In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐3133
IN THE MATTER OF:
ROCKFORD PRODUCTS CORPORATION,
Debtor
APPEAL OF:
HARRISON KISHWAUKEE, LLC
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 11 C 50366 — Philip G. Reinhard, Judge.
____________________
ARGUED DECEMBER 13, 2013 — DECIDED DECEMBER 18, 2013
____________________
Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.
EASTERBROOK, Circuit Judge. Rockford Products Corp.
(Debtor) leased a building from Harrison Kishwaukee
(Landlord). During its liquidation in bankruptcy, Debtor as‐
sumed the lease, 11 U.S.C. §365, and sold the leasehold in‐
terest (and many other assets) to Rockford Acquisition,
which later renamed itself as Rockford Products, LLC (Ten‐
ant). The bankruptcy judge approved the transaction in 2007,
see 11 U.S.C. §363, after Landlord did not object to Debtor’s
No. 12‐3133 2
assertion that Landlord did not have any outstanding claim
against Debtor. The order approving the sale bars any claims
based on pre‐sale events.
The lease requires Tenant to maintain the roof in good
repair. In 2010 Landlord sued Tenant in state court, contend‐
ing that it had failed to fulfil this obligation. Tenant replied
with a motion in the closed bankruptcy proceeding, asking
the bankruptcy court to interpret the 2007 order as blocking
Landlord’s claim. The bankruptcy judge acknowledged that
a federal court has continuing authority to enforce its orders
after a case has been closed, see Travelers Indemnity Co. v. Bai‐
ley, 557 U.S. 137 (2009), but concluded that the 2007 order
does not affect continuing obligations such as a duty to keep
leased premises in good repair.
The 2007 order’s effect, Judge Barbosa stated, is limited to
blocking a demand for damages on account of pre‐discharge
events. Landlord wants a prospective remedy, not damages.
Continuing federal authority over such a state‐law claim
could be supported only under the “related‐to‐bankruptcy”
jurisdiction supplied by 28 U.S.C. §1334(b), and because the
bankruptcy has long been closed, and no creditor’s interest
could be affected, there is nothing to which the state pro‐
ceedings could be related. See, e.g., Rivet v. Regions Bank, 522
U.S. 470 (1998); Pettibone Corp. v. Easley, 935 F.2d 120 (7th Cir.
1991); In re Xonics, Inc., 813 F.2d 127 (7th Cir. 1987). The judge
dismissed the federal proceedings.
A district judge disagreed, ruling that Landlord can en‐
force the lease’s good‐repair clause only to the extent that
defects in the roof first occurred after the lease’s assumption
in bankruptcy. 2012 U.S. Dist. LEXIS 117096 (N.D. Ill. Aug. 20,
2012). The district judge stated that Tenant bears the burden
3 No. 12‐3133
of establishing which problems existed when the lease was
assumed in 2007. The judge wrapped up: “this matter is re‐
manded to the bankruptcy court for a determination of
which defects [Landlord] is seeking to enforce existed pre‐
assumption and to enter an order enforcing the Sale Order
by barring [Landlord] from seeking to compel [Tenant] to
repair those defects. After the bankruptcy court makes this
determination, [Landlord] may proceed with its specific per‐
formance action to compel [Tenant] to repair post‐
assumption defects.” 2012 U.S. Dist. LEXIS 117096 at *16.
The district judge did not discuss the possibility that
leaks existing when Debtor assumed the lease have become
worse over time, and the parties disagree about who bears
responsibility for them. Nor did the district judge discuss
decisions such as Ohio v. Kovacs, 469 U.S. 274 (1985), and In re
CMC Heartland Partners, 966 F.2d 1143 (7th Cir. 1992), which
hold that obligations enforceable by orders of specific per‐
formance to meet ongoing responsibilities survive bankrupt‐
cy even when obligations to pay damages do not. The dis‐
trict judge also did not consider whether, after Stern v. Mar‐
shall, 131 S. Ct. 2594 (2011), a bankruptcy judge who lacks
the tenure and salary protections of Article III may enter an
order effectively disposing of a state‐law claim by a person
(Landlord) who did not file a claim in the bankruptcy or
otherwise consent to the claim’s disposition by a bankruptcy
judge. Landlord contends that Stern deprives the federal ju‐
diciary of jurisdiction over its claim. That’s not right; if the
bankruptcy judge cannot act, then authority to interpret and
enforce the 2007 order devolves on the district judge. But the
district judge’s remand directs the bankruptcy judge to pro‐
ceed, and Landlord contends that this, at least, is a mistake.
No. 12‐3133 4
Before we can take up the question whether the district
judge acted properly, we must consider our own authority.
Appeals in bankruptcy cases usually depend on 28 U.S.C.
§§ 158(d)(1) and 1291, which authorize review of “final deci‐
sions”. Yet the district court’s decision is far from final; it
does not end the proceeding but instead remands for find‐
ings of fact (which must follow a trial, unless, implausibly,
none of the factual disputes turns out to be material), after
which the bankruptcy judge will make a new decision that
can be appealed to the district court under 28 U.S.C.
