UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse

Room 2722 - 219 S. Dearborn Street
Chicago, Illinois 60604

Office of the Clerk

Phone: (312) 435-5850
www.ca7.uscourts.gov

ORDER
June 9, 2014

Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
ERIC O'KEEFE and WISCONSIN CLUB
FOR GROWTH INC.,
Plaintiffs-Appellees,
Nos. 14-1822, 14-1888, 14-1899,
14-2006, 14-2012 and 14-2023
JOHN T. CHISHOLM, BRUCE J.
LANDGRAF, DAVID ROBLES,
FRANCIS D. SCHMITZ and
DEAN NICKEL,
Defendants-Appellants.

v.

]
]
]
]
]
]
]
]
]
]
]
]

Appeals from the United

States District Court for
the Eastern District of
Wisconsin.
No. 2:14-cv-00139-RTR
Rudolph T. Randa, Judge.

The following are before the court:

1.

DEFENDANT-APPELLANT DEAN NICKEL'S MOTION FOR STAY, filed

on May 14, 2014, by counsel for the appellant Dean Nickels.

2.

DECLARATION OF JUSTIN H. LESSNER IN SUPPORT OF

DEFENDANT-APPELLANT DEAN NICKEL'S MOTION FOR STAY, filed
on May 14, 2014, by counsel for Justin H. Lessner.

3.

DEFENDANT-APPELLANT'S MOTION TO STAY THE DISTRICT

COURT'S CERTIFICATION OF DEFENDANT-APPELLANT'S APPEALS
AS FRIVOLOUS AND ALL OTHER DISTRICT COURT PROCEEDINGS,
filed on May 14, 2014, by counsel for the appellant Francis D. Schmitz.
- over -

Nos. 14-1822, 14-1888, 14-1899, 14-2006, 14-2012 and 14-2023

Page 2

4.

DEFENDANTS-APPELLANTS JOHN CHISHOLM, BRUCE LANDGRAF

AND DAVID ROBLES' MOTION FOR STAY OF DISTRICT COURT
PROCEEDINGS, filed on May 15, 2014, by counsel for the appellants John
Chisholm, Bruce Landgraf and David Robles.

5.

PLAINTIFFS' RESPONSE TO DEFENDANTS' STAY MOTIONS AND

CROSS-MOTION FOR SUMMARY AFFIRMANCE OF DENIAL OF
DEFENDANTS' MOTION TO DISMISS, filed on May 28, 2014, by counsel
for the appellees.

6.

DEFENDANT-APPELLANT DEAN NICKEL'S REPLY IN SUPPORT OF

MOTION FOR STAY AND RESPONSE TO PLAINTIFFS-APPELLEES'
CROSS-MOTION FOR SUMMARY AFFIRMANCE, filed on June 4, 2014,
by counsel for the appellant Dean Nickels.

7.

DEFENDANTS-APPELLANTS JOHN CHISHOLM, BRUCE LANDGRAF,

AND DAVID ROBLES' REPLY BRIEF IN SUPPORT OF THEIR MOTION
FOR STAY OF DISTRICT COURT PROCEEDINGS, filed on June 4, 2014,
by counsel for the appellants John Chisholm, Bruce Landgraf and David
Robles.

8.

DEFENDANT-APPELLANT FRANCIS SCHMITZ'S RESPONSE TO

PLAINTIFFS-APPELLEES' CROSS-MOTION FOR SUMMARY
AFFIRMANCE AND REPLY IN SUPPORT OF MOTION TO STAY, filed
on June 4, 2014, by counsel for the appellant Francis D. Schmitz.

After our order of May 7, 2014, the district court concluded that the appeals are frivolous.
Under Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989), that clears the way for further
proceedings in the district court, subject to the partial stay that our order of May 7 imposed
while the appeals remain under advisement.
This court has set a briefing schedule, but most of the litigants have asked for other relief,
including further stays, an order dismissing some or all of the appeals, or summary
affirmance. We do not attempt to address each of these motions individually but instead
cover the ground as follows.
1. Appeal Nos. 14-2006, 14-2012, and 14-2023 challenge the district courts authority to issue
a preliminary injunction, and to conduct proceedings concerning the request for permanent
injunctive relief. They are frivolous to the extent they present this topic. Defendants
invocation of immunity does not affect litigation under Ex parte Young, 209 U.S. 123 (1908),
that seeks prospective relief to compel compliance with federal law (including the
Constitution). The district court therefore had authority, notwithstanding the appeals, to
issue an injunction.
- over -

Nos. 14-1822, 14-1888, 14-1899, 14-2006, 14-2012 and 14-2023

Page 3

2. The injunction is appealable under 28 U.S.C. 1292(a). Appeal Nos. 14-2006, 14-2012, and
14-2023, to the extent they anticipated the injunction, are effective under Fed. R. App.
4(a)(2). We interpret these notices of appeal to contest that injunction (which the order of
May 7 stayed in part). If this understanding is incorrect, appellants should inform us within
seven days, and these three appeals will be dismissed outright.
3. The court needs further information to determine whether the appeals asserting qualified
immunity from damages (Nos. 14-1822, 14-1888, and 14-1899) are frivolous. Some of the
papers suggest that these appellants are arguing that the complaint is inadequate
under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). That would be problematic as the
basis of an interlocutory appeal. The Supreme Court has held, most recently in Plumhoff v.
Rickard, No. 12-1117 (U.S. May 27, 2014), slip op. 5-7, that an interlocutory appeal is proper
to contend that legal uncertainty makes damages inappropriate, but that a fact-specific
appeal is not authorized. Arguments about the adequacy of factual allegations in the
complaint thus may come within the scope of Johnson v. Jones, 515 U.S. 304 (1995). But if
appellants are arguing that the law is not clearly established in plaintiffs favor, even if the
allegations of the complaint suffice under Rule 8, then we have jurisdiction over the
appeals. Those appellants who contend that qualified immunity protects them from awards
of damages have 14 days to file memoranda explaining what issues they plan to raise on
appeal and why, in their view, 28 U.S.C. 1291 confers jurisdiction.
4. Proceedings in the district court concerning damages are stayed pending further order of
this court.
5. The briefing schedule set by order of May 13, 2014, is vacated. The court will establish a
new schedule after all jurisdictional issues have been resolved.

form name: c7_Order_3J(form ID: 177)