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 UnitedFOR 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.

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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 court’s 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.

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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)