Nanda, Navreet v. Bd Trustees Univ IL ( 2002 )

In the
United States Court of Appeals
for the Seventh Circuit
No. 01-3448
NAVREET NANDA,
Plaintiff-Appellee,
v.
BOARD OF TRUSTEES OF THE
UNIVERSITY OF ILLINOIS,
BELLUR PRABHAKAR,
GERALD MOSS, et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 4757--Rebecca R. Pallmeyer, Judge.
ON MOTION TO STAY THE MANDATE
DECEMBER 3, 2002*
*
This opinion is being initially released in typescript form.
No. 01-3448 Page 2
RIPPLE, Circuit Judge (in chambers). This matter is before
me on the application of the Trustees of the University of Illinois for
a stay of this court’s mandate pending its petition for a writ of
certiorari to the Supreme Court of the United States. Familiarity
with this court’s opinion in the underlying litigation is presumed.
See Nanda v. Bd. of Trustees of the Univ. of Illinois, 303 F.3d 817
(7th Cir. 2002).
The appropriate judicial inquiry in considering an application
such as the one before me today has been set forth on numerous
occasions. A party seeking a stay of mandate pending the filing of
a petition for writ of certiorari must establish that the petition will
present a substantial question and that there is good cause for a
stay. See Fed. R. App. P.41(d)(2)(A). We therefore ask whether the
applicant has a reasonable probability of succeeding on the merits
and whether the applicant will suffer irreparable injury. See
Williams v. Chrans, 50 F.3d 1358, 1360 (7th Cir. 1995) (per curiam).
To demonstrate a reasonable chance of success on the merits,
the applicant must show a reasonable probability that at least four
Justices will vote to grant certiorari and a reasonable possibility
that at least five Justices will vote to reverse the judgment of this
court. This task requires that I view the case from a different
perspective than I ordinarily would take in deciding a case in the
regular course of business. In deciding a case, a circuit judge must
not anticipate future changes in jurisprudential course by the
Supreme Court of the United States; it is the task of a circuit judge
to apply established doctrine. See State Oil Co. v. Kahn, 522 U.S. 3,
20 (1997). The present situation, by contrast, requires that I
perform the predictive function of attempting to determine the
future course of the Supreme Court’s jurisprudence.
Even taking into account this different perspective, I cannot
say that the University has met its burden. The Supreme Court has
No. 01-3448 Page 3
held that various statutory schemes are infirm because they are not
premised on an appropriate exercise of Congressional power under
Section 5 of the Fourteenth Amendment.1 However, my colleagues
and I, after careful study, have concluded that Congress’ exercise of
its legislative power in enacting Title VII is based on far firmer
footing. We have determined that Title VII’s disparate treatment
provision is a legislative measure well-tailored to address the same
sort of intentional discrimination that the Fourteenth Amendment
itself forbids. Like our colleagues in the Eighth Circuit, see
Okruhlik v. Univ. of Arkansas, 255 F.3d 615 (8th Cir. 2001), we also
determined that Congress had ample evidence of discrimination
when it enacted this legislation.2 Indeed, in Varner v. Illinois State
University, 226 F.3d 927 (7th Cir. 2000), cert. denied, 533 U.S. 902
(2001), another panel of this court noted that this well-documented
history of discrimination is embodied in the jurisprudence of the
Supreme Court itself.
Under these circumstances, I cannot say that the Supreme
Court, faced with unanimity among the circuits that have decided
the issue, nevertheless will determine that this case is worthy of a
grant of certiorari. Nor can I say that there is a reasonable
possibility that the Supreme Court ultimately would decide to
reverse the judgment of this court.
1
See, e.g., Trustees of the Univ. of Alabama v. Garrett, 531
U.S. 356 (2001); Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000).
2
Therefore, this is not a case, such as many of those cited by
the University in support of its motion to stay, which involves or
creates a conflict among the circuits. Cf. United States v. Holland,
1 F.3d 454, 456 (7th Cir. 1993) (in chambers) (“A conflict among the
circuits is an accepted basis for the granting of a writ of certiorari.”).
No. 01-3448 Page 4
Accordingly, the application for stay of mandate is denied.
APPLICATION FOR STAY DENIED