## In the 

# United States Court of Appeals
For the Seventh Circuit

____________

No. 06-2411

R OGER FAIRLEYand R ICHARD G ACKOWSKI , Plaintiffs-Appellees

, v.

E VAN F ERMAINT , N OBERTO B ERCASIO , and F RED C OFFEY , Defendants-Appellants

.

____________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 C 5207— Amy J. St. Eve

, Judge

.

____________ A RGUED N OVEMBER 7, 2006—D ECIDED D ECEMBER 20, 2006

____________

Before E ASTERBROOK , Chief Judge , and P OSNERand W OOD , Circuit Judges

. E ASTERBROOK , Chief Judge . Two former guards at Cook County Jail contend in this suit under 42 U.S.C. §1983 that some of their ex-colleag ues violated the Constitution’sfirst amendment (applied to state actors via the fourteenth) by vilifying and a ssaulting them because they stood up for inmates’ rights. According to the complaint, the defendants and their conf ederates bully and ostracize any guard who plays by the rule s; these strong-arm tactics organize and protect guards who beat inmates at whim and then lie about their acti vities to their superiors,2 No. 06-2411

criminal investigators, and judges in any suits that the prisoners may file. Plainti ffs’ allegations may or may not be true; this litigation has not reached the point at which a judge or jury sifts fact from fiction. Defendants moved for summary judgment on the ground of official immunity, and th ey have appealed from the order denying this motion. Despite its interlocutorycharacter, such an order is appealable under the approach of Mitchell v. Forsyth , 472 U.S. 511 (1985). But there is a wrinkle: defendants asked the court to dismiss the complaint two years ago, before discovery commenced, and did not appeal from the adverse decision. They reply that Behrens v. Pelletier , 516 U.S. 299 (1996), allows successive interlocutory appe als at the complaint and summary judgment stages, so it must logically allow defendants to forego appeal at the complaint stage and save their arguments for summary judgment.

The problem is not, however, the number of appeals but timing. Litigants have only 30 days to appeal. See Fed. R. App. P. 4(a)(1)(A). Having let the time pass, a litigant cannot reopen the window by re-filing the same motion or its functional equivalent and obtaining the same decision. See Charles v. Daley , 799 F.2d 343, 347-48 (7th Cir. 1986). That would be equivalent to abolishing the time limit. Thus we held in Garvin v. Wheeler , 304 F.3d 628, 632-33 (7th Cir. 2002), that when an immunity-based motion for summary judgment duplicates a motion already made and denied—when no new facts or legal arguments are presented in support of th e new motion—an appeal from the order denying summary ju dgment must be dismissed, because the maneuver is nothing but an effort to get around the time limit. Cf. Vega v. Miller , 273 F.3d 460, 465-66 (2d Cir. 2001) (new arguments allow a new appeal under Behrens ).

In Behrens the successive motions rested on different grounds; the Supreme Court noted these differencesNo. 06-2411 3

as part of the justification fo r allowing multiple interlocutory appeals. 516 U.S. at 308-09. It was not possible to characterize the second interlocutory appeal inBehrens as an effort to evade the 30-day limit for filing a notice of appeal from the initial decision. The holding of Behrens is that both an order declin ing to dismiss the complaint and an order denying summary judgment are “final” decisions under 28 U.S.C. §1291 when the defendant invokes an immunity to discovery or trial; the timing for permissible appeals did not arise. In our case timing is everything, and the generallyapplicable rule that the window for appeal cannot be reopened by filing the same motion again covers this situation.

The rule that successive moti ons do not reopen the time for appeal applies to all “final decisions”—and a decision rejecting an immunity defense is “final” even though the litigation continues. The inde pendent “finality” of such decisions is the linchpin of bothMitchellandBehrens . Soit will not help to assert that the doctrine does not concern interlocutory decisions; an order rejecting an immunity defense is “final” ratherthan “interlocutory” as the Supreme Court draws that distinction.

Perhaps one could doubt the wisdom of Garvin because it has the potential to encourage unnecessary protective appeals. Suppose that a public official prefers to avoid the cost and delay associated with an appeal at the complaint stage, confident th at discovery either will foil plaintiffs’ claims on the me rits or fortify the basis of immunity. If discovery (unexpectedly) does not turn up new evidence, thenGarvin means that the defendant cannot appeal from an orde r denying summary judgment: the invocation of immunity will just repeat the arguments made earlier, rendering the appeal untimely. To avoid ensnaring even the wary litig ant, a court might instead

say, as Behrens emphasized, that an order denying a motion to dismiss the compla int, and an order denying4 No. 06-2411

summary judgment, are inde pendently “final” (for purposes of Mitchell), so that each has its own 30-day period for appeal no matter what arguments have been raised. Such an approach would have the additional virtue of clarity and mechanical applicat ion, much-desired qualities in any jurisdictional doctrine. See Budinich v. Becton Dickinson & Co ., 486 U.S. 196 (1988). But this approach also would require us to overrule Garvin , a step that defendants have not proposed.

