Roy Wirtz v. City of South Bend

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3811
ROY WIRTZ, et al.,
Plaintiffs-Appellees,
v.
CITY OF SOUTH BEND,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:11-cv-00325-RLM-CAN—Robert L. Miller, Jr., Judge.
SUBMITTED JANUARY 17, 2012—DECIDED FEBRUARY 7, 2012
Before CUDAHY, POSNER, and MANION, Circuit Judges.
POSNER, Circuit Judge. This motion to dismiss an
appeal in a case arising under the First Amendment’s
establishment clause presents a novel jurisdictional
issue: whether a municipal land use case can come
within the exception to the doctrine of mootness for
cases that are capable of repetition yet elude review.
There is also an issue of timeliness.
The City of South Bend bought a tract of land with
the intention of transferring it to a Catholic high school

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2 No. 11-3811
adjoining the tract, on which the school wanted to build
an athletic complex. The City asked in exchange only the
right to use the athletic complex at specified times. Before
the transfer took place, several residents of South Bend
sued to enjoin it on the ground that it was effectively a
gift of public property to a religious institution and
thus violated the establishment clause, since no effort
had been made to attach a pecuniary value to the use
right that was the only compensation the City sought. The
district court granted a preliminary injunction. The
merits of the controversy are not before us.
The City could of course have appealed from the
grant of the injunction, 28 U.S.C. § 1292(a)(1), but did not.
Instead it filed a motion to modify the injunction to
permit it to sell the land to the high school at a price
equal to the average of two appraisals of the property
(we’ll call that price the “appraised value”). The district
court denied the motion on the ground that by not
opening the property to bidding the City was sending
a message of endorsement of Catholicism. Again the
City did not appeal, as it could have done, since a
refusal to modify a preliminary injunction is an
appealable order. Id.; Ford v. Neese, 119 F.3d 560, 562
(7th Cir. 1997); Favia v. Indiana University of Pennsylvania,
7 F.3d 332, 337 (3d Cir. 1993). Instead it moved for
another modification, essentially to allow it to sell the
property to the highest bidder—so it was throwing
in the towel. Naturally the district court agreed to the
modification, and the City sold the property to the
highest bidder—which was the high school. No surprise

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No. 11-3811 3
there; the property was adjacent to the school and
needed by it for the planned athletic complex. The plain-
tiffs were content, and the litigation, one might have
thought, was at an end.
Not so. The City has appealed. The plaintiffs have
moved to dismiss the appeal on the ground that it is both
untimely and moot, either being of course a sufficient
ground; they turn out to be interrelated.
The appeal is from the final judgment, dissolving the
injunction after the sale of the property, but it does not
challenge that dissolution; the City has sold the property
to the high school and does not seek to undo the sale.
Instead it challenges two interlocutory orders denying
motions it made in the course of the litigation. It charac-
terizes the first motion, which asked the district court
to modify the injunction to allow the sale to the high
school at the appraised value, as also asking the court
to reconsider its refusal to allow the sale in exchange
just for a use right; and it describes the second motion
as asking the court not only to allow sale to the
highest bidder at an open auction but also to reconsider
its ruling that the City could not sell the property at the
appraised value. We’ll accept the City’s characterization
of the motions to modify the injunction as also seeking
reconsideration of the denials of previous relief sought
by the City.
Had the district judge refused to dissolve the injunc-
tion after the City asked that it be modified to allow
sale of the property to the highest bidder, and the
City appealed, it could have argued that the injunction

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4 No. 11-3811
should have been dissolved because either the sale
in exchange for use rights or the sale at the appraised
value—the City’s preferred options—should have been
allowed. But it cannot appeal from the dissolution of
the injunction because that hasn’t harmed it. There can
be no question of reinstating the injunction, now that
the land has been sold to the high school. The City is
challenging the grant of the initial injunction long
after it was granted, along with the refusal of the
district court to modify that injunction to allow the sale
at the appraised value long after that refusal.
Although the City is thus challenging two appealable
orders—the initial injunction and the denial of the
first modification that it sought (the modification that
if granted would have permitted sale to the high school
at the appraised value of the land)—the challenge is
untimely. Had the City challenged the district court’s
final order, the order dissolving the injunction, it could
also have challenged any interim rulings that had not
become moot. E.g., Rubin v. Islamic Republic of Iran, 637
F.3d 783, 790-91 (7th Cir. 2011); Pearson v. Ramos, 237
F.3d 881, 883 (7th Cir. 2001). But the final order—the
dissolution of the injunction—was sought by the City.
A party cannot appeal a judgment that it won, unless
it seeks a modification of the judgment, see, e.g., Board of
Trustees of University of Illinois v. Organon Teknika Corp., 614
F.3d 372, 374-75 (7th Cir. 2010); Mueller v. Reich, 54 F.3d
438, 441 (7th Cir. 1995); In re Montgomery County, 215 F.3d
367, 372 (3d Cir. 2000), which the City does not. The only
orders the City could have appealed from it failed to
appeal from in time.

