Last week, the United States Supreme Court informed litigants in Epic Systems Corp. v. Lewis that it is pushing the case to its October 2017 term. The lawsuit, which rose up through the Western District of Wisconsin and the Seventh Circuit, presents the High Court with a chance to resolve a robust circuit split on the question whether mandatory arbitration clauses in employment contracts may contain class action waivers without running afoul of the National Labor Relations Act (NLRA). Last spring, the Seventh Circuit ruled that such clauses were unenforceable, deviating from rulings by the Second, Fifth, and Eighth Circuits, and prompting the Supreme Court to grant certiorari on January 13, 2017.
The Wisconsin Supreme Court overturned the city of Racine’s property tax assessments in Regency West Apartments LLC v. City of Racine, 2016 WI 99, clarifying in important respects the appropriate assessment methodology for I.R.C. § 42 low-income housing tax credit properties. The court essentially rejected the trial court’s fact finding on the ground that the assessor’s opinions on which the lower court relied were based on legally faulty assessment methodologies. [Note: Foley & Lardner represented the property owner in this case.]
The rule of 28 U.S.C. § 1291 limits the appealability of district court orders to “final decisions.” Although an order resolving fewer than all claims of all parties is not a final decision for purposes of appeal, Rule 54(b), Fed. R. Civ. P., permits district courts to make such orders appealable by expressly determining that “there is no just reason for delay.”
The Seventh Circuit recently held in King v. Newbold, No. 15-1302 (7th Cir. Jan. 12, 2017), that a Rule 54(b) motion was improperly granted because the motion was untimely made. The twist? The Federal Rules do not establish a deadline for filing a Rule 54(b) motion. The 30-day deadline that the Court invoked comes from one of its own decisions published in 1972.
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.
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.