Fairley, Roger v. Fermaint, Evan

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.

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ARGUED NOVEMBER 7, 2006—DECIDED DECEMBER 20, 2006

ON REHEARING DECIDED MARCH 19, 2007

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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 Con-

stitution’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 com-

plaint, 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 in-

mates at whim and then lie about their activities to their

2 No. 06-2411

superiors, 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. But there is a

wrinkle: defendants asked the court to dismiss the com-

plaint 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.

Our initial decision in this case, 471 F.3d 826 (2006),

dismissed the appeal for want of jurisdiction. Relying on

Garvin v. Wheeler, 304 F.3d 628, 632-33 (7th Cir. 2002),

and the principle that the time for appeal cannot be

extended by seeking reconsideration of a district court’s

order after the 30 days has lapsed, see Charles v. Daley,

799 F.2d 343, 347-48 (7th Cir. 1986), we concluded that

the defendants’ appeal was untimely. They could have

appealed from the order denying their motion to dismiss

the complaint. When they failed to appeal from that

decision, and then filed a motion for summary judg-

ment reiterating arguments that the district court al-

ready had rejected, they were just attempting to extend

the time for appeal, we held. Our opinion implied some

doubt about the wisdom and scope of the decision in

Garvin but observed that defendants had not asked us

to revisit the subject, so we took circuit law as we found it.

Defendants’ petition for rehearing, with the support of

multiple amici curiae, has asked us to take a fresh look at

No. 06-2411 3

the subject. The request is not one we can dispatch with

the observation that it comes too late, for defendants’

position turns out to have the support of language in

Toeller v. Wisconsin Department of Corrections, 461 F.3d

871, 873-74 (7th Cir. 2006), a decision that none of the

parties cited to us and that we did not consider independ-

ently. In dealing with an interlocutory appeal that had

been taken to assert a form of sovereign immunity, Toeller

had this to say:

WDOC argues that this court has jurisdiction over

the district court’s order rejecting its defense,

noting that it is established that “States . . . may

take advantage of the collateral order doctrine to

appeal a district court order denying a claim of

Eleventh Amendment immunity.” Nanda v. Bd. of

Trs. of Univ. of Ill., 303 F.3d 817, 821 (7th Cir.

2002) (quoting Puerto Rico Aqueduct & Sewer

Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147

(1993)). Toeller acknowledges this rule, but he

argues that WDOC failed to file its notice of appeal

within the time permitted by Fed. R. App. P.

4(a)—a step that is also required before this court

may entertain the appeal.

Toeller’s position, however, rests on the mistaken

premise that WDOC had one and only one opportu-

nity to take an interlocutory appeal on this issue.

He believes that this opportunity arose after the

district court’s initial denial of the State’s motion

to dismiss, which was docketed on December 23,

2003. But Behrens v. Pelletier, 516 U.S. 299 (1999),

held to the contrary, in the closely-related area of

interlocutory appeals from denials of motions to

dismiss on qualified immunity grounds. See id. at

307. We see no reason why the rationale of

Behrens should not apply with equal force to

4 No. 06-2411

interlocutory appeals of Eleventh Amendment

immunity claims. From that standpoint, WDOC’s

notice of appeal easily satisfied Rule 4(a). The

district court denied WDOC’s motion for summary

judgment (which included its renewed Eleventh

Amendment defense) on September 29, 2005, and

the State filed its notice of appeal comfortably

within the 30-day period allowed by the rule, on

October 17, 2005. We conclude that we have

jurisdiction over this appeal and thus may proceed

to the merits.

This passage says that, when Behrens allows an appeal

from both a decision denying a motion to dismiss a com-

plaint and a decision denying a motion for summary

judgment, the litigant’s appeal from the latter decision

cannot be rejected as an effort to extend the time to appeal

from the former.

Just as our decision neglected Toeller, so the panel in

Toeller did not mention Garvin. Perhaps it did not need to

do so: unless the motions to dismiss and for summary

judgment in Toeller were materially identical, then Garvin

(as our panel understood it) did not foreclose appeal from

the denial of summary judgment. A material difference

between the arguments made in the two stages is not,

however, the ground on which Toeller resolved the appeal.

The stated rationales of Garvin, Toeller, and the decision

in this appeal are not compatible. We need to bring

harmony to the law of the circuit, and to do so it is best to

return to first principles. We grant the petition for rehear-

ing and proceed to decide this appeal anew.

Mitchell v. Forsyth, 472 U.S. 511 (1985), held that a

defendant who claims qualified immunity is entitled to

take an interlocutory appeal. Mitchell used the approach

of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541

(1949), which held that a decision is “final” (and thus

No. 06-2411 5

appealable under 28 U.S.C. §1291) when it conclusively

resolves an important question that cannot be reviewed on

appeal at the litigation’s end. The Court concluded in

Mitchell that qualified immunity gives the defendant a

right not only to prevail but also to avoid entanglement in

the litigation—sometimes dubbed a “right not to be tried,”

this entitlement includes a right to avoid discovery if

matters are sufficiently clear at the outset of the suit.

