People of State of Ill. ex rel. Hartigan v. Peters
| Decision Date | 07 November 1988 |
| Docket Number | No. 88-1555,88-1555 |
| Citation | 861 F.2d 164 |
| Parties | PEOPLE OF the STATE OF ILLINOIS ex rel. Neil F. HARTIGAN, Attorney General of Illinois, Plaintiff-Appellee, v. George PETERS, doing business as MGM Motors and George Peters, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Paul E. Peldyak, Joseph N. Rathnau, Chicago, Ill., for defendant-appellant.
Margaret M. Drewko, Asst. Atty. Gen., Chicago, Ill., for plaintiff-appellee.
Before CUMMINGS, POSNER, and MANION, Circuit Judges.
We write to clarify a recurrent issue of appellate jurisdiction. The State of Illinois brought this federal suit against George Peters, a used-car dealer, under the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. Sec. 1981 et seq., with a pendent claim under the Illinois Consumer Fraud and Deceptive Business Practices Act, Ill.Rev.Stat. ch. 121 1/2, Sec. 268. On March 3, 1987, in response to a motion by the state, the district judge (1) appointed a receiver to take control of and operate Peters' dealership and (2) issued a preliminary injunction forbidding Peters to dispose of any of the assets of the dealership (mainly cars whose odometers had, according to evidence presented by the state, been tampered with) without the receiver's authorization. Six months later Peters moved to vacate the injunction and dissolve the receivership. The judge denied the motion on February 25 of this year, and this appeal followed.
There is no question that the judge's order of February 25 was appealable insofar as it denied Peters' motion to vacate the preliminary injunction issued the previous March; the denial of a motion to vacate an injunction is expressly appealable (without regard to finality) under 28 U.S.C. Sec. 1292(a)(1). But Peters also seeks review of the district court's refusal to dissolve the receivership, and the state objects, pointing out that while an order appointing a receiver is appealable (without regard to finality) under section 1292(a)(2), there is no express provision in that section--in contrast to subsection (a)(1)--for appealing the denial of an order to vacate the appointment.
Section 1292(a)(2) provides that "interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property," are appealable. There is little case law interpreting this poorly worded (what are "orders ... refusing orders"?) provision, although it has been on the books since 1925. SEC v. Bartlett, 422 F.2d 475, 477 (8th Cir.1970), allowed an appeal from an order denying a motion to vacate a receivership, but on the puzzling ground that such an "order is specifically made appealable under Sec. 1292(a)(2)." (It is not.) Bartlett was followed in SEC v. Lincoln Thrift Ass'n, 577 F.2d 600, 602 (9th Cir.1978), which reasoned that an order which had the practical effect of terminating a receivership would either be a "wind up" order or a "step to accomplish the purposes" of the receivership, so the refusal to issue such an order would be appealable. The second characterization is highly artificial. Even the first is doubtful, as shown by the structure of the statute and by earlier cases not cited in either Bartlett or Lincoln Thrift.
An order appointing a receiver is expressly made appealable by 1292(a)(2). If a party is unhappy with such an order he can appeal. Or he can let the time for appeal expire and ask the appointing court to reconsider the order. (A motion for reconsideration filed within ten days would toll the time for appeal, but we can omit that refinement.) A motion to vacate the appointment is, in effect, a motion for reconsideration--and an order denying such a motion is not among the orders made appealable by section 1292(a)(2). It is not an order refusing to wind up the receivership, because to wind up a receivership "presupposes a receivership in course of administration, which because of changed circumstances ought not to be continued." Grand Beach Co. v. Gardner, 34 F.2d 836, 838 (6th Cir.1929) (Julian Mack, J.). That is not the nature of the order sought by Peters. He thinks the receiver should never have been appointed. Such an order is not within the scope of section 1292(a)(2). See id.; United States v. Chelsea Towers, Inc., 404 F.2d 329 (3d Cir.1968) (per curiam); 16 Wright & Miller,...
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