Appellate Circuit

Judicial Overreach in Assignment of Cases on Appeal in Federal Court Questioned

Instead of simply deciding whether to permit the appeal, the motions panel elected to decide the merits of the case without any briefing or oral argument.

Tom Goldstein’s Petition in Motorola Mobility re Judicial Overreach re Assignment of Cases

MAR 16, 2015 | REPUBLISHED BY LIT: JUL 1, 2021

Motorola Mobility LLC v. AU Optronics Corporation, 14-1122 (Pet. Denied)

II. The Court Should Grant Review To Disapprove The Seventh Circuit’s Non- Random Assignment Process.

This case also presents the Court an opportunity to exercise its supervisory power to put an end to a practice, unique among the circuits, that dramatically undermines the real and perceived impartiality of the appellate process in the Seventh Circuit.

This case illustrates what has just been an acknowledged for the first time as a practice in the Seventh Circuit and, as far as petitioner can determine, nowhere else.

Seventh Circuit judges hearing applications to permit an interlocutory review regularly assign to themselves the merits of cases they find particularly significant and interesting, rather than leaving the case to the ordinary random assignment process.

Although not permitted by the circuit’s own procedures, see supra at 12, Chief Judge Wood and Judge Easterbrook recently acknowledged the practice publicly.6

Judge Easterbook thus explained that “when a motion requires the panel to consider the merits to some degree – for example, when a movant requests permission to take an interlocutory review of a class-certification order, or permission to appeal under 28 U.S.C. § 1292(b) – the motions panel decides whether it wants to keep the case for decision on the merits too.” Id.

Judge Easterbrook frankly acknowledged that “[s]ome judges are more apt than others to prefer keeping cases.” Id.

And the deeply troubling reality is that they are inclined to do so in particular kinds of especially significant cases.

For example, it is common for Judge Posner, sitting on a motions panel presented with a Section 1292(b) application, to decide antitrust cases on the merits without further briefing or argument.

See Sterk v. Redbox Automated Retail, LLC, 672 F.3d 535, 537 (7th Cir. 2012) (Posner, J.); In re Text Messaging Antitrust Litig., 630 F.3d 622, 627 (7th Cir. 2010) (Posner, J.); In re: High Fructose Corn Syrup Antitrust Litigation, 361 F.3d 439, 440-41 (7th Cir. 2004) (Posner, J.).

Judges Posner and Easterbrook have issued significant rulings interpreting Rule 23 in response to motions for permission to appeal class certification orders. Judge Posner’s opinion in the famous “moldy washer” case is a recent example.

See Butler v. Sears, Roebuck and Co., 702 F.3d 359 (7th Cir. 2012), vacated and remanded, 133 S. Ct. 2768 (2013), judgment reinstated, 727 F.3d 796 (7th Cir. 2013), cert. denied, 134 S. Ct. 1277 (2014).

The case came before a motions panel on a Rule 23(f) petition for review of a class certification order.

Instead of simply deciding whether to permit the appeal, the motions panel elected to decide the merits of the case without any further briefing or oral argument.

See Docket for No. 11-8029 (7th Cir.), available on Pacer.

Judges Posner and Easterbrook have decided numerous class action cases in the same manner. See, e.g., Parko v. Shell Oil Co., 739 F.3d 1083, 1084 (7th Cir. 2014) (Posner, J.); American Honda Motor Co., Inc. v. Allen, 600 F.3d 813, 814 (7th Cir. 2010) (Posner, J.); Carnegie v. Household Int’l, Inc., 376 F.3d 656, 658 (7th Cir. 2004) (Posner, J.); Allen v. Int’l Truck & Engine Corp., 358 F.3d 469, 470 (7th Cir. 2004) (Easterbrook, J.); West v. Prudential Securities, Inc., 282 F.3d 935, 937-38 (7th Cir. 2002) (Easterbrook, J.); Isaacs v. Sprint Corp., 261 F.3d 679, 681 (7th Cir. 2001) (Posner, J.); Blair v. Equifax Check Svcs., Inc., 181 F.3d 832, 837-38 (7th Cir. 1999) (Easterbrook, J.); Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 674 (7th Cir. 2001) (Easterbrook, J.); see also Creative Montessori Learning Ctrs. v. Ashford Gear LLC, 662 F.3d 913, 914 (7th Cir. 2011) (Posner, J.) (noting that court was deciding merits despite plaintiffs not having filed a response to the Rule 23(f) petition).