§158(a)(1). To be sure, remands to bankruptcy judges for
ministerial acts are “final” when there is no prospect of any
future dispute requiring appellate resolution. See, e.g., In re
Holland, 539 F.3d 563, 565 (7th Cir. 2008); In re Lopez, 116 F.3d
1191, 1192 (7th Cir. 1997). There’s nothing “ministerial”
about the tasks the district judge set for the bankruptcy
judge, however.
This leads Landlord to rely on 28 U.S.C. §1292(a)(1),
which authorizes appeals of interlocutory orders “granting,
continuing, modifying, refusing or dissolving injunctions, or
refusing to dissolve or modify injunctions”. The 2007 sale
order is not an injunction, and at all events neither the bank‐
ruptcy judge nor the district judge purported to modify that
order or take any other step on the statutory list; neither
judge had been asked to do so. Both judges did interpret the
2007 order, but §1292(a)(1) does not authorize an appeal just
because a judge understands an older order to require or
forbid something. See, e.g., ACORN v. Illinois Board of Elec‐
tions, 75 F.3d 304, 306 (7th Cir. 1996); Motorola, Inc. v. Comput‐
er Displays International, Inc., 739 F.2d 1149, 1155 (7th Cir.
1984); Southern Ute Indian Tribe v. Leavitt, 564 F.3d 1198, 1209
(10th Cir. 2009).
5 No. 12‐3133
According to Landlord, the last sentence of the district
court’s opinion—“After the bankruptcy court makes this de‐
termination, [Landlord] may proceed with its specific per‐
formance action to compel [Tenant] to repair post‐
assumption defects.”—demonstrates that the district judge
has forbidden proceedings in state court, which amounts to
an injunction. There are at least three problems with this
contention.
First, the language sounds like a statement of conditions
under which continuing the state case would be sensible—
that is, like advice to the state judge—not like a prohibition
on all activity in state court until then.
Second, Landlord is not trying to reactivate the state‐
court proceeding. The state judge stayed that suit of his own
volition and told the parties to return after proceedings in
the bankruptcy court had concluded. There was accordingly
little reason for the district judge to enjoin any action in state
court.
Third, the district judge did not purport to issue an in‐
junction and therefore never considered whether such a step
would be consistent with the Anti‐Injunction Act, 28 U.S.C.
§2283. A federal injunction must be set out in a document
that “describe[s] in reasonable detail—and not by referring
to the complaint or other document—the act or acts re‐
strained or required.” Fed. R. Civ. P. 65(d)(1)(C). The judg‐
ment entered in this case remands the proceeding to the
bankruptcy court; it does not enjoin either Landlord or the
state judge from proceeding in the state suit. The judgment
does contain the sentence that we have quoted from the
opinion (“After the bankruptcy court makes this determina‐
No. 12‐3133 6
tion … .”), but at oral argument counsel for Landlord con‐
ceded that this language is not a stand‐alone injunction.
Counsel argued that the injunction lies in this language
coupled with the district judge’s expectations, not in any or‐
der. But a major point of Rule 65(d)(1)(C) is that a judge’s ex‐
pectations are not binding; only concrete language in a writ‐
ten order can be enforced as an injunction. That’s why we
held in Bates v. Johnson, 901 F.2d 1424 (7th Cir. 1990), that a
judge’s oral demand that a litigant cease doing something is
not an injunction and therefore may not be appealed.
This is not to say that compliance with Rule 65(d)(1)(C) is
essential to appellate jurisdiction. Sometimes it is clear that
the district judge set out to issue an enforceable injunction
but erred in the implementation because, for example, the
written order does not describe the required or forbidden
acts in “reasonable detail” or because the order purports to
incorporate some other document. Then an appeal is per‐
missible under §1292(a)(1) and leads to remand so that the
district court can fix the problem. See, e.g., Dupuy v. Samuels,
465 F.3d 757 (7th Cir. 2006). But in Bates, as in this case, the
district court did not even try to enter a written injunction.
Landlord wants us to interpret ambiguous language in
an opinion as an injunction and use it as the hook for an ap‐
peal that would present wholly different questions concern‐
ing the effects of Stern and the 2007 order. The Supreme
Court has told us to use simple, clear rules for jurisdictional
boundaries. See, e.g., Hertz Corp. v. Friend, 559 U.S. 77, 94–95
(2010); FEC v. NRA Political Victory Fund, 513 U.S. 88, 99
(1994); Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202
(1988). Treating ambiguous language in an opinion as the
basis of a tea‐leaf reading is some distance from a simple and
7 No. 12‐3133
clear rule. It is not only simpler but also more respectful of
the district court to interpret ambiguous language as reflect‐
ing a judge’s desires or expectations rather than as a coercive
order. The district judge well knows the difference between
an assumption and an injunction; both the text of the sen‐
tence in question, and the absence of an attempt to satisfy
Rule 65, tell us that no injunction has been entered.
Because the district court did not enter an injunction, we
lack appellate jurisdiction. The appeal must be dismissed.
But we hope that the bankruptcy judge, the district judge, or
both, will attend to the issues flagged at page 3 of this opin‐
ion, in order to prevent what may be wasteful hearings and
decisions preceding a future appeal to this court.
The appeal is dismissed for want of jurisdiction.