Behrens held that Mitchell logically implies a right to

appeal from either or both of an order refusing to dismiss

the complaint and an order denying a public official’s

motion for summary judgment, because each of these

orders can “conclusively resolve” an aspect of the qualified-

immunity right: an order refusing to dismiss the com-

plaint conclusively rejects a defendant’s claim of freedom

from discovery, and an order denying a motion for sum-

mary judgment conclusively rejects a defendant’s claim

of freedom from trial. Each of these decisions is “final” in

the Cohen–Mitchell framework, and §1291 allows the

aggrieved party to appeal from every final decision.

Once a “final” decision has been made, the clock for fil-

ing a notice of appeal begins to run. It stops if a motion

for reconsideration is filed while time for appeal remains,

see United States v. Dieter, 429 U.S. 6 (1976) (holding that

this principle applies even if the order is interlocutory

and no rule specifically authorizes a motion for reconsider-

ation), and starts anew once such a motion is denied. Fed.

R. App. P. 4(a)(4). A motion for reconsideration filed

outside the time for appeal (or otherwise provided by rule

for such a motion), or a successive motion for reconsidera-

tion, does not affect the time for appeal or reopen the

window. See Charles v. Daley, supra. When there are two

“final” decisions in a case, the time runs independently

from each. This would be clear enough if the first “final”

decision were an order denying a motion to dismiss the

complaint, and the second were the final decision after a

6 No. 06-2411

trial. It is no less true when (as a result of Behrens)

multiple “final decisions” precede the single “final judg-

ment.” This is what Toeller said—correctly, we conclude.

Garvin could have been decided as a simple application

of these principles. The district court denied a public

official’s motion for summary judgment. After the time for

appeal had expired, defendant asked the district court to

reconsider and appealed from the order denying that

motion. Instead of applying the rule that an untimely

motion for reconsideration never extends or reopens the

time for appeal, however, the panel in Garvin stated that

a motion making new legal or factual arguments might

reopen the time—but that because no new arguments

had been advanced in that case, the appeal must be

dismissed. That analysis led us to ask whether the appel-

lants in our case had made new arguments and, finding

that they had not, to dismiss their appeal. But the search

for new arguments is unsound. Once a final decision has

been made, and the time for appeal (or an authorized

motion to reconsider) has expired, it does not matter what

arguments the litigant adduces. The window for appeal

cannot be reopened.

The right inquiry under Mitchell and Behrens is what

the court has done, not what arguments the litigant has

made. Once the judge has conclusively denied a motion to

dismiss the complaint or grant summary judgment, the

time for appeal begins to run. A tentative decision, by

contrast, is not “final” and does not start the time for

appeal; the defendant is free to make new arguments (or

reiterate old ones) without jeopardizing the opportunity

to appeal once the district judge turns the tentative

resolution into a conclusive one. To the extent that Garvin

made appellate jurisdiction turn on the arguments pre-

sented to the judge, rather than the sort of decision made

No. 06-2411 7

by the judge, it is disapproved.† We now hold, in accord

with Behrens and Toeller, that a public official may ap-

peal from an order conclusively denying a motion (based

on qualified immunity) seeking summary judgment,

whether or not the official has appealed from an order

denying a motion to dismiss the complaint, and whether or

not the motion for summary judgment rests on new legal

or factual arguments. But once a conclusive resolution has

been reached at either stage, a renewed motion for the

same relief, or a belated request for reconsideration, does

not reopen the time for appeal. Accord, Robbins v. Wilkie,

433 F.3d 755, 762-63 (10th Cir. 2006); Vega v. Miller, 273

F.3d 460, 465-66 (2d Cir. 2001); Grant v. Pittsburgh,

98 F.3d 116, 120 (3d Cir. 1996).

This conclusion relieves public officials from any pres-

sure to take what may be premature appeals from orders

declining to dismiss complaints. See Jacobs v. Chicago,

215 F.3d 758, 765 n.3 (7th Cir. 2000), id. at 775 (concur-

ring opinion); McMath v. Gary, 976 F.2d 1026, 1031 (7th

Cir. 1992). It also operates mechanically, a desirable

feature in any jurisdictional rule. See Budinich v. Becton

Dickinson & Co., 486 U.S. 196, 202 (1988) (“The time of

appealability, having jurisdictional consequences, should

above all be clear.”). Garvin and our initial opinion could

send litigants and judges on a tour of the record to deter-

mine whether and when a public official is entitled to

appeal. How much preferable it is to have a rule that can

be applied using only a copy of the district court’s deci-

sion and a calendar.

†

This opinion has been circulated to all active judges under

Circuit Rule 40(e). No judge requested a hearing en banc on the

question whether to change the legal analysis employed in

Garvin. Circuit Judge Flaum did not participate in the con-

sideration or decision of this case.

