Burlington Northern Railroad Company v. City of Superior, Wisconsin

Seventh Circuit

Burlington Northern Railroad Company v. City of Superior, Wisconsin

962 F.2d 619, 1992 WL 87719

CourtCourt of Appeals for the Seventh Circuit

DecidedJune 19, 1992

Docket92-1111

StatusPublished

Cited by2 cases

This text of 962 F.2d 619 (Burlington Northern Railroad Company v. City of Superior, Wisconsin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burlington Northern Railroad Company v. City of Superior, Wisconsin, 962 F.2d 619, 1992 WL 87719 (7th Cir. 1992).

Pincite

Opinion

PER CURIAM.

The appellee (Burlington Northern) has asked us to dismiss this appeal and to impose sanctions against the appellant (the City of Superior) under Fed.R.App.P. 38 for filing a frivolous appeal. The railroad had sued the city, claiming that the city’s tax on docks that load iron-ore concentrates violated the Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. § 11503, which forbids states or their subdivisions to impose taxes that discriminate against interstate rail carriers. The district judge had granted summary judgment for the city, and the railroad appealed and we reversed, holding that there was a genuine issue of material fact concerning the legality of the tax under the Act. We did not reach, or even mention, what the city in its response to the motion to dismiss the appeal describes as its “alternate grounds for summary judgment ... that the 4-R Act violated the City’s Tenth Amendment and Due Process rights under the United States Constitution.” The district judge held that we had by implication necessarily rejected these grounds.

She was right. The city has ex-plicably mischaracterized its own brief in the prior appeal. It did not argue that the federal statute was unconstitutional. It argued that its narrow interpretation of the statute should be accepted in order, among other reasons, to avoid constitutional questions under the due process clause and the Tenