Bench Memos

Seventh Circuit Motions Panels Seizing Merits Cases?

I’ve learned of concerns that some Seventh Circuit judges serving on motions panels have been aggressively seizing cases to decide them on the merits. For an extreme example of the phenomenon, see this Reuters account of Motorola Mobility LLC v. AU Optronics Corp., in which a motions panel headed by—surprise!—Judge Richard Posner, “without the benefit of briefing on the merits [or] oral argument, … issued a ruling that simultaneously granted the appeal and decided it, dismissing Motorola’s claims.

So I have some questions for any Seventh Circuit judges or law clerks, present or former, who care to respond to me (at ewhelan@eppc.org), in confidence or otherwise:

1. How are Seventh Circuit motions panels composed? Do judges take turns as the lead motions judge, with additional judges randomly assigned to join them for matters that call for decision by two or three judges? Or do the chief judge or other senior judges have some special role?

(Section 1(b) of the Seventh Circuit’s internal operating procedures says, “The responsibility to handle motions shall be rotated among the judges.” That proposition apparently applies to motions handled by single judges. Whether it also applies to motions handled by two judges or three judges is unclear. Section 1 also spells out which motions should be handled by more than one judge.)

2. Under Seventh Circuit policy or practice, who on a motions panel decides whether to recommend that a particular matter be assigned to the motions panel for a decision on the merits? Is that effectively the decision of the senior judge on the panel? Or does it require a majority or unanimous vote of the panel members?

(Section 6(d) of the Seventh Circuit’s internal operating procedures provides: “When a motion panel decides that a motion or petition should be set for oral argument or the appeal expedited, it may recommend to the chief judge that the matter be assigned for argument and decision to the same panel.”)

3. Under Seventh Circuit policy or practice, does the chief judge ever disapprove a motions panel’s recommendation that a matter be assigned to that panel for a decision on the merits?

4. Are there any recognized standards under Seventh Circuit policy or practice that govern a motions panel’s decision whether to recommend that a matter be assigned to that panel for a decision on the merits? 

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