Chicago United Industries , Ltd . v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4092
C HICAGO U NITED I NDUSTRIES , L TD ., et al.,
Plaintiffs-Appellees,
v.
C ITY OF C HICAGO , et al.,
Defendants-Appellants.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 5011—Milton I. Shadur, Judge.
____________
A RGUED M ARCH 28, 2006—D ECIDED A PRIL 25, 2006
____________
Before P OSNER , E ASTERBROOK , and W ILLIAMS , Circuit
Judges.
P OSNER , Circuit Judge. This appeal presents jurisdic-
tional issues, specifically regarding temporary restrain-
ing orders and preliminary injunctions, arising from a
dispute between the City of Chicago and one of its con-
tractors, Chicago United Industries. (The other parties to the
appeal can be ignored.) Believing that CUI had billed the
City for goods that the contractor knew it had not delivered,
the City, after months of wrangling, notified CUI that it
proposed to cancel all CUI’s contracts with the City and bar

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2 No. 05-4092
it (“debarment,” the parties call this) from further contracts
with the City. The company was given 30 days to respond
to the proposal; it responded; and the City then terminated
the contracts and instituted a three-year bar, whereupon
CUI filed this suit in the federal district court in Chicago.
The suit sought injunctive relief on the ground that the City
had violated the due process clause of the Fourteenth
Amendment by failing to give CUI a predeprivation
hearing. CUI moved for a preliminary injunction, and (until
it was granted) a temporary restraining order, to prevent the
cancellation and debarment.
The court issued the TRO on August 31, 2005, the day
after CUI had moved for it, saying that “plaintiffs have no
adequate remedy at law as there is no appeal provision of
the debarment at the City level, and any further administra-
tive appeal would be an inadequate opportunity to present
the constitutional matters at issue in this litigation.” The
court added that the plaintiffs would “suffer irreparable
harm if the temporary restraining order is not granted since
continuation of the debarment, even for a short period of
time, will materially impair their business and their ability
to do business.” The TRO stated that the defendants were
“temporarily restrained and enjoined from 1) enforcing the
debarment of [CUI] 2) from canceling any existing contracts
that CUI has with the City of Chicago and 3) from conduct-
ing any further decertification or administrative hearing
regarding, related to or based upon the issue of debarment
pending further action of this Court.”
The order was to remain in force for 10 days, but at the
end of that period the court renewed it for another 10 days.
During the extension period, the City notified CUI that
it was withdrawing its cancellation of CUI’s contracts
with the City and rescinding the debarment order, though

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No. 05-4092 3
without prejudice to seeking both cancellation and debar-
ment in the future on the basis of the same alleged fraudu-
lent billing. On the basis of these representations, the
City moved to dismiss CUI’s lawsuit as moot. The district
court, troubled by the “without prejudice” qualification,
denied the motion. The temporary restraining order was
then extended by agreement of the parties for another
month, to October 31.
During this further extension period, CUI asked the
district court to modify the order to prevent the City from
circumventing it. Also on the table was the need to set a
date for the hearing on CUI’s motion for a preliminary
injunction. Because a temporary restraining order cannot
remain in force for more than 20 days without the consent of
the parties, Fed. R. Civ. P. 65(b), the district court offered to
hold the hearing on November 7. The City asked for an
extension. The district court offered to extend the date to
November 21, provided the City agreed to an extension of
the restraining order for another month, to November 28.
The City agreed. But before either date arrived, the court
modified the TRO, essentially as requested by CUI, by
adding to its previous terms that the City was also re-
strained “from [1] awarding any of the following contracts
[ten are listed] to any company other than Chicago United
if it is the lowest responsive bidder, or using its emergency
purchasing power to circumvent the award to Chicago
United and pay a higher price to some other company,
unless and until the City provides this Court with a show-
ing that awarding the contract to or purchasing such goods
from such other company is in accordance with the status
quo ante bellum . . . and . . . [2] imposing any restrictions on
communications between Chicago United and employees of
the City with the exception that Chicago United and its

