Roger FAIRLEY and Richard Gackowski, Plaintiffs-Appellees, v. Evan FERMAINT, Noberto Bercasio, and Fred Coffey, Defendants-Appellants, 471 F.3d 826

EASTERBROOK, Chief Judge. Two former guards at Cook County Jail contend in this suit under 42 U.S.C. § 1988 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 under the approach of Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (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, 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. 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 refiling 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 as part of the justification for allowing multiple interlocutory appeals. 516 U.S. at 308-09, 116 S.Ct. 834. 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 concern interlocutory decisions; an order rejecting an immunity 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 Gar-vin 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

summary judgment, are independently “final” (for purposes 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, 108 S.Ct. 1717, 100 L.Ed.2d 178 (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 Beh-rens or its predecessors for saying that all motions to dismiss must be sorted into one pile, and all motions for

summary 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 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.

One effect of this understanding will be to make defendants 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 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

summary 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 immunity 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 complaint. Only the caption differed. Nothing that turned up in discovery mattered; no new legal argument was advanced. Fortuitously, something changed after the district court denied defendants’ renewed motion: 26 days later, the Supreme Court decided Garcetti v.

Ceballos, — U.S. —, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), which holds that, “when public employees 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 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, defendants allow, but cannot be treated as constitutional torts. Although it is tempting to see in Garcet-ti the sort of change that allows an appeal without offense to the rule that repetitious arguments do not open a new 30-day 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 defendants 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, 115 S.Ct. 2151, 132 L.Ed.2d 238 (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. 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 appeal from the final decision. See Kurowski v. Krajewski, 848 F.2d 767 (7th Cir.1988).

All we hold today is that, 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.