Argued
September 23, 2019
Appeals from the United States District Court for the Western
District of Wisconsin. No. 19-cv-218-wmc - William M. Conley,
Judge.
Before
Easterbrook, Hamilton, and St. Eve, Circuit Judges.
Per
Curiam.
On May
24, 2019, the district court entered an opinion that
concludes with language that the judge believed would serve
as a preliminary injunction. MillerCoors filed an appeal,
which has been docketed as No. 19-2200. But the district
court did not comply with Fed.R.Civ.P. 65(d)(1)(C), which
requires every injunction to be set forth without referring
to any other document. See, e.g., Chicago v.
Sessions, No. 17-2991 (7th Cir. Aug. 10, 2018) (en
banc), slip op. 3 (Rule 65 "requires a separate document
setting forth the terms of such an injunction");
Auto Driveaway Franchise Systems, LLC v. Auto Driveaway
Richmond, LLC, 928 F.3d 670, 676 (7th Cir. 2019);
BankDirect Capital Finance, LLC v. Capital Premium
Financing, Inc., 912 F.3d 1054, 1057 (7th Cir. 2019);
Bethune Plaza, Inc. v. Lumpkin, 863 F.2d 525, 527
(7th Cir. 1988); Chief Freight Lines Co. v. Teamsters
Local No. 886, 514 F.2d 572, 578 n.6 (10th Cir. 1975).
In
supplemental jurisdictional memoranda filed at our request
after oral argument, both sides acknowledged that the
district court failed to comply with Rule 65(d). Neither side
asked us to depart from the decisions we have cited.
On
September 4, 2019, while appeal No. 19-2200 was pending, the
district court entered another opinion stating that it was
"modifying" the decision of May 24. The district
court did not follow the procedure specified by Fed.R.Civ.P.
62.1 for modifying an order that is before the court of
appeals, nor did it discuss the rule that only one court at a
time has jurisdiction over "those aspects of the case
involved in the appeal." Griggs v. Provident
Consumer Discount Co., 459 U.S. 56, 58 (1982). And as
with the May 24 opinion, the district court did not comply
with Rule 65(d). Nor did the judge modify the injunction as a
condition of a stay or bond pending appeal, as Rule 62(d)
permits. (It provides: "While an appeal is pending from
an interlocutory order or final judgment that grants,
continues, modifies, refuses, dissolves, or refuses to
dissolve or modify an injunction, the court may suspend,
modify, restore, or grant an injunction on terms for bond or
other terms that secure the opposing party's
rights." The authority to make changes linked to bonds
or otherwise secure the enjoined party's rights differs
from a blanket grant of permission to impose new obligations,
and substantially alter the issues, while appeals are
pending.) Anheuser-Busch's appeal from the September 4
order has been docketed as No. 19-2713.
On
September 6, 2019, the district court modified the
modification of September 4. Once again it did not discuss
its jurisdiction to do so, did not rely on Rule 62(d), did
not follow the procedure specified by Rule 62.1, and did not
comply with Rule 65(d). Anheuser-Busch's appeal from the
order of September 6 has been docketed as No. 19-2782.
Although
the district court's intent to afford enforceable
equitable relief is sufficiently clear to provide appellate
jurisdiction despite the noncompliance with Rule 65(d), see
Calumet River Fleeting, Inc. v. Operating Engineers
Union, 824 F.3d 645, 650 (7th Cir. 2016), enforcing that
Rule is sufficiently important that we order a limited remand
with instructions to enter the injunction on a document
separate from the opinions.
In the
process, the district court may be able to avoid the
potential jurisdictional problems that its modifications of
the initial order have created. (We call them modifications
even though the order of September 4 does not change any
language of the May 24 decision. It seems more like a second
preliminary injunction, although the judge called it a
modification. The September 6 order, by contrast, explicitly
modifies the September 4 order.) While we recognize that a
district court is in the best position to address urgent
issues and changes in circumstance related to a preliminary
injunction, the court must nonetheless comply with the
procedures for doing so in order to avoid creating potential
complications on review. A single injunction complying with
Rule 65(d) would be subject to appeal-and, as there has not
yet been even one injunction that satisfies Rule 65(d), the
consolidated injunction could be treated as the initial
order, allowing both sides to appeal without any potential
obstacle in the Griggs doctrine or Rule 62.1, or any
need for us to consider the disagreement among the circuits
about the extent to which preliminary injunctions are subject
to modification by a district judge while an appeal is
pending. Compare Ortho Pharmaceutical Corp. v. Amgen,
Inc., 887 F.2d 460, 464 (3d Cir. 1989), with Coastal
Corp. v. Texas Eastern Corp., 869 F.2d 817, 820 (5th
Cir. 1989).
If the
district court wants to make still further changes, in light
of discovery in the ongoing litigation, it is free to do
so-though the judge also is free to enter an injunction
consolidating all decisions made to date but leaving all else
to the permanent-injunction phase. We leave this decision in
the capable hands of the district court.
Once
the district court has complied with this limited remand,
both sides should file new notices of appeal and propose a
schedule for new briefs. The briefs already filed concerning
the May 24 order may be incorporated by reference, but we
have yet to receive briefs concerning the September 4 and 6
orders. All aspects of the case must be fully briefed before
this court will proceed to decision.
Hamilton, Circuit Judge, dissenting.
I
respectfully dissent from the remand order. We do not need to
remand this appeal from the district court's preliminary
injunction of May 24, 2019. It is briefed, argued, and ready
to be decided on the merits. Judge Conley complied with all
of the formal requirements for issuing an injunction. With
respect, contrary to my colleagues' views, Rule 65(d)(1)
simply does not contain the "separate-document"
requirement that is the basis for the majority's remand.
The majority offers here no textual or other defense for
dicta in prior cases asserting such a requirement. Never
before have we put any teeth behind this groundless and
trivial "requirement." This is a case where text
and pragmatics point in the same direction. We need not
remand for formalistic compliance with an imagined and
non-jurisdictional rule that no party has raised. In
addition, on the more consequential issue here, the district
court had jurisdiction to issue its two September orders on
BudLight's packaging.
I
address in Part I the Rule 65(d) issue and in Part II the
issues posed by the district court's separate injunction
on packaging and its emergency order relaxing that injunction
at Anheuser-Busch's request.
I.
A Separate Document?
The
formal requirements of Rule 65(d)(1)-those actually included
in the text of the rule-are vital when a district judge
exercises one of the most awesome powers of the office:
issuing a preliminary injunction that is enforceable by
contempt sanctions. Here are the textual requirements:
(1) Contents. Every order granting an injunction and every
restraining order must:
(A) state the reasons why it issued;
(B) state its terms specifically; and
(C) describe in reasonable detail-and not by referring to the
complaint or other document-the act or acts restrained or
required.
Compliance
with these requirements ensures that a party who is
restrained by a preliminary injunction knows clearly what
conduct is being restrained and why. Oral orders can be vague
and easily misunderstood. Incorporating other documents can
lead to uncertainty. Failing to state clearly ...