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4 No. 05-4092
attorneys may not speak directly with any employees of the
City regarding matters directly related to this action.”
A temporary restraining order is not appealable, despite
its close resemblance to a preliminary injunction, which
is appealable. 28 U.S.C. § 1292(a)(1). But if kept in force
by the district court for more than 20 days without the
consent of the parties, the order is deemed a preliminary
injunction and so is appealable, since otherwise a district
court could by the simple expedient of extending the TRO
circumvent (to use CUI’s favorite word) the right of appeal
granted by section 1292(a)(1). Sampson v. Murray, 415 U.S.
61, 86-88 (1974); United Airlines, Inc. v. U.S. Bank N.A., 406
F.3d 918, 923 (7th Cir. 2005); United States v. Board of Educa-
tion of City of Chicago, 11 F.3d 668, 671-72 (7th Cir. 1993); SEC
v. Black, 163 F.3d 188, 194 (3d Cir. 1998). CUI argues that the
City consented to the final extension and therefore cannot
appeal.
The City could have elided the issue of consent by waiting
until November 29, the day after the expiration of the period
of extension that the parties had agreed upon, to appeal. For
at that point there would have been no doubt that the
temporary restraining order was appealable. Instead the
City filed its notice of appeal during the extension period.
The preliminary-injunction hearing had been set for Novem-
ber 21, and evidently the City didn’t want to participate in
such a hearing. Had it done so, and a preliminary injunction
been issued, the City could, again uncontroversially, have
appealed. When the City foreswore the hearing, the district
court extended the TRO indefinitely—thus unequivocally
converting it into an appealable preliminary injunc-
tion—without the City’s agreement. Again the City could
have appealed uncontroversially. Furthermore, although the
only notice of appeal that the City filed preceded the

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No. 05-4092 5
expiration of the TRO on November 28, Rule 4(a)(2) of the
Federal Rules of Appellate Procedure provides that “a
notice of appeal filed after the court announces a decision or
order—but before the entry of the judgment or order—is
treated as filed on the date of and after the entry,” see also
Otis v. Chicago, 29 F.3d 1159, 1166 (7th Cir. 1994) (en banc),
and that is a plausible description of what happened here.
The TRO “announced” the preliminary relief that became an
appealable order by the passage of time, bringing the
case within our jurisdiction after November 28, 2005,
whether or not the TRO was modified.
In any event it is apparent that the City did not con-
sent to the extension of the TRO that expired on that date. It
consented to the extension of the existing TRO, not to
the entry of a modified order the text of which it had
not seen because the district judge had not yet drafted it.
The judge had told the City that he would accept a modified
order if the parties could agree to one, and if not he would
review competing draft orders submitted by the parties and
decide which one to adopt. But he entered the modified
order right after CUI submitted its draft order and before the
City submitted its draft order.
CUI ripostes that there was no “modification,” that all that
the new provisions that we quoted did was to particularize
the original order, which had forbidden cancellation and
debarment, so that in consenting to the extension of the
original order the City should be taken to have consented to
the additional provisions. That argument is frivolous. The
additional provisions are vague, open-ended, and onerous,
enjoining as they do conduct that goes far beyond cancella-
tion and debarment. The City cannot be deemed to have
consented to them.
In insisting that there was no modification, CUI further
argues that the new provisions were intended merely to

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6 No. 05-4092
maintain the “status quo ante bellum” (“bellum” being
Latin for “war”). That temporary restraining orders and
preliminary injunctions are intended to “preserve the status
quo” is indeed a common formula, e.g., Ellis v. Sheahan, 412
F.3d 754, 757 (7th Cir. 2005), but it is much, and rightly,
criticized. E.g., Praefke Auto Electric & Battery Co., Inc. v.
Tecumseh Products Co., 255 F.3d 460, 464 (7th Cir. 2001); O
Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389
F.3d 973, 1001-04 (10th Cir. 2004) (en banc) (separate opinion
of Seymour, J.), affirmed on other grounds, 126 S. Ct. 1211
(2006); United Food & Commercial Workers Union, Local 1099
v. Southwest Ohio Regional Transit Authority, 163 F.3d 341,
348 (6th Cir. 1998), Rum Creek Coal Sales, Inc. v. Caperton, 926
F.2d 353, 359-60 (4th Cir. 1991); Ortho Pharmaceutical Corp. v.
Amgen, Inc., 882 F.2d 806, 813-14 (3d Cir. 1989); Canal
Authority of State of Fla. v. Callaway, 489 F.2d 567, 576 (5th
Cir. 1974); Thomas R. Lee, “Preliminary Injunctions and the
Status Quo,” 58 Wash. & Lee L. Rev. 109, 157-66 (2001).
Preliminary relief is properly sought only to avert irrepa-
rable harm to the moving party. In re Aimster Copyright
Litigation, 334 F.3d 643, 655-56 (7th Cir. 2003); Jones v.
InfoCure Corp., 310 F.3d 529, 534-35 (7th Cir. 2002); Rum
Creek Coal Sales, Inc. v. Caperton, supra, 926 F.2d at 359-60.
Whether and in what sense the grant of relief would change
or preserve some previous state of affairs is neither here nor
there. To worry these questions is merely to fuzz up the
legal standard. What was the “status quo” before the
parties’ dispute in this case? Was it that a contractor accused
of fraud cannot be terminated and debarred without a
pretermination hearing? That certainly was not what
the City’s rules provided. The merits of the underlying
litigation are not before us; but the idea that a public
contractor has a constitutional right to enjoin termination if
he isn’t given a hearing before his contract is terminated is