6 See Ed Whelan, Bench Memos: Seventh Circuit Motions Panels Seizing Merits Cases?, National Review Online, (Dec. 1, 2014), memos/393734/seventh-circuit-motions-panels-seizing-merits- cases-ed-whelan (Dec. 1, 2014);

Ed Whelan, Bench Memos: Judge Easterbrook Responds, National Review Online (Dec. 2, 2014), easterbrook-responds-ed-whelan.

The fact that a handful of judges are routinely reaching out to decide particular kinds of cases and legal questions illustrates the danger of the practice.

The result is not simply a deviation from the general principle of random assignment of cases – as might occur, for example, when judges swap panels as a matter of convenience or a randomly selected panel is assigned a related case.

Instead, the Seventh Circuit has effectively given judges with particular jurisprudential interests or agendas an opportunity to thumb through the docket and assign themselves cases in which to advance those interests.

The effect of this practice has been pronounced.

One scholar found that the “Seventh Circuit issued seventeen reported Rule 23(f) opinions during the Rule’s first nine years on the books, every single one of which was written by Judge Easterbrook or Judge Posner.”

Margaret V. Sachs, Superstar Judges As Entrepreneurs:

The Untold Story of Fraud-on-the- Market, 48 U.C. Davis L. Rev. at *27 (forthcoming), available at

“How was it that all the panels that issued the initial Rule 23(f) opinions included either Judge Easterbrook or Judge Posner,” the author asked. Id. at * 31.

A substantial part of the answer was that “eleven of the seventeen – more than sixty percent – were motions panels that granted permission to appeal and then retained the appeal for decision.” Id.7

Plainly, a rule that expressly permitted judges to call dibs on class action cases, or ask the clerk’s office for preferential assignment to antitrust cases, would be intolerable.

To “perform its high function in the best way ‘justice must satisfy the appearance of justice.’”

In re Murchison, 349 U.S. 133, 136 (1955).

An essential part of the public perception and reality of judicial impartiality arises from the fact that judges are assigned, rather than allowed to select, their cases.

The public may reasonably suspect “judges [who] sometimes gain access to a panel” do so “in order to affect the outcome of a case.”

J. Robert Brown, Jr. & Allison Herren Lee, Neutral Assignment of Judges at the Court of Appeals, 78 TEX. L. REV. 1037, 1066 (2000).

7 The irony of Judge Posner’s oft-stated view that this Court is not “a real court” because, in exercising the certiorari jurisdiction established by statute, its members “decide what cases to hear, which doesn’t strike me as something judges should do,”

How  I  Write:  Richard Posner, posner.html

is palpable – as is its disrespect.

Cf. Joel Cohen, An Interview With Richard Posner, ABA J. (July 1, 2014)

(Justice Scalia “is excitable and prone to anger”);

Richard A. Posner,

Does Chief Justice Roberts Show A Certain Casualness About the Truth, (June 25, 2014) term_is_roberts_casual_about_the_truth_in_the_campaign_financ e.html

Indeed, the public would be justified in assuming that a judge who selects a particular case based on its subject matter will often bring to the case an atypically strong set of preconceived views about the proper disposition of the case.

In this case, for example, the panel that ultimately decided petitioner’s case literally prejudged the outcome by issuing an opinion before any briefing or argument on the merits of the appeal, giving rise to the reasonable conclusion that the ordinary appellate process it later grudgingly permitted had no prospect of actually affecting the outcome. See Pet. App. 27a-28a.

The practice is particularly troubling because it operates as a one-way ratchet manipulating the substantive outcome of cases.

It permits a judge to choose whether to decide the merits only after hearing from the other motions panel members how they would rule on the merits.

If the outcome would not be favorable, the case can just be passed on to the ordinary assignment process.

