Becky S. Chasensky v. Scott Walker

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1761
BECKY S. CHASENSKY,
Plaintiff-Appellee,
v.
SCOTT WALKER, et al.,
Defendants-Appellants.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 11-C-1152 — Rudolph T. Randa, Judge.
ARGUED NOVEMBER 13, 2013 — DECIDED JANUARY 22, 2014
Before MANION, KANNE, and HAMILTON, Circuit Judges.
MANION, Circuit Judge. Wisconsin Governor Scott Walker
planned to appoint Becky Chasensky interim Marinette County
Register of Deeds but decided against it after learning she had
filed for bankruptcy. In response, Chasensky sued Walker and
his then-spokesperson, Cullen Werwie, alleging that Walker’s
decision not to appoint her along with their public statements
concerning that decision violated her constitutional and

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2 No. 13-1761
statutory rights. The district court held that the defendants
waived qualified immunity by failing to raise it as a defense
until their motion to dismiss Chasensky’s amended complaint.
The defendants then filed this interlocutory appeal claiming
they did not waive and are entitled to qualified immunity. We
agree, and reverse.
I. BACKGROUND
In Wisconsin, the state constitution makes the Register of
Deeds an elected position. See Wis. Const. art. VI, § 4. How-
ever, if a vacancy occurs mid-term, the governor is authorized
to appoint an interim Register to complete the remainder of
any unexpired portion of the term until a successor is elected.
See Wis. Const. art. VI, § 4(5).
Chasensky alleges the following facts which, given the
procedural posture of this case, we accept as true. See Serino v.
Hensley, 735 F.3d 588, 590 (7th Cir. 2013) (citing Parish v. City of
Elkhart, 614 F.3d 677, 678 n.1 (7th Cir. 2010) (“In reviewing a
motion to dismiss, we accept the facts of the plaintiff’s com-
plaint as true.”). On December 29, 2010, the Register of Deeds
for Marinette County announced her mid-term retirement. By
letter dated January 11, 2011, Chasensky applied directly to
Governor Walker seeking this interim appointment. Am.
Compl. Because Chasensky was employed as Chief Deputy
Register of Deeds, she was elevated and served as the acting
Register of Deeds for Marinette County, effective January 14,
2011. On February 18, 2011, Chasensky was personally
interviewed by Eric Esser, Governor Walker’s appointments
official, and Esser informed Chasensky that he would forward
her application directly to Governor Walker for appointment

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No. 13-1761 3
to the Register of Deeds position. Thereafter, Esser learned that
Chasensky was involved in a personal bankruptcy proceeding.
On April 5, 2011, Esser called Chasensky to inform her that
Governor Walker would not be appointing her as interim
Register of Deeds. Chasensky subsequently received a letter
from Governor Walker confirming that he would not be
appointing her as interim Register of Deeds.
According to Chasensky’s amended complaint, Cullen
Werwie, as Governor Walker’s official spokesperson,
publically broadcast statewide that Governor Walker did not
appoint her to the position because the governor had been
informed that she was in a bankruptcy proceeding. In addition
to her non-appointment, Chasensky complained that
“[d]erogatory comments and innuendo regarding [her]
bankruptcy, personal financial matters and character which
impugned and harmed [her] professional and personal
reputation were intentionally publically disclosed by Governor
Walker and Mr. Werwie.” Am. Compl. ¶ 15. She insisted that
this occurred when Governor Walker spoke statewide on the
FOX television network. There he demeaned her professional
and personal character by implying that information learned
during an investigation was the reason he did not appoint her.
About the same time, Werwie publically announced that
Governor Walker had planned to appoint her until he learned
of her 2009 bankruptcy proceeding. Chasensky further alleges
that the individual ultimately appointed Register of Deeds was
unqualified and “[c]onsequently, [she] was professionally
disparaged, humiliated and demoted for a period of time from
her Chief Deputy Register of Deeds position.” Am. Compl. ¶
18. Chasensky claims this sequence subjected her to an

