# Roger Fairley and Richard Gackowski v. Evan Fermaint, Noberto Bercasio, and Fred Coffey

> Court of Appeals for the Seventh Circuit · December 20, 2006 · 471 F.3d 826

URL: https://www.frixlaw.com/law-library/cases/9499349

## Case

- **Full name:** Roger FAIRLEY and Richard Gackowski, Plaintiffs-Appellees, v. Evan FERMAINT, Noberto Bercasio, and Fred Coffey, Defendants-Appellants
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** December 20, 2006
- **Citations:** 471 F.3d 826; 2006 U.S. App. LEXIS 31304
- **Precedential status:** Published
- **Opinion:** Dissent by Posner
- **Judges:** Easterbrook, Posner, Wood
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9499349

## Opinion text

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 *830 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 , 116 S.Ct. 834 , 133 L.Ed.2d 773 (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 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 consistent 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 *831 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 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 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 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.
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. *832 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 ease 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. WTiat 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 for summary judgment. Defendants are entitled to immunity if them “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 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). As the Court explained in Behrens v. Pelletier, supra, 516 U.S. at 309 , 116 S.Ct. 834 (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 ease 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9499349. Public record. Not legal advice.