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No. 05-4092 7
sufficiently outré to make us deeply uncertain what the
status quo was before CUI’s suit. Maybe it was that the City
could terminate and bar contractors without a hearing, for
there is no absolute constitutional right to a hearing before
a public contract can be cancelled. Ellis v. Sheahan, supra, 412
F.3d at 758; Mid-American Waste Systems, Inc. v. City of Gary,
49 F.3d 286, 291-92 (7th Cir. 1995); Northlake Community
Hospital v. United States, 654 F.2d 1234, 1241-42 (7th Cir.
1981).
The amount and timing of the process due when a
deprivation of liberty or property (in the constitutional
sense of these terms) is alleged varies with circumstances.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976). In Ellis we said
that it didn’t “make a lot of sense to say that when a
postdeprivation hearing not only is feasible but will give the
deprived individual a completely adequate remedy, . . . due
process requires a right to a predeprivation hearing as well.
Such a rigid approach would be inconsistent with the spirit,
at least, of the sliding-scale approach of Mathews, which
requires comparison of the costs and benefits of alternative
remedial mechanisms.” 412 F.3d at 758. And earlier, in Mid-
American Waste Systems, we had explained that “the ade-
quacy of litigation as a means to determine the meaning of
a contract is a premise of our legal system. Mid-American’s
opportunity to litigate in the courts of Indiana (where it has
already filed suit) therefore is all the process ‘due’ for
ordinary claims of breach of contract . . . . [W]hen the issue
is the meaning of a commercial contract, a prior hearing is
unnecessary, and the opportunity to litigate in state court
is all the process ‘due’ to determine whether the state
has kept its promise.” 49 F.3d at 291 (emphasis in original).
Nor, so far as the debarment issue is concerned, is it at
all clear that there is a property right in being eligible

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8 No. 05-4092
to receive future contracts. Ferencz v. Hairston, 119 F.3d 1244,
1247-48 (6th Cir. 1997); Kim Construction Co. v. Board of
Trustees of Village of Mundelein, 14 F.3d 1243, 1245-47 (7th
Cir. 1994); Blackburn v. City of Marshall, 42 F.3d 925, 936-37,
940 (5th Cir. 1995).
Of course, there are cases in which the normal remedy
for a breach of contract, namely damages, is inadequate, and
those are cases in which the victim of an alleged breach can
seek preliminary relief. But Ellis and Mid-American suggest
that the right to seek such relief is not a constitutional right
to a predeprivation hearing in every case of alleged breach
of a public contract, though that is a form of preliminary
relief. Ellis v. Sheahan, supra, 412 F.3d at 757.
As a detail, we note that, preoccupied with the status
quo issue, the district judge did not require a persuasive
showing of irreparable harm by CUI. The normal remedy
for breach of contract is an award of damages, not an order
of specific performance (i.e., a positive injunction); “practi-
cally speaking the duty created by a contract is just to
perform or pay damages, for only if damages are inadequate
relief in the particular circumstances of the case will specific
performance be ordered.” Zapata Hermanos Sucesores, S.A. v.
Hearthside Baking Company, Inc., 313 F.3d 385, 389 (7th Cir.
2002); see, e.g., Miller v. LeSea Broadcasting, Inc., 87 F.3d 224,
230 (7th Cir. 1996); Lucente v. International Business Machines
Corp., 310 F.3d 243, 262 (2d Cir. 2002). CUI did not explain
why an award of damages would not make it whole. It
merely asserted that “without this injunction, the Plaintiffs’
business will die and 40 contracts will be terminated. Those
contracts represent the majority of all business conducted by
CUI.”
Actually the district judge was less concerned with CUI’s
right to a hearing, as a possible element of the status quo

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No. 05-4092 9
ante, than with the fact that until recently CUI had been
selling to Chicago and receiving payment. That was the
status quo in his eyes. Yet Chicago’s ability to stop deal-
ing with a contractor that it believed was cheating it was
as much a part of the status quo ante as was the fact of
previous purchases from the contractor.
We should not leave the issue of status quo without
considering Judge McConnell’s thoughtful recent defense of
the utility of the concept. O Centro Espirita Beneficiente Uniao
Do Vegetal v. Ashcroft, supra, 389 F.3d at 1012-18 (concurring
opinion). “It is one thing for a court to preserve its power to
grant effectual relief by preventing parties from making
unilateral and irremediable changes during the course of
litigation, and quite another for a court to force the parties
to make significant alterations in their practices before there
has been time for a trial on the merits.” Id. at 1015. “More-
over, preserving the status quo enables the court to stay
relatively neutral in the underlying legal dispute. The
restrictions placed on the parties can be understood as
requiring only that they act in a manner consistent with the
existence of a good-faith dispute about the relevant legal
entitlements. The moving party is not given any rights, even
temporarily, that would normally be his only if the legal
dispute were resolved in his favor.” Id. “Fundamentally, the
reluctance to disturb the status quo prior to trial on the
merits is an expression of judicial humility . . . . [A] court
bears more direct moral responsibility for harms that result
from its intervention than from its nonintervention, and
more direct responsibility when it intervenes to change the
status quo than when it intervenes to preserve it . . . .
Moreover, like the doctrine of stare decisis, preserving
the status quo serves to protect the settled expectations
of the parties. Disrupting the status quo may provide a
benefit to one party, but only by depriving the other party of

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10 No. 05-4092
some right he previously enjoyed. Although the harm and
the benefit may be of equivalent magnitude on paper, in
reality, deprivation of a thing already possessed is felt more
acutely than lack of a benefit only hoped for.” Id. at 1015-16.
Now it may be that these considerations are better
invoked on a case-by-case basis than made the basis of a
rule that depends on a judge’s ability to determine
what state of affairs should be viewed as the status quo. But
it is unnecessary in this case to come down on one side or
the other of that question. For notice that Judge McConnell
is arguing for making it harder to issue preliminary injunc-
tions that change the status quo, not for making it easier to
issue preliminary injunctions that preserve the status quo.
The issue in this case is the propriety of preliminary relief
intended to preserve an arguable status quo.
CUI further argues that the 20-day rule applies only when
a TRO is issued without notice. This is a plausible reading
of Rule 65(b), but would not make any sense, and is gener-
ally and we think correctly rejected. Nutrasweet Co. v. Vit-
Mar Enterprises, Inc., 112 F.3d 689, 693-94 (3d Cir. 1997), and
cases cited there; Connell v. Dulien Steel Products, Inc., 240
F.2d 414, 417-18 (5th Cir. 1957); see also Sampson v. Murray,
supra, 415 U.S. at 85-88; Granny Goose Foods, Inc. v. Brother-
hood of Teamsters & Auto Truck Drivers Local No. 70 of Alameda
County, 415 U.S. 423, 442-45 (1974); Rothner v. City of Chicago,
879 F.2d 1402, 1419 (7th Cir. 1989). For it would enable a
district court to issue a preliminary injunction of indefinite
duration without any possibility of the defendant’s appeal-
ing, simply by calling the injunction a temporary restraining
order and being careful to notify the defendant in advance
of issuing it. Moreover, a TRO issued after notice, especially
if there is a hearing, is procedurally as well as functionally
even more like a preliminary injunction than a TRO issued

