                             In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 07-2658
CAVEL INTERNATIONAL, INC., et al.,
                                              Plaintiffs-Appellants,
                                 v.

LISA MADIGAN, et al.,
                                             Defendants-Appellees.
                         ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Western Division.
             No. 07 C 50100—Frederick J. Kapala, Judge.
                         ____________
       SUBMITTED JULY 17, 2007—DECIDED JULY 18, 2007
                  OPINION AUGUST 6, 2007
                         ____________


 Before EASTERBROOK, Chief Judge, and POSNER and
ROVNER, Circuit Judges.
   POSNER, Circuit Judge. Cavel International, the principal
appellant (we can ignore the others), produces horsemeat
for human consumption. The plant at which it slaughters
the horses is in Illinois. Americans do not eat horsemeat,
but it is considered a delicacy in Europe and Cavel exports
its entire output. Its suit challenges the constitutionality
of a recent amendment to the Illinois Horse Meat Act, 225
ILCS 635/1.5, that makes it unlawful for any person in the
state to slaughter a horse for human consumption or “to
2                                                No. 07-2658

import into or export from this State, or to sell, buy,
give away, hold, or accept any horse meat if that person
knows or should know that the horse meat will be used
for human consumption.” Cavel lost in the district court,
has appealed, and, after unsuccessfully moving the dis-
trict court for an injunction pending appeal, has asked
us for such an injunction, emphasizing the disastrous
consequences for its business if the decision of the district
court stands.
  An affidavit by the firm’s general manager states that it
is a virtual certainty that if the injunction is denied the
result will be the “permanent closure” of its plant. The state
counters feebly with an unattested statement that because
Cavel some years ago reopened after a fire had forced it to
close for two years, it can probably reopen again if it has to
close during the appeal. But there is no contention that
Cavel lacked fire insurance to tide it over that earlier
period of closure. Should the judgment of the district
court upholding the constitutionality of the new statutory
amendment be reversed, Cavel could not obtain monetary
relief from the defendants. They are state officials sued
in their official capacities because the only relief sought
against them is an injunction. They therefore are not sub-
ject to liability for damages; a suit against state officials
in their official capacity is treated as a suit against the
state itself.
  Cavel has made a compelling case that it needs the
injunction pending appeal to avert serious irreparable
harm—the uncompensated death of its business. Its
showing persuaded the D.C. Circuit to grant Cavel a
stay pending judicial review of an order by the Depart-
ment of Agriculture that would if upheld force the shut-
down of its business on grounds unrelated to those of the
No. 07-2658                                                 3

present litigation. Humane Society of the United States v.
Cavel International, Inc., No. 07-5120 (D.C. Cir. May 1, 2007)
(per curiam). The state does not question the gravity of
Cavel’s situation (despite the remark about the fire) but
responds that the state will incur irreparable harm, too, if
the injunction is granted, because a “slaughter cannot
be undone.” But the statute does not seem to be intended
to protect horses. (The object of the statute is totally
obscure.) For it is only when horsemeat is intended for
human consumption—the niche market that Cavel serves
(less that 1 percent of its output is sold for other con-
sumption)—that a horse cannot be killed for its meat. Were
Cavel or a successor able to find a market in pet-food
companies, the slaughter of horses at its plant would
continue without interference from the state. And, if not,
all that will happen is that horses will be slaughtered
elsewhere to meet the demands of the European gourmets.
  The state argues that the injunction will diminish “the
scope of democratic governance.” That is a powerful
reason for judicial self-restraint when a statute, state or
federal, is sought to be invalidated by a court. A rule
barring state statutes from going into effect until any
challenges to their validity were litigated to completion
would be offensive on that ground; it would amount to
rewriting the effective date in all Illinois statutes. But at
issue is a stay, based on a showing in a particular case
that the harm to the challenger from denial of a stay
would greatly exceed the harm to the state from its grant,
that would delay the application of the statute to the
challenger for a few months (the appeal in this case has
been expedited and will be argued on August 16). Such a
stay does not operate as a statutory revision or sig-
nificantly impair democratic governance. It is a detail that
4                                                   No. 07-2658