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4 No. 13-1761
unwanted, highly embarrassing and intrusive
media-fest [at work] on April 20–21, 2011 … [when]
[t]elevision reporters and camera crews, newspaper
and radio reporters and curious members of the
public confronted her and other Marinette County
employees with highly intrusive questions about her
bankruptcy and professional and personal character
and sought derogatory details implied in the defen-
dants’ public broadcasts.
Am. Compl. ¶ 21. Finally, in May 2011, she was threatened
with “employment retaliation” if she did not continue to cover
and perform core Register of Deeds duties which the appointee
was incapable of performing. As a result of these actions, she
has “suffer[ed] lost employment, salary, and other employ-
ment benefits, damage to her professional and personal
reputation, and emotional and physical pain and suffering.”
Am. Compl. ¶ 23.
II. PROCEDURAL HISTORY
This interlocutory appeal comes to us with a complicated
procedural history that we distill as follows. Chasensky filed
her complaint on December 21, 2011, alleging that Walker and
Werwie (the “defendants”) violated her privacy rights and
employment rights and that Walker violated 11 U.S.C. § 525(a)
(the “bankruptcy discrimination claim”) by failing to appoint
her as interim Register of Deeds of Marinette County upon
learning of her bankruptcy proceeding. Pretrial litigation
ensued including intervention by the United States Depart-
ment of Justice resulting in the dismissal of the employment

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No. 13-1761 5
claims and the bankruptcy discrimination claim. On January1
14, 2013, Chasensky filed an amended complaint reasserting all
of her initial claims and adding an equal protection claim
against Walker. On January 28, 2013, defendants filed a motion
to dismiss Chasensky’s amended complaint based on qualified
immunity. However, the district court concluded that defen-2
dants had waived the defense of qualified immunity by not
raising it earlier in the proceeding. Defendants timely filed an3
interlocutory appeal. We then issued an order directing the
district court to explain its reasons for failing to address
qualified immunity in its March 14, 2013, order. On July 28,
2013, the district court issued a second order explaining its
March 14, 2013, order. The district court’s July 28, 2013, order
states, in pertinent part:
Defendants never raised the issue of qualified
immunity—not in their initial motion to dismiss, not
in their supplemental briefing in relation to the
United States’ motion to intervene, not in their brief
Neither Chasensky’s bankruptcy discrimination claim nor her employ-
1
ment claims are implicated by this appeal.
After the district court’s order, the defendants filed their answer to the
2
first amended complaint on March 27, 2013, wherein they reiterated their
qualified immunity defense.
The district court’s March 14, 2013, order did not dismiss the bankruptcy
3
discrimination claim and employment claims that Chasensky re-alleged in
her amended complaint. The district court, though, had previously
dismissed them. On remand, the district court should enter an order
reaffirming its dismissal of Chasensky’s bankruptcy discrimination claim
and employment claims.

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6 No. 13-1761
in opposition for leave to file an amended com-
plaint, and not even in their answer to the original
complaint. It was only after the Court granted leave
to file an amended complaint, and after over a year
of extensive motion practice, that the defendants
raised qualified immunity. The Court’s subsequent
order was terse because the Court had already
issued rulings allowing [plaintiff’s] claims to go
forward, and the defendants were clearly engaged
in dilatory tactics to either delay or avoid discovery.
Defendants waived the qualified immunity defense,
at least with respect to the pre-discovery stage of
this litigation. See, e.g., English v. Dyke, 23 F.3d 1086,
1090 (6th Cir. 1994) (“the trial court has discretion to
find a waiver if a defendant fails to assert the de-
fense within time limits set by the court or if the court
otherwise finds that a defendant has failed to exercise due
diligence or has asserted the defense for dilatory pur-
poses”) (emphasis added).
Chasensky v. Walker, Case No. 11-C-1152, 2013 U.S. Dist. LEXIS
105698, *2–3 (E.D. Wis., July 28, 2013). Defendants timely filed
an interlocutory appeal contesting the district court’s July 28,
2013, order.
III. ANALYSIS
A. Interlocutory appellate jurisdiction
Initially, Chasensky argues that we lack jurisdiction over
this interlocutory appeal. It is well-settled law that we “treat [ ]
the rejection of an immunity defense as a final decision for the
purpose of 28 U.S.C. § 1291.” Bond v. Atkinson, 728 F.3d 690,

