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The Seventh Circuit just denied the defendants’ stay motions, which is a major win for Okeefe. It held that their sovereign immunity appeal is frivolous. Four federal judges have now declared the defendants’ most important argument to be “frivolous”—not just incorrect, but worthless.
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The Seventh Circuit just denied the defendants’ stay motions, which is a major win for Okeefe. It held that their sovereign immunity appeal is frivolous. Four federal judges have now declared the defendants’ most important argument to be “frivolous”—not just incorrect, but worthless.
>
The Seventh Circuit just denied the defendants’ stay motions, which is a major win for Okeefe. It held that their sovereign immunity appeal is frivolous. Four federal judges have now declared the defendants’ most important argument to be “frivolous”—not just incorrect, but worthless.
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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 ] Appeals from the United FOR GROWTH INC., ] States District Court for Plaintiffs-Appellees, ] the Eastern District of ] Wisconsin. Nos. 14-1822, 14-1888, 14-1899, ] 14-2006, 14-2012 and 14-2023 v. ] No. 2:14-cv-00139-RTR ] JOHN T. CHISHOLM, BRUCE J. ] Rudolph T. Randa, Judge. LANDGRAF, DAVID ROBLES, ] FRANCIS D. SCHMITZ and ] DEAN NICKEL, ] Defendants-Appellants. ] 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 - Case: 14-1822 Document: 43 Filed: 06/09/2014 Pages: 3 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 - Case: 14-1822 Document: 43 Filed: 06/09/2014 Pages: 3 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) Case: 14-1822 Document: 43 Filed: 06/09/2014 Pages: 3