Fairley, Roger v. Fermaint, Evan ( 2006 )


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  •                             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 four-
    teenth) 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 ap-
    proach 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 interlocu-
    tory 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 con-
    cern interlocutory decisions; an order rejecting an im-
    munity 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 pur-
    poses 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 sum-
    mary 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 succes-
    sive 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 defen-
    dants 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 sum-
    mary 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 immu-
    nity 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 com-
    plaint. Only the caption differed. Nothing that turned up
    in discovery mattered; no new legal argument was ad-
    vanced.
    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 Amend-
    ment 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, defen-
    dants 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 defen-
    dants 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 ap-
    peal 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 defen-
    dant 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 distin-
    guishable 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 sum-
    mary 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 charac-
    terization, but I accept it for the moment.) In our case, a
    motion to dismiss was denied, discovery ensued, a mo-
    tion 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 mo-
    tions for summary judgment on immunity and be permit-
    ted 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 inconsis-
    tent 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 immun-
    ity cannot be appealed unless there has been some im-
    portant 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 re-
    filing 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 succes-
    sive 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 what-
    ever 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 legiti-
    mate 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 immu-
    nity 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