Reise v. Board of Regents of University of Wisconsin System

• Decision Date: 12 February 1992
• Docket Number: Nos. 91-3414,91-3844,s. 91-3414
• Citation: 957 F.2d 293
• Parties: 58 Fair Empl.Prac.Cas. (BNA) 145, 58 Empl. Prac. Dec. P 41,309, 60 USLW 2532, 21 Fed.R.Serv.3d 927, 73 Ed. Law Rep. 348 E.H. REISE, Plaintiff-Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 293

957 F.2d 293

58 Fair Empl.Prac.Cas. (BNA) 145,

58 Empl. Prac. Dec. P 41,309, 60 USLW 2532,

21 Fed.R.Serv.3d 927, 73 Ed. Law Rep. 348

E.H. REISE, Plaintiff-Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM, et al., Defendants-Appellees.

Nos. 91-3414, 91-3844.

United States Court of Appeals Seventh Circuit.

Submitted Feb. 4, 1992.

Decided Feb. 12, 1992.

Richard B. Kay, Tequesta, Fla., for plaintiff-appellant.

John J. Glinski, Asst. Atty. Gen., Michael J. Losse, Office of the Atty. Gen., Wisconsin Dept. of Justice, Madison, Wis., for defendants-appellees.

Before BAUER, Chief Judge, and EASTERBROOK and RIPPLE, Circuit Judges.

EASTERBROOK, Circuit Judge.

E.H. Reise, who was graduated in the top 5% of his class from the Law School of the University of Wisconsin at Madison, applied for a position on its faculty. The Law School did not hire him. He believes that his race and sex account for the decision, that in recent years the Law School has been unwilling to consider anyone, no matter how skilled, who is not black, female, or otherwise eligible for preferential treatment. According to Reise, only one of the last thirteen appointments to the faculty has been a white male, and that appointment was made in 1985. The Law School says that the persons it hired are better lawyers and scholars than Reise. The district court has set a trial for this coming April to get at the truth. Meanwhile Reise is engaged in jousting.

Reise sought a preliminary injunction that would require the Law School to obtain the court's approval before hiring or promoting anyone, or spending money for two programs designed to support minority teachers and scholars. The judge denied this request. Reise's demand is so extravagant that we need know nothing about the merits to conclude that the district court did not abuse its discretion. "Remedies" of this kind would be problematic even if Reise were to prevail at trial. As demands for preliminary relief, they are absurd.

Riding piggyback on Reise's appeal from the denial of a preliminary injunction is his request that we order the judge to postpone the trial. According to Reise, the backbreaking schedule needed to complete discovery in time for trial has overtaxed his lawyer and is destroying his own practice. Yet Reise contends that the published policies of the Law School, and the hiring decisions that have ensued, speak for themselves; why this case should lead to complex discovery eludes us, unless Reise is uncomfortable with his own theory and seeks to scour the defendants' files in the hope that something will turn up. At all events, if it turns out that the schedule was too abbreviated, relief will be available later. Apart from orders respecting preliminary injunctions and a few other categories, only "final decisions" are appealable, and the schedule for trial is hardly a final decision. Reise's request that we supervise the time line of the case is outside our jurisdiction.

Reise has filed a separate appeal asking us to reverse the judge's order that he submit to a mental examination under Fed.R.Civ.P. 35. Reise demands $4 million in compensatory damages on account of the mental anguish, emotional distress, and illness that he says he has endured as a result of the Law School's decision not to hire him. Not surprisingly, the Law School wants to obtain a medical opinion on Reise's mental state, so that it may present evidence on that subject at trial. Reise insists that because he is over his distress and is not seeking damages on account of his current mental condition, an examination would reveal nothing of value. Again not surprisingly, the Law School is not content with Reise's say-so and wants to check. The district judge, siding with the Law School, ordered Reise to undergo an examination.

Although Reise contends that the examination is unnecessary and that the judge should at all events have ensured that the physician would be independent of the University, we shall have nothing to say about the dispute. Details of discovery are a long way from final decision. Cf. Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 107 S.Ct. 1177, 94 L.Ed.2d 389 (1987); Kerr v. United States District Court, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed .2d 725 (1976); Richards v. Firestone Tire & Rubber Co., 928 F.2d 241 (7th Cir.1991). Reise invokes Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), and Winters v. Travia, 495 F.2d 839 (2d Cir.1974), both of which issued writs of mandamus to stop scheduled examinations. Reise filed a notice of appeal, not a petition for mandamus. Even if we were to treat the former as the latter, we would not exercise discretion in Reise's favor. Schlagenhauf found a usurpation of power when a district judge ordered the defendant to undergo multiple examinations despite the lack of any disputed medical issue; Winters dealt with an order directing a Christian Scientist with sincere religious objections to undergo a marginally relevant examination. Reise has claimed no religious scruples against examination. Schlagenhauf remarked that a plaintiff "who asserts mental or physical injury ... places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury." 379 U.S. at 119, 85 S.Ct. at 243. Schlagenhauf does not support relief, and cases such as Kerr and Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980), make mandamus less readily available than it was in 1964 or 1974.

All then depends on whether an order under Rule 35 is a final decision for purposes of 28 U.S.C. § 1291. One case holds that it is. Acosta v. Tenneco Oil Co., 913 F.2d 205 (5th Cir.1990), concludes that a direction to undergo examination is a "collateral order" appealable under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order to submit to the examination is "final," the subject is important to the parties, and once the examination has been conducted, any injury the process inflicts cannot be undone. So Acosta thought the conditions of Cohen satisfied. We respectfully disagree. The reasoning of Acosta would make every discovery order appealable. The travail and expense of discovery and trial cannot be reversed at the end of the case, yet this has never...