396 F.3d 887 (7th Cir. 2005), 04-1443, Hart v. Sheahan

Docket Nº:04-1443.
Citation:396 F.3d 887
Party Name:Genise HART, et al., Plaintiffs-Appellants, v. Michael SHEAHAN, Sheriff of Cook County, and Cook County, Defendants-Appellees.
Case Date:February 01, 2005
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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396 F.3d 887 (7th Cir. 2005)

Genise HART, et al., Plaintiffs-Appellants,

v.

Michael SHEAHAN, Sheriff of Cook County, and Cook County, Defendants-Appellees.

No. 04-1443.

United States Court of Appeals, Seventh Circuit

February 1, 2005

Argued Nov. 30, 2004.

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[Copyrighted Material Omitted]

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Thomas G. Morrissey (argued), Chicago, IL, Robert H. Farley, Jr., for Plaintiff-Appellant.

Stephen R. Swofford, Hinshaw & Culbertson, Chicago, IL, Richard A. Devine, Office of the Cook County State Attorney, Steven M. Puiszis (argued), Chicago, IL, Defendant-Appellee

Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

This is an appeal from the dismissal, for failure to state a claim, of a suit by female inmates of the Cook County Jail in Chicago against the jail's superintendent and the County. The plaintiffs are pretrial detainees who complain that the defendants, by gratuitously exposing them to dangerous and degrading conditions of confinement, are depriving them of their liberty without due process of law and thus violating the Fourteenth Amendment. They seek an injunction and damages.

We begin with a difficult question of appellate jurisdiction. The plaintiffs appealed within 30 days of the denial of their postjudgment motion under Fed.R.Civ.P. 59(e) for reconsideration of the judgment dismissing their case. But whether the appeal brought up for review not only the denial of the motion but also--what is much more important given the limited scope of appellate review of a denial of a Rule 59(e) motion--the dismissal of the suit depends on whether the motion was filed within 10 days after the entry of the judgment. Fed. R.App. P. 4(a) (4) (A) (iv). The judgment was entered on December 19, 2003. The Rule 59(b) motion was filed on January 7, which, because of the exclusion of Christmas and weekend days, was the eleventh day after the filing of the motion unless December 26 is also excluded from the computation--and it is excluded only if it was a "legal holiday" within the meaning of Fed.R.Civ.P. 6(a)

That rule provides that "when the period of time prescribed or allowed [by a Federal Rule of Civil Procedure] is less than 11 days, intermediate ... legal holidays shall be excluded in the computation," "legal holiday" being defined in the rule to include not only Thanksgiving, Christmas, and other holidays enumerated in the rule but also "any other day appointed as a holiday by the President or the Congress of the United States, or by the state in which the district court is held." The day after Christmas is not one of the enumerated holidays. But on December 9, 2003, President Bush had issued Executive Order

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13320, § 3, 68 Fed.Reg. 69,295, which states, so far as pertinent here, that "Friday, December 26, 2003, shall be considered as falling within the scope of Executive Order 11582 of February 11, 1971, and of 5 U.S.C. 5546(b)." So we go to Executive Order 11582, § 2(a), 36 Fed.Reg. 2,957 (Feb. 11, 1971), and find that it specifies how federal employees are to be compensated on legal holidays or "any other calendar day designated as a holiday by Federal statute or Executive order." Section 5546(b) of Title 5 likewise specifies compensation for "an employee who performs work on a holiday designated by Federal statute [or] Executive order." (The President's authority to declare legal holidays is implied by this provision and also by 5 U.S.C. § 6104(3), as well as by joint resolutions that were eventually codified in these statutes. J. Res. 5, 23 Stat. 516 (Jan. 6, 1885); J. Res. 551, 52 Stat. 1246 (June 29, 1938).)

