United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
April 10, 2019, this Court issued an order granting
Defendants' motion for summary judgment. (Docket #95).
Plaintiff filed a motion for reconsideration on May 8, 2019.
(Docket #98). In his motion, Plaintiff argues that the
Court applied an incorrect law, and, in so doing, erred in
granting qualified immunity to the Defendants. Plaintiff
brings his motion under Federal Rules of Civil Procedure
49(e) and 50(b)(6), neither of which subsections exist. The
Court will construe the motion as one for amendment of
judgment or relief from order under Federal Rules of Civil
Procedure 59(e) and 60(b). That motion is now fully briefed
and, for the reasons explained below, will be
may file a motion to alter or amend judgment “no later
than 28 days after the entry of the judgment.”
Fed.R.Civ.P. 59(e). “[T]he only grounds for a Rule
59(e) motion. . .are newly discovered evidence, an
intervening change in the controlling law, and manifest error
of law.” Cosgrove v. Bartolotta, 150 F.3d 729,
732 (7th Cir. 1998). A party may file a motion for relief
from a judgment or order under certain circumstances that
include “any other reason that justifies relief.”
Fed R. Civ. P. 60(b)(6).
order to overcome the defense of qualified immunity, a party
must show that the violation of his constitutional rights was
“clearly established under applicable law at the time
and under the circumstances that the defendant official
acted.” Easterling v. Pollard, 528 Fed.
App'x 653, 656 (7th Cir. 2013) (citing Pearson v.
Callahan, 555 U.S. 223, 232 (2009)). Plaintiff argues
that the Court committed a manifest error of law when it
applied Wis.Stat. § 36.09(3m), which was not in effect
at the time of the events in question, to analyze Wis.Stat.
§ 36.09(5). (Docket #98).
Stat. § 36.09(5) (2013), amended by Wis. Stat.
§ 36.09(5) (2017), allowed students to “organize
themselves in a manner they determine” and “to
select their representatives to participate in institutional
governance.”In 2013, the subsection began with a
qualification that students' participation in governance
was “subject to the responsibilities and powers of the
board, the president, the chancellor and the faculty.”
Id. In 2013, when the events in question arose, the
term “subject to” was undefined. In subsequent
versions of the statute, “subject to” was defined
as “subordinate to.” See Wis. Stat.
argues that a circuit court case, Spoto v. Board of
Regents, stands for the proposition that “the term
‘subject to' may not be defined as an equivalent to
‘subordinate to.'” 92-CV-5046, at *15 (Dane
Cty. Cir. Ct. June 6, 1994). In Plaintiff's eyes, this
means that the students' right to self-appointment was,
in 2013, absolute, or at least equal to the power held by the
chancellor, president, and faculty.
the more persuasive precedent regarding this subsection is to
be read in Student Ass'n of Univ. of Wis.-Milwaukee
v. Baum, 246 N.W.2d 622 (Wis. 1976). There, the
Wisconsin Supreme Court acknowledged that, in light of the
subsection's first sentence, “the rights of the
students are. . .subject to some qualifications.”
Id. at 625. By the terms of Wis.Stat. §
36.09(5) (2013), these qualifications included the power of
the president, chancellor, and faculty. Even if, in 2013, it
was not clear that the students' right to participate in
government was subordinate to the power of the
chancellor, Baum nevertheless acknowledges that the
right was at least qualified by that power. Therefore, in its
original order, the Court correctly observed that the scope
of an administrator's power to curb a student's
participation in student government was not clear.
immunity asks whether a reasonable official would have known
that his or her conduct violates a statutory or
constitutional right. Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982); Anderson v. Creighton, 483 U.S.
635, 640 (1987). An administrator reading Wis.Stat. §
36.09(5) (2013) may have reasonably believed that he had the
authority to prevent certain students from participating in
student government under certain circumstances. In light of
this statute, he would have had no reason to know that his
conduct violated a statutory or constitutional right.
Accordingly, the Court will not reverse the finding of
qualified immunity on the basis of an error of law, nor does
it find any other reason justifying relief from the order.
IT IS ORDERED that Plaintiff's motion
for reconsideration (Docket #98) be and the same is hereby
Plaintiff filed a notice of appeal
earlier in the day that he filed the motion for
reconsideration. (Docket #97, #98). A notice of appeal
typically deprives the district court of jurisdiction.
McCarter v. Ret. Plan for Dist. Managers of Am. Fam. Ins.
Group, 2008 WL 2833288, at *1 (W.D. Wis. Jan. 24, 2008)
(“[B]y filing a notice of appeal before filing their
motion for reconsideration, plaintiffs have deprived this
court of the authority to decide their motion.”);
Griggs v. Provident Consumer Disc. Co., 459 U.S. 56,
58 (1982) (“The filing of a notice of appeal is an
event of jurisdictional significance-it confers jurisdiction
on the court of appeals and divests the district court of its
control over those aspects of the case involved in the
appeal.”). However, “the district court retains
jurisdiction to take additional action in aid of the appeal,
such as denying Rule 60(b) relief on the merits, despite the
pendency of an appeal.” Brown v. Pierson, 12
Fed.Appx. 398, 402 (7th Cir. 2001) (quoting Chi. Downs
Ass'n v. Chase, 944 F.3d 366, 370 (7th Cir. 1991)).
Additionally, the Seventh Circuit has requested status
reports regarding Plaintiff's motion for reconsideration,
suggesting that, under these circumstances, the Court retains
jurisdiction. (Appeal No. 19-1901, Docket #5, #10).
Accordingly, the Court will dispose of the motion for
To the extent that a portion of
Defendants' response can be construed as a motion for
reconsideration, the Court finds that it is untimely and
improperly presented to the Court. Fed.R.Civ.P. 59(e);
Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5
(2008) (Rule 59(e) “may not be used to relitigate old
matters”) (quoting 11 C. Wright & A. Miller, Fed.
Prac. & Proc. § 2810.1 (2d ed. 1995)).
The Court notes that its prior orders
quoted from the most recent version of Wis.Stat. §
36.09(5), rather than the 2013 version. (Docket #60 at 2-3);
(Docket #95 at 3). This error has no bearing on the outcome,
as the Court's discussion about Baum and its
conclusions regarding the scope of the right to participate
in government pertained to ...