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No. 13-1761 7
691(7th Cir. 2013); see also Mitchell v. Forsyth, 472 U.S. 511,
524–25 (1985). When, as here, the district court rejects the
defense of qualified immunity raised in a defendant’s motion
to dismiss under Fed. R. Civ. P. 12(b)(6), we review the district
court’s ruling de novo, accepting as true the plaintiff’s factual
allegations and drawing all reasonable inferences in her favor.
May v. Sheahan, 226 F.3d 876, 882 (7th Cir. 2000).
Nevertheless, Chasensky asserts that we lack interlocutory
appellate jurisdiction to review the district court’s denial of
qualified immunity regarding her privacy claims because the
defendants waived this defense by not timely raising it.
However, “a finding of waiver is a legal determination which
enables appellate review of the denial of qualified immunity.”
Hernandez v. Cook Cnty. Sheriff’s Office, 634 F.3d 906, 912–13 (7th
Cir. 2011); see also Pasco v. Knoblauch, 566 F.3d 572, 575 (5th Cir.
2009) (exercising appellate jurisdiction over denial of summary
judgment based on the district court’s finding that qualified
immunity had been waived); Eddy v. V.I. Water & Power Auth.,
256 F.3d 204, 209 (3d Cir. 2001) (same). Accordingly, we have
interlocutory appellate jurisdiction to consider the defendants’
defense of qualified immunity.
B. Defendants did not waive the defense of qualified
immunity
Because we have concluded that we have appellate jurisdic-
tion, we now turn to the issue of whether defendants’ failure
to raise the defense of qualified immunity until their motion to
dismiss Chasensky’s amended complaint (filed fourteen days
after her amended complaint was filed) was waiver. The
district court ruled that defendants

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8 No. 13-1761
never raised the issue of qualified immunity—not in
their initial motion to dismiss, not in their supple-
mental briefing in relation to the United States’
motion to intervene, not in their brief in opposition
for leave to file an amended complaint, and not even
in their answer to the original amended complaint.
It was only after the Court granted leave to file an
amended complaint, and after over a year of exten-
sive motion practice, that the defendants raised
qualified immunity.
Chasensky, 2013 U.S. Dist. LEXIS 105698, at *2. This ruling
sidesteps basic pleading principles. After obtaining leave of
court, Chasensky filed her amended complaint on January 14,
2013. Defendants filed their brief in support of their motion to
dismiss her amended complaint on January 28, 2013. “When a
plaintiff files an amended complaint, the new complaint
supersedes all previous complaints and controls the case from
that point forward … [b]ecause a plaintiff’s new complaint
wipes away prior pleadings, the amended complaint opens the
door for defendants to raise new and previously unmentioned
affirmative defenses.” Massey v. Helman, 196 F.3d 727, 735 (7th
Cir. 1999) (citation omitted); see also Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 1476 at 636 (3d ed. 2010). That the defendants did4
not raise qualified immunity earlier in response to Chasensky’s
Chasensky asserts that the defendants raised qualified immunity for the4
first time in their reply brief, see Appellee Br. 18, but a review of defendants’
pleadings filed after Chasensky filed her amended complaint makes clear
that this assertion is incorrect.

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No. 13-1761 9
original complaint is irrelevant because the defendants raised
the defense of qualified immunity at the very first opportunity
after Chasensky filed her amended complaint. They then
raised it again later in their answer to her amended complaint.
Accordingly, as a matter of law, defendants did not waive the
defense of qualified immunity. See English v. Dyke, 23 F.3d
1086, 1089 (6th Cir. 1994) (reversing district court’s holding that
defendants’ failure to raise the defense of qualified immunity
in their pre-answer motion to dismiss operated as a waiver of
that defense).
C. Defendants have qualified immunity from
Chasensky’s privacy and equal protection claims
i. Qualified Immunity
“The doctrine of qualified immunity protects government
officials from liability for civil damages when their conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Rabin
v. Flynn, 725 F.3d 628, 632 (7th Cir. 2013) (citation omitted).
“Immunity has of course two parts: the right not to be tried,
and the right not to pay damages.” Abel v. Miller, 904 F.2d 394,
397 (7th Cir. 1990). “To be clearly established, at the time of the
challenged conduct, the right’s contours must be sufficiently
clear that every reasonable official would have understood that
what he is doing violates that right [and] … and existing
precedent must have placed the statutory or constitutional
question beyond debate.” Humphries v. Milwaukee Cnty., 702
F.3d 1003, 1006 (7th Cir. 2012) (internal quotation marks and
citation omitted). This standard “protects the balance between
vindication of constitutional rights and government officials’