because the statute in question is applicable to only a
single entity, a stay of enforcement against that entity
acts to postpone the effective date of the statute rather
than just to postpone the statute’s application to one
entity subject to it.
  The state does not argue that a statute can never be
enjoined pending appeal; it concedes, as we shall see, that
such an injunction is appropriate if the usual criteria for a
stay pending appeal are satisfied. The horsemeat statute is
remote from the vital interests of most Illinois residents; a
brief delay in its enforcement against Cavel will not create
a perceptible harm. Indeed, it is difficult to see what harm
would ensue from permanently abrogating the statute
if the welfare of horses would not be affected, as it might
well not be, as we have pointed out.
  Even though denying the injunction pending appeal
would do far more harm to Cavel than granting it
would do to the state, we must consider whether the
appeal has any merit. If an appeal has no merit at all, an
injunction pending the appeal should of course be denied.
But if the appeal has some though not necessarily great
merit, then harm of the magnitude shown by Cavel in this
case would justify the granting of an injunction pending
appeal provided, as is also true in this case, that the
defendant would not suffer substantial harm from the
granting of the injunction. This is the “sliding scale”
approach to decisions on motions for preliminary injunc-
tion that we have endorsed in previous cases, e.g., Christian
Legal Society v. Walker, 453 F.3d 853, 859 (7th Cir. 2006);
FoodComm International v. Barry, 328 F.3d 300, 303 (7th Cir.
2003); American Hospital Supply Corp. v. Hospital Products
Ltd., 780 F.2d 589, 593-94 (7th Cir. 1985), as have other
courts. E.g., Serono Laboratories, Inc. v. Shalala, 158 F.3d 1313,
No. 07-2658                                                    5

1317-18 (D.C. Cir. 1998); Dan River, Inc. v. Icahn, 701 F.2d
278, 283 (4th Cir. 1983). It amounts simply to weighting
harm to a party by the merit of his case.
  In denying the motion for an injunction pending appeal,
the district judge did not apply this test or indeed any
other. He said only that Cavel had failed to make a “strong
showing” that the horsemeat amendment is unconstitu-
tional. He ignored the balance of harms. Cavel’s failure
to make a strong showing is certainly relevant to the
granting of relief, but it is not decisive. The judge
did not exercise the required discretion in determining
whether to grant the injunction, and so his decision is not
entitled to the deference to which discretionary rulings
are entitled. Nor is his ruling that Cavel failed to make a
strong showing of likelihood to prevail entitled to defer-
ence. It was a legal ruling the appellate review of which
is plenary. Hinrichs v. Bosma, 440 F.3d 393, 396 (7th Cir.
2006).
  There is a difference between asking a district court for
a preliminary injunction and asking a court of appeals for
a stay of, or other relief from, the district court’s ruling. But
the sliding-scale approach is also applied in such a case. Id.;
Sofinet v. INS, 188 F.3d 703, 706-07 (7th Cir. 1999); In re
Forty-Eight Insulations, Inc., 115 F.3d 1294, 1300-01 (7th Cir.
1997); cf. Hilton v. Braunskill, 481 U.S. 770, 777-78 (1987). As
the Supreme Court explained in Hilton, “different Rules
of Procedure govern the power of district courts and
courts of appeals to stay an order pending appeal. See
Fed. Rule Civ. Proc. 62(c); Fed. Rule App. Proc. 8(a). Under
both Rules, however, the factors regulating the issuance of
a stay are generally the same.” Id. at 776.
  Cavel, it is true, is not seeking a stay; it is seeking to
enjoin the enforcement of the horsemeat statute against
6                                                No. 07-2658