Garvin cannot be treated as limited to successive motions for summary judgment and distinguished on the ground that this case involv ed a motion to dismiss the complaint followed by a motion for summary judgment. Behrens holds that an interlocutory appeal is proper from

any decision finally rejecting a claim of official immunity. Both an order declining to dismiss a complaint and an order denying a motion for summary judgment fit that category, the Court held. There is no basis inBehrens or its predecessors for saying th at all motions to dismiss must be sorted into one p ile, and all motions for summary judgment into a second, with one appeal from each category of motion rather than fr om each order that is a “final decision” for the purpose of 28 U.S.C. §1291. So it does not make any difference that Garvin involved successive requests under Rule 56, while this case entails one request for relief under Rule 12 and a second under Rule 56. What does matter is that in both Garvin and this litigation the two motions were functionally identical, and entertaining an appeal from the second decision would effectively extend the time to appeal from the first.One effect of this understanding will be to make defendants more likely to appeal from the district court’s order denying a motion to di smiss the complaint. Yet this is not the only effect. Anothe r is to reduce the incentive to file premature motions; a defendant who refrains fromNo. 06-2411 5

filing a doomed motion to dismiss does not jeopardize a later appeal. A third effect is to induce defendants who do move to dismiss the complaint, and lose, to do more legaland factual digging before they file a motion for summary judgment. That effect is all to the good, because it improves the accuracy of judi cial decision-making, and it is the sort of thing that Behrens contemplated would occur. Finally, in some cases the effect may be to postpone appellate review to the end ofthe litigation, when immunity may no longer matter (and all facts will be in focus if it still does matter). That cannot be dismissed as a trivial benefit to the judicial system. Defendants concede that their motion for summaryjudgment replicated their motion to dismiss the complaint. Only the caption diffe red. Nothing that turned upin discovery mattered; no new legal argument was advanced.
Fortuitously, something changedafterthe district court denied defendants’ renewed motion: 26 days later, the Supreme Court decidedGarcetti v. Ceballos , 126 S. Ct. 1951 (2006), which holds that, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Cons titution does not insulate their communications from employer discipline

. ” Id . at 1960. Defendants rely onGarcetti for the proposition that plaintiffs’ speech in the workplace is not covered by the first amendment, so theyare entitled to prevail even though their reactions to that speech are asserted to be extra-legal and reprehensible. Such responses may be actionable under state law in the wake of Garcetti , defendants allow, but cannot be trea ted as constitutional torts.

Although it is tempting to see in Garcetti the sort of change that allows an appeal without offense to the rule that repetitious arguments do not open a new 30-day6 No. 06-2411

period, things are not so straightforward. Plaintiffs maintain that defendants reacted adversely to two kinds of speech: not only statements made as part of their duties at work (the kind of speech to which Garcetti applies) but also to testimony that plaintiffs gave in inmates’ suits. Assistance to prisoners and their lawyers in litigation is not part of a guard’s official duties. To applyGarcetti

,therefore, we would need to determine whether defendants reacted to plaintiffs’ activities in litigation (they say not) and which of defendants’ deeds can be traced to the litigation as opposed to ev ents at work. Piecing out the state of the record, and drawing inferences from the evidence, is not allowed on an interlocutory appeal based on a claim of immunity. See Johnson v. Jones , 515 U.S. 304 (1995); Via v. LaGrand , No. 04-4011 (7th Cir. Nov. 17, 2006). The role of an appeal under MitchellandBehrens is to determine whether the legal principles that apply to public officials were cl early established at the time those officials acted; it is not to determine what the officials did in fact, for that would impinge on the jury’s task. It was clearly established longbefore the events of which plaintiffs complain that st ate actors may not assault witnesses in federal litigation. That’s a crime, see 18 U.S.C. §1512(a)(2), so no public official could think the conduct proper. Still, an inte rlocutory appeal is not the forum for resolving disputes about whether defendants did what plaintiffs accuse them of. Nor is an interlocutory appeal a means to obtain review of the question whether defendants were engaged in st ate action in doing whatever they may have done; that issue is unrelated to legal uncertainty and thus to the doctrine of official immunity. If the defendants ultimately lose this litigation, they will be entitled to raise thei r immunity defenses on appeal from the final decision. See Kurowski v. Krajewski

, 848 F.2d 767 (7th Cir. 1988). All we hold today is that,No. 06-2411 7

while Garvin stands, public officials cannot use a motion for summary judgment in order to reopen the time to take an interlocutory appeal from an order declining to dismiss the complaint. Although Garcetti might have allowed an appeal based on new legal arguments, Johnson v. Jones blocks that route given the material factual disputes, resolution of which is beyond the scope of any interlocutory appeal. This appeal is dismi ssed for want of jurisdiction.