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10 No. 13-1761
effective performance of their duties by ensuring that officials
can reasonably … anticipate when their conduct may give rise
to liability for damages.” Reichle v. Howards, 132 S. Ct. 2088,
2093 (2012) (internal quotation marks and citations omitted).
“[A] court may grant qualified immunity on the ground that a
purported right was not ‘clearly established’ by prior case law
without first resolving whether the purported right exists.”
Humphries, 702 F.3d at 1006 (quoting Pearson v. Callahan, 555
U.S. 223, 236 (2009)). The plaintiff carries the burden of
defeating the qualified immunity defense. Id.
We review the validity of a qualified immunity defense de
novo. Estate of Rudy Escobedo v. Martin, 702 F.3d 388, 404 (7th
Cir. 2012) (citing Elder v. Holloway, 510 U.S. 510, 516 (1994)).
Further, “[b]ecause ‘the district court’s refusal to address the
merits of [defendants’] motion asserting qualified immunity
constitutes a conclusive determination for the purposes of
allowing an interlocutory appeal,’ and the record permits this
court to resolve some of [d]efendants’ immunity claims, this
court will reach the merits of those claims rather than remand
them to the district court.” Smith v. Leis, 407 Fed. Appx. 918,
927 (6th Cir. 2011) (unpublished) (citing Summers v. Leis, 368
F.3d 881, 887 (6th Cir. 2004)). Accordingly, we now examine
the merits of the defendants’ qualified immunity defense.
ii. Chasensky’s privacy allegations in her amended
complaint fail to allege a violation of clearly established
law
First, we consider Chasensky’s privacy allegations.
Chasensky’s amended complaint alleged that defendants
recklessly “broadcast[ed] throughout the State of Wisconsin

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No. 13-1761 11
derogatory and demeaning information about her professional
and personal character and reputation … .” Am. Compl. ¶ 24
(Walker); ¶ 26 (Werwie). Defendants respond that the allega-
tions in Chasensky’s amended complaint do not survive the
pleading requirements of Ashcroft v. Iqbal, 556 U.S. 662 (2009),
which requires the plaintiff to “state a claim to relief that is
plausible on its face.” Id. at 678 (internal quotation marks and
citation omitted).
Initially, we note that it is difficult to see where in
Chasensky’s complaint or amended complaint she alleged a
privacy claim, since neither her complaint (nor her subse-5
quently filed amended complaint) contained the word
“privacy.” To survive a motion to dismiss, “a complaint need
not plead legal theories, which can be learned during discov-
ery,” Alito v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011)
(citations omitted). Yet, we cannot see why a plaintiff would
elect not to include the word “privacy” when alleging—or at
least titling the counts when alleging—a violation of the right
to privacy in a complaint. Nevertheless, we consider whether
the allegations lodged in Chasensky’s complaints at ¶¶ 14–17,
if true, give rise to a violation of a clearly established right to
privacy.
Chasensky argues that they do based on Denius v. Dunlap,
209 F.3d 944, 955–56 (7th Cir. 2000); Malleus v. George, 641 F.3d
560, 564–66 (3d Cir. 2011); and Whalen v. Roe, 429 U.S. 589,
599–600 (1977). These cases, she asserts, recognize a “clearly
established right to informational privacy,” Appellee Br. 23,
At oral argument, Chasensky directed us to ¶¶ 14–17 of her complaints.
5

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12 No. 13-1761
which defendants violated by “recklessly broadcasting
throughout the State of Wisconsin derogatory and demeaning
information about her professional and personal character and
reputation … .” Am. Compl. ¶ 24 (Walker); ¶ 26 (Werwie).
Indeed, it is true that
[t]he courts of appeals, including this court, have
interpreted Whalen to recognize a constitutional
right to the privacy of medical, sexual, financial, and
perhaps other categories of highly personal
information—information that most people are
reluctant to disclose to strangers—and have held
that the right is defeasible only upon proof of a
strong public interest in access to or dissemination
of the information.
Wolfe v. Schaefer, 619 F.3d 782, 785 (7th Cir. 2010) (citing Denius,
209 F.3d at 955–58; other citations omitted).
But the Denius case does not help Chasensky. In Denius, the
director of a GED school refused to renew plaintiff’s employ-
ment contract unless he signed an authorization releasing
information, including financial information. 209 F.3d at
955–56. Although we recognized that the director violated the
teacher’s privacy rights by requiring disclosure of his medical
records, we nonetheless “conclude[d] that Dunlap [wa]s
shielded by qualified immunity for requiring Denius to
disclose confidential financial information. …” Id. at 958.
There, the teacher was commanded to produce private medical
information or face termination. Id. at 949. Here, all the
defendants allegedly did was publicize the already-published
fact that Chasensky had filed bankruptcy. Chasensky’s desire