8 No. 06-2411

Our conclusion that this appeal is timely does not mean,

however, that the defendants are home free. Defendants’

principal argument relies on Garcetti v. Ceballos, 126

S. Ct. 1951 (2006), which holds that, “when public em-

ployees 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 invoke Garcetti for the proposi-

tion 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.

Plaintiffs maintain, however, 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 plain-

tiffs 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 defen-

dants’ 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,

469 F.3d 618 (7th Cir. 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.

No. 06-2411 9

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

the suit is barred by the statute of limitations. That

subject has nothing to do with official immunity. Defen-

dants appear to believe that all arguments of any stripe

are open on an interlocutory appeal under Mitchell, but as

Jones shows that’s not so.

When entertaining an interlocutory appeal by a

public official who seeks the shelter of qualified

immunity, the threshold question is: “Taken in the

light most favorable to the party asserting the

injury, do the facts alleged show the [public offi-

cial’s] conduct violated a constitutional right?”

Saucier v. Katz, 533 U.S. 194, 201 (2001). See also,

e.g., Brosseau v. Haugen, 543 U.S. 194, 197 (2004);

Newsome v. McCabe, 319 F.3d 301, 303-04 (7th

Cir. 2003). Only if the answer is affirmative does

the court inquire whether the official enjoys quali-

fied immunity. “[I]f a violation could be made out

on a favorable view of the parties’ submissions, the

next, sequential step is to ask whether the right

was clearly established.” Saucier, 533 U.S. at 201.

Hosty v. Carter, 412 F.3d 731, 733 (7th Cir. 2005) (en banc)

(bracketed material in original). Whether plaintiffs’ suit

is untimely does not bear on either of the questions

identified in Saucier and Hosty.

Defendants’ further argument that they are not state

actors, because all of the guards are on the same level of

the employment hierarchy, is self-defeating at this stage of

10 No. 06-2411

the litigation. For if they are not state actors, they also are

not entitled to take an interlocutory appeal. The premise

of this appeal is that the defendants are public officials

sued on account of their official conduct; by denying that

premise and insisting that they behaved in a private

capacity on a private frolic the defendants knock out

appellate jurisdiction. See Mitchell v. Aluisi, 872 F.2d 577,

580 (4th Cir. 1989). Lack of state action would be a reason

why this suit belongs in state court under state tort law,

rather than in federal court under §1983, but an argument

along these lines does not assert a right not to be tried; it

just asserts a right to be tried in a different forum, and

such a contention does not justify an interlocutory appeal.

See Van Cauwenberghe v. Biard, 486 U.S. 517 (1988).

Perhaps the state-actor theme can be recast as an

argument that one public official’s misconduct toward

another at the same level of the bureaucracy cannot

violate the Constitution. So put, the argument is within

the first step of immunity analysis under Saucier. But so

put the argument is a loser. Suppose one police officer

arrests another or searches his house; that step, if taken

without probable cause (and a warrant, if required for the

search), violates the fourth amendment. See Acevedo v.

Canterbury, 457 F.3d 721 (7th Cir. 2006); Driebel v.

Milwaukee, 298 F.3d 622, 649-50 (7th Cir. 2002). Suppose

the white guards at a prison mercilessly harass the black

guards and make their lives miserable, or suppose the

men demean the women. Such misconduct may be action-

able under the Constitution. See, e.g., Bohen v. East

Chicago, 799 F.2d 1180 (7th Cir. 1986); Valentine v.

Chicago, 452 F.3d 670 (7th Cir. 2006). See also, e.g., Bart

v. Telford, 677 F.2d 622 (7th Cir. 1982) (campaign of

harassment against co-worker on account of speech can

violate the first amendment); Powers v. Summers, 226 F.3d

815 (7th Cir. 2000) (same).

No. 06-2411 11

In litigation under Title VII of the Civil Rights Act of

1964, one worker’s misconduct toward another does not

automatically lead to liability for the employer, because

liability under that statute is direct rather than vicarious.

Only employers are subject to the law’s commands, and

employers are responsible for what they do (or elect to

tolerate), rather than what everyone in the work force

does. See Burlington Industries, Inc. v. Ellerth, 524 U.S.

742 (1998); Faragher v. Boca Raton, 524 U.S. 775 (1998).

Things are otherwise under §1983. State agencies are not

“persons” under §1983, see Will v. Michigan Department of

State Police, 491 U.S. 58 (1989), and even units of local

government are responsible only for their policies rather

than misconduct by their workers. Monell v. New York City

Department of Social Services, 436 U.S. 658 (1978).

Liability falls on the misbehaving employees—which of

course is why they are keen to assert immunities from

suit.

Whether defendants engaged in the conduct of which

plaintiffs accuse them—and, if so, whether they did it to

retaliate for plaintiffs’ constitutionally protected speech, or

just because defendants have a mean streak—are ques-

tions that must be resolved at trial. Arguments based on

Garcetti, the state-action doctrine, and the statute of

limitations are preserved for decision on appeal from the

final judgment. See Kurowski v. Krajewski, 848 F.2d 767

(7th Cir. 1988).

AFFIRMED

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—3-19-07