it pending appeal. But Rule 8(a)(1)(C), (2), of the appellate
rules explicitly authorizes the court of appeals to grant an
injunction pending appeal and does not suggest that the
standard is different from that applicable to a motion to
stay the district court’s judgment. We are mindful that
Chief Justice Rehnquist, in a chambers opinion (and thus
speaking only for himself and not for any of the other
Justices), Brown v. Gilmore, 533 U.S. 1301 (2001), ruled that
the authority to grant such an injunction is conferred not by
Rule 8 but by the All Writs Act, 28 U.S.C. § 1651. Tradition-
ally of course the applicant for relief under the Act must
show an incontrovertible right to relief, and not merely
some likelihood of prevailing. The Chief Justice required
the same high showing by an applicant for an injunction
pending appeal. As the 1967 Committee Note to Rule 8
points out, however, the Supreme Court had held that the
power was an inherent judicial power; and so it doesn’t
have to be grounded in the All Writs Act.
  The approach proposed in Brown has not caught on. The
decision has been cited in seven cases. One was another
chambers opinion by Chief Justice Rehnquist. Wisconsin
Right to Life, Inc. v. FEC, 542 U.S. 1305, 1305-06 (2004). The
other six (five district court opinions and an unpublished
court of appeals opinion) do not actually apply the Chief
Justice’s heightened standard to requests for injunctions
against state statutes. In re McEvily, 55 Fed. Appx. 712 (4th
Cir. 2003); Do The Hustle, LLC. v. Rogovich, No. 03 Civ. 3870,
2003 WL 21436215, at *8 (S.D.N.Y. June 19, 2003); Line
Communications Corp. v. Reppert, 265 F. Supp. 2d 353, 358
(S.D.N.Y. 2003); Foster v. Argent Mortgage Co., No. 07-11250,
2007 WL 2109558, at *4 (E.D. Mich. July 23, 2007); Smith
v. Directors of the Enemy of Alien Control Unit of Dept. of
Justice, No. 07CV0508LJOTAG, 2007 WL 1655780, at *2 (E.D.
No. 07-2658                                                 7

Cal. June 7, 2007); Lawrence v. Reno, No. 00 Civ. 4559, 2003
U.S. Dist. LEXIS 14867 (S.D.N.Y. Aug. 28, 2003). In Purcell
v. Gonzales, 127 S. Ct. 5 (2006) (per curiam), the Supreme
Court vacated an injunction against a state statute pend-
ing appeal without suggesting that any special standard
applied to such injunctions and without citing Brown v.
Gilmore. See also Washington Metropolitan Area Transit
Commission v. Holiday Tours, Inc., 559 F.2d 841, 842 n. 1
(D.C. Cir. 1977). The state in our case does not cite Brown
but instead relies on our Hinrichs decision, which says
nothing about an incontrovertible right of relief, but instead
asks the district court to consider merely whether the
movant has a significant probability of prevailing on his
claim.
  The sliding scale justifies the injunction sought by Cavel.
The argument for the invalidity of the horsemeat statute
is not negligible. A state can without violating the com-
merce clause in Article I of the U.S. Constitution (which has
been interpreted to limit the power of states to regulate
foreign and interstate commerce even in the absence of
applicable federal legislation) forbid the importation into
the state of dangerous or noxious goods. E.g., Maine v.
Taylor, 477 U.S. 131, 151-52 (1986). But this case involves a
limitation on exports, because Cavel has no domestic
market; and the only ground that Illinois advances for the
horsemeat amendment is “public morality.” The state has
a recognized interest in the humane treatment of animals
within its borders, and we can assume that this interest
embraces the life of the animals and not just a concern
that they not be killed gratuitously or in a painful manner.
But as we noted earlier, the Illinois statute does not forbid
the killing of horses, but only the killing of them for human
consumption of their meat. If Cavel could (as apparently
8                                                 No. 07-2658

