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
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