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

22 February 2018 Wisconsin Appellate Law Blog
Authors: Eric G. Pearson

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.”

As we noted in our first post, we aren’t aware of any legal authority that has called into question an opinion’s validity under circumstances such as these. After the Supreme Court’s 8-0 decision yesterday, that procedural question will remain unanswered. Justice Sonia Sotomayor wrote for the Court, and Justice Elena Kagan did not participate in the decision.

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