Kevin Carmody v. Board of Trustees of the Unive , 893 F.3d 397 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1335
KEVIN R. CARMODY,
Plaintiff-Appellant,
v.
BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 12-CV-2249 — Colin S. Bruce, Judge.
____________________
ARGUED SEPTEMBER 28, 2017 — DECIDED JUNE 19, 2018
____________________
Before BAUER, MANION, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. The University of Illinois fired
plaintiff Kevin Carmody from his job as an information tech-
nology manager after printed copies of a professor’s privi-
leged emails suspiciously ended up in Carmody’s home
newspaper box. The emails allegedly exposed inconsistencies
in the professor’s testimony in a separate lawsuit that Car-
mody was pursuing against a different professor. The univer-
2 No. 16-1335
sity learned about the mysterious delivery because Car-
mody’s lawyer in the lawsuit filed the emails with the court.
After finding that it was “more probable than not” that Car-
mody improperly obtained the emails himself, the university
fired him. Carmody sued the university’s board of trustees
and several university officials alleging that he was fired with-
out due process of law both before and after his firing, and
that his firing violated an Illinois whistle-blower statute. The
district court dismissed the case at the motion to dismiss
stage.
In an earlier appeal, we held that Carmody had pleaded a
plausible claim that he was fired without pre-termination due
process of law, but that his decision to withdraw from the
post-termination hearing foreclosed his due process claim
based on the post-termination procedures. Carmody v. Board of
Trustees of University of Illinois (Carmody I), 747 F.3d 470 (7th
Cir. 2014). We also affirmed dismissal of the state-law claim.
On remand, the district court granted summary judgment for
some defendants, Carmody v. Board of Trustees of University of
Illinois (Carmody II), No. 12-CV-2249, 2015 WL 13675382 (C.D.
Ill. Nov. 17, 2015), and Carmody lost at trial on his claim
against three remaining defendants for denial of due process
of law before he was fired. In this new appeal, Carmody raises
seven issues—four regarding summary judgment and three
pre-trial evidentiary issues. He does not challenge the con-
duct of the trial or the verdict on the pre-termination due pro-
cess claim. We find no error and affirm the judgment of the
district court.
I. Summary Judgment Issues
The district court granted summary judgment for four in-
dividual defendants and the board of trustees. Carmody II,
No. 16-1335 3
2015 WL 13675382, at *10. We review summary judgment rul-
ings de novo, construing the evidence in the light most favora-
ble to Carmody as the non-moving party and drawing all rea-
sonable inferences in his favor. See Estate of Simpson v. Gorbett,
863 F.3d 740, 745 (7th Cir. 2017), citing Petties v. Carter, 836
F.3d 722, 727 (7th Cir. 2016). Nevertheless, inferences “that are
supported by only speculation or conjecture will not defeat a
summary judgment motion.” Design Basics, LLC v. Lexington
Homes, Inc., 858 F.3d 1093, 1099 (7th Cir. 2017), quoting Herzog
v. Graphic Packaging Int’l, Inc., 742 F.3d 802, 806 (7th Cir. 2014).
Summary judgment is proper “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “A genuine issue of material fact exists when ‘the evi-
dence is such that a reasonable jury could return a verdict for
the nonmoving party.’” Estate of Simpson, 863 F.3d at 745,
quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A. Summary Judgment for Pang and Adesida