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No. 13-1761 13
to avoid the broad public disclosure of already-published
financial information so that she might secure a discretionary
political appointment is simply not similar to compulsory
disclosure of private medical information in the face of
termination. The right of privacy Chasensky asserts in her
financial situation was not recognized in Denius. The fact that
the school director in Denius received qualified immunity for
requiring the disclosure of plaintiff’s financial records under-
scores this point. Id. at 958. Chasensky fails to allege sustain-
able privacy claims against the defendants.
Chasensky fares no better with Malleus v. George, 641 F.3d
560 (3d Cir. 2011). The Malleus decision concluded that
information voluntarily disclosed may not form the basis of a
constitutional privacy claim, even when it is subsequently
passed on to a much wider audience than the one that initially
received it. Id. at 565 (“She may not have intended wide-
dissemination of her opinion but she volunteered it to others
…”). Here, Chasensky acknowledges that she voluntarily
signed a waiver authorizing the disclosure of private informa-
tion to the Wisconsin Department of Justice in exchange for
being considered for the appointment she sought. Although6
Defendants filed a motion to dismiss Chasensky’s complaint. In her
6
opposition, Chasensky asserted that her complaint at ¶¶ 16–17 alleged that
she was “required to sign an extremely broad authorization for release of
financial and other private information.” Br. in Op. 20. Although we were
not able to discover this allegation in her complaint (or amended complaint,
wherein these paragraphs remain identical), we may consider representa-
tions drawn from Chasensky’s opposition to defendants’ motion to dismiss
insofar as they are consistent with her complaint. Geinosky v. City of Chicago,
(continued...)

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14 No. 13-1761
we need not—and do not—decide whether Malleus accurately
states the law regarding constitutional privacy claims, that
decision’s reasoning certainly does not support Chasensky’s
claim in this instance.
Moreover, Chasensky overlooks the fact that the defendants
did not need her consent in the first place to learn that she filed
bankruptcy. Bankruptcy proceedings, like most unsealed legal
proceedings, are public record. This information is frequently
published in newspapers and is easily accessible in cyberspace.
“For example, all bankruptcy court dockets can be searched
simultaneously through the federal courts’ PACER service.”7
Pippen v. NBCUniversal Media, LLC, 734 F.3d 610, 614 (7th Cir.
2013). At its core, Chasensky’s privacy claim is merely the
assertion of a right to the limited publicity of an already-
published fact. Here, that claim must fail because the informa-
tion about her financial history that she claims defendants
unlawfully publicized was not private even before she signed
a waiver authorizing defendants to explore it.
For Chasensky’s privacy allegations to defeat defendants’
defense of qualified immunity, “existing precedent must have
placed the statutory or constitutional question beyond debate.”
(...continued)6
675 F.3d 743, 745–46 n.1 (7th Cir. 2012) (collecting cases).
“Public Access to Court Electronic Records (PACER) is an electronic
7
public access service that allows users to obtain case and docket information
from Federal Appellate, District and Bankruptcy courts, and from the
PACER Case Locator via the Internet.” See PACER - Frequently Asked
Questions, http://www.pacer.gov/psc/faq.html (last visited January 14,
2014).

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No. 13-1761 15
Humphries, 702 F.3d at 1006 (citations and internal quotation
marks omitted). We recognize that “‘a case directly on point is
not required for a right to be clearly established’ and ‘officials
can still be on notice that their conduct violates established law
even in novel factual circumstances.’” Phillips v. Cmty. Ins.
Corp., 678 F.3d 513, 528 (7th Cir. 2012) (quoting Hope v. Pelzer,
536 U.S. 730, 741 (2002)). But for the purpose of defeating
qualified immunity in this instance, Chasensky has not proven
that her right to the limited publicity of an already-published
fact is “clearly established” so that an individual may be held
civilly liable for publicizing already-published information.
Defendants are, therefore, entitled to qualified immunity
because they have violated no clearly established privacy right.
iii. Walker did not violate the equal protection clause
when he declined to award a discretionary appointment
to Chasensky
Chasensky’s amended complaint also alleged that Walker
violated her equal protection rights by denying her employ-
ment because she filed for bankruptcy. Am. Compl. ¶ 25. In
United States v. Kras, the Court rejected the plaintiff’s equal
protection claim and held that challenges to government-
imposed burdens from bankruptcy are subject to rational basis
review. 409 U.S. 434, 446 (1973). Accordingly, Chasensky’s
bankruptcy equal protection challenge cannot succeed “if there
is any reasonably conceivable state of facts that could provide
a rational basis for the classification.” F.C.C. v. Beach Commc’n,
Inc., 508 U.S. 307, 313 (1993). In other words, Chasensky bears
the burden of “negat[ing] every conceivable basis which might
support [Walker’s decision not to appoint her].” Id. at 315
(citation omitted).

