Supreme Court Decides Case That the 7th Circuit Could Not Review En Banc

Yesterday the Supreme Court issued its decision in Rubin v. Islamic Republic of Iran, No. 16-534 (Feb. 21, 2018), affirming the Seventh Circuit by holding that a provision of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1610(g), does not create a freestanding exception to the general prohibition on executing a judgment against a foreign state.

We wrote previously about Rubin (here and here) because it involved a unique situation in which the Seventh Circuit found itself unable to assemble a “majority” of the judges in regular active service who were eligible to vote whether to rehear the case en banc. The lower court’s opinion, written by Judge Diane Sykes, overruled a prior panel decision in the Seventh Circuit and created a split with a Ninth Circuit decision. The court was unable to rehear the case en banc, however, because five of the Seventh Circuit’s nine then-active judges had to recuse themselves. Judge David Hamilton filed a dissenting opinion from the denial of en banc review and suggested that, given this “rare situation,” the panel’s decision “should not be treated as settling the legal issue in this circuit.”

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Artis v. D.C.: SCOTUS Explains How § 1367(d) Stops the Clock

The federal supplemental jurisdiction statute, 28 U.S.C. § 1367, allows a litigant with a federal claim to bring into federal court with it any state claims that are so related to the federal claim that they “form part of the same case or controversy under Article III of the United States Constitution.”  Thus, a plaintiff seeking damages under 42 U.S.C. § 1983 for violation of her 4th Amendment rights could litigate in the same federal-court action any state-law claims (like violation of the state constitution, false arrest, assault and battery) arising out of the same incident. Or a plaintiff seeking damages for a racially discriminatory job termination, under Title VII of the 1964 Civil Rights Act, could also litigate his state-law discrimination or breach-of-contract claims in the same action in federal court.
 
But what happens when the federal claims are dismissed without resolving the state claims? Can the plaintiff refile the state claims in state court, and how long does he or she have to do so?
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Seventh Circuit To Welcome First New Judge Since 2009

The Senate yesterday confirmed the nomination of Professor Amy Coney Barrett of the Notre Dame University Law School to the vacant Indiana seat on the United States Court of Appeals for the Seventh Circuit. Her appointment makes her the first judge to join the court in eight years, since Judge David F. Hamilton of Bloomington, Indiana took office in November 2009. And Judge Hamilton was the first new judge since Judge Diane S. Sykes of Milwaukee joined the court in July 2004. So this 11-judge court has had a remarkable stability in membership throughout the first 17 years of the 21st Century.
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Will This Term of Wisconsin’s Supreme Court Be the Last for Agency Deference in Wisconsin?

Justice Neil Gorsuch’s confirmation process earlier this year brought attention to the issue of agency deference, given a concurring opinion that he had written in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016). That was an immigration appeal where he argued that Chevron ought to be revisited because it “permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” Those who regularly watch the Supreme Court’s docket are waiting with bated breath to see if Justice Gorsuch can convince his colleagues that the issue merits the Court’s review.

But Wisconsin’s supreme court might beat Justice Gorsuch to the punch. In April, in an order granting a petition for review in Tetra Tech EC, Inc. v. Wis. Dep’t of Revenue, No. 2015AP2019 (Wis. Apr. 24, 2017), an appeal from the Wisconsin Tax Commission, the court asked the parties to brief a similar issue:

IT IS FURTHER ORDERED that in addition to the issue identified in the petition for review, the parties are directed to brief an additional issue: Does the practice of deferring to agency interpretations of statutes comport with Article VII, Section 2 of the Wisconsin Constitution, which vests the judicial power in the unified court system?

Tetra Tech concerned the meaning of “processing” in Wisconsin’s sales-and-use-tax statute. The court of appeals had applied “great weight deference” to the commission’s interpretation of the statute.

When the supreme court issued its order in Tetra Tech, only 16 days after Justice Gorsuch took the bench, we suspected that this was more than mere coincidence.

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“You Can’t Beat Something with Nothing”: 7th Cir. Explains the Importance of Disclosing Experts

Some cases present issues that are difficult for the parties to litigate or for the courts to decide. But those cases tend to be the exception. Much of litigation—at least when practiced successfully—requires the mastery of a fundamental set of skills or tasks, the blocking and tackling of the craft.

This week’s decision by the Seventh Circuit in Cripe v. Henkel Corp., No. 17-1231 (June 7, 2017), written by Judge Frank Easterbrook, is a reminder for litigators of the importance of mastering the fundamentals. The court held that the plaintiff in a personal-injury action had failed to disclose any experts, or provide any expert reports, under Fed. R. Civ. P. 26(a)(2) to rebut the defendant’s expert on causation. When the defendant moved for summary judgment, the trial court granted the motion, given that there was no contrary evidence. The Seventh Circuit affirmed, reaching the profound conclusion that “[y]ou can’t beat something with nothing.”

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