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 50111—Frederick J. Kapala, Judge. 

__________________________ 

Submitted July 17, 2007—Decided July 18, 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 

 

* The appellants’ motion for an injunction pending appeal was decided in 

a brief order (Chief Judge Easterbrook dissenting) with a notation that 

opinions explaining the ground for the order and the dissent would follow. The opinions are being released in typescript. 
No. 07–2658 2 

635/1.5, that makes it unlawful for any person in the state to 

slaughter a horse for human consumption or “to 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 district 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 subject 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 Department of Agriculture that 

would if upheld force the shutdown of its business on 

grounds unrelated to those of the 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 
No. 07–2658 3 

“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 consumption)—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 significantly impair democratic governance. It is a detail that 

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 
No. 07–2658 4 

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 the showing of 

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 injunction 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 Labsoratories, Inc. v. Shalala, 158 F.3d 1313, 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 court 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 unconstitutional. 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 deference. It was a legal ruling the appellate review of which is plenary. Hinrichs v. Bosma, 440 F.3d 393, 

396 (7th Cir. 2006). 
No. 07–2658 5 

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 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), held 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. Traditionally 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 
No. 07–2658 6 

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. 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 

pending 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 commerce 

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 gratui-
No. 07–2658 7 

tously 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 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 unconstitutional. 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 statute 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 injunction 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. 
No. 07-2658 Page 8

Easterbrook, Chief Judge, dissenting. My colleagues assume that, when deciding whether to issue an injunction

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 appellate

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 preceded 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 position 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 discriminate against

foreign (or interstate) commerce. No one in Illinois may

slaughter a horse for human consumption, no matter

where the meat will be eaten. 225 ILCS 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 commerce.

If the (potential) problem in the law lies in subsection

(b), which forbids the export of meat produced in violation
No. 07-2658 Page 9

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 significant

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 exhausted.” 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 accommodation 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
No. 07-2658 Page 10

Analysis of Legal Transitions, 99 Harv. L. Rev. 506 (1986). Illinois has opted 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.

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 federal 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 compensate Illinois for any

injury caused by delayed effectiveness 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 appropriate 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.

 

† 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 threefifths 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.