P OSNER , Circuit Judge , dissenting. The majority opinion remarks: Perhaps one could doubt the wisdom of Garvin [ v. Wheeler , 304 F.3d 628 (7th Cir. 2002)], because it has the potential to encourage unnecessary protective appeals. Suppose that a public official prefers to avoid the cost and delay associated with an appeal at the complaint stage, confident that discovery either will foil plaintiffs’ claims on the merits or fortify the basis of immunity. If discovery ( unexpectedly) does not turn up new evidence, then Garvin means that the defendant cannot appeal from an order denying summary judgment: the invocation of immunity will just repeat the arguments made earlier, rendering the appeal untimely. To avoid ensnarin g even the wary litigant, a court might instead say, as Behrens [ v. Pelletier , 516 U.S. 299 ( 1996)], emphasized, that an order denying a motion to dismiss the complaint, and an order denying summary judgment, are independently “final”, . . . so that each has its own 30-day period for appeal no matter what arguments have been raised. Such an approach would have the additional virtue of8 No. 06-2411

clarity and mechanical application, much-desired qualities in any jurisdiction al doctrine. . . . But this approach also would require us to overrule Garvin , a step that defendants have not proposed. The defendants have not proposed that we overrule Garvin for the excellent reason that Garvin is readily distinguishable from the present case . So if my colleagues think it should be overruled, th ey should not refrain from overruling it just to punishthe defendant’s lawyer for obtuseness in having failed to ask us to overrule it. He was not obtuse. They have overread the case.

Garvin was a case of two successive motions for summary judgment on immunity, so that by appealing from the denial of the second motion but not from the denial of the first the defendant could be thought to have tried to extend the time to appeal beyond the 30-day limit for taking an appeal. (I don’t thin k that’s an accurate characterization, but I accept it fo r the moment.) In our case, a motion to dismiss was deni ed, discovery ensued, a motion for summary judgment was made and denied, and it was from that denial that the defendants appeal. As my colleagues acknowledge in the passage I quoted, it makes sense for a defendant not to appeal from the denial of his motion to dismiss if he thinks discovery will strengthen his case for immunity. He will balance the cost of the appeal against the cost of discovery, having regard also for the possible effect of discovery in turning a losing immunity defense into a winner and for the danger that losing an appeal from the denial of the motion to dismiss would reduce his chances of winni ng the subsequent appeal.

Garvin did not mention this argument, let alone reject it. It did point out that the additional discovery that the defendant conducted after the denial of the first motion for summary judgment did not turn up any facts favorable to his immunity defense. But that observation was con-No. 06-2411 9

sistent with a rule that in the absence of exceptionalcircumstances you cannot file identical successive motions for summary judgment on immunity and be permitted to appeal from any or a ll of them. That could inundate the courts of appeals with multiple appeals in the same case. You can appeal from the denial of your motion to dismiss and from the denial of your first motion for summary judgment, but that’s it. (An alternative, more lenient rule, which wouldrequire overruling Garvin but is not necessary for the sound decision of this case, would permit one appeal from denial of summary judgment without specifying that it must be taken from the denial of the first motion for summa ry judgment, if as in Garvin there is more than one suchmotion; for why should we care which denial the defendant appeals from?)
The concern with inundation is the opposite in this case: if failing to appeal the denial of a motion to dismiss blocks a subsequent appeal from denial of a motion for summary judgment, then courts of appeals could be inundated by protective appeals from denials of motions to dismiss. This point was made in Vega v. Miller , 273 F.3d 460, 465-66 (2d Cir. 2001), which my colleagues cite, and also in Robbins v. Wilkie , 433 F.3d 755, 763-64 (10th Cir. 2006), and Grant v. City of Pittsburgh , 98 F.3d 116, 121 (3d Cir. 1996).