It may be that in some special circumstances – for example, when the motions panel must decide merits issues as part of a stay application – a rule requiring the motions panel to also decide the ultimate merits of the appeal would be permissible.

Such a rule would provide efficiency and would not risk the motions panel merely selecting cases it preferred. But there can be no such justification in an ordinary Section 1292(b) case, particularly when, as in this case, the motion is uncontested.

The very fact that the Seventh Circuit’s practice contradicts its own rules and stands alone among all the courts of appeals warrants an exercise of the Court’s supervisory powers.

See 28 U.S.C. § 2106; Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 808-09 (1987) (using supervisory power to establish rules regarding assignment of prosecutor to pursue contempt action); Western Pac. R. Corp. v. Western Pac. R. Co., 345 U.S. 247, 260 (1953) (using same power to define rules regarding en banc process in courts of appeals); see also Nguyen v. United States, 539 U.S. 69, 74 (2003) (granting certiorari to decide whether composition of appellate panels in Ninth Circuit ““so far departed from the accepted and usual course of judicial proceedings as to call for an exercise of this Court’s supervisory powers”) (quoting S. Ct. R. 10(a)).

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At 7th Circuit, unseen judicial mechanics drive decisions: new paper

DEC 3, 2014 | REPUBLISHED BY LIT: JUN 27, 2021

Superstar Judges as Entrepreneurs; The Untold Story of Fraud-on-the-Market

Are judges in the 7th U.S. Circuit Court of Appeals quietly taking advantage of their unusual assignment system to effect particular results?

Last week, for example, three 7th Circuit judges ruled that Motorola Mobility may not bring antitrust claims against manufacturers of liquid crystal display screens that sold parts to Motorola’s foreign subsidiaries, despite Motorola’s arguments that the supposedly overpriced screens ended up in phones sold in the United States.

The 7th Circuit opinion, written by Judge Richard Posner for a panel that also included Judges Michael Kanne and Ilana Rovner, concluded that (to simplify ruthlessly) Motorola’s foreign subsidiaries were allegedly injured in foreign commerce outside the reach of U.S. antitrust laws.

The composition of the panel provided a pretty good indicator of that outcome. This wasn’t a first pass at the Motorola case for Judges Posner, Kanne and Rovner.

As you may recall, the same three judges originally affirmed the dismissal of Motorola’s antitrust claims last March – when the only briefing they’d seen in the case addressed Motorola’s motion for leave to appeal the dismissal, not the merits of the appeal.

That decision led to strange confrontations between Judge Posner and the Justice Department, which supported Motorola’s request for rehearing by the entire 7th Circuit; and between the Posner motions panel and Motorola, which argued that the judges had disrupted the rules of federal appellate procedure by deciding the merits of a case that was only before them on a motion for leave to appeal.

Eventually, the Posner motions panel agreed to vacate its ruling and schedule the Motorola case for a full hearing on the merits.

The merits case was not, however, randomly assigned to a new panel of appellate judges as it would be in most federal circuits. Posner, Kanne and Rovner – the same three judges who had previously dismissed Motorola’s case based just on motions briefing – opted to retain authority over Motorola’s merits appeal.

That procedural oddity, as well as other concerns about 7th Circuit motions panels, prompted Edward Whelan, a former U.S. Supreme Court clerk and president of the Ethics and Public Policy Center, to ask a series of questions about the circuit’s assignment procedures on Monday at the National Review’s Bench Memos blog.

Whelan received detailed answers from the 7th Circuit’s two most recent chief judges, Judge Diane Wood, who is now the top judge in the circuit, and her predecessor as chief, Judge Frank Easterbrook.

Judges Wood and Easterbrook both said that in the 7th Circuit, motions panels have almost complete discretion to decide whether they will also hear the merits of appeals they have allowed to go forward.

“The principal consideration is whether the panel has gotten deeply enough into the merits that it would be sensible to continue, rather than require three other judges to learn the case from scratch,”

Easterbrook wrote to Whelan.

“This isn’t written in any rule or operating procedure, but it has been the court’s practice since I was appointed in 1985.”

Chief Judge Wood said she couldn’t recall a single instance in which a chief judge overruled motions panel judges who said they also wanted to hear the merits appeal. In fact, according to Easterbrook, the chief judge gets involved only in those rare instances when panel judges can’t reach consensus about whether to keep the merits case.

Whelan’s original Bench Memos post asked whether 7th Circuit judges were “seizing” merits appeals via motions panels. Easterbrook and Wood implied that the 7th Circuit’s system is not about seizing control but all about efficiency. If judges who are already familiar with an appeal from motions briefing want to stay on the case, the judges said, they’ll save other judges’ time and produce a quicker result.

Easterbrook specifically told Whelan that neither lawyers nor judges can manipulate the system because motions panel assignments are made public less than a week in advance, and the panel that first receives a motion sticks with it until the motion is decided.

“Effectively locking a case to a panel by the date the motion is filed means that the process produces a random distribution of assignments over the year,” Easterbrook said.

But in a new working paper for a forthcoming issue of the U.C. Davis Law Review, a law professor at the University of Georgia contends that 7th Circuit judges can indeed manipulate the circuit’s unusual assignment system to set precedent in areas they want to influence.

In “Superstar Judges as Entrepreneurs: The Untold Story of Fraud-on-the-Market,” the professor, Margaret Sachs, examines how Judges Posner and Easterbrook set precedent on class certification in securities class actions, especially after Rule 23 of the Federal Rules of Civil Procedure was changed to permit interlocutory appeal of class certification decisions from trial courts.

All 17 of the 7th Circuit’s first reported opinions on interlocutory class certification appeals, according to Sachs, were written by Judge Posner or Judge Easterbrook. She says that dominance is anything but a coincidence.

Sachs argues that the two judges were able to shape precedent in part by retaining merits appeals of cases they agreed to hear as motions judges.

Eleven of the 7th Circuit’s first 17 opinions on interlocutory class certification, she said, came in cases in which either Posner or Easterbrook served on a motions panel and went on to hear the merits of the case.

In any federal circuit except the 7th, Sachs said, that would not have been possible.

“If the motions panels had instead surrendered the appeals for reassignment to merits panels, the prevailing pattern in every other circuit, some percentage of the merits panels would almost certainly not have included Judge Easterbrook or Judge Posner,” she wrote.

Sachs calls Posner and Easterbrook superstars, but she nonetheless finds “worrisome” their apparent exploitation of the assignment system. “Judges Easterbrook and Posner typically presented an efficiency rationale,” she wrote.

“While plausible as far as it goes, this rationale fails to take account of the arguable appearance of impropriety that the retention creates. Indeed, when deciding to grant a petition, the motions panel may develop a view about how the appeal should be resolved. Retaining the appeal for decision enables the motions panel to make that resolution the law of the circuit.”

There’s no federal policy against the self-selection that 7th Circuit motions panels can engage in, Sachs says, but all of the other circuits and considerable academic research support the entrenched practice of selecting appellate merits panels randomly.

I emailed Sachs’ working paper to Judges Posner and Easterbrook. Judge Easterbrook emailed me back to reiterate some of what he said to Ed Whelan: “Every judge … has an equal opportunity to handle cases in which a litigant seeks interlocutory review and an equal opportunity to decide whether a given case should be retained for resolution on the merits,” he wrote.

Judge Easterbrook said he has not read Sachs’ article and does not plan to respond to it.

“Judges allow their decisions to speak for themselves,”

he wrote.

“I’m happy to describe the court’s procedures, which I did for the NRO blog (and have done in response to several scholarly inquiries), but do not think it appropriate to discuss particular decisions or legal doctrines.”

Professor Sachs, he added, “did not ask me for a description of the court’s procedures, and a quick glance at the article suggests that she did not appreciate the role that the motions judge, rather than the panel’s most-senior judge, plays in CA7 motions practice.”

Judge Posner emailed to say he had “nothing to add to Judge Easterbrook’s post in the Bench Memos blog.”

(This post has been updated to add comment from Judge Posner.)

(This post has been corrected. A previous version misspelled Edward Whelan’s name.)

Judicial Overreach in Assignment of Cases on Appeal in Federal Court Questioned
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