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No. 05-4092 11
without notice and hearing, so it would be a considerable
paradox if only the latter type of TRO were appealable after
20 days. CUI’s suggestion that such an order should be
appealable not after 20 days but after a “reasonable” time
has elapsed from when it was issued is unsatisfactory; the
defendant would be unable, when it filed its notice of
appeal, to know whether it was filing too early or too late.
The proper interpretation of the “without notice” language
in Rule 65(b) is that the rule imposes additional restrictions
on temporary restraining orders issued without notice, but
imposes the 20-day limit on all TROs.
To summarize our discussion to this point, the tem-
porary restraining order in this case was modified with-
out party consent and so, the 20 days having expired,
was appealable. United Airlines, Inc. v. U.S. Bank N.A.,
supra, 406 F.3d at 923; compare Geneva Assurance Syndicate,
Inc. v. Medical Emergency Services Associates (MESA) S.C., 964
F.2d 599, 600 (7th Cir. 1992) (per curiam). But although we
thus have jurisdiction of the appeal, we must decide
whether the measures taken by the City after the suit
was filed have rendered the case moot. The City has rein-
stated all the cancelled contracts. It has rescinded the
debarment. It has adopted a new rule that authorizes,
although it does not explicitly require, a hearing before
debarment if there are genuine issues of material fact. City
of Chicago Debarment Rules, ¶ 7.05(h). (The previous
rules made no provision for a hearing.) It has promised us
on the record in open court that if termination or debarment
proceedings are again instituted against CUI, the contractor
will be entitled to a full evidentiary hearing.
These are significant changes since the filing of the
suit. It is true that the mere cessation of the conduct
sought to be enjoined does not moot a suit to enjoin the

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12 No. 05-4092
conduct, lest dismissal of the suit leave the defendant free to
resume the conduct the next day. Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189
(2000); United States v. W.T. Grant Co., 345 U.S. 629, 632-33
(1953); Kikumura v. Turner, 28 F.3d 592, 597 (7th Cir. 1994).
But that is in general rather than in every case. “The case
may nevertheless be moot if the defendant can demonstrate
that there is no reasonable expectation that the wrong will
be repeated.” United States v. W.T. Grant Co., supra, 345 U.S.
at 633 (citation and quotation marks deleted). In light of the
promise made by the City, and the City’s new rule, we think
it highly unlikely that, should the City reinstate its termina-
tion and debarment proceeding against CUI, it will fail to
offer CUI a hearing that satisfies the requirements of due
process of law.
Comity, moreover—the respect or politesse that one
government owes another, and thus that the federal govern-
ment owes state and local governments—requires us to give
some credence to the solemn undertakings of local officials.
Wisconsin Right to Life, Inc. v. Schober, 366 F.3d 485, 492 (7th
Cir. 2004); Federation of Advertising Industry Representatives,
Inc. v. City of Chicago, 326 F.3d 924, 929-30 (7th Cir. 2003);
Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988);
Building & Construction Dept. v. Rockwell Int’l Corp., 7 F.3d
1487, 1491-92 (10th Cir. 1993); Chamber of Commerce of United
States of America v. U.S. Dept. of Energy, 627 F.2d 289, 291-92
(D.C. Cir. 1980). “[W]hen the defendant is not a private
citizen but a government actor, there is a rebuttable pre-
sumption that the objectionable behavior will not recur” if
the injunction is lifted. Troiano v. Supervisor of Elections in
Palm Beach County, 382 F.3d 1276, 1283 (11th Cir. 2004)
(emphasis in original). Compare City of Mesquite v. Aladdin’s
Castle, Inc., 455 U.S. 283, 289 (1982), where the presumption

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No. 05-4092 13
was rebutted by the city’s stating that it intended to reenact
the ordinance that had been enjoined.
Comity argues against the casual granting of preliminary
relief in a public-contract case, see Quaak v. Klynveld Peat
Marwick Goerdeler Bedrijfsrevisoren, 361 F.3d 11, 16 (1st Cir.
2004); cf. Hoover v. Wagner, 47 F.3d 845, 850 (7th Cir. 1995),
and especially against the district court’s assumption in this
case—by the issuance of temporary restraining orders
continuously extended and, through the addition of vague
and encompassing provisions apt to invite contempt
proceedings, continuously expanded—of control over local
governmental functions in a setting of contentious relations
between a city and its contractors. The era of microman-
agement of government functions by the federal courts is
over.
Nor do we think that CUI actually fears that the City
won’t give it a hearing. Its concerns lie elsewhere, with what
it complains are “circumvention” tactics employed by the
City, such as forcing the contractor to communicate regard-
ing its reinstated contracts and bids on future contracts with
only a single official, who, according to CUI, ignores the
communications; or entertaining CUI’s bids but then
awarding the contracts to bidders who submit much higher
bids. Such conduct is not charged in the complaint, how-
ever, and postdates the event on which the complaint is
based, namely the issuance of the termination and disbar-
ment orders. Assuming that the charges are accurate, they
are best described as retaliation against CUI for fighting the
termination and disbarment. The fight is this suit, and CUI
won when the City rescinded the orders and promised a full
hearing in the event it tries to reinstate them in new pro-
ceedings. Retaliation is, with a qualification noted in our
recent decision in Manicki v. Zeilmann, No. 05-1649, 2006 WL

