining a preliminary injunction. See, e.g., Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 21–22 (2008); D.T. v. Sumner Cnty. Schs., 942 F.3d 324, 327
(6th Cir. 2019). They reason that the Department’s past use of the rule of four did not harm
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No. 21-4061, Mitchell, et al. v. City of Cincinnati, et al.
Mitchell and Schofield because this rule would not have stopped their promotion if another captain
vacancy had arisen in the year that the promotion list remained valid. Even if the Department had
ignored the rule of four, they add, Mitchell and Schofield still would not have been promoted.
I respectfully disagree because this analysis views the harm from the Consent Decree’s
race-based classification in only tangible terms. An employment-related harm like the lack of a
promotion certainly qualifies as a cognizable injury redressable in court. See Charlton-Perkins
v. Univ. of Cincinnati, 35 F.4th 1053, 1059 (6th Cir. 2022). Yet a government’s unequal treatment
of an individual based on the individual’s race qualifies as an independent intangible injury—
whether or not the individual would have obtained the sought-after employment benefit under a
race-neutral system. See Ne. Fla. Chapter, Associated Gen. Contractors of Am. v. City of
Jacksonville, 508 U.S. 656, 666 (1993); Vitolo v. Guzman, 999 F.3d 353, 358–59 (6th Cir. 2021);
see also Hassan v. City of New York, 804 F.3d 277, 289–90, 289 n.1 (3rd Cir. 2015) (citing cases).
This purported equal-protection violation is not much different than other alleged
constitutional violations that can establish intangible (yet concrete) injuries. See TransUnion LLC
v. Ramirez, 141 S. Ct. 2190, 2204 (2021). One person, for example, might face a risk of an
imminent injury if the government pressures her not to speak, whether or not the alleged free-
speech violation will produce additional economic harm. See Spokeo, Inc. v. Robins, 578 U.S.
330, 340 (2016) (citing Pleasant Grove City v. Summum, 555 U.S. 460 (2009)). Another person
might suffer a risk of an imminent injury if the government pressures him to violate his religious
beliefs, again whether or not the alleged free-exercise violation will generate some other loss. See
id. (citing Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)).
When Mitchell and Schofield sought a preliminary injunction in the district court, they
faced an imminent risk of this type of intangible harm. The Department’s pending use of the rule
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No. 21-4061, Mitchell, et al. v. City of Cincinnati, et al.
of four “forced” these officers to compete “in a race-based system” that disadvantaged them.
Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719 (2007). Ultimately,
the Department inflicted this equal-protection injury in November 2021 on the day after the district
court denied a preliminary injunction and more than six weeks after Mitchell and Schofield moved
for one. So an injunction barring the Department from using the rule could have (and would have)
prevented this distinct injury—whether or not Mitchell and Schofield would have obtained a
promotion in a race-neutral system. See Barr v. Am. Ass’n of Political Consultants, Inc., 140 S. Ct.
2335, 2355 (2020) (plurality opinion); see also Ne. Fla. Chapter, 508 U.S. at 666.
A couple of analogies reinforce my point. Suppose a city operated a political-patronage
“rule of four” that created a temporary position for a lower-ranked Republican officer if a merits-
based system led to the hiring of several Democratic officers. I would think that the threatened
use of this rule would create an intangible speech injury for Democratic officers whether or not
they would have obtained a promotion otherwise. Cf. Rutan v. Republican Party of Ill., 497 U.S.
62, 69–76 (1990); Elrod v. Burns, 427 U.S. 347, 355–73 (1976) (plurality opinion). Or suppose a
city in the Jim Crow era followed a patently racist “rule of four” that created a temporary position
for a white male candidate when merits-based considerations led to the promotion of several
diverse candidates. Here again, I would think that the minority candidates would face an imminent
equal-protection injury (and that a district court would swiftly enjoin this racist rule if the city
attempted to enforce it).
In all events, Mitchell and Schofield also faced an imminent tangible injury when the
district court denied the injunction. To be sure, the Department’s use of the rule of four did not
cause Mitchell and Schofield to lose a promotion to a permanent captain position because, as my
colleagues correctly note, the rule did not prevent them from getting promoted if other vacancies
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No. 21-4061, Mitchell, et al. v. City of Cincinnati, et al.
arose while the then-existing list remained operable. Mitchell and Schofield also would not have
received such a promotion even if the Department had ignored the rule of four. But Mitchell and
Schofield’s inability to apply for—let alone obtain—the “temporary” captain position was itself a
tangible employment injury. If the Cincinnati Police Department gave a $10,000 bonus only to
officers of a certain race, I doubt we would hold that officers of other races faced no economic
injury because they would not have gotten the bonus in a world in which the bonus policy “did not
exist.” Maj. Op. 6 n.1. As in other cases in which unequal treatment is the injury, there may be
tricky questions about the remedy (whether to extend the benefit to all or deny it to all), but there
would be no doubt about the injury. See Am. Ass’n of Political Consultants, 140 S. Ct. at 2354–
56 (plurality opinion). I do not see why this case should be different. In short, Mitchell and
Schofield were about to suffer tangible and intangible injuries alike when the district court denied
a preliminary injunction.