Allowing the appeal in this case would not be inconsistent with the dismissal of the defendant’s appeal in Garvin . But to see this we need to understand that whether a decision can be dist inguished, in order to avoid its having precedential force ina subsequent case, or must be overruled to have that e ffect, depends on the breadth of its holding, and that often th ere is a choice as to how broadly a holding should be understood. The choice is made by courts in later ca ses, the cases in which the decision is argued to be a precedent. Garvin can be read narrowly to hold that denials of second or successive10 No. 06-2411

motions for summary judgment on grounds of immunity cannot be appealed unless there has been some important change since the first denial, or broadly to hold (with the same “unless” qualific ation) that the denial of a motion for summary judgment cannot be appealed if a motion for summary judgment ora motion to dismiss was denied previously. It is our choice. The panel majority, in the “Perhaps” passage that I quoted earlier, explained why the narrower reading is superior, yet unaccountably it chooses the broader reading. Well, not quite unaccountably. For later in its opinion the majority has second thoughts, and suggests two reasons why the broader reading might be preferable after all: that it would reduce the incentive to file doomed motions to dismiss, and that it would encourage more discovery. As to the latter poin t, the last thing the federal courts need is more discover y. As to the former, “doomed” motions to dismiss do not take up much time of a district judge. I said that that one way to describe an appeal from the denial of a successive motion for summary judgment that is identical to the first motion is as an attempt to extend the time for appealing from the initial denial. The panel majority embraces that inte rpretation as the linchpin of its decision, saying (citations omitted): Litigants have only 30 days to appeal. Having let thetime pass, a litigant cannot reopen the window by refiling the same motion or its functional equivalent and obtaining the same decision. That would be equivalent to abolishing the time limit . . . . [I]t does not make any difference that Garvin involved successive requests under Rule 56, while this case entails one request for relief under Rule 12 and a second under Rule 56. What does matter is that in both Garvin and this litigation the two motions wereNo. 06-2411 11

functionally identical, and entertaining an appeal from the second decision would effectively extend the time to appeal from the first.
Two things are overlooked inthis passage: the difference between appeals from final judgments and interlocutory appeals, and the difference between motions to dismiss and motions for summary judgment. Suppose a final judgment is rendered and the losingparty does not appeal within the 30 or 60 days or whatever time is allowed for filin g the appeal, but later thinks better of his decision, files a Rule 60(b) motion to vacate the judgment, appeals from th e denial, and argues in the appeal that the judgment was wrong. That would indeed be a case of using an appeal from the denial of a motion as a means of extending the time for appealing an earlier ruling, and it would be objectionable because it would deny finality to the litigatio n. The defendants in this case are not trying to reopen a completed litigation. When they filed their motion to dismiss there was no final judgment; when they file d their motion for summary judgment there was no fina l judgment; and there still is no final judgment. It made and makes no difference to anyone whether they appealed from the denial of their motion to dismiss, or passed and appeal instead from the denial of their motion fo r summary judgment. The only effect of today’s decision will be to engender the filing of protective appeals. What is the point? To honor stare decisis ? But read narrowly, for the reason that the panel majority itself suggests in the “Perhaps” passage, Garvin does not control the present case ; and it is entirely legitimate to read it narrowly. Courts read precedents broadly or narrowly depending on what the courts have learned subsequent to the precedents.

The other difference that the panel majority overlooks is the difference between a motion to dismiss and a motion12 No. 06-2411

for summary judgment. Defendan ts are entitled to immunity if their “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). As the Court explained in Behrens v. Pelletier

, supra , 516 U.S. at 309 (emphasis in original), “the legally relevant factors bearing upon the Harlow question will be different onsummary judgment than on an earlier motion to dismiss. At that earlier stage, it is the defendant’s conduct as alleged in the complaintthat is scrutinized for ‘objective legal reasonableness.’ On summary judgment, however, the plaintiff can no longer rest on the pleadings, see Fed. Rule Civ. Proc. 56, and the court looks to the evidence before it (in the light most favorable to the plaintiff) when conducting the Harlow inquiry.” If a motion to dismiss on immunity grounds fails, it is natural for the defendant to decide that he had better try to find some evidence rath er than take an appeal that he may be quite likely to lose. But he cannot know before discovery begins how productive discovery will be. There is no reason why, if he strikes out in discovery, as in this case, he should be denied an appellate determination as to whether the case should have been dismissed because he satisfied the Harlow standard. This approach is a natural extension of Behrens ; it is consistent with Garvin ; and it harms no one—its only effect being to head off protective appeals.

We have jurisdiction of th e appeal, and should proceed to the merits.No. 06-2411 13

A true Copy:

Teste:

________________________________ Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—12-20-06