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14 No. 05-4092
910333, at *3 (7th Cir. Apr. 11, 2006), a separate wrong
from the wrongdoing that precipitated the complaint that
led to the retaliation. Merriweather v. Family Dollar Stores
of Indiana, Inc., 103 F.3d 576, 583 (7th Cir. 1996); Spearman
v. Exxon Coal USA, Inc., 16 F.3d 722, 725-26 (7th Cir. 1994);
Malhotra v. Cotter & Co., 885 F.2d 1305, 1312-13 (7th Cir.
1989). CUI can if it wishes bring a suit (we will not speculate
on what legal theory it might be based on) to enjoin
the alleged retaliation.
All this said, the suit is saved from complete mootness,
though only barely, by CUI’s claim to have lost $500,000
in profits as a result of the termination and debarment
proceedings. It is true that the “claim” is made only in its
brief and oral argument in this court, and not in the com-
plaint. But it is at least plausible that CUI lost profits, even
though the contracts were terminated, and the debarment
order effective, for only one week, until the first of the TROs
was entered. The company argues that payments under the
contracts were interrupted and its ability to obtain new
business from the City disrupted by the fraud accusation
that underlay the City’s efforts at termination and debar-
ment. Rule 54(c) of the civil rules entitles a prevailing
plaintiff to the relief proper to his claim even if he did not
request that relief, Laskowski v. Spellings, No. 05-2749, 2006
WL 947567, at *3 (7th Cir. Apr. 13, 2006), because the
circumstances bearing on the feasibility of particular forms
of relief often change between the initiation of the suit and
the rendition of the final judgment.
There is, it is true, an exception for explicit waivers, and,
more to the point, for cases in which a damages claim is
added at the last minute in a desperate effort to stave off the
dismissal of the case as moot. Arizonans for Official English v.
Arizona, 520 U.S. 43, 71 (1997), was such a case; “it should

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No. 05-4092 15
have been clear to the Court of Appeals that a claim for
nominal damages, extracted late in the day from [the
plaintiff’s] general prayer for relief and asserted solely to
avoid otherwise certain mootness, bore close inspection.”
See also Seven Words LLC v. Network Solutions, 260 F.3d 1089,
1097-98 (9th Cir. 2001); Boucher v. Syracuse University, 164
F.3d 113, 117-18 (2d Cir. 1999). The City argues with consid-
erable force that CUI deliberately withheld its damages
claim lest such a claim weaken its case for preliminary relief
by indicating that it had incurred no irreparable harm,
which is a precondition to such relief. On that ground,
Harris v. City of Houston, 151 F.3d 186, 191 (5th Cir. 1998),
and Thomas R.W., By and Through Pamela R. v. Massachusetts
Dept. of Education, 130 F.3d 477, 480-81 (1st Cir. 1997), hold
that a plaintiff cannot forestall a dismissal for mootness by
arguing for the first time on appeal that he can prove
damages.
This case is different because the litigation had barely
begun before it came to us; had there been no appeal, CUI
would doubtless have asked for damages before the litiga-
tion had proceeded far. If withholding was a tactic, more-
over, it has failed, since we are vacating the injunction, and
should circumstances change and CUI again seek prelimi-
nary injunctive relief in the district court, the City will be
able to argue against a finding of irreparable harm by
pointing to CUI’s claim for damages.
So while the request for injunctive relief is moot, the
case as a whole is not. The temporary restraining order is
vacated; and we direct that 7th Cir. R. 36 shall govern the
further proceedings in this case in the district court.

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16 No. 05-4092
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-25-06

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