Fairley v. Fermaint

• Decision Date: 20 December 2006
• Docket Number: No. 06-2411.,06-2411.
• Citation: 482 F.3d 897
• Parties: Roger FAIRLEY and Richard Gackowski, Plaintiffs-Appellees, v. Evan FERMAINT, Noberto Bercasio, and Fred Coffey, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

482 F.3d 897

Roger FAIRLEY and Richard Gackowski, Plaintiffs-Appellees, v. Evan FERMAINT, Noberto Bercasio, and Fred Coffey, Defendants-Appellants.

No. 06-2411.

United States Court of Appeals, Seventh Circuit.

Argued November 7, 2006.

Decided December 20, 2006.

On Rehearing Decided March 19, 2007.

Rehearing En Banc Denied March 19, 2007.

Matthew J. Piers, Hughes Socol Piers Resnick & Dym, Chicago, IL, for Plaintiffs-Appellees.

Daniel Patrick Duffy, Peterson, Johnson & Murray, Chicago, IL, for Defendants-Appellants.

Paul A. Castiglione, Office of the Cook County States Attorney, Chicago, IL, for Amicus Curiae, Richard A. Devine

Michael A. Scodro, Office of the Attorney General, Chicago, IL, for Amicus Curiae, State of Illinois

Benna R. Solomon, Office of the Corporation Counsel, Appeals Division, Chicago, IL, for Amicus Curiae, City of Chicago

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 fourteenth) 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, 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 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, 116 S.Ct. 834, 133 L.Ed.2d 773 (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 judgment reiterating arguments that the district court already 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 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 independently. 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, 113 S.Ct. 684, 121 L.Ed.2d 605 (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 opportunity 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, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), 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, 116 S.Ct. 834. We see no reason why the rationale of Behrens should not apply with equal force to 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 complaint 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 rehearing and proceed to decide this appeal anew.

Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (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, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), which held that a decision is "final" (and thus 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 out-set 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 complaint conclusively rejects a defendant's claim of freedom from discovery, and an order denying a motion for summary 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 filing 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, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976) (holding that this principle applies even if the order is interlocutory and no rule specifically authorizes a motion for reconsideration), 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 reconsideration, 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 trial. It is no less true when (as a result of Behrens) multiple "final decisions" precede the single "final judgment." 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 ...