it cannot) develop a market for its horsemeat as pet food,
there would be no violation of the statute. So it is possible
that the burden that the statute places on the foreign
commerce of the United States is not offset by a legitimate
state interest, in which event the statute is unconstitu-
tional. Kassel v. Consolidated Freightways Corp. of Delaware,
450 U.S. 662, 669-70 (1981). “[T]he incantation of a purpose
to promote the public health or safety does not insulate
a state law from Commerce Clause attack” Id. at 670.
Since Cavel has no significant domestic market, the stat-
ute does not “discriminate” against the foreign commerce
of the United States, but it does burden it and so the
state is obliged to give some reason for it.
   We do not suggest that Cavel has a winning case or even
a good case (the Fifth Circuit in Empacadora de Carnes de
Fresnello, S.A. v. Curry, 476 F.3d 326, 336-37 (5th Cir. 2007),
recently upheld a similar Texas law against a challenge
based on the commerce clause), but only that it has a
good enough case on the merits for the balance of harms
to entitle it to an injunction pending an expedited appeal
that will enable the merits to be fully briefed and argued.
It is important to note in this regard that the sliding-
scale approach that governs Cavel’s request for an injunc-
tion pending appeal does not require a “strong showing”
that the applicant will win his appeal. The Supreme Court
was precise in stating in Hilton v. Braunskill, supra, 481 U.S.
at 776, that among “the factors regulating the issuance of
a stay are . . . whether the stay applicant has made a
strong showing that he is likely to succeed on the merits.”
Certainly that is one of the factors to be considered, but
it has to be balanced against the harms to the parties of
granting or denying the injunction.
    The injunction pending appeal is therefore granted.
No. 07-2658                                                   9

  EASTERBROOK, Chief Judge, dissenting. My colleagues
assume that, when deciding whether to issue an injunc-
tion pending appeal, both the trial and appellate courts
should use the same sliding scale that a district judge uses
when deciding the case as an initial matter. This is a
mistake. Once a plaintiff has litigated and lost, a higher
standard is required for an injunction pending appeal.
  That’s one conclusion of Hilton v. Braunskill, 481 U.S. 770,
776 (1987). Hilton holds that a stay of a district court’s
order pending appeal requires a “strong showing” that
the appellant is likely to prevail. The Court equated ap-
pellate stays and injunctions pending appeal, both of
which fall under Fed. R. App. P. 8. One cannot escape this
by appealing to “inherent judicial power” (slip op. 5); once
a rule has codified an approach, the rule must be followed
to the exclusion of the common-law doctrines that pre-
ceded it. See Bank of Nova Scotia v. United States, 487
U.S. 250 (1988). Cf. Cheney v. United States District Court, 542
U.S. 367, 381 (2004) (the applicant must show a “clear
and indisputable” right to obtain equitable relief under
the All-Writs Act, 28 U.S.C. §1651).
  So I ask (as my colleagues do not) whether plaintiff
has made out a “strong showing” that this court is likely
to reverse on the merits. It has not done so. Cavel’s posi-
tion is functionally identical to the one raised, and rejected,
in Empacadora de Carnes de Fresnello, S.A. v. Curry, 476
F.3d 326 (5th Cir. 2007). My colleagues do not say that
the fifth circuit is mistaken; all they are willing to venture
is that the statute just might burden foreign commerce.
That’s a distraction, however, for Illinois does not dis-
criminate against foreign (or interstate) commerce. No
one in Illinois may slaughter a horse for human consump-
tion, no matter where the meat will be eaten. 225 ILCS
10                                                No. 07-2658

635/1.5(a). That no one in Illinois wants to eat horse flesh
means that all of Cavel’s product is exported, but this does
not convert a law regulating horse slaughter (an intra-
state activity) into one that discriminates against com-
merce.
  If the (potential) problem in the law lies in subsection (b),
which forbids the export of meat produced in violation
of subsection (a), then the injunction should be directed
against enforcement of subsection (b). Such an injunction
would do Cavel no good, however, because the prohibition
in subsection (a) against killing and butchering the horses
would remain. It is telling that my colleagues enjoin
operation of the statute as a whole, without suggesting
that the rule against slaughtering a horse for human
consumption—the only part of the law that injures
Cavel—is subject to any non-frivolous legal objection given
the Supreme Court’s tolerant approach to even silly
statutes that regulate business. See, e.g., New Orleans v.
Dukes, 427 U.S. 297 (1976).
  Although a “strong showing” on the merits is required
for any injunction pending appeal, insisting on a sig-
nificant likelihood of success is especially apt when the
subject is enforcement of a statute. An injunction pending
appeal does not permanently frustrate attainment of the
state’s goal. It does, however, permanently discard the
statute’s effective date. This provision won’t be enforced
at some later time; it will never be enforced. It is as if
the majority had held that the norm under the Illinois
Constitution of 1970—that laws take effect on the June 1
following their enactment—violates federal law and must
be replaced by something along the lines of: “No state law
that imposes a substantial cost on any private interest may
take effect until all judicial challenges have been ex-
No. 07-2658                                                    11

hausted.” But my colleagues don’t explain what federal
rule requires this displacement of the state’s choice of an
effective date. An unspoken (and unjustified) norm of
judicial supremacy lies behind this claim of power to
override the state’s decision.
  Almost all laws cause injury; very few statutes are
Pareto-superior (meaning that no one loses in the process,
and at least some people gain). When a rule benefits some
persons without injuring others, there is no need for
legislation; the people involved will reach the accommoda-
tion on their own. Laws that cause loss to some persons
(Cavel, for example) create transition effects. How these
should be accommodated is itself a question for democratic
choice. Some scholars favor immediate change, with the
losers not being compensated. See, e.g., Louis Kaplow,
An Economic Analysis of Legal Transitions, 99 Harv. L. Rev.
506 (1986). Illinois has opted for a longer period as a rule,
although allowing the legislature to provide for immediate
effectiveness of statutes enacted before June 1, or by a
super-majority.^ Usually both the gains and losses of
effective dates are felt by the state’s populace; there is
no reason to distrust the state’s conclusion that the gains
from swift effectiveness exceed the losses.

^
  Article 4 Section 10 of the Illinois Constitution provides: “The
General Assembly shall provide by law for a uniform effective
date for laws passed prior to June 1 of a calendar year. The
General Assembly may provide for a different effective date
in any law passed prior to June 1. A bill passed after May 31
shall not become effective prior to June 1 of the next calendar
year unless the General Assembly by the vote of three-fifths of
the members elected to each house provides for an earlier
effective date.” The Illinois Horse Meat Act became law on
May 24, 2007, and took effect the same day by virtue of §99 in
the statute.
12                                                No. 07-2658

  No state of which I am aware—and no federal law or
serious student of the subject—has advocated the rule:
“Laws that impose losses large enough to prompt people to
hire lawyers take effect only at the conclusion of fed-
eral judicial review.” Such a rule not only denies states
part of their legislative power but also leads to strategic
behavior: people hire lawyers and file suits not because
they expect to win, but just because they can benefit from
delay. That’s a fair characterization of this suit. Just as the
state won’t compensate Cavel for losses in the interim if
Cavel wins in the end, Cavel does not propose to com-
pensate Illinois for any injury caused by delayed effective-
ness of the statute. The majority does not require Cavel
to post an injunction bond. Requiring an applicant to
back its position with a promise to pay would curtail
strategic claims.
   Federal courts should allow states to select and enforce
effective dates for their statutes. Equitable relief is ap-
propriate only when the plaintiff shows a substantial
likelihood of winning. Cavel has not met this standard
and is not entitled to an injunction pending appeal.

A true Copy:
        Teste:

                           _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




                    USCA-02-C-0072—8-14-07
