                              In the

United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 07-2755

A HMAD F ARID K HORRAMI,
                                                    Plaintiff-Appellee,
                                  v.

M ICHAEL E. R OLINCE, et al.,
                                             Defendants-Appellants.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 03 C 6579—James B. Zagel, Judge.
                          ____________

       A RGUED M AY 6, 2008—D ECIDED A UGUST 27, 2008
                          ____________



   Before E ASTERBROOK, Chief Judge, and W OOD and
T INDER, Circuit Judges.
  W OOD , Circuit Judge. The underlying allegations in
this appeal paint a sorry picture of false accusations,
roughshod law enforcement tactics, and prejudice. Yet at
the same time, they remind us of how difficult it has been
for law enforcement authorities to learn how to carry out
their counterterrorism responsibilities in the post-9/11
world. We conclude, however, that this appeal from
2                                               No. 07-2755

the district court’s order denying qualified immunity to
certain officials and refusing to dismiss the case is not
properly before us. We therefore dismiss the appeal for
want of appellate jurisdiction.


                              I
  Ahmed Khorrami was born in Iran and moved to the
United States in 1973 for an education at Purdue Univer-
sity. He went on to receive advanced degrees in aeronau-
tics from the California Institute of Technology, Berkeley,
and Oxford. He returned to the United States in 1997
with joint Iranian-British citizenship in order to become a
pilot. He completed his training in 2000, and in August of
that year he applied for an adjustment of his immigration
status based on his marriage to a U.S. citizen. In February
2001, the INS issued Khorrami advance parole authoriza-
tion, and he began working for Skyway Airlines in Mil-
waukee in July.
   Dr. Khorrami’s story is not terribly unusual up to this
point, but it changed dramatically after September 11,
2001. (Our account of the facts is based on Khorrami’s
complaint, which must be taken as true at this stage of the
litigation. Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007).)
  Within days after the attacks, Khorrami’s friends told
him that they had been contacted by the FBI. His
wife—who had been part of a relief team comforting
grieving families at Newark Airport—flew back to
Chicago on September 16 because she was worried about
him. On September 17, Khorrami agreed to be questioned
No. 07-2755                                               3

in his home by two FBI agents. He told the agents that
he would speak to his employer later that day.
  Khorrami and his wife visited Skyway Airline’s offices
and met Khorrami’s supervisor, Captain George Velguth,
as well as another FBI agent. Khorrami informed this
agent of the morning’s interview and provided contact
information for the FBI to use. The agent then informed
Velguth that Khorrami had been cleared by the Chicago
FBI and was free to leave.
  Suddenly, the situation deteriorated. An FAA security
agent burst into the office and ripped Khorrami’s airport
security I.D. from around his neck. Other government
agents appeared, now from the INS as well as the FBI.
   This time, Khorrami was interrogated for twelve hours,
and the proceedings were not polite. An INS agent directly
accused Khorrami of taking part in the terrorist attacks,
saying “I know you’re one of them.” The INS agent also
accused him of entering into a phony marriage and threat-
ened to cancel his visa. When Khorrami asked why, the
agent’s reply was “Because I feel like it, I can and will do
it,” then added “You’re a Muslim and you’re fair game.”
When reminded that the President himself had told
Americans not to jump to conclusions and discriminate
against Muslims, the agent replied “Didn’t you see him
wink when he said that?”
  After midnight (by this time September 18), Khorrami
was taken to Milwaukee FBI headquarters for further
questioning. Khorrami’s advance parole was canceled
and he was given a Notice to Appear. He was then
hauled off to the Waukesha County Jail around four or five
o’clock in the morning.
4                                              No. 07-2755

