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 ClerkPhone: (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, filedon May 14, 2014, by counsel for the appellant Dean Nickels.

2. DECLARATION OF JUSTIN H. LESSNER IN SUPPORT OFDEFENDANT-APPELLANT DEAN NICKEL'S MOTION FOR STAY, filedon May 14, 2014, by counsel for Justin H. Lessner.

3. DEFENDANT-APPELLANT'S MOTION TO STAY THE DISTRICTCOURT'S CERTIFICATION OF DEFENDANT-APPELLANT'S APPEALSAS FRIVOLOUS AND ALL OTHER DISTRICT COURT PROCEEDINGS,filed on May 14, 2014, by counsel for the appellant Francis D. Schmitz.

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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 LANDGRAFAND DAVID ROBLES' MOTION FOR STAY OF DISTRICT COURTPROCEEDINGS, filed on May 15, 2014, by counsel for the appellants JohnChisholm, Bruce Landgraf and David Robles.

5. PLAINTIFFS' RESPONSE TO DEFENDANTS' STAY MOTIONS ANDCROSS-MOTION FOR SUMMARY AFFIRMANCE OF DENIAL OFDEFENDANTS' MOTION TO DISMISS, filed on May 28, 2014, by counselfor the appellees.

6. DEFENDANT-APPELLANT DEAN NICKEL'S REPLY IN SUPPORT OFMOTION 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 MOTIONFOR STAY OF DISTRICT COURT PROCEEDINGS, filed on June 4, 2014,by counsel for the appellants John Chisholm, Bruce Landgraf and DavidRobles.

8. DEFENDANT-APPELLANT FRANCIS SCHMITZ'S RESPONSE TOPLAINTIFFS-APPELLEES' CROSS-MOTION FOR SUMMARYAFFIRMANCE AND REPLY IN SUPPORT OF MOTION TO STAY, filedon 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 furtherproceedings in the district court, subject to the partial stay that our order of May 7 imposedwhile 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 summaryaffirmance. We do not attempt to address each of these motions individually but insteadcover the ground as follows.

1. Appeal Nos. 14-2006, 14-2012, and 14-2023 challenge the district courts authority to issuea preliminary injunction, and to conduct proceedings concerning the request for permanentinjunctive relief. They are frivolous to the extent they present this topic. Defendantsinvocation 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 theConstitution). The district court therefore had authority, notwithstanding the appeals, toissue an injunction.

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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, and14-2023, 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 ofMay 7 stayed in part). If this understanding is incorrect, appellants should inform us withinseven days, and these three appeals will be dismissed outright.

3. The court needs further information to determine whether the appeals asserting qualifiedimmunity from damages (Nos. 14-1822, 14-1888, and 14-1899) are frivolous. Some of thepapers suggest that these appellants are arguing that the complaint is inadequateunder Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). That would be problematic as thebasis 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 properto contend that legal uncertainty makes damages inappropriate, but that a fact-specificappeal is not authorized. Arguments about the adequacy of factual allegations in thecomplaint thus may come within the scope of Johnson v. Jones, 515 U.S. 304 (1995). But ifappellants are arguing that the law is not clearly established in plaintiffs favor, even if theallegations of the complaint suffice under Rule 8, then we have jurisdiction over theappeals. Those appellants who contend that qualified immunity protects them from awardsof damages have 14 days to file memoranda explaining what issues they plan to raise onappeal 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 ofthis court.

5. The briefing schedule set by order of May 13, 2014, is vacated. The court will establish anew 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