Apostol v. Gallion

• Citation: 870 F.2d 1335
• Decision Date: 28 March 1989
• Docket Number: Nos. 89-1030,89-1479,s. 89-1030
• Parties: George E. APOSTOL, Plaintiff-Appellee, v. Mark GALLION, et al., Defendants-Appellants. John AURIEMMA, et al., Plaintiffs-Appellees, v. Fred RICE, Defendant-Appellant, and City of Chicago, Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1335

870 F.2d 1335 57 USLW 2599 George E. APOSTOL, Plaintiff-Appellee,
v.
Mark GALLION, et al., Defendants-Appellants.
John AURIEMMA, et al., Plaintiffs-Appellees,
v.
Fred RICE, Defendant-Appellant,
and
City of Chicago, Defendant. Nos. 89-1030, 89-1479. United States Court of Appeals,
Seventh Circuit. Submitted March 13 and 17, 1989.
Decided March 28, 1989.

Page 1337

Steven Sommerfield, Downers Grove, Ill., Gregory Rogus, Garr & Associates, Chicago, Ill., Langdon D. Neal, Earl L. Neal, Neal & Associates, Judson H. Miner, James D. Montgomery, Corp. Counsel, Chicago, Ill., for defendants-appellants.

John L. Gubbins, Gubbins & Associates, Michael S. Baird, Stotis, Chionis, Craven & Baird, Chicago, Ill., plaintiffs-appellees.

Before POSNER, EASTERBROOK, RIPPLE, and MANION, Circuit Judges. ^*

EASTERBROOK, Circuit Judge.

In each of these suits for damages under 42 U.S.C. Sec. 1983, the individual defendants raised a claim of qualified immunity as a matter of law. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In each the district judge denied the defendants' motion for summary judgment and set the case for trial. In each the individual defendants filed a notice of appeal on the authority of Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), and asked the district judge to defer trial until after the resolution of the appeal. In each the district judge denied the motion. We issued interim stays and called for briefs addressing the question whether an appeal under Forsyth prevents district judges from proceeding to trial. On this question no court of appeals has spoken, although Kennedy v. City of Cleveland, 797 F.2d 297, 299 (6th Cir.1986), implies an affirmative answer.

As a rule, only one tribunal handles a case at a time. "[A] federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously. The filing of a notice of appeal is an event of jurisdictional significance--it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982). See also, e.g., Berman v. United States, 302 U.S. 211, 214, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937); Hovey v. McDonald, 109 U.S. 150, 157, 3 S.Ct. 136, 140, 27 L.Ed. 888 (1883); United States v. Hocking, 841 F.2d 735 (7th Cir.1988); 9 Moore's Federal Practice p 203.11 (2d ed. 1988); Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Eugene Gressman, 16 Federal Practice and Procedure Sec. 3949 at p. 359 (1977). Cf. United States v. Cronic, 466 U.S. 648, 667 n. 42, 104 S.Ct. 2039, 2051 n. 42, 80 L.Ed.2d 657 (1984) (while an appeal is pending the district court may deny, but not grant, motions for relief from judgment); In re Jones, 768 F.2d 923, 930-31 (7th Cir.1985) (concurring opinion) (questioning whether the district court retains even enough jurisdiction to issue an opinion explaining its actions, once an appeal has been filed). Someone must be in charge of a case; simultaneous proceedings in multiple forums create confusion and duplication of effort; the notice of appeal and the mandate after its resolution avoid these by allocating control between forums.

Jurisdiction is not a unitary concept, however. The term has many meanings, see Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1077-79 (7th Cir.1987); American National Bank & Trust Co. v. City of Chicago, 826 F.2d 1547, 1552-53 (7th Cir.1987). The distribution of authority to decide depends on practical rather than formal considerations, and it is easy to imagine two courts having jurisdiction to proceed at once. Why depend on imagination?--this happens every day. District courts award costs and attorneys' fees while the courts of appeals consider the merits. Budinich v. Becton Dickinson

Page 1338

& Co., --- U.S. ----, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988); Buchanan v. Stanships, Inc., 485 U.S. 265, 108 S.Ct. 1130, 99 L.Ed.2d 289 (1988). Cf. Osterneck v. Ernst & Whinney, --- U.S. ----, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989). Appeals based on the "collateral order doctrine" of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), present issues separate from the merits (in Cohen, the propriety of a bond for costs), and 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 the district court. Stack v. Boyle, 342 U.S. 1, 12, 72 S.Ct. 1, 7, 96 L.Ed. 3 (1951) (Jackson, J., concurring).

So it may be significant that Forsyth invokes Cohen 's collateral order doctrine. Forsyth 's direct predecessor, Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), holds that an interlocutory appeal may be taken to vindicate the "right not to be tried" created by the Double Jeopardy Clause. The Court saw such an appeal as one raising an issue separate from the merits yet presenting a question that could not be resolved on appeal from a final judgment--for by then the trial would be over, the "right not to stand trial" lost. The collateral order doctrine authorizes an appeal in those circumstances, Abney holds. Forsyth then reasoned that qualified immunity as a matter of law, like the Double Jeopardy Clause, yields a right not to endure the cost and...