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No. 11-3811 5
The appeal is moot as well as untimely. The City
does not want to unwind the sale to the high school at
the price bid by the school—it does not ask to be
allowed to give the money back in exchange for the
use right that the City originally sought, or to give back
so much of the money that it received in the sale as
exceeds the appraised value.
Against dismissing the appeal on the ground of mootness
the City invokes the principle that decisions of cases
capable of repetition but evading review are reviewable
even though moot. Norman v. Reed, 502 U.S. 279, 287-88
(1992); Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per
curiam); Bowens v. Quinn, 561 F.3d 671, 673 (7th Cir. 2009);
Tobin for Governor v. Illinois State Board of Elections, 268
F.3d 517, 528-29 (7th Cir. 2001). For example, a pregnant
woman can challenge a prohibition of abortion even
after she gives birth to the child that she had wanted
to abort in its fetal state, if it wouldn’t have been possible
for her to litigate the case to judgment before it was
too late for the abortion and if she might become
pregnant again and want to abort again. Roe v. Wade,
410 U.S. 113, 125 (1973); Fitzgerald v. Porter Memorial
Hospital, 523 F.2d 716, 717 n. 3 (7th Cir. 1975); Doe v.
Poelker, 497 F.2d 1063, 1066-67 (8th Cir. 1974).
The City argues that the reason it didn’t appeal
from either the grant of the initial injunction or the
denial of its first motion to modify the injunction was
that the high school needed to begin construction of the
athletic complex immediately in order to complete it by
the beginning of the 2012 school year. It argues that the

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6 No. 11-3811
district court’s rulings establish precedents that will
prevent the City from transferring land to religious in-
stitutions in the future and that if and when that
happens the negative effect of litigation delay on plans
for the development of land will again prevent it from
appealing the foreseeable injunction. A district court de-
cision does not have precedential effect, Midlock v. Apple
Vacations West, Inc., 406 F.3d 453, 457-58 (7th Cir. 2005);
Colby v. J.C. Penney Co., 811 F.2d 1119, 1124 (7th Cir.
1987)—that is, it is not an authority, having force inde-
pendent of its reasoning, and to which therefore a
court with a similar case must defer even if it disagrees,
unless the circumstances that justify overruling a
precedent are present. But the district court’s decision
might place a cloud over future transactions similar
to the one that led to the issuance of the injunction.
However, the fact that a dissolved injunction may
have consequences even though the case in which it was
issued is now moot is not a permissible ground for in-
voking the doctrine that allows the appeal of moot cases
that are capable of repetition but evade review. It is true
that when the timing of a project, whether it is a real
estate development, a merger, the licensing of a patent, or
the unveiling of a new product, is critical, an injunction,
though immediately appealable, may kill the project
before the appellate court can act. But to allow this as a
ground for permitting moot cases to be appealed would
bring an unmanageable host of such cases into the ap-
pellate courts. A court would have to wrestle in every
case with uncertain questions about whether an injunc-
tion that had not been appealed had had or would have

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No. 11-3811 7
a future impact that should justify allowing an appeal
even though it had become moot. The City admits that
it has found no precedent for so broad and vaguely
bounded an exception to the rule of the nonappealability
of moot cases.
There is more that is wrong with the City’s appeal to
the exception to mootness for cases capable of repetition
but eluding review. The exception applies only when
the subject is likely to arise again between the same
litigants. See Weinstein v. Bradford, supra, 423 U.S. at 149;
Sosna v. Iowa, 419 U.S. 393, 399-400 (1975). That is unlikely
in this case. And the exception should not apply when
the party seeking to invoke it made the case moot by
its deliberate action, as the City did by failing to
appeal from two appealable orders, then proposing a
modification that if adopted precluded a further appeal
by mooting the case.
The City overlooked a simple alternative to the convo-
luted maneuvering by which it sought to present its
constitutional contentions to us. That was to file a
timely appeal from the grant of the original injunction
and ask us to stay the injunction and, more important
(since a mere temporary stay would be unlikely to
induce the high school to start construction on the land),
to accelerate our decision of the appeal. Appellate courts
can act quickly when there is a compelling reason for
them to do so. Requests for stay pending appeal are
common and are acted on with dispatch, see, e.g., Wiscon-
sin Right to Life State Political Action Committee v. Barland,
664 F.3d 139 (7th Cir. 2011); Lindstrom v. Graber, 203 F.3d

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8 No. 11-3811
470, 474 (7th Cir. 2000); Silverman v. CFTC, 562 F.2d 432, 434
(7th Cir. 1977)—often within days. See, e.g., Judge v. Quinn,
624 F.3d 352, 357 n. 1 (7th Cir. 2010); Cavel Int’l, Inc. v.
Madigan, 500 F.3d 544, 546, 549 (7th Cir. 2007); cf. Nader
v. Keith, 385 F.3d 729, 731 (7th Cir. 2004); Lindland v. U.S.
Wrestling Ass’n, Inc., 227 F.3d 1000, 1002 (7th Cir. 2000).
The injunction was issued on September 7, 2011. The
City promptly filed its first motion to modify, which the
district court rejected on October 19, whereupon the
City threw in the towel and agreed to open bidding.
Had the City appealed from the grant of the initial in-
junction while at the same time asking the district
court in the alternative to modify it to permit sale of the
City’s parcel to the high school at the appraised value,
this court could have decided both the appeal from
the injunction and an appeal from the October 19 denial
of the modification by November 21. That was when
the district court dissolved the injunction and was ap-
parently in time for the high school to complete the
athletic complex by the opening of the 2012 school year.
The district court had done the heavy lifting by con-
ducting an injunctive proceeding; the appellate process
would have been swift.
The appeal, untimely and moot, is dismissed.
2-7-12

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