The defendants argue that because Executive Order 13320, on which the plaintiffs rely for the proposition that December 26 of 2003 was a legal holiday, does not say that the President has declared December 26 to be a holiday, the plaintiffs' Rule 59(e) motion was untimely. In support they cite our decision in Latham v. Dominick's Finer Foods, 149 F.3d 673 (7th Cir. 1998). The deadline for filing a Rule 59(e) motion in that case was December 26, 1997, also a Thursday. But the court was closed that day, and the closure order said that motions due that day didn't have to be filed until the following Monday. We held that because the plaintiff couldn't have filed on December 26, he was excused. But not because December 26 was a legal holiday; for we reasoned that while President Clinton had ordered the executive branch of the federal government closed that day, he had not declared a legal holiday; nor had he ordered the federal courts closed. The closure order had come from the chief judge of the district court, who of course is not the President and did not purport to be declaring a legal holiday and anyway lacked the authority to do so. Garcia-Velazquez v. Frito Lay Snacks Caribbean, 358 F.3d 6, 9 (1st Cir. 2004). We analogized the closure order to an order closing the court because of bad weather, noting that Rule 6(a) excludes the last day to file if "weather or other conditions have made the office of the clerk of the district court inaccessible" on that day. Because of the last-day limitation in this rule on which we were basing our decision by analogy, we said that our decision had no application to a case in which the clerk is inaccessible on an intermediate day. Whether the appeal in this case flies or falls, therefore, depends entirely on whether December 26, 2003, was a legal holiday.

Our statement in Latham that the corresponding day in 1997 was not a legal holiday was a dictum--for whether that day was or was not a holiday, the appeal was timely by virtue of the chief judge's closure order--and so does not bind us in this case. The dictum was rejected in Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1098-99 (D.C.Cir. 2003). At issue in that case was an earlier executive order by President Bush materially identical to the one at issue in this case, as well as to President Clinton's 1997 order. The court in Mashpee thought the fact that the executive order expressly incorporated provisions governing compensation of federal employees on legal holidays was a sufficient indication that the President had declared December 26 a holiday. We had not considered this possible interpretation of Clinton's (=Bush's) executive order in Latham. We own to finding the D.C. Circuit's interpretation persuasive. It is true that that court bolstered its analysis by pointing out that one of the litigants was a

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federal agency, which would be closed on December 26; but the court did not make that observation the linchpin of its analysis. It would have been odd had it done so; it would have meant that the opposing litigants in the case had different filing deadlines, since the plaintiff was not a federal agency.

Mashpee is supported by the natural understanding of what the President is doing when he closes the executive branch on the day after Christmas: he is extending the Christmas holiday. It would be positively Grinch-like for the President to say, "you can have December 26 off, but don't think it's a legal holiday." It would mean, among other things, that federal employees who had to work that day (such as air controllers) would not receive the double pay that they are entitled to for working on a holiday. 5 U.S.C. § 5546(b). Realistically, moreover, when Christmas falls on a Thursday it is pretty hard to get employees to put in a serious day's work on Friday. This is true for the private sector as well as for the public sector. So that's a lost day, and with the time for preparing and filing a Rule 59(e) motion already compressed to only 10 days, it makes practical sense to interpret the Presidential closure order as declaring a legal holiday.

The clincher is the superior simplicity of a rule that says that when the President closes the government for celebratory or commemorative reasons (see, e.g., Executive Order 13343, 69 Fed.Reg. 32,245 (June 6, 2004), closing the government for a day of commemoration of President Reagan), rather than because of a budgetary crisis (see "Federal Workers Bear Brunt of Budget Shutdown," Nov. 14, 1995 http://www.cnn.com/US/9511/debt_limit/11-13/employees/index.html), or for a snow emergency, terrorist act, or some other force majeure, the presumption is that he has declared a legal holiday. The presumption has not been rebutted.

So we can turn to the merits of the appeal. Had the plaintiffs been convicted, their challenge to the conditions of their confinement would be governed by the "cruel and unusual punishments" clause of the Eighth Amendment, which has been interpreted to require proof that the convicts' custodians were deliberately indifferent to a serious hazard created by those conditions. Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Riccardo v. Rausch, 375 F.3d 521, 525-26 (7th Cir. 2004). These plaintiffs, however, have not been convicted of a crime. It would be odd, to say the least, if by reason of not having been convicted they had fewer rights than convicts; and of course they don't. The "liberty" that the due...

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