Southworth v. Grebe

• Decision Date: 11 July 1997
• Docket Number: No. 97-1001,97-1001
• Citation: 124 F.3d 205
• Parties: NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. Scott H. SOUTHWORTH et al., Plaintiffs-Appellees, v. Michael W. GREBE et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 205

124 F.3d 205

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.

Scott H. SOUTHWORTH et al., Plaintiffs-Appellees, v. Michael W. GREBE et al., Defendants-Appellants.

No. 97-1001.

United States Court of Appeals, Seventh Circuit.

Argued June 4, 1997

Decided July 11, 1997.

Appeal from the United States District Court for the Western District of Wisconsin, No. 96 C 0292-S, John C. Shabaz, Chief Judge.

Before BAUER, WOOD and MANION, Circuit Judges.

ORDER

Plaintiffs Scott Southworth, Amy Schoepke, and Keith Bannach, each a student at the University of Wisconsin-Madison Law School, ¹ sued the members of the Board of Regents at the University of Wisconsin System alleging that the Regents' practice of compelling students to pay allocable student fees to fund private ideological and political groups on campus violates their rights of free speech and association, the free exercise clause of the Constitution, and the Religious Freedom Restoration Act. Plaintiffs also alleged pendent state law claims. They sought "declaratory and injunctive relief ...," specifically:

Declaratory relief stating that the Regents' policy and practice of giving funds collected through the mandatory student fees to private political and ideological groups is unconstitutional under the United States Constitution, violating the Plaintiffs' rights to freedom of speech, freedom of association, free exercise of religion, and their rights under the Religious Freedom Restoration Act.

They also sought

injunctive relief against the Regents, ordering them and all of their officers, employees and other agents, to stop funding private groups that engage in ideological or political advocacy; or, in the alternative, to set up a procedure under which students who object to the views expressed by the groups receiving funding may opt out of paying the portion of the mandatory student fee that funds private ideological and political groups.

The parties filed cross-motions for summary judgment. The district court denied the defendants' motion, and granted plaintiffs summary judgment, concluding that the Regents' mandatory allocable segregated fee policy violated plaintiffs' first amendment rights to freedom of speech and association ² But though it ordered declaratory relief, the district court did not address plaintiffs' request for injunctive relief Rather, it stated that "[b]ecause the parties have agreed to fashion their own remedy in the event a violation of plaintiffs' constitutional rights exists, this Court will not address at this time that which it believes may be that appropriate remedy."

The defendants appealed, asserting jurisdiction was proper under 28 U.S.C. § 1291. Section 1291 provides that "courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States...." 28 U.S.C. § 1291. A decision is final for purposes of § 1291 if the district court's decision "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment" Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978) (citation omitted).

Because the district court did not address plaintiffs' request for injunctive relief, this court was concerned that the district court's decision was not final and appealable. At oral argument we pursued this issue with the parties, and requested supplemental briefing on this jurisdictional question.

In their supplemental brief, the defendants cite Kikumura v. Turner, 28 F.3d 592 (7th Cir.1994), and Abbs v. Sullivan, 963 F.2d 918 (7th Cir.1992), in support of their view that the district court's opinion is final and appealable. In Kikumura, the plaintiff had filed a complaint alleging that the defendants' prison policy violated his constitutional rights. The plaintiff sought both declaratory and injunctive relief The district court denied the plaintiff declaratory relief, but never addressed the issue of injunctive relief The plaintiff appealed and this court held that it had jurisdiction because "the court unequivocally entered a final judgment here, granting the defendant's motion for summary judgment in its entirety." Id. at 594.

The defendants claim that this case presents a comparable situation. It does not. In this case, the district court granted the plaintiffs summary judgment; in Kikumura, the court granted the defendants summary judgment. Thus, in Kikumura, there was nothing left for the court to do because the plaintiff lost on the constitutional claim. Here, the plaintiffs won on their constitutional claim, meaning the issue of injunctive relief is still pending.

Abbs is also inapposite. In Abbs, the plaintiff sought a declaratory judgment that the government's investigative procedures for scientific misconduct were invalid. The plaintiff also requested injunctive relief The district court denied as moot the request for a preliminary injunction, but granted the plaintiff declaratory relief Here, on the other hand, the district court did not deny the request for injunctive relief--it never ruled on the issue.

Notwithstanding these factual distinctions, defendants seize on the following language from Abbs: "[F]inality was unaffected by the fact that the plaintiffs might later move for injunctive relief if the government refused to accept the declaration." Id. at 923. This, defendants argue, supports a conclusion that this case is final.

Defendants read too much into this statement. The above excerpt merely recognizes that a declaratory judgment is a final judgment even if further relief could later be sought:

[A]ny court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

28 U.S.C. § 2201.

In other words, if a plaintiff requests only declaratory relief and a court rules on that request, the decision is final and appealable. However, if a plaintiff requests both declaratory and injunctive relief, and succeeds in obtaining a declaratory judgment, the district court must decide whether to grant or deny injunctive relief. Until it does so, there is something left for the court to do, and therefore, the district court's decision is not final and appealable. Peterson v. Lindner, 765 F.2d 698, 703 (7th Cir.1985) (concluding that a district court order was not final and appealable even though the court's order was a declaratory judgment because "it nonetheless left unresolved respondent's requests for injunction, for compensatory and exemplary damages, and for attorneys' fees.") (internal citation omitted). ³

Plaintiffs present a more compelling argument for finality. They contend that the district court in effect ruled on the request for injunctive relief in the declaratory judgment. The plaintiffs point to the district court's statement that "the university must provide some sort of opt-out provision or refund system for those students who object to subsidizing political and ideological student organizations with which they disagree."

So far we have assumed that the district court did not rule on the request for injunctive relief But the above excerpt makes us unsure of the court's intent: Did the district court intend to grant injunctive relief as well? It seems not, given that in the very next sentence, the district court stated: "Because the parties have agreed to fashion their own remedy in the event a violation of plaintiffs' constitutional rights exists, this Court will not address at this time that which it believes may be that appropriate remedy." ⁴ Additionally, in its order, the district court did not mention injunctive relief, instead...