Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 C 552-Matthew F. Kennelly, Judge.
The opinion of the court was delivered by: Easterbrook, Chief Judge.
Before EASTERBROOK, Chief Judge, and BAUER and WOOD, Circuit Judges.
A class of persons detailed at the Cook County Jail contends in this suit under 42 U.S.C. §1983 that the Sheriff of Cook County (who runs the Jail), and his staff, have subjected them to needlessly humiliating strip searches (including body-cavity searches). Plaintiffs have other contentions as well, and the district judge has certified subclasses to pursue different claims. The current appeal, by the Sheriff (other defendants have not joined this appeal), concerns only searches after February 2007 of detainees when they first arrive at the Jail.
The district judge concluded that, because the class's claims arise from the manner rather than the fact of these searches, the holding of Bell v. Wolfish, 441 U.S. 520, 558--62 (1979), does not vindicate the Sheriff's position. A jury trial was held. At the close of the proofs, the Sheriff filed a motion for judgment as a matter of law. Fed. R. Civ. P. 50. He argued that Illinois requires jailers to conduct strip searches and that, when complying with this rule, a sheriff or other custodian is part of "the state" for the purpose of the doctrine of state sovereign immunity recognized in Hans v. Louisiana, 134 U.S. 1 (1890).
The parties call this "eleventh amendment immunity," which is triply inaccurate-first because Hans did not interpret the eleventh amendment, whose text is limited to diversity suits; second because the eleventh amend-ment limits the jurisdiction of federal courts rather than establishing an immunity, see Calderon v. Ashmus, 523 U.S. 740, 745 n.2 (1998); Ruehman v. Sheahan, 34 F.3d 525, 527 (7th Cir. 1994); and third because a state (including a state officer sued in an official capacity) is not a "person" for the purpose of §1983. Will v. Michigan Department of State Police, 491 U.S. 58 (1989). That statutory rule makes it unnecessary and inappropriate to consider what limits the eleventh amendment would create. Lapides v. University System of Georgia, 535 U.S. 613, 617--18 (2002); see also Arizonans for Official English v. Arizona, 520 U.S. 43, 69 (1997). For reasons discussed below, however, it does not matter whether "eleventh amendment immunity" is a useful shorthand for the Sheriff's position.
The district judge observed that the theory behind the Rule 50 motion was being raised for the first time even though the suit had been pending for three years. The judge deemed the contention forfeited and submitted the case to the jury, which returned a verdict in favor of the class on liability. Because the trial had been bifurcated, the next stage was the presentation of evidence about damages. But, before that phase could begin, the Sheriff filed a notice of appeal, contending that the rejection of his theory is immediately appealable under Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993).
Metcalf & Eddy applies to sovereign immunity the approach to interlocutory appeals developed by Mitchell v. Forsyth, 472 U.S. 511, 525--30 (1985), for situations in which a public official asserts an absolute or qualified immunity. We assume (without deciding) that the Supreme Court would extend this understanding of the collateral-order doctrine, see Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), to an appeal by a state official who contends that the definition of the word "person" in §1983 means that a suit is untenable-though that extension of Mitchell would bring the doctrine awfully close to authorizing interlocutory review of the merits. (Sovereign immunity does not apply because §5 of the fourteenth amendment empowers Congress to subject states to suits for violations of that amendment.
See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). The class contends that the Sheriff violated the fourteenth amendment, directly and via its incorporation of the fourth amendment. So Congress could authorize a suit such as this against a state, though Quern v. Jordan, 440 U.S. 332 (1979), holds that §1983 does not do so.) Even on the assumption that Mitchell applies to appeals of this kind, however, the Sheriff's appeal must be dismissed for want of jurisdiction.
Like any other application of the collateral-order doctrine, Mitchell depends on characterizing the decision under review as "final," because Mitchell interprets 28 U.S.C. §1291, a statute that makes finality essential to appellate jurisdiction. Mitchell rests on the view that, as a practical matter, an order declining to dismiss a complaint, or denying a motion for summary judgment, finally resolves the defendant's assertion of a "right not to be tried"-for an immunity (unlike a defense on the merits) confers an entitlement to be free of the judicial process as well as an entitlement to avoid an adverse judgment. An order rejecting a claim of immunity is final in the two senses that matter to Mitchell and its successors: it represents the district court's definitive resolution, and it subjects the defendant to the judicial process, with all of the costs that discovery and trial produce. When a district court postpones resolution until it has received additional submissions from the litigants, it has not made a decision that is "final" in Mitchell's sense. See Khorrami v. Rolince, 539 F.3d 782, 786--87 (7th Cir. 2008). And when the defendant's contention does not invoke a "right not to be tried," the foundation for an interlocutory appeal is missing.
To date, the Supreme Court has treated only two kinds of orders as "final" for the purpose of an immunity appeal: denial of a motion to dismiss the complaint and denial of a motion for summary judgment. See generally Behrens v. Pelletier, 516 U.S. 299, 305--11 (1996). These two orders often are the outcome of focused engagements after full briefing; each represents the end of a discrete stage in the litigation, during which the legal issue has crystallized and been resolved as a matter of law. Oral denial of a mid-trial motion under Rule 50, by contrast, is not final by that standard. It is possible to see how an order denying a motion for summary judgment can be called "final" for some purposes even though the judge has allowed the suit to proceed; but a mid-trial ruling is not "final" for any purpose. It is a step on the way to a verdict. And a mid-trial motion under Rule 50 does not assert a "right not to be tried" or even a "right to be free of costly discovery"; it asserts a right to win (that's why it is called a "motion for judgment as a matter of law"). Discovery and trial have occurred by the time lawyers start making Rule 50 motions. A judge's oral statement allowing the trial to proceed may presage a final decision (judgment on the verdict) but is not itself a final decision.
It is hard to imagine that the Justices have authorized public officials to bring trials to a halt and disband the jury while a pre-verdict appeal proceeds. As a practical matter that would give every public official a right to a mistrial in every §1983 suit that seemed to be going the plaintiff's way, because once a trial stops jurors are likely to forget the evidence, to come across information they are not supposed to read, to discuss the trial with friends and relatives, or all three. Appellate delay would compel the trial to start over with a new jury. Although a district judge is entitled to certify that an appeal is frivolous and proceed with the litigation, see Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989), the need for this procedure (and for the court of appeals to consider whether to stay the trial notwithstanding an Apostol certification) would throw a monkey wrench into the proceedings. And at a second trial the public official could force still another mistrial, because Behrens holds that there is no numerical limit on the number of permissible interlocutory appeals in a single case. The only requirement is that each order sought to be appealed be "final" under Mitchell.
Thus both formal reasons (a mid-trial order is not "final" and does not concern a "right not to be tried") and practical ones (the need to prevent defendants from thwarting the completion of ongoing trials and disrupting the orderly management of litigation) lead us to conclude that a district judge's oral statement denying a mid-trial Rule 50 motion is not appealable as a "collateral order" under §1291.
Should bifurcated trials be treated differently? The Sheriff did not file his appeal until the jury had returned its verdict on liability. Perhaps one could say that the Sheriff was asserting a "right not to be tried" on the damages phase of the litigation. Attaching dispositive significance to the fact that the district judge chose to bifurcate the trial might turn what is supposed to be an economizing measure (the liability phase is easier to manage if damages evidence is postponed) into an occasion for a prolonged interruption. But just in case the Justices should conclude that there is a difference between a mid-trial Rule ...