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16 No. 13-1761
In light of this steep burden, it is unreasonable to suggest
that gubernatorial consideration of an applicant’s bankruptcy
—a component of her personal history—could not be rationally
related to legitimate governmental interests. The responsibili-
ties associated with the office at issue entail maintaining
financial and public land records and collecting and disbursing
substantial sums of money, including recording fees and
transfer taxes. The fact that a candidate for this appointment
has filed bankruptcy, coupled with the fact that the desired
public office involves management of a staff responsible for
significant sums of money, conceivably raises questions
regarding the practical—and political—wisdom of appointing
that applicant. While the parties dispute whether the position’s
duties are “ministerial” or not, it is apparent from the defini-
tion of its defined duties in Wis. Stat. § 59.43 that the position
of Register demands—at minimum—supervisory and financial
responsibility.
Chasensky cites no case law suggesting that the equal
protection clause precludes gubernatorial consideration of an
applicant’s bankruptcy when she has applied for a political
appointment. Consequently, Walker violated no “clearly
established” law by failing to appoint Chasensky for the
position she sought. Humphries, 702 F.3d at 1006 (quoting
Pearson, 555 U.S. at 236). Nor did Walker violate Chasensky’s
constitutional rights by declining to exercise his gubernatorial
discretion for her benefit. The rule in this circuit is clear. “A
governmental officer holding the power of appointment may
make any decision he pleases, unless the Constitution bars the

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No. 13-1761 17
way.” Kurowski v. Krajewski, 848 F.2d 767, 770 (7th Cir. 1988).8
The Constitution does not bar Walker’s non-appointment of
Chasensky to Register of Deeds.
Alternatively, and despite the fact that the appointment in
question is awarded by the elected head of state, Chasensky
asserts that neither gubernatorial concern about the potential
appointee’s ultimate electability nor Walker’s desire to avoid
adverse political repercussions from unwise appointments is
a legitimate governmental interest. We disagree. “[I]t would
undermine the democratic process to hold that the winners at
the polls may not employ those committed to implementing
their political agenda.” Id. Chasensky argues that the Supreme
Court recognized a distinction between pure partisan political
interests and legitimate governmental interests in Elrod v.
Burns, 427 U.S. 347 (1976). But it is precisely because these
interests are aligned here that we must respect the weight
appointment decisions made by elected and politically-
accountable individuals are due. Chasensky implies that in
practice wise appointment decisions inure principally to the
benefit of the elected official, not the citizenry. But that
perspective fails to appreciate what should be obvious: both
the official and the citizenry are better off when elected officials
avoid poor appointment decisions that have the potential to
mature into public malfeasance.
Cf. Saikrishna Prakash, The Appointment and Removal of William J. Marbury
8
and When an Office Vests, 89 NOTRE DAME L. REV. 199, 231 (2013) (“Because
the Constitution never dictates how or when an appointment is made, an
appointment vests however and whenever the appointer decides that it
should vest.”).

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18 No. 13-1761
There was no violation—let alone a clearly established
violation—of the equal protection clause when Walker de-
clined to award Chasensky a discretionary appointment to a
constitutional office. Consequently, Walker enjoys qualified
immunity from Chasensky’s equal protection claim.
IV. CONCLUSION
For the reasons stated above, we conclude that we have
interlocutory appellate jurisdiction to consider this appeal.
Further, we conclude that the defendants did not waive the
defense of qualified immunity when they did not raise it until
their motion to dismiss Chasensky’s amended complaint.
Finally, the defendants are entitled to qualified immunity from
Chasensky’s privacy and equal protection claims. For the
foregoing reasons, we REVERSE the March 14, 2013, and July
28, 2013, orders of the district court and REMAND this case for
proceedings consistent with this opinion.

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