A.F. Moore & Associates, Inc. v. Charles Kocoras ( 2020 )


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  •                                   In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 20-2497
    IN RE: A.F. MOORE & ASSOCIATES, INC., et al.,
    Petitioners.
    ____________________
    Petition for a Writ of Mandamus to the United States
    District Court for the Northern District of Illinois, Eastern Division.
    No. 1:18-cv-4888 — Charles P. Kocoras, Judge.
    ____________________
    SUBMITTED AUGUST 31, 2020 * — DECIDED SEPTEMBER 10, 2020
    ____________________
    Before FLAUM, HAMILTON, and BARRETT, Circuit Judges.
    PER CURIAM. In January, we reversed the dismissal of an
    equal-protection suit brought by a group of taxpayers chal-
    lenging Cook County’s pre-2008 property tax assessments.
    The district court had determined that it lacked jurisdiction
    under the Tax Injunction Act, 
    28 U.S.C. § 1341
    , because Illinois
    offered the taxpayers a “plain, speedy and efficient remedy.”
    We disagreed. Based on the defendants’ own concessions, we
    * We have agreed unanimously to decide this petition without oral ar-
    gument because the petition, answer, and record adequately present the
    facts and legal arguments, and oral argument would not significantly aid
    the court. FED. R. APP. P. 34(a)(2)(C).
    2                                                     No. 20-2497
    held that Illinois’s procedures left these taxpayers no remedy
    at all for their claims, let alone a speedy and efficient one—the
    taxpayers had been litigating in state courts for a decade. A.F.
    Moore & Assocs., Inc. v. Pappas, 
    948 F.3d 889
    , 896 (7th Cir. 2020).
    The defendant officials petitioned for rehearing and rehearing
    en banc, but no member of the court voted to rehear the case.
    Our mandate issued on April 17, and the case returned to the
    district court for further proceedings.
    There have been no further proceedings. On June 9, the
    day before the defendants were to answer the complaint, the
    defendants filed two motions seeking a stay of the case pend-
    ing the resolution of a petition for a writ of certiorari that they
    planned to submit in September. They filed the first motion in
    this court, asking that we recall our mandate and stay its reis-
    suance. See FED. R. APP. P. 41(d). We summarily denied their
    request.
    They filed the second motion in the district court, which
    chose to grant the relief that we had already denied. The dis-
    trict court rejected the taxpayers’ arguments that it was pro-
    hibited from entering a stay both by our mandate and by 
    28 U.S.C. § 2101
    (f), which expressly authorizes this court or the
    Supreme Court to stay execution of a final judgment pending
    certiorari. And having concluded that it possessed the neces-
    sary authority, the district court exercised it. It reasoned that
    if the Supreme Court granted certiorari and reversed our de-
    cision, any actions that the district court took in the meantime
    would be invalid for lack of jurisdiction. In other words, act-
    ing on our judgment that it had authority to adjudicate the
    taxpayers’ case might result in wasted effort, so the district
    court decided to wait to see if the Supreme Court reversed us.
    No. 20-2497                                                     3
    The taxpayers now petition for a writ of mandamus, as-
    serting that the district court exceeded its authority when it
    entered the stay. A writ of mandamus is an extraordinary
    remedy, not lightly invoked, but it is available in an appropri-
    ate case for a litigant who can show that it has no other ade-
    quate means to attain relief to which it is clearly entitled.
    Cheney v. U.S. District Court, 
    542 U.S. 367
    , 380–81 (2004); In re
    CFTC, 
    941 F.3d 869
    , 872 (7th Cir. 2019). This is such a case.
    The taxpayers begin with their argument under 
    28 U.S.C. § 2101
    (f). According to the taxpayers, a district court never
    has authority to stay a case pending certiorari because that
    power is vested by statute exclusively in the court of appeals
    and the Supreme Court. Section 2101(f) provides:
    In any case in which the final judgment or decree of
    any court is subject to review by the Supreme Court on
    writ of certiorari, the execution and enforcement of
    such judgment or decree may be stayed for a reasona-
    ble time to enable the party aggrieved to obtain a writ
    of certiorari from the Supreme Court. The stay may be
    granted by a judge of the court rendering the judgment
    or decree or by a justice of the Supreme Court ….
    The logic goes that by permitting only a judge of the court that
    rendered the reviewable judgment or a justice to stay a judg-
    ment pending certiorari, § 2101(f) precludes a district judge
    from doing so. The district court, like many other courts that
    have considered the issue, accepted this interpretation. See In
    re Time Warner Cable, Inc., 
    470 F. App'x 389
    , 390 (5th Cir. 2012);
    In re Stumes, 
    681 F.2d 524
    , 525 (8th Cir. 1982); United States v.
    Lentz, 
    352 F. Supp. 2d 718
    , 726 (E.D. Va. 2005); see also White-
    head v. Frawner, No. CV 17-275 MV/KK, 
    2019 WL 4016334
    , at
    *1 (D.N.M. Aug. 26, 2019) (“Virtually every court to have
    4                                                     No. 20-2497
    considered this question has reached the same conclusion.”).
    But the district court said that § 2101(f) imposed no bar in this
    case because it did not apply. The statute governs cases in
    which a “final judgment” is subject to Supreme Court review,
    and in the district court’s view, our judgment was not final
    because we remanded the case for further proceedings. See
    Lentz, 
    352 F. Supp. 2d at
    726 n.18 (noting this possibility).
    We see no need to evaluate the district court’s interpreta-
    tion of § 2101(f) because the taxpayers’ second argument in
    support of the writ is more straightforward: the district
    court’s stay was in direct opposition to our mandate. One of
    the more common and appropriate uses of mandamus au-
    thority is to “keep a lower tribunal from interposing unau-
    thorized obstructions to enforcement of a judgment of a
    higher court.” United States v. U.S. District Court, 
    334 U.S. 258
    ,
    263–64 (1948); In re Cont'l Ill. Sec. Litig., 
    985 F.2d 867
    , 869 (7th
    Cir. 1993); see also In re Trade & Commerce Bank ex rel. Fisher,
    
