In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2411

ROGER FAIRLEY and RICHARD GACKOWSKI,

Plaintiffs-Appellees,

v.

EVAN FERMAINT, NOBERTO BERCASIO, and FRED COFFEY,

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.

____________

ARGUED NOVEMBER 7, 2006—DECIDED DECEMBER 20, 2006

____________

Before EASTERBROOK, Chief Judge, and POSNER and

WOOD, Circuit Judges.

EASTERBROOK, Chief Judge. Two former guards at Cook

County Jail contend in this suit under 42 U.S.C. §1983

that some of their ex-colleagues violated the Constitution’s

first amendment (applied to state actors via the fourteenth) by vilifying and assaulting them because they

stood up for inmates’ rights. According to the complaint,

the defendants and their confederates bully and ostracize

any guard who plays by the rules; these strong-arm tactics

organize and protect guards who beat inmates at whim

and then lie about their activities to their superiors,
2 No. 06-2411

criminal investigators, and judges in any suits that the

prisoners may file. Plaintiffs’ 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 they have appealed from the

order denying this motion. Despite its interlocutory

character, 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 appeals 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 the new motion—an appeal from

the order denying summary judgment 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 differences
No. 06-2411 3

as part of the justification for allowing multiple interlocutory appeals. 516 U.S. at 308-09. It was not possible to

characterize the second interlocutory appeal in Behrens 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 declining 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 generally applicable rule that the

window for appeal cannot be reopened by filing the same

motion again covers this situation.

The rule that successive motions 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 independent “finality” of such

decisions is the linchpin of both Mitchell and Behrens. So

it will not help to assert that the doctrine does not concern interlocutory decisions; an order rejecting an immunity defense is “final” rather than “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 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

ensnaring even the wary litigant, a court might instead

say, as Behrens emphasized, that an order denying a

motion to dismiss the complaint, and an order denying
4 No. 06-2411

summary judgment, are independently “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 application, 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 involved 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 in Behrens or

its predecessors for saying that all motions to dismiss

must be sorted into one pile, and all motions for summary judgment into a second, with one appeal from each

category of motion rather than from 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 dismiss the complaint. Yet this

is not the only effect. Another is to reduce the incentive

to file premature motions; a defendant who refrains from
No. 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 legal

and factual digging before they file a motion for summary judgment. That effect is all to the good, because it

improves the accuracy of judicial 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 of the 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 summary

judgment replicated their motion to dismiss the complaint. Only the caption differed. Nothing that turned up

in discovery mattered; no new legal argument was advanced.

Fortuitously, something changed after the district

court denied defendants’ renewed motion: 26 days later,

the Supreme Court decided Garcetti 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 Constitution does not insulate

their communications from employer discipline.” Id. at

1960. Defendants rely on Garcetti for the proposition

that plaintiffs’ speech in the workplace is not covered by

the first amendment, so they are 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 treated 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-day
6 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 apply Garcetti,

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 events 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 Mitchell and Behrens

is to determine whether the legal principles that apply

to public officials were clearly 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 long before the events of which

plaintiffs complain that state 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 interlocutory 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 state 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 their 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 dismissed for want of jurisdiction.

POSNER, 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 ensnaring 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 of
8 No. 06-2411

clarity and mechanical application, much-desired

qualities in any jurisdictional 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, they should not refrain from

overruling it just to punish the 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 think that’s an accurate characterization, but I accept it for the moment.) In our case, a

motion to dismiss was denied, 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 winning 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 exceptional

circumstances you cannot file identical successive motions for summary judgment on immunity and be permitted to appeal from any or all 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 would require 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 summary judgment, if as in Garvin

there is more than one such motion; 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 distinguished, in order to avoid

its having precedential force in a subsequent case, or must

be overruled to have that effect, depends on the breadth of

its holding, and that often there is a choice as to how

broadly a holding should be understood. The choice is

made by courts in later cases, the cases in which the

decision is argued to be a precedent. Garvin can be read

narrowly to hold that denials of second or successive
10 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” qualification) that the denial of a

motion for summary judgment cannot be appealed if a

motion for summary judgment or a 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 point, the last thing the federal

courts need is more discovery. 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 interpretation as the linchpin of

its decision, saying (citations omitted):

Litigants have only 30 days to appeal. Having let the

time 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 were
No. 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 in this 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 losing

party does not appeal within the 30 or 60 days or whatever time is allowed for filing the appeal, but later thinks

better of his decision, files a Rule 60(b) motion to vacate

the judgment, appeals from the 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 litigation. 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 filed their motion for summary

judgment there was no final 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 for 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 motion
12 No. 06-2411

for summary judgment. Defendants 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 on summary judgment than on

an earlier motion to dismiss. At that earlier stage, it is

the defendant’s conduct as alleged in the complaint that

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 rather 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 the 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