A.F. Moore & Associates, Inc. v. Charles Kocoras

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.