    890 F.3d 301
    , 303 (D.C. Cir. 2018). We call this obligation to
    follow the judgment of a reviewing court the mandate rule, a
    relative of the law of the case. See Kovacs v. United States, 
    739 F.3d 1020
    , 1024 (7th Cir. 2014). Under the mandate rule,
    “when a court of appeals has reversed a final judgment and
    remanded the case, the district court is required to comply
    with the express or implied rulings of the appellate court.”
    Moore v. Anderson, 
    222 F.3d 280
    , 283 (7th Cir. 2000). Said an-
    other way, the court must follow “the spirit as well as the let-
    ter of the mandate.” Cont’l Ill., 
    985 F.2d at 869
    . The court may
    believe and even express its belief that our reasoning was
    flawed, yet it must execute our mandate nevertheless.
    Donohoe v. Consol. Operating & Prod. Corp., 
    30 F.3d 907
    , 910–11
    (7th Cir. 1994); cf. Baez-Sanchez v. Barr, 
    947 F.3d 1033
    , 1036 (7th
    Cir. 2020).
    No. 20-2497                                                   5
    The spirit of our mandate in this case was clear. After con-
    cluding that the taxpayers lacked a plain, speedy, and efficient
    remedy in the state courts, we remanded the case to the dis-
    trict court for it to resolve the taxpayers’ claims. Then, mind-
    ful that the taxpayers had already spent a decade trying to lit-
    igate these claims in state court, and judging the Supreme
    Court unlikely to grant certiorari, much less to reverse our
    judgment, we expressly denied the defendants’ request that
    we stay our remand pending their petition for a writ of certi-
    orari. The district court was powerless to reconsider our deci-
    sion on this matter and grant what we had withheld.
    The district court disregarded our ruling on the motion to
    recall and stay the mandate because “that motion was filed
    and was summarily denied several weeks after the mandate
    issued.” We do not see how those facts make our decision any
    less decisive.
    As an initial matter, the district court found it significant
    that the motion was filed and denied after the mandate is-
    sued. The timing, however, is hardly a point in the defend-
    ants’ favor. On the contrary, the defendants’ delay made it
    harder for them to obtain a stay, because recalling the man-
    date requires a demonstration of “extraordinary circum-
    stances.” Calderon v. Thompson, 
    523 U.S. 538
    , 550 (1998). We do
    not see why the defendants’ procrastination before us gained
    them an advantage in the district court. In any event, though,
    the more important point is that the timing of our order did
    not deplete its force, and the district court was wrong to sug-
    gest otherwise.
    The district court also discounted our order because it
    lacked an explanation. Quite frankly, there was little need for
    us to say anything more than that the motion was denied. The
    6                                                    No. 20-2497
    standard for granting a stay of the mandate is “well estab-
    lished” and, even with a timely motion, the grant of a stay is
    “far from a foregone conclusion.” Senne v. Vill. of Palatine, 
    695 F.3d 617
    , 619 (7th Cir. 2012) (Ripple, J., in chambers). It is the
    movant’s burden to demonstrate (1) a reasonable probability
    of succeeding on the merits (meaning both that the Court will
    grant certiorari and that the Court will reverse) and (2) irrep-
    arable injury absent a stay. 
    Id.
     The defendants did not meet
    either element. They asserted that we failed to apply prece-
    dent that we did, in fact, apply and emphasized the disruptive
    effect federal litigation can have on ongoing state tax-collec-
    tion efforts—an important concern, but irrelevant here, since
    the challenged policy ended in 2008. Our summary denial
    certainly did not reflect inattention to the defendants’ argu-
    ments; if anything, it reflected our view that our disposition
    of the motion was not a close call. In any event, though, it
    should not have mattered to the district court that we sum-
    marily denied the defendants’ motion. An order is an order
    regardless whether it contains an explanation.
    Notably, the district court did not offer its own explana-
    tion of why the defendants satisfied the requirements for a
    stay. It observed that a few months’ delay while the Supreme
    Court considers the petition would not harm the taxpayers,
    but it did not find that a few months’ litigation would irrepa-
    rably injure the defendants. It further reasoned only that the
    court’s and the parties’ efforts would be wasted if certiorari
    were granted and if the Court reversed our judgment. That
    analysis overlooks the critical question of how likely is it that
    either of those conditions would be met. If the mere possibil-
    ity of reversal were enough, then a stay would be automatic
    in every case rather than a rare exception.
    No. 20-2497                                                       7
    We do not doubt that the district court acted in good faith
    when resolving the motion before it, but had it considered the
    appropriate standard for a stay pending a petition for a writ
    of certiorari, it may well have realized that its position was
    fraught. The defendants’ motion obligated the district court,
    which had been reversed by a reviewing court, to weigh the
    likelihood that it might be later vindicated by our own rever-
    sal. That analysis is only a step removed from a court declar-
    ing that it was right all along and entering the judgment just
    reversed—the most obvious violation of the mandate rule. See
    Deutsche Bank Nat'l Tr. Co. v. Burke, 
    902 F.3d 548
    , 551 (5th Cir.
    2018); Barrow v. Falck, 
    11 F.3d 729
    , 730 (7th Cir. 1993). District
    courts have routinely refused invitations to engage in this sort
    of stay calculation for just that reason. See, e.g., William A. Gra-
    ham Co. v. Haughey, 
    794 F. Supp. 2d 566
    , 569 (E.D. Pa. 2011);
    Lentz, 
    352 F. Supp. 2d at 726
    ; Mister v. Illinois Cent. Gulf R.R,
    
