Rehearing En Banc Denied March 19, 2007.
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:
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.
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 appellants 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 presented to the judge, rather than the sort of decision made by the judge, it is disapproved.
This conclusion relieves public officials from any pressure 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 (concurring 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, 108 S.Ct. 1717, 100 L.Ed.2d 178 (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 determine 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 decision and a calendar.
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, ___ 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 invoke 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.
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 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 the suit is barred by the statute of limitations. That subject has nothing to do with official immunity. Defendants 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.
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 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, 108 S.Ct. 1945, 100 L.Ed.2d 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 actionable 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); Power v. Summers, 226 F.3d 815 (7th Cir.2000) (same).
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, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662
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 questions 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).