The district court granted summary judgment in favor of
Carmody’s immediate supervisor, Jong Shi-Pang, and the
dean of the college where Carmody worked, Ilesanmi
Adesida, because there was no evidence that those defendants
were personally involved in the alleged pre-termination vio-
lation of Carmody’s due process rights. Carmody II, 2015 WL
13675382, at *7–8. “Individual liability pursuant to § 1983 ‘re-
quires personal involvement in the alleged constitutional
deprivation.’” Estate of Perry v. Wenzel, 872 F.3d 439, 459 (7th
Cir. 2017), quoting Colbert v. City of Chicago, 851 F.3d 649, 657
(7th Cir. 2017). “The plaintiff must demonstrate a causal con-
4 No. 16-1335
nection between (1) the sued officials and (2) the alleged mis-
conduct.” Colbert, 851 F.3d at 657, citing Wolf-Lillie v. Sonquist,
699 F.2d 864, 869 (7th Cir. 1983).
Carmody argues that Pang contributed to his dismissal by
providing false evidence to university investigators. Accord-
ing to investigators’ notes from their interview with Pang,
Carmody did not tell Pang about possessing the emails. But
Carmody testified that he did tell Pang about the emails. Car-
mody argues that the conflicting evidence matters because the
university terminated him based, at least in part, on an al-
leged failure to inform his supervisor of a breach of network
security.
This factual dispute does not affect Carmody’s constitu-
tional claim for denial of due process before he was fired. The
question on Pang’s summary judgment motion is whether
Pang violated Carmody’s constitutional rights. Pang made his
statement to investigators as a witness. As a witness, he had
no responsibility for the critical components of due process:
whether Carmody received notice of the charges, an explana-
tion of the evidence, and a chance to present his story before
he was fired. See Carmody I, 747 F.3d at 475, citing Cleveland
Board of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). Because
Carmody does not point to any evidence that Pang partici-
pated in the alleged denial of pre-termination due process, the
district court properly granted summary judgment for Pang.
See, e.g., Estate of Perry, 872 F.3d at 459 (affirming summary
judgment for defendants where § 1983 plaintiff failed to show
personal involvement); see also Schultz v. Baumgart, 738 F.2d
231, 239 (7th Cir. 1984) (affirming summary judgment for
some individual defendants because “the claimed depriva-
tion could not have occurred at their direction or with their
No. 16-1335 5
express consent”), citing Crowder v. Lash, 687 F.2d 996, 1006
(7th Cir. 1982).
Dean Adesida signed the pre-termination letter that out-
lined the charges against Carmody. Carmody argues that
summary judgment for Adesida was improper because “ad-
ditional evidence” indicates that Adesida was involved in the
investigation. But Carmody supports that argument by rely-
ing on documents that were not before the district court. Most
of Carmody’s appellate appendix consists of documents ob-
tained outside of discovery. We will not consider those docu-
ments on appeal because Federal Rule of Appellate Procedure
10(e) provides no basis for doing so. See Fed. R. App. P.
10(e)(2) (allowing court of appeals to supplement record only
where evidence “is omitted from or misstated in the record by
error or accident”); Midwest Fence Corp. v. United States Dep’t
of Transp., 840 F.3d 932, 946 (7th Cir. 2016) (“Rule 10(e) does
not give this court authority to admit on appeal any document
which was not made a part of the record in the district
court.”), quoting Borden, Inc. v. Federal Trade Comm’n, 495 F.2d
785, 788 (7th Cir. 1974); see also Hart v. Sheahan, 396 F.3d 887,
894 (7th Cir. 2005) (“To present new evidence at the appeal
stage is improper and in appropriate cases sanctionable.”),
citing Youker v. Schoenenberger, 22 F.3d 163, 169 (7th Cir. 1994).
The evidence that is actually in the record supports the
grant of summary judgment. Adesida testified that he ac-
cepted the content of the letter as true, did not think he needed
to confirm the truth of the facts because there would be an
investigation, and had no input on how that investigation
would be conducted. On this record, Adesida could not be
held individually responsible for a pre-termination denial of
due process of law.
6 No. 16-1335
B. Summary Judgment for Hogan and Cole
Summary judgment was also appropriate for defendants
Michael Hogan, the president of the university when Car-
mody was fired, and Elyne Cole, the associate provost who
supervised the investigators. Carmody points to no evidence
that either official was personally involved in his termination,
but relies instead on conjecture. He argues that Hogan must
have known about the termination. But Carmody did not dis-
pute that Hogan had no knowledge of the charges against
Carmody until this lawsuit was filed.