   Mrs. Khorrami stayed in contact with FBI and INS agents
throughout her husband’s detention. On the night of
September 18, she was told that the Chicago FBI had asked
that Dr. Khorrami be removed from the suspect list. She
also received a call from the FBI in Washington con-
firming that his name would be removed from that list
and assuring her that the FBI would rescind the letter
canceling Dr. Khorrami’s advance parole.
  The very next day, the INS agent who had canceled Dr.
Khorrami’s advance parole returned to interrogate him
some more. He admitted that he had canceled the parole
in order to assist the FBI, which wanted to detain
Khorrami but did not have sufficient evidence to continue
to do so.
  Still detained, Dr. Khorrami was questioned yet again
on September 21 by two FBI agents. They hooked him up
to a lie detector, and one of the agents signed off as a
witness. The “witness” then left the room at the request of
the agent conducting the interrogation. Khorrami was
told to sign a blank confession, and the agent threatened
to send him back to Iran, put him in a dungeon, and
prevent him from ever seeing his wife again. When the
results were unsatisfactory to the questioner, he knocked
Dr. Khorrami to the floor, then kicked him repeatedly.
After the interrogation, a prison guard called the prison
doctor, who treated Khorrami for bloody urine. Khorrami
was also later treated for suicidal tendencies, and had
chest pains.
  At the same time as Dr. Khorrami was suffering through
this interrogation, Mrs. Khorrami was told that her hus-
No. 07-2755                                                5

band’s name should not have been on any “watch lists.”
The next morning, September 22, she was informed that
the FBI in Washington had cleared Dr. Khorrami’s name
from all watch lists. Their theory had been that the flight
school where Khorrami taught was connected to some
of the hijackers, but the connection was refuted on Septem-
ber 21 and this information was publicized in newspapers
the next day.
   Dr. Khorrami was moved to DuPage County Jail on
September 24. Throughout the months of September and
October, an immigration judge (“IJ”) denied his
attempts to post bail, relying on the INS’s assertion that an
IJ has no authority to reconsider an INS bail determination.
  It was not until November 14 that the INS, at a hearing
before the IJ, produced an affidavit from Michael Rolince,
Section Chief of the FBI’s International Terrorism Opera-
tions Section, describing why the FBI was investigating
Dr. Khorrami in connection with the terrorist attacks (“the
Affidavit”). Among other reasons given, the Affidavit
repeated the connection to the flight school in Florida
and also asserted that Khorrami had resided in an apart-
ment building in which one of the September 11 hijackers
also resided. The Affidavit indicated that the FBI also
found suspicious Khorrami’s “underemployment,” as
well as the $100,000 in savings he had amassed (with the
help of an inheritance from his parents, who passed away
before 1997).
 At this point, the situation unraveled fairly quickly. On
November 26, an FBI agent—one of the two with whom
Khorrami had spoken voluntarily on September 17—
6                                              No. 07-2755

confirmed to Mrs. Khorrami that the link to the flight
school had been shown to be of no importance shortly
after the attacks, contrary to the assertions in Rolince’s
Affidavit. On December 11, the Chicago FBI office wrote
to the INS stating that the FBI had discovered that there
was also an error in the alleged connection to the apart-
ment building as of September 18, again contradicting
one of the key assertions in the Rolince Affidavit. The
letter was submitted to the IJ on December 12, and
Khorrami was released on December 14. On February 17,
2002, Khorrami suffered a nonfatal heart attack. He had
had a clean bill of health before his detention, having
passed an FAA physical examination for fitness to fly.
   Finally, on June 24, 2004, the IJ found Khorrami to be
removable, but granted him the adjustment of status he
had requested in 2000, making him a permanent resident
based on his marriage to a U.S. citizen. Meanwhile, on
September 17, 2003, he filed this lawsuit, alleging that he
had been detained based on a false affidavit filed by a
public official, and that this violated his due process
rights under the Fifth Amendment. He asserted a right
to sue under Bivens v. Six Unknown Named Agents of the
FBI, 403 U.S. 388 (1971). The Government moved to dis-
miss on grounds of qualified immunity and failure to
state a claim. The district court granted the motion under
F ED. R. C IV. P. 12(b)(6) with respect to all parts of the
case except for those relying on the Fifth Amendment;
it explicitly declined to rule on the qualified immunity
motion. The Government has now brought an inter-
locutory appeal seeking a ruling that qualified immunity
No. 07-2755                                                 7

existed and that the remainder of the case in any event
should have been dismissed.


                              II
  The primary weakness of the Government’s appeal is
that the order that might have supported appellate juris-
diction over this appeal does not exist. The Government’s
brief premises appellate jurisdiction on Behrens v. Pelletier,
516 U.S. 299 (1996). Behrens establishes that “an order
rejecting the defense of qualified immunity at either the
dismissal stage or the summary judgment stage is a ‘final’
judgment subject to immediate appeal.” 516 U.S. at 307.
The district court, however, did not reject the qualified
immunity defense. Instead, it explicitly set the claim
aside to be adjudicated later, stating that “these attacks
on Plaintiff’s complaint are premature.”
  Unless the district court delays so long in ruling that
the delay becomes a de facto denial, a decision not to rule
on a motion is just that: inaction. This follows from the
general rule the Supreme Court has acknowledged for-
bidding interlocutory appeals in situations where “unre-
solved issues of fact” remain or the district court has not
even “tentatively decide[d] anything about the merits of
the claim.” Switzerland Cheese Ass’n, Inc. v. E. Horne’s
Market, Inc., 385 U.S. 23, 25 (1966). See also Carson v.
American Brands, Inc., 450 U.S. 79, 84 (1981); Gardner v.
Westinghouse Broadcasting Co., 437 U.S. 478, 482 (1978). In
all of these cases, the Court has kept a tight rein on dif-
ferent statutes that permit interlocutory appeals. As the
8                                                  No. 07-2755

Court noted in Gardner, “[t]he exception [to finality created
by 28 U.S.C. § 1292(a)(1)] does not embrace orders that
have no direct or irreparable impact on the merits of the
controversy. The order in this case, like the order in
Switzerland Cheese, had no such impact; it ‘in no way
touch[ed] on the merits of the claim but only relate[d] to
pretrial procedures . . . .’ Id. at 25 [quoting from Switzerland
Cheese].” Gardner, 437 U.S. 482.
  This court has applied those principles to other settings.
For example, in IDS Life Ins. Co. v. SunAmerica, Inc., 103
F.3d 524 (7th Cir. 1996), the defendants wanted to take
an appeal even though the district court had not yet
ruled on a motion to stay proceedings pending arbitra-
tion. We held that deferral cannot be treated as the equiva-
lent of an appealable denial unless the party wishing to
appeal can show “unjustifiable delay coupled with irrepa-
rable injury if an immediate appeal is not allowed.” Id. at
526; see also Continental Cas. Co. v. Staffing Concepts, Inc.,
No. 07-2475, 2008 WL 3013408 (7th Cir. Aug. 6, 2008). In
our view, the same rule also applies here. Any doubt on
the matter is resolved by a look at Johnson v. Jones, 515
U.S. 304 (1995). There the Court found no appellate juris-
diction over an attempted appeal from a denial of qualified
immunity. The problem was that the appeal turned not
on questions of law, but instead on “the existence, or
nonexistence, of a triable issue of fact.” Id. at 316. More
generally, Johnson stands for the proposition that an
interlocutory appeal is inappropriate where substantial
steps remain to be taken in the district court before the
facts, and hence the applicable law, are brought into
focus. As Johnson holds, when the existence of qualified
No. 07-2755                                                9

immunity turns on facts particular to a given case, the
district court has tools available that will allow it to
preserve the defendant’s right to a speedy determination
whether he or she must bear the burdens of litigation
while at the same time allowing plaintiffs with colorable
claims to proceed with their complaints. If the district
court has not yet issued an order ruling on the qualified
immunity assertion, it is difficult, if not impossible, for
an appellate court to intervene. Appellate courts do not
sit to prescribe motions calendars for district courts.
   The Government concedes that these are the governing
principles, but it argues that this is one of those rare
cases in which delay is effectively a denial. Such a con-
clusion, however, fails to take into account what really
happened. We cannot see how the delay here was unjusti-
fied given the district court’s finding that it was premature
to rule on the qualified immunity defense. The Govern-
ment claimed that Rolince was entitled to qualified im-
munity because, it said, it was “implausible” that he
knew of the falsity of the facts asserted in his Affidavit.
That kind of defense depends entirely on facts that have
not yet been explored: Who reviewed the Affidavit before
it went to the IJ? Were there communication problems
among the Milwaukee, Chicago, and Washington offices
of the FBI? Was the discovery that the associations with
the flight school and apartment building had no meaning
communicated to the field offices? These are not issues
that a district court is able to decide as a matter of law at
this early stage of the litigation. “Appeal rights cannot
depend on the facts of a particular case.” Carroll v. United
States, 354 U.S. 394, 405 (1957). The district court was
10                                                 No. 07-2755