To obtain that injunction, however, Mitchell and Schofield needed to show more than an
immediate injury; they also needed to show an irreparable one. See Winter, 555 U.S. 21–22. They
met this separate element because a constitutional violation has long qualified as the type of
irreparable injury that justifies preliminary relief, and the Department does not defend the rule of
four on its constitutional merits in this appeal. “[W]hen constitutional rights are threatened or
impaired,” we have held, “irreparable injury is presumed.” Vitolo, 999 F.3d at 360 (quoting
Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012)); Newsom v. Norris, 888 F.2d 371,
378–79 (6th Cir. 1989); see also 11A Charles A. Wright et al., Federal Practice and Procedure
§ 2948.1, at 159–62 & nn.24–26 (3d ed. 2013) (citing cases). As far as I can tell, this remedial
rule dates back to the Supreme Court’s decision holding that a government employer’s patronage-
based dismissal of a public employee violated the First Amendment. See Elrod, 427 U.S. at 373
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No. 21-4061, Mitchell, et al. v. City of Cincinnati, et al.
(plurality opinion). Even if employment-related harms are reparable by an award of damages, see
Sampson v. Murray, 415 U.S. 61, 88–90 (1974), the Court reasoned that damages alone cannot
sufficiently redress the intangible free-speech harms that arise from an unconstitutional patronage
system, see Elrod, 427 U.S. at 373 (plurality opinion). The Department offers no rationale to treat
the intangible equal-protection violation in this case any differently. See Vitolo, 999 F.3d at 360.
*
All of this said, Mitchell and Schofield have now suffered this intangible injury. The
district court denied their requested preliminary injunction, and the Department applied the rule of
four by promoting Brian Norris to the temporary captain position in November 2021. A forward-
looking injunction against this particular use of the rule cannot turn back the clock to prevent the
past equal-protection injury. Cf. City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). Mitchell
and Schofield instead may seek the traditional relief for a past injury: damages (including nominal
or punitive damages). See, e.g., Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801–02 (2021); Smith
v. Wade, 461 U.S. 30, 56 (1983).
Admittedly, there may be situations in which a court can order a preliminary injunction “to
correct injury already inflicted” and to preserve the “status quo” that existed before the defendant
took the harmful action. 11A Wright, supra, § 2947, at 125–27. Yet Mitchell and Schofield do
not address this significant problem with their requested injunctive relief except with a few
sentences in the conclusion of their opening brief. They recognize the possibility of an injunction
that would compel the Department to demote Norris but suggest that such an order “probably is
not the best remedy.” Appellants’ Br. 23. Indeed, even after a full trial on the merits, a court must
consider a complex set of factors when deciding whether to order an employer to “bump” a
potentially innocent third party from a job. Compare Fuhr v. Sch. Dist. of City of Hazel Park, 364
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No. 21-4061, Mitchell, et al. v. City of Cincinnati, et al.
F.3d 753, 760–61 (6th Cir. 2004), with Kraemer v. Franklin & Marshall Coll., 941 F. Supp. 479,
482–84 (E.D. Pa. 1996). Mitchell and Schofield argue that we might instead issue an injunction
requiring the Department to promote them immediately or extend the now-expired ranking list. In
my view, however, they have forfeited any alternative to the relief that they requested in the district
court (an injunction against the Department’s use of the rule of four) by failing to adequately brief
the issue. See Infinity Cap. LLC v. Francis David Corp., 851 F. App’x 579, 590 (6th Cir. 2021).
That conclusion leaves only the possibility of a future injury from the rule of four. Mitchell
and Schofield might still obtain a preliminary injunction against that rule if they could prove a
sufficient risk that the Department would use it again. But the “window of time” that we may
consider when deciding whether a party needs a preliminary injunction is much shorter than the
window of time that we may consider when deciding on the propriety of a permanent injunction.
Resurrection Sch. v. Hertel, 35 F.4th 524, 528 (6th Cir. 2022) (en banc). Preliminary injunctions
exist to protect parties who will suffer an injury before they can conclusively prove the illegality
of a defendant’s conduct in court. See Ohio v. EPA, 969 F.3d 306, 309 (6th Cir. 2020); 11A
Wright, supra, § 2947, at 113. So if there is no reasonable risk that the defendant will inflict this
injury in the time span necessary to litigate the case, a court has no need to order preliminary relief
and may wait until the case’s end to decide on the propriety of an injunction. See D.T., 942 F.3d
at 327. (In that regard, a well-known treatise suggests that there is a distinction between the
irreparable injury necessary for a preliminary injunction and the lack of an adequate remedy at law
necessary for a permanent one. See 11A Wright, supra, § 2944, at 89–90.)
Here, moreover, Mitchell and Schofield have not shown a reasonable likelihood that the
Department would use the rule of four again in the time that it takes to litigate their suit to a final
judgment. See D.T., 942 F.3d at 327. Since the rule’s adoption in 1987, the Department had never
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No. 21-4061, Mitchell, et al. v. City of Cincinnati, et al.
previously invoked it for the captain position until its use in this case. Tr., R.22, PageID 510. The
Department has only a limited number of captain positions, which open up infrequently. So the
chances that four spots would again become vacant within a year are small. If that unlikely
scenario came to pass and the Department threatened to use the rule again while this litigation
remained pending, Mitchell and Schofield could always seek another preliminary injunction at that
time. At this time, however, the risk is not sufficiently “certain and immediate” to warrant
preliminary relief. D.T., 942 F.3d at 327 (citation omitted).
For these reasons, I concur in the judgment affirming the district court’s decision.
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