    680 F. Supp. 297
    , 299 (S.D. Ill. 1988); Studiengesellschaft Kohle,
    mbH v. Novamont Corp., 
    578 F. Supp. 78
    , 80 (S.D.N.Y. 1983). In
    this case, an additional factor dispelled any doubt about
    whether the district court could go down this road: we had
    already denied the defendants’ request for the very same re-
    lief. Once we refused to stay the mandate, the taxpayers’ only
    recourse was with the Supreme Court, which has ample au-
    thority to stay our judgment under § 2101(f) or otherwise. See
    S. CT. R. 23; Ohio Citizens for Responsible Energy, Inc. v. NRC,
    
    479 U.S. 1312
    , 1312 (1986) (Scalia, J., in chambers) (noting au-
    thority to issue stay even when § 2101(f) does not apply). The
    district court, in contrast, was not in a position to overrule us.
    The defendants try to salvage the district court’s stay with
    semantics. They insist that the district court did not stay our
    mandate (which, in their view, the court fully executed when
    it reopened the case) but only stayed further proceedings.
    8                                                    No. 20-2497
    That they moved for both stays on the same day undermines
    this supposed distinction. Indeed, that they asked us to recall
    our mandate, long after it issued and the case was back in the
    district court, implicitly acknowledges the nature of the relief
    they sought—a stay of the mandate, not an ordinary stay of
    district court proceedings. Nor do we think that our mandate
    can be as tightly constrained as the defendants wish. A district
    court would be in obvious dereliction of duty if it reopened a
    remanded case but refused to do anything more because it
    still thought that it lacked jurisdiction. Cf. In re Conde Vidal,
    
    818 F.3d 765
    , 767 (1st Cir. 2016). We do not mean to suggest
    that the district court did that here, but the broader point
    stands: the clear spirit of our mandate entailed more than flip-
    ping a flag on the docket sheet from “closed” to “reopen.” We
    presupposed that further proceeding would be had at an or-
    dinary pace.
    The district court, of course, has broad discretion to decide
    what that pace should be. See Landis v. N. Am. Co., 
    299 U.S. 248
    , 254–55 (1936); Gonzalez v. Ingersoll Mill. Mach. Co., 
    133 F.3d 1025
    , 1030 (7th Cir. 1998). Our mandate did not obligate
    the court to rush to final judgment before September ends.
    Still, a district court can exercise its inherent authority only
    consistent with our mandate and our mandate foreclosed a
    stay pending certiorari. As we have already noted, countless
    district courts have drawn this very line as the outer limit of
    their authority. See, e.g., In re Servotronics, Inc., No. 2:18-MC-
    00364-DCN, 
    2020 WL 3051247
    , at *3 (D.S.C. June 8, 2020);
    United States v. Sample, No. CR 15-4265 JCH, 
    2018 WL 6622198
    ,
    at *3 (D.N.M. Dec. 18, 2018); Lentz, 
    352 F. Supp. 2d at
    727–28.
    The district court here relied only on the pending petition for
    a writ of certiorari to grant the stay that we had already
    No. 20-2497                                               9
    denied. That order was incompatible with the clear spirit of
    our mandate and must be vacated.
    PETITION GRANTED; MANDAMUS ISSUED.