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Civil Procedure — law of the case

U.S. Court of Appeals for the 7th Circuit


Civil Procedure — law of the case

When an en banc decision in another case presenting the same issue creates an intervening change in the law, the district court is permitted to deviate from the law of the case, upon proper motion.

“Although the intervening decision here came not from the Supreme Court, but from this very court sitting en banc, we have little trouble concluding that it worked a change in the law. Empress Casino did not explicitly overrule the panel’s decision in this case, but it did clearly alter the law underlying the decision. ‘When sitting en banc, the full court has the power to change general rules stated in previous cases.’ Mojica v. Gannett Co., 7 F.3d 552, 557 (7th Cir. 1993). This court in Empress Casino changed the general understanding of what a tax is for purposes of the TIA. Its holding is flatly ‘inconsistent’ with the prior decision of the Kathrein panel, Chi. & N.W. Transp. Co., 574 F.2d at 930, and the opinion for the court said as much. See Empress Casino, 651 F.3d at 730 (‘We do not agree with that decision.’). The en banc majority also criticized ‘a number of decisions under the [TIA]’ that ‘have flirted with open ended, multifactor tests—open-ended because the relative weights of the factors are left to judicial discretion.’ Id. at 727. The Kathrein panel decision employed just such a multifactor test in evaluating the Demolition Tax. Based on our reading of Empress Casino, we conclude that the district court correctly departed from the law of the case in this instance. Reasonable minds can disagree about the proper boundary between a tax and other exactions in applying the TIA, but the bright-line test announced in Empress Casino is binding on all courts in this circuit going forward.”


12-2958 Kathrein v. City of Evanston, Illinois

Appeal from the United States District Court for the Northern District of Illinois, Guzman, J., Tinder, J.

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