As for Cole, Carmody argues that she supervised the in-
vestigators and that the termination proceedings likely re-
quired her approval. Without more evidence of her involve-
ment, this argument amounts to an argument for respondeat
superior liability, but that doctrine does not apply under
§ 1983. E.g., Lennon v. City of Carmel, 865 F.3d 503, 507–08 (7th
Cir. 2017) (“there is no vicarious liability in a suit under sec-
tion 1983”); see also Gill v. City of Milwaukee, 850 F.3d 335, 344
(7th Cir. 2017) (supervisory liability requires showing “super-
visor was personally involved in the constitutional violation,”
which “means the supervisor ‘must know about the conduct
and facilitate it, approve it, condone it, or turn a blind eye for
fear of what [he] might see.’” (alteration in original), quoting
Matthews v. City of East St. Louis, 675 F.3d 703, 708 (7th Cir.
2012)).
C. Summary Judgment for the Board of Trustees
Summary judgment for the board of trustees as an entity
was also proper. The Eleventh Amendment to the Constitu-
tion bars the claims against the board itself, and § 1983 does
not authorize such claims. The Eleventh Amendment bars
No. 16-1335 7
most claims in federal court against a state that does not con-
sent to the suit. E.g., Porco v. Trustees of Indiana University, 453
F.3d 390, 394–95 (7th Cir. 2006), citing Edelman v. Jordan, 415
U.S. 651, 663 (1974). (We say “most” because suits against
non-consenting states may be authorized under legislation
implementing later amendments to the Constitution, such as
Title VII of the Civil Rights Act of 1964, as amended. See Fitz-
patrick v. Bitzer, 427 U.S. 445, 456 (1976); Nanda v. Board of Trus-
tees of University of Illinois, 303 F.3d 817, 823 (7th Cir. 2002).)
This constitutional immunity extends to the Board of Trustees
of the University of Illinois. E.g., Kroll v. Board of Trustees of
University of Illinois, 934 F.2d 904, 908 (7th Cir. 1991), citing
Cannon v. University of Health Sciences/Chicago Medical School,
710 F.2d 351, 356–57 (7th Cir. 1983). Also, Carmody did not
try to use the Ex parte Young device of suing individual state
officials for injunctive relief because he sued the board, not
individual members of the board in their official capacities.
See Power v. Summers, 226 F.3d 815, 819 (7th Cir. 2000) (noting
that § 1983 permits, and Eleventh Amendment does not bar,
official-capacity suits against state officials seeking only in-
junctive relief), citing Will v. Michigan Dep’t of State Police, 491
U.S. 58, 71 n.10 (1989), and citing Ex parte Young, 209 U.S. 123(1908).
Apart from the Eleventh Amendment, the Supreme Court
has held that a state is not a “person” who can be sued under
§ 1983. Will, 491 U.S. 58; accord, Kaimowitz v. Board of Trustees
of University of Illinois, 951 F.2d 765, 767–68 (7th Cir. 1991) (af-
firming dismissal of § 1983 claim because board “is not a per-
son within the meaning of § 1983 and therefore not subject to
suits brought under § 1983”); see also Kroll, 934 F.2d at 910 n.7
(noting, as alternative basis for dismissal, that a “state agency
8 No. 16-1335
with eleventh amendment immunity … is not a ‘person’
within the meaning of section 1983,” citing Will, 491 U.S. 58).
D. Denial of Carmody’s Own Motion for Summary Judgment
Carmody argues that the district court erred by denying
his own motion for summary judgment regarding his pre-ter-
mination due process claim. We cannot review that denial be-
cause Carmody’s claim went to trial. See, e.g., Empress Casino
Joliet Corp. v. Balmoral Racing Club, Inc., 831 F.3d 815, 823 (7th
Cir. 2016) (“denial of summary judgment is an interlocutory
matter subsumed by a final judgment”). “After trial, the sum-
mary judgment denial is ancient history and not subject to ap-
peal.” Id. at 823–24.
