ROGER FAIRLEY and RICHARD GACKOWSKI v. EVAN FERMAINT , NOBERTO BERCASIO , and FRED COFFEY

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2411
R OGER F AIRLEY and R ICHARD G ACKOWSKI ,
Plaintiffs-Appellees,
v.
E VAN F ERMAINT , N OBERTO B ERCASIO , and F RED C OFFEY ,
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.
____________
A RGUED N OVEMBER 7, 2006—D ECIDED D ECEMBER 20, 2006
____________
Before E ASTERBROOK , Chief Judge, and P OSNER and
W OOD , Circuit Judges.
E ASTERBROOK , 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 four-
teenth) 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,

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2 No. 06-2411
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 under the ap-
proach of Mitchell v. Forsyth, 472 U.S. 511 (1985). 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 (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.
The problem is not, however, the number of appeals but
timing. Litigants have only 30 days to appeal. See Fed. R.
App. P. 4(a)(1)(A). 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.
See Charles v. Daley, 799 F.2d 343, 347-48 (7th Cir. 1986).
That would be equivalent to abolishing the time limit.
Thus we held in Garvin v. Wheeler, 304 F.3d 628, 632-33
(7th Cir. 2002), that when an immunity-based motion for
summary judgment duplicates a motion already made
and denied—when no new facts or legal arguments are
presented in support of the new motion—an appeal from
the order denying summary judgment must be dismissed,
because the maneuver is nothing but an effort to get
around the time limit. Cf. Vega v. Miller, 273 F.3d 460,
465-66 (2d Cir. 2001) (new arguments allow a new appeal
under Behrens).
In Behrens the successive motions rested on different
grounds; the Supreme Court noted these differences

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No. 06-2411 3
as part of the justification for allowing multiple interlocu-
tory appeals. 516 U.S. at 308-09. It was not possible to
characterize the second interlocutory appeal in Behrens as
an effort to evade the 30-day limit for filing a notice of
appeal from the initial decision. The holding of Behrens
is that both an order declining to dismiss the complaint
and an order denying summary judgment are “final”
decisions under 28 U.S.C. §1291 when the defendant
invokes an immunity to discovery or trial; the timing for
permissible appeals did not arise. In our case timing is
everything, and the generally applicable rule that the
window for appeal cannot be reopened by filing the same
motion again covers this situation.
The rule that successive motions do not reopen the time
for appeal applies to all “final decisions”—and a decision
rejecting an immunity defense is “final” even though the
litigation continues. The independent “finality” of such
decisions is the linchpin of both Mitchell and Behrens. So
it will not help to assert that the doctrine does not con-
cern interlocutory decisions; an order rejecting an im-
munity defense is “final” rather than “interlocutory” as the
Supreme Court draws that distinction.
Perhaps one could doubt the wisdom of Garvin because
it has the potential to 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 emphasized, that an order denying a
motion to dismiss the complaint, and an order denying

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4 No. 06-2411
summary judgment, are independently “final” (for pur-
poses of Mitchell), 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. See Budinich v. Becton
Dickinson & Co., 486 U.S. 196 (1988). But this approach
also would require us to overrule Garvin, a step that
defendants have not proposed.
Garvin cannot be treated as limited to successive
motions for summary judgment and distinguished on the
ground that this case involved a motion to dismiss the
complaint followed by a motion for summary judgment.
Behrens holds that an interlocutory appeal is proper from
any decision finally rejecting a claim of official immunity.
Both an order declining to dismiss a complaint and an
order denying a motion for summary judgment fit that
category, the Court held. There is no basis in Behrens or
its predecessors for saying that all motions to dismiss
must be sorted into one pile, and all motions for sum-
mary judgment into a second, with one appeal from each
category of motion rather than from each order that is a
“final decision” for the purpose of 28 U.S.C. §1291. So it
does not make any difference that Garvin involved succes-
sive 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.
One effect of this understanding will be to make defen-
dants more likely to appeal from the district court’s
order denying a motion to dismiss the complaint. Yet this
is not the only effect. Another is to reduce the incentive
to file premature motions; a defendant who refrains from

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No. 06-2411 5
filing a doomed motion to dismiss does not jeopardize a
later appeal. A third effect is to induce defendants who do
move to dismiss the complaint, and lose, to do more legal
and factual digging before they file a motion for sum-
mary judgment. That effect is all to the good, because it
improves the accuracy of judicial decision-making, and it
is the sort of thing that Behrens contemplated would occur.
Finally, in some cases the effect may be to postpone
appellate review to the end of the litigation, when immu-
nity may no longer matter (and all facts will be in focus
if it still does matter). That cannot be dismissed as a
trivial benefit to the judicial system.
Defendants concede that their motion for summary
judgment replicated their motion to dismiss the com-
plaint. Only the caption differed. Nothing that turned up
in discovery mattered; no new legal argument was ad-
vanced.
Fortuitously, something changed after the district
court denied defendants’ renewed motion: 26 days later,
the Supreme Court decided Garcetti v. Ceballos, 126 S. Ct.
1951 (2006), which holds that, “when public employees
make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amend-
ment purposes, and the Constitution does not insulate
their communications from employer discipline.” Id. at
1960. Defendants rely on Garcetti for the proposition
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.
Although it is tempting to see in Garcetti the sort of
change that allows an appeal without offense to the rule
that repetitious arguments do not open a new 30-day

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6 No. 06-2411
period, things are not so straightforward. Plaintiffs
maintain 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 plaintiffs 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 defen-
dants reacted to plaintiffs’ activities in litigation (they
say not) and which of defendants’ 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, No. 04-4011 (7th Cir. Nov. 17,
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.
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
defendants were engaged in state action in doing whatever
they may have done; that issue is unrelated to legal
uncertainty and thus to the doctrine of official immunity.
If the defendants ultimately lose this litigation, they
will be entitled to raise their immunity defenses on ap-
peal from the final decision. See Kurowski v. Krajewski,
848 F.2d 767 (7th Cir. 1988). All we hold today is that,

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No. 06-2411 7
while Garvin stands, public officials cannot use a motion
for summary judgment in order to reopen the time to take
an interlocutory appeal from an order declining to dismiss
the complaint. Although Garcetti might have allowed an
appeal based on new legal arguments, Johnson v. Jones
blocks that route given the material factual disputes,
resolution of which is beyond the scope of any interlocutory
appeal. This appeal is dismissed for want of jurisdiction.
P OSNER , 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 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 defen-
dant 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 (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

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8 No. 06-2411
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 distin-
guishable 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 sum-
mary 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 charac-
terization, but I accept it for the moment.) In our case, a
motion to dismiss was denied, discovery ensued, a mo-
tion 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 con-

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No. 06-2411 9
sistent with a rule that in the absence of exceptional
circumstances you cannot file identical successive mo-
tions for summary judgment on immunity and be permit-
ted 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 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 inconsis-
tent 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

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10 No. 06-2411
motions for summary judgment on grounds of immun-
ity cannot be appealed unless there has been some im-
portant 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 succes-
sive 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

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No. 06-2411 11
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 what-
ever 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. 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
case 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. What 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 legiti-
mate 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

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12 No. 06-2411
for summary judgment. Defendants are entitled to immu-
nity if their “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 (1982). As the Court explained in Behrens v.
Pelletier, supra, 516 U.S. at 309 (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 case 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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No. 06-2411 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-20-06

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