well within its rights to set aside the immunity question
for later.
  Moreover, no irreparable harm was caused by the
court’s scheduling decision. The Government contends
that qualified immunity is the right to be free from all
burdens of litigation, period. That statement goes too
far. See Johnson, 515 U.S. at 317-18. Qualified immunity is
the right to be free at the earliest point at which the
court can be sure that the government official’s conduct
did not violate clearly established statutory or constitu-
tional rights that any reasonable person would have
known applied to the situation at hand. If a person was
entitled to immunity, then a degree of irreparable injury
occurs if the case is mistakenly allowed to go to trial. See
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (“The entitle-
ment is an immunity from suit rather than a mere defense
to liability; and like an absolute immunity, it is effectively
lost if a case is erroneously permitted to go to trial.”) (first
emphasis in original, second added). Even in that situa-
tion, if the court belatedly realizes that immunity
should have been granted, it can still spare the defendant
from the burden of damages. (This assumes that the
standards for granting qualified immunity differ in
significant respects from those governing liability on the
merits. It is possible that the Supreme Court may throw
further light on that subject in Pearson v. Callahan, No. 07-
751, cert. granted, Mar. 24, 2008, which will consider
whether Saucier v. Katz, 533 U.S. 194 (2001), should be
overruled. Because our case concerns appellate jurisdic-
tion, we see no need to hold it for Pearson.)
No. 07-2755                                                11

  In the event of a brief pretrial postponement of a quali-
fied immunity argument at the same time as the court
is considering a motion under Rule 12(b)(6), the district
court is the only judicial tribunal that may revisit the
issue. While this will embroil the defendant official for
a brief time in the litigation, there is no way to avoid
these burdens altogether and at the same time conduct
the litigation in a way that is fair and orderly to both
parties. The fact that the Supreme Court has recognized
that more than one appeal from an order denying qualified
immunity is permissible, see Behrens, 516 U.S. at 306-07,
shows that the Court recognizes that a certain amount
of pretrial activity, including the discovery necessary to
prepare a motion for summary judgment (or defend
against one), is inevitable.
   All of what we have just said may have been true before
the Supreme Court decided Bell Atlantic Corp. v. Twombly,
127 S.Ct. 1955 (2007), the Government concedes, but, in
its view, Twombly changed everything. A complaint must
now include “enough facts to state a claim to relief that
is plausible on its face.” Id. at 1974. In an interlocutor y
appeal from a denial of qualified immunity, the first
question is “whether or not certain given facts showed a
violation of ‘clearly established law.’ ” Johnson, 515 U.S. at
311; see also Mitchell, 472 U.S. at 528 n.9 (“We emphasize
at this point that the appealable issue is a purely legal one:
whether the facts alleged . . . support a claim of violation
of clearly established law.”). Whether or not the district
court had anything to say about it, the Government
asserts that we can look at the complaint for ourselves
and decide whether Khorrami can make such a showing.
12                                                No. 07-2755

   This is not an appropriate way to proceed. Taken as a
general proposition, it would invite interlocutory appeals
on qualified immunity issues before anyone even pre-
sented the argument to the district court. The fact that
appellate review from decisions to dismiss cases under
F ED. R. C IV. P. 12(b)(6) is de novo does not mean that
litigants are entitled to bypass the district court altogether.
Even if this were permissible, moreover, nothing
in Twombly suggests that Khorrami’s complaint is inade-
quate for this purpose. Khorrami’s allegations about
Rolince’s knowledge are plausible, and only discovery
will show whether they are correct. Whether Rolince in
fact was aware, unaware, or reckless has yet to be
shown, but those facts need not be pleaded in the com-
plaint. See Erickson v. Pardus, 127 S.Ct. at 2200. The Gov-
ernment suggests that perhaps a higher pleading
standard is appropriate in a qualified immunity case, but
the Supreme Court has squarely rejected that proposition.
See Crawford-El v. Britton, 523 U.S. 574, 594-96 (1998).
  Nothing in the Second Circuit’s decision in Benzman v.
Whitman, 523 F.3d 119 (2d Cir. 2008), requires a different
outcome. In Benzman, the former Administrator of the
Environmental Protection Agency, Christine Todd Whit-
man, appealed from the district court’s decision denying
her motion to dismiss on grounds of qualified immunity.
As it was required to do under Saucier, the court first
considered whether, taking the facts as the plaintiffs had
pleaded them, a Bivens claim was available at all and
whether the facts described the violation of a constitu-
tional right. It was in this context that the court com-
mented that “a bare allegation that the head of a Govern-
No. 07-2755                                                13

ment agency, guided by a relevant White House office,
knew that her statements were false and ‘knowingly’
issued false press releases is not plausible in the absence of
some supporting facts.” Id. at 129. It concluded that
“arguably inadequate management of a vast agency of
17,000 employees is not a basis for constitutional tort
liability.” Id. (emphasis in original). We understand this
only as a holding that the facts pleaded, taken as true,
could not support a finding of a constitutional violation.
(It is also worth noting that the Second Circuit did not
address the relation between this holding and appellate
jurisdiction: it had nothing to say about appellate juris-
diction at all.)
   In our case, the complaint accuses Rolince of perjury. The
Government does not deny that, if true, the facts Khorrami
alleged—that Rolince perjured himself—would demon-
strate a violation of clearly established law. See Napue v.
Illinois, 360 U.S. 264, 269 (1959) (holding that a conviction
based on testimony known to be false violated the Consti-
tution). Only in its supplementary brief does it assert
that a reasonable FBI agent might think the false connec-
tions between the flight school and the apartment were
harmless if the rest of the facts would be sufficient to
justify the agency’s concerns. This reasoning makes no
sense to us, unless we are being asked to assume that
FBI agents think nothing of swearing out false affidavits
on penalty of perjury, see 18 U.S.C. §§ 1621, 1623, which
is certainly not an assumption we are willing to make.
If Khorrami is correct, Rolince may have violated his
rights and independently broken the law.
14                                               No. 07-2755

  Before concluding, we note that Rolince has not raised a
claim of absolute (rather than qualified) immunity, and so
nothing we say should be understood as a ruling on
that theory. In Briscoe v. LaHue, 460 U.S. 325 (1983), the
Supreme Court held that witnesses who allegedly gave
perjured testimony at a criminal trial were absolutely
immune from later suit under 42 U.S.C. § 1983. Id. at 333.
This court recognized that the absolute immunity
extends to a police officer’s participation in pretrial
proceedings, in Curtis v. Bembenek, 48 F.3d 281, 284 (7th Cir.
1995); see also Giffin v. Summerlin, 78 F.3d 1227, 1230-31
(7th Cir. 1995) (relying on Indiana law, and holding that
it would apply the Briscoe rule to affidavits as well).
Whether this model fits Rolince’s actions is yet to be
determined. The relevant questions would include
whether Rolince made the statements Khorrami is attack-
ing during the pre-judicial phase of these proceedings, see
Malley v. Briggs, 475 U.S. 335 (1986); whether Rolince
should be characterized as a “witness”; and whether
an immigration court is the kind of tribunal the rule
contemplates.
  In the end, the Government is trying to conflate its
argument over pleading standards with the argument
over qualified immunity. Orders denying qualified im-
munity (when they exist) and rulings denying Rule 12(b)(6)
motions are subject to different rules for appellate juris-
diction. In the end, we have before us only an attempted
appeal from a presumed denial of qualified immunity. We
repeat that the lack of a ruling from the district court under
these circumstances is not the functional equivalent of a
denial of the motion. We also find it procedurally unac-
No. 07-2755                                               15

ceptable to rule on the sufficiency of the complaint
through the back door, using the Government’s theory
that a complaint that fails to allege a constitutional viola-
tion clearly enough to satisfy Twombly is all that it needs
in order to appeal. Khorrami’s story is plausible enough
that we can conclude that he properly alleged a violation
of clearly established law by someone acting under color
of law. That showing, in turn, is sufficient to satisfy us
that no interlocutory appeal is authorized here: there was
no order denying qualified immunity, no constructive
denial resulted, and the issue was not sufficiently con-
cluded to allow for another form of interlocutory appeal.
The appeal is therefore D ISMISSED for want of appellate
jurisdiction.




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