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

by Foley & Lardner LLP
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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.

To recap, Rubin, written by Circuit Judge Diane Sykes and joined by Senior Circuit Judge William Bauer and District Judge Michael Reagan (of the Southern District of Illinois, sitting by designation), stems from a long-running dispute involving the victims of a 1997 Hamas bombing in Jerusalem and the victims’ attempts to collect default judgments entered against Iran as a state sponsor of terrorism. The Seventh Circuit held 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, thus limiting the plaintiffs to executing against property that Iran uses commercially in the U.S. Certain artifacts, owned by Iran, that are in the care of some Chicago museums are not “used commercially,” so Iran secured a victory (of sorts) in the decision.

Rubin overruled a prior panel decision in the Seventh Circuit and created a split with a recent Ninth Circuit decision, which meant that the opinion would normally have had to be circulated before publication to the other judges of the Seventh Circuit in regular active service, under Seventh Circuit Rule 40(e).

What was remarkable about Rubin is that Chief Judge Wood and Circuit Judges Posner, Flaum, Easterbrook, and Rovner (five of the nine active judges on the Seventh Circuit) had to recuse themselves from the Rule 40(e) process. Thus, it became impossible, under Rule 40(e)’s terms, to reconsider the panel’s opinion en banc because “a majority” of the active judges could not vote whether to rehear the case.

Judge Hamilton (one of the judges in regular active service who was not recused and who had not sat on the panel) filed a dissenting opinion from the denial of en banc review, explaining that he thought it was a “mistake” for the panel to overrule the court’s earlier decision and to create a circuit split, and he argued that, given the “rare situation” that prevented en banc review, the panel’s decision “should not be treated as settling the legal issue in this circuit.”

We suspect it’s the legal issue as opposed to the procedural one that might have piqued the Supreme Court’s interest in Rubin (though the Seventh Circuit’s inability to review the decision en banc certainly hasn’t hurt the petition’s chances), but only time will tell if the seven (Justice Kagan recused herself), or perhaps eight by then, justices at One First Street have a further interest in the case.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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