Simultaneous Decisions from the 7th Circuit: How the Later-Argued Case Became Binding Precedent

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The Seventh Circuit is very serious about treating its panel decisions as the “law of the court” unless and until they are overruled by the en banc court or a higher authority. Hence, its Circuit Rule 40(e) requires a panel that contemplates issuing an opinion that would overrule a prior decision or create a conflict between or among circuits to circulate it among the active members of the court, affording a majority the chance to order the case reheard en banc.

A couple of months ago, we discussed Rubin v. Islamic Republic of Iran, the case in which the opinion of a Seventh Circuit panel arguably overruled a prior Seventh Circuit decision and created a circuit split, either of which would normally have precluded its publication without complying with Rule 40(e). But five of the nine active judges recused themselves from the case, so there could not be a majority to vote to rehear en banc and the panel decision was published as the law of the circuit. We mentioned this case again earlier this month, when the Supreme Court asked for the views of the Acting Solicitor General on whether the Court should grant certiorari.

Now another unusual sequence of events throws further light on the court’s commitment to following the law laid down by its first panel to decide an issue.

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Supreme Court Calls for the Views of the Solicitor General in a Case That the 7th Circuit Could Not Review En Banc

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Last summer, we wrote about a unique situation that arose in the case of Rubin v. Islamic Republic of Iran, No. 14-1935 (7th Cir. July 19, 2016), 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 a case en banc.

As of this Monday, January 9, 2017, based on the Order List released by the Supreme Court, there are signs that this long-running saga might not be over.  In a practice that is known as issuing a CVSG, or “calling for the views of the Solicitor General,” the Court entered an order inviting the Acting Solicitor General to file a brief “expressing the views of the United States.” Petitions in which the Court enters a CVSG order typically stand a better chance than most of being granted, though making predictions in this realm still is not much more than a guessing game. The case is No. 16-534 on the Supreme Court’s docket.

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The New Wisconsin Court of Appeals

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Bill Gates once wrote that “[w]e always overestimate the change that will occur in the next two years and underestimate the change that will occur in the next ten.” Mr. Gates surely wasn’t thinking about the turnover of judges on Wisconsin’s Court of Appeals when he wrote that, but a review of the court’s membership over the last 10 years illustrates his point superbly.

We began to think about how much change has occurred in Wisconsin’s intermediate appellate court in the last decade with the announcements that Judge Patricia Curley (District 1) will retire later this month and that Judge Paul Higginbotham (District 4) will not run for re-election in the spring. The Governor has appointed Milwaukee County Circuit Judge Timothy Dugan to replace Judge Curley; Judge Higginbotham’s replacement will take office August 1 (Rock County Circuit Judge Michael Fitzpatrick is the only announced candidate for the position).

We did a little more digging, and the results surprised us. While we expected to find some change, perhaps even substantial change, we did not expect to find that the turnover has been nearly total.

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The Case of the Vanishing § 1292(b) Certification

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Nothing about the Seventh Circuit’s recent per curiam decision in Kenosha Unified School District No. 1 Board of Education v. Whitaker, No. 16-8019 (7th Cir. Nov. 14, 2016), could be considered much of a mystery, but file the case away as something you don’t see often. It answers the question of what happens to the court of appeals’ jurisdiction if the district court makes and then withdraws certification of an interlocutory order under 28 U.S.C. § 1292(b).

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Wisconsin Court of Appeals Enforces Parties’ Stipulation to Remedies and Waiver of Judicial Review in Administrative Proceeding

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While many of us spent this past Halloween gorging on a variety of candies and sweets, Wisconsin’s court of appeals was busy rendering an opinion that likely left Travis Technology High School (“Travis Tech”) with a decidedly bitter taste in its mouth. Ceria M. Travis Academy, Inc. v. Evers, No. 2015AP2314, (Wis. Ct. App. Oct. 31, 2016), an opinion written by Judge Joan Kessler of District I (and recommended for publication in the official reports), confirmed that parties to an administrative proceeding can negotiate a settlement agreement that not only stipulates to a remedy for future violations but waives the breaching-party’s right to seek judicial review when the agency invokes the remedy.

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