1

No. 14-2266

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT


VIRGININA WOLF, et al.

Plaintiffs-Appellees,

v.

SCOTT WALKER, et al.

Defendants-Appellants.



SUPPLEMENTAL MEMORANDUM


Now comes Assistant Corporation Counsel David R. Gault, on
behalf of the Dane County Clerk, Scott McDonell, and hereby submits
the following Supplemental Memorandum regarding the court’s
appellate jurisdiction in response to the court’s order dated June 9,
2014.
ARGUMENT
The Court of Appeals does not currently have jurisdiction over this
appeal. This court has held that “only one tribunal handles a case at a
time.” Apostol v. Gallion, 870 F. 2d 1335, 1337 (7
th
Cir., 1989). The
court quoted the Supreme Court in Griggs v. Provident Consumer
Case: 14-2266 Document: 11 Filed: 06/11/2014 Pages: 7
2
Discount Co, 459 U.S. 56, 58 (1982), which held that “[A] federal
district court and a federal court of appeals should not attempt to
assert jurisdiction over a case simultaneously.” As the court in Apostal
sagely pointed out: “Someone must be in charge of a case;
simultaneous proceedings in multiple forums create confusion and
duplication of effort;…” Apostal, 870 F. 2d at 1337.
“Congress has vested the courts of appeals with ‘jurisdiction of
appeals from all final decisions of the district courts of the United
States.” Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009), citing 28 U.S.C.
§ 1291. Interlocutory appeals “are the exception, not the rule.” Id.,
quoting, Johnson v. Jones, 515 U.S. 304, 309 (1995). Clearly, no final
decision or judgment has been entered by the district court in this
case. Therefore, this court lacks jurisdiction under 28 U.S.C. § 1291.
This court has jurisdiction over an interlocutory appeal of an order
of the district court “granting, continuing, modifying, refusing or
dissolving injunctions, or refusing to dissolve or modify injunctions...”
28 U.S.C. § 1292(a)(1). However, no injunction has been granted or
refused in this case. The district court was quite specific on that point
at the hearing held on June 9, 2014, regarding the State’s Motion for
Emergency Stay. The granting or denial of an injunction cannot be
inferred. This court has held that a major point of Fed. R. Civ. P.
Case: 14-2266 Document: 11 Filed: 06/11/2014 Pages: 7
3
65(d)(1)(C) “is that a judge’s expectations are not binding; only
concrete language in a written order can be enforced as an injunction.
That’s why we held in Bates v. Johnson, 901 F. 2d 1424 (7
th
Cir.,
1990), that a judge’s oral demand that a litigant cease doing
something is not an injunction and is not an injunction and is not an injunction and is not an injunction and therefore may not be appealed. therefore may not be appealed. therefore may not be appealed. therefore may not be appealed.”
In the Matter of Rockford Products Corporation, 741 F.3d 730, 734 (7
th

Cir. 2013) (emphasis added) The district court was quite specific that
at this point in the case it had neither granted or denied injunctive
relief. Therefore, this court has no jurisdiction under 28 U.S.C.
§ 1292(a)(1).
The Supreme Court adopted the “collateral order doctrine” in
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). This
court in Apostal, discussed appeals based upon the Cohen collateral
order doctrine, and noted that they “present issues separate from the separate from the separate from the separate from the
merits merits merits merits (in Cohen, the propriety of a bond for costs).” Apostal, 870 F.
2d at 1338. Thus the terminology “collateral order.” When the
collateral order doctrine is applied, “the court of appeals can consider
these segregable issues while the district court presses ahead with the
case. Indeed, one of the rationales for the Cohen doctrine is precisely
that an appeal of a collateral order does not disrupt the litigation in
Case: 14-2266 Document: 11 Filed: 06/11/2014 Pages: 7
4
the district court.” Id., citing Stack v. Boyle, 342 U.S. 1, 12 (1951)
(Jackson, J., concurring).
More recently, the Supreme Court has held that “the collateral
order doctrine accommodates a ‘small class’ of rulings, not concluding
the litigation, but conclusively resolving claims of right separable
from, and collateral to, rights asserted in the action.” Will v. Hallock,
546 U.S. 345, 349 (2006). The court further held that there are three
requirements for a collateral order appeal. The order in question must:
“[1] conclusively determine the disputed question, [2] resolve an
important issue completely separate from the merits of the action, and
[3] be effectively unreviewable on appeal from a final judgment.” Id.,
citing Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy,
Inc., 506 U.S. 139, 144 (1993). The court expressly noted that these
conditions are “stringent…and unless they are kept so, the underlying
doctrine will overpower the substantial finality interests
§ 1291 is meant to further: judicial economy…” Id. at 350, citing
Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868
(1994) and Firestone Tire & Rubber Co v. Risjord, 449 U.S. 368, 371
(1981).
The district court’s order and opinion dated June 6, 2014 is not a
collateral order that is reviewable by this court. Although the opinion
Case: 14-2266 Document: 11 Filed: 06/11/2014 Pages: 7
5
conclusively determined that Art. XIII, § 13 of the Wisconsin
Constitution and any Wisconsin statutory provisions limiting same-
sex marriage violates the United States Constitution, it did not resolve
any issues completely separate from the merits of the case. The
collateral order doctrine has historically only been invoked to review
truly collateral issues like the propriety of a bond for costs as in
Cohen, or more frequently cases dealing with qualified or sovereign
immunity. Nothing in the district court’s June 6
th
opinion is effectively
unreviewable by this court on appeal from final judgment.

CONCLUSION
The district court has not entered a final order or granted or denied
an injunction. Therefore, this court has no jurisdiction at this time
under either 28 U.S.C. §§ 1291 or 1292(a)(1). Furthermore, this is
exactly the type of case that the Supreme Court has held should not be
reviewed under the collateral order doctrine. There simply is no
collateral order. An appeal at this point will disrupt the litigation in
district court. Judicial economy and the efficient administration of
justice require that the district court be allowed to fully and finally
adjudicate this case.

Case: 14-2266 Document: 11 Filed: 06/11/2014 Pages: 7
6
Dated this 11th day of June, 2014.

/s/ David R. Gault
David R. Gault
Assistant Corporation Counsel
Dane County Corporation Counsel
210 Martin Luther King, Jr. Blvd., #419
Madison, Wisconsin 53703
608-266-4355
Case: 14-2266 Document: 11 Filed: 06/11/2014 Pages: 7
7
CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE

I hereby certify that on June 11, 2014, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of
Appeals for the Seventh Circuit by using the CM/ECF system. I certify
that all participants in the case are registered CM/ECF users and that
service will be accomplished by the CM/ECF system.

Dated this 11th day of June, 2014.

/s/ David R. Gault
David R. Gault
Assistant Corporation Counsel
Dane County Corporation Counsel
210 Martin Luther King, Jr. Blvd., #419
Madison, Wisconsin 53703
608-266-4355

Case: 14-2266 Document: 11 Filed: 06/11/2014 Pages: 7

Sign up to vote on this title
UsefulNot useful