There is a “controversial exception” to this general rule
that may allow review of “purely legal issues” raised in pre-
trial motions for summary judgment. Id. at 824. To the extent
that exception is viable in theory, it could not apply here. Car-
mody is not arguing a legal issue. Instead, he argues only fac-
tual issues, about the reasons for his dismissal, the actions of
investigators, and his state of mind in responding to the uni-
versity’s charges. He contends that, in light of these issues, the
university failed to show a genuine issue of material fact
about the constitutionality of the pre-termination proceed-
ings. To make these arguments, Carmody relies on new evi-
dence not before the district court. Whether the defendants
raised a genuine issue of material fact about the pre-termina-
tion proceedings is not the sort of question of law that might
permit appellate review of the denial of summary judgment.
See Brown v. Smith, 827 F.3d 609, 613 (7th Cir. 2016) (“‘ques-
tion of law’ typically concerns ‘the meaning of a statutory or
constitutional provision, regulation, or common law doctrine
No. 16-1335 9
rather than ... whether the party opposing summary judg-
ment had raised a genuine issue of material fact’”, quoting
Ahrenholz v. Board of Trustees of University of Illinois, 219 F.3d
674, 676–77 (7th Cir. 2000) (addressing “question of law” as
used in 28 U.S.C. § 1292(b))). Accordingly, there is no basis
here for appellate review of the denial of Carmody’s own mo-
tion for summary judgment. 1
II. Pre-Trial Evidentiary Issues
A. Inadvertently Produced Privileged Document
We now turn to several issues concerning the evidence
available to Carmody at trial, the first of which concerns the
district court’s pre-trial ruling that Carmody could not offer
as evidence a document protected by the attorney-client priv-
ilege that the defense had inadvertently turned over to Car-
mody in discovery. The document in question was a memo-
randum dated June 30, 2010 from associate university counsel
Rhonda Perry to Dean Adesida. We refer to it here as “the
Perry memorandum.”
Federal Rule of Evidence 502(b) governs inadvertent dis-
closures of privileged communications or information in fed-
eral proceedings. Rule 502(b) provides that disclosure does
not waive the privilege if (1) the disclosure was “inadvertent;
1To preserve legal arguments about the sufficiency of the evidence af-
ter the denial of a motion for summary judgment and a loss at trial, a party
must make Rule 50(a) and 50(b) motions at trial. See Empress Casino, 831
F.3d at 823 (failure to raise a particular sufficiency-of-the-evidence argu-
ment in Rule 50(a) and 50(b) motions blocks that argument on appeal),
citing Ortiz v. Jordan, 562 U.S. 180, 189 (2011); Brown, 827 F.3d at 613–14
(same). By failing to make either motion at all, Carmody failed to preserve
any potential legal issues.
10 No. 16-1335
(2) the holder of the privilege … took reasonable steps to pre-
vent disclosure; and (3) the holder promptly took reasonable
steps to rectify the error.” The district court did not err by
finding that the disclosure of the Perry memorandum did not
waive the privilege.
Outside counsel for the university received thousands of
documents from the university. They reviewed those docu-
ments and then produced hundreds of documents to Car-
mody and his lawyer for viewing and copying. The Perry
memorandum, however, was among the hundreds of docu-
ments produced. During the next two months, the univer-
sity’s outside counsel sent Carmody’s lawyer two sets of priv-
ilege logs. The university’s lawyer represented to the district
court that his firm logged the Perry memorandum as a “legal
memo” attached to one email and as an “outline” attached to
another email but did not otherwise identify it. The logged
emails were either internal or between the university and its
outside counsel or outside counsel’s staff.
The Perry memorandum bore the bold, all-caps heading:
“ATTORNEY-CLIENT COMMUNICATION PRIVILEGED
AND CONFIDENTIAL.” Carmody and/or his lawyer photo-
graphed the document with a cell phone and stayed silent for
about a year. The parties dispute whether Carmody flagged
the document for copying.
At Adesida’s deposition—about one year after the produc-
tion—Carmody’s lawyer broke the silence and tried to sur-
prise Adesida and the university with the document. Car-
mody’s lawyer told the university’s outside counsel that the
document “was one that we wanted you to copy” and tried to
question Adesida about it. The university’s outside counsel
said that the document was “inadvertently disclosed” and
No. 16-1335 11
that the privilege had not been waived, instructed Adesida
not to answer questions about the substance of the document,
and requested that Carmody’s lawyer destroy all copies of the
Perry memorandum in his possession. One week after the
deposition, the university’s outside counsel wrote a letter to
Carmody’s lawyer again asking to “claw-back” the Perry
memorandum. Carmody’s lawyer filed the Perry memoran-
dum as an exhibit to Carmody’s motion for summary judg-
ment. After counsel were unable to agree on what to do, the
university filed a prompt motion to compel plaintiff’s counsel
to return the Perry memorandum and to bar plaintiff from us-
ing it as evidence. The district court granted the motion.
We review findings of fact on a claim of attorney-client
privilege for clear error. Judson Atkinson Candies, Inc. v. Latini-
Hohberger Dhimantec, 529 F.3d 371, 387 (7th Cir. 2008), citing
Bland v. Fiatallis North America, Inc., 401 F.3d 779, 787 (7th Cir.
2005). The Perry memorandum was clearly privileged. “Com-
munications from attorney to client are privileged only if they
constitute legal advice, or tend directly or indirectly to reveal
the substance of a client confidence.” Id. at 388, quoting United
States v. Defazio, 899 F.2d 626, 635 (7th Cir. 1990). Carmody
argues that the Perry memorandum was not privileged on the
theory that it does not contain information regarding commu-
nications between an attorney and a client. But the document
itself is an attorney-client communication, and it contains le-
gal advice—specifically, recommendations regarding the in-
vestigation of the conduct that led to Carmody’s termination.
Because the Perry memorandum was privileged, we apply
the three-element test of Rule 502(b) to determine whether
disclosure of the document operates as a waiver. A disclosure
is not a waiver if:
12 No. 16-1335
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took rea-
sonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify
the error, including (if applicable) following Federal
Rule of Civil Procedure 26(b)(5)(B).
Fed. R. Evid. 502(b). 2
The district court correctly found that the defendants did
not waive the privilege. First, the production of the privileged
document was clearly inadvertent; there is no indication that
defendants intended to waive the privilege or to produce the
document. See Viamedia, Inc. v. Comcast Corp., No. 16-cv-5486,
2017 WL 2834535, at *6 (N.D. Ill. June 30, 2017) (St. Eve., J.).
Out of the hundreds of documents produced to Carmody and
out of all the documents logged in the university’s privilege
logs, this was apparently the only one to slip through. That
single slip indicates an unfortunate but inadvertent mistake
rather than a casual, produce-first, review-later approach.
2Before Rule 502 was adopted, we addressed waiver by inadvertent
disclosure by considering “(1) the reasonableness of the precautions taken
to prevent disclosure; (2) the time taken to rectify the error; (3) the scope
of the discovery; (4) the extent of the disclosure; and (5) the overriding
issue of fairness.” Judson Atkinson Candies, 529 F.3d at 388, quoting Har-
mony Gold U.S.A., Inc. v. FASA Corp., 169 F.R.D. 113, 116–17 (N.D. Ill. 1996).
Rule 502 superseded several conflicting approaches to inadvertent disclo-
sures, but the advisory committee notes endorsed the factors in Judson At-
kinson Candies. Fed. R. Evid. 502(b) advisory committee’s note to 2008 en-
actment (“The rule is flexible enough to accommodate any of those listed
factors.”). So cases decided before adoption of Rule 502 “remain pertinent
to provide examples.” 8 Wright & Miller, Federal Practice & Procedure
§ 2016.3 (3d ed.).
No. 16-1335 13
The district court also found that the defendants took rea-
sonable steps to prevent the disclosure, focusing on the fact
that just one privileged document slipped through. On this
record, that finding was not clearly erroneous, even though
the scale of this document production lay toward the modest
end of the spectrum in modern discovery practice. Carmody
acknowledges that some review took place to winnow the
thousands of documents down to the several hundred pro-
duced and to avoid production of privileged documents. The
fact that the Perry memorandum was referenced on the priv-
ilege logs reflects that winnowing and screening for privi-
leged documents. The district court apparently inferred that
the university’s review procedures were reasonable, albeit
imperfect, and credited the university’s representations in its
motion to compel that it took steps to review the documents
for privilege. That view was not clearly erroneous. The uni-
versity lawyer’s oversight was surely a doozy, but the point
of Rule 502(b) is to protect client’s confidences from their law-
yers’ human errors like this one.
The district court also found that the university, as holder
of the privilege, took prompt and reasonable steps to rectify
the disclosure. The university’s outside counsel immediately
tried to “claw-back” the Perry memorandum upon opposing
counsel’s attempt to use it. At Adesida’s deposition, the uni-
versity’s outside counsel immediately claimed inadvertence,
instructed Adesida not to answer questions about the docu-
ment, and requested that Carmody’s lawyer destroy all copies
of the document in his possession. The lawyer followed up
with a letter and, upon reaching an impasse with Carmody’s
lawyer, filed the appropriate motion to compel return of the
document and to bar its use as evidence. An element of basic
14 No. 16-1335
fairness here also weighs against Carmody because of his law-
yer’s tactics. He or his lawyer surreptitiously photographed
the document, stayed silent for a year, tried to surprise the
university with the document at a deposition, and then made
the document public by attaching it as an exhibit to a motion
for summary judgment after defense counsel had demanded
its return but before the court could resolve the issue. Cf. Rob-
ertson v. Yamaha Motor Corp., 143 F.R.D. 194, 198 (S.D. Ill. 1992)
(privilege had not been waived when counsel who received
inadvertently-produced privileged documents should have
returned them as soon as they recognized what they had ra-
ther than forward them).
B. Exclusion of Evidence of Pre-Termination Bias
Carmody argues next that the district court erred by pre-
venting him from presenting evidence of pre-termination
bias. He claims that the district court improperly excluded the
privileged Perry memorandum and excluded “other evi-
dence” of pre-termination bias. The university reads this ar-
gument as an appeal from the district court’s grant of a mo-
tion in limine excluding evidence of pre-termination bias. We
review the grant of a motion in limine for abuse of discretion.
Empire Bucket, Inc. v. Contractors Cargo Co., 739 F.3d 1068, 1071
(7th Cir. 2014), citing Thompson v. City of Chicago, 472 F.3d 444,
453 (7th Cir. 2006).
Carmody failed to preserve this argument for appeal. See
Gracia v. SigmaTron Int’l, Inc., 842 F.3d 1010, 1026 (7th Cir.
2016) (failure to preserve alleged error via failure to make of-
fer of proof of expected testimony), citing Wilson v. City of Chi-
cago, 758 F.3d 875, 885 (7th Cir. 2014), and Fed. R. Evid.
103(a)(2). He did not make an offer of proof or otherwise ex-
plain the substance of the evidence he sought to present. Cf.
No. 16-1335 15
Fed. R. Evid. 103(a)(2). Rule 103(b) provides that, to preserve
the claim for appeal, a party need not renew an objection or
offer of proof after the court “definitively” rules on the motion
in limine. E.g., Wipf v. Kowalski, 519 F.3d 380, 385 (7th Cir. 2008)
(definitive denial of motion in limine preserved issue for ap-
peal). But to preserve the issue, the party must have “other-
wise satisfied the objection or offer of proof requirements of
Rule 103(a).” Fed. R. Evid. 103, advisory committee’s note to
2000 amendment. Carmody did not do that. He referred,
without elaboration, to “new evidence” of bias and argued it
would be relevant. That is not enough to preserve the issue
for appeal.
C. Post-Termination Deprivation Theory
Four days before trial, Carmody filed a motion for recon-
sideration and for leave to file an amended complaint. He ar-
gued that new evidence obtained through requests under the
state public-records law warranted resurrecting both his due
process claim based on the post-termination hearing and his
whistleblower claim. The district court denied the motion,
saying it had “no authority” to reconsider our affirmance of
the dismissal of those claims in Carmody I. On appeal, Car-
mody argues that the district court erred in three ways: (1)
failing to allow evidence of post-termination bias; (2) failing
to order a new post-termination hearing; and (3) failing to re-
instate the post-termination claims. The district court cor-
rectly refused to reopen those claims.
The issue involves two related doctrines: the mandate rule
and the law-of-the-case doctrine. “The mandate rule requires
a lower court to adhere to the commands of a higher court on
remand.” United States v. Polland, 56 F.3d 776, 777 (7th Cir.
1995), citing In re Continental Illinois Securities Litigation, 985
16 No. 16-1335
F.2d 867, 869 (7th Cir. 1993). “The law of the case doctrine is a
corollary to the mandate rule and prohibits a lower court from
reconsidering on remand an issue expressly or impliedly de-
cided by a higher court absent certain circumstances.” United
States v. Adams, 746 F.3d 734, 744 (7th Cir. 2014), quoting Pol-
land, 56 F.3d at 779. Both the mandate rule and the law-of-the-
case doctrine are strong, but they can bend in sufficiently
compelling circumstances. The mandate rule may give way
“in light of subsequent factual discoveries or changes in the
law.” EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 796 (7th Cir.
2005), quoting Barrow v. Falck, 11 F.3d 729, 731 (7th Cir. 1993);
see also 18B Wright & Miller, Federal Practice and Procedure
§ 4478.3 (2d ed.) (noting that “a compelling showing” or
“changed circumstances” that are “clear and compelling”
“may justify departure from the mandate”). And the law-of-
the-case doctrine may yield “if an intervening change in the
law, or some other special circumstance, warrants reexamin-
ing the claim.” Sears, 417 F.3d at 796, quoting United States v.
Thomas, 11 F.3d 732, 736 (7th Cir. 1993). Those circumstances
may include, but are not limited to, “substantial new evidence
introduced after the first review.” Kathrein v. City of Evanston,
752 F.3d 680, 685 (7th Cir. 2014), quoting Chicago & North West-
ern Transp. Co. v. United States, 574 F.2d 926, 930 (7th Cir. 1978).
As a matter of law, therefore, the district court had discre-
tion, at least in theory, to reconsider the earlier dismissal.
Upon our remand, the earlier final judgment became interloc-
utory. What had been a judgment on all claims in the case be-
came a judgment on only some claims. And without a Rule 54
certification, that judgment was not final. See Fed. R. Civ. P.
60(b) advisory committee’s note to 1946 amendment (“inter-
locutory judgments are not brought within the restrictions of
the rule”); Mintz v. Caterpillar Inc., 788 F.3d 673, 679 (7th Cir.
No. 16-1335 17
2015) (distinguishing Rule 60(b) and noting that district court
had discretion to reconsider previous summary judgment rul-
ing before final judgment); see also Pickett v. Prince, 207 F.3d
402, 407 (7th Cir. 2000) (distinguishing judgments from rul-
ings, which are “constrained only by the doctrine of the law
of the case”).
That theoretical power made no practical difference here.
Carmody did not present a compelling reason to revisit the
earlier rulings after our remand. His new evidence falls well
short of the high bar required to bend the law-of-the-case and
mandate rules. He argues that the new evidence shows that
the post-termination hearing officer was not neutral because
he had ex parte communications with university staff and de-
leted exculpatory information from drafts of the final hearing
report. The dispositive fact remains. Carmody bowed out of
the post-termination proceedings. Carmody I, 747 F.3d at 479.
While the evidence Carmody obtained through his public rec-
ord requests might have bolstered his case, it is not the kind
of compelling new evidence that would warrant reconsider-
ing the dismissal of the other claims.
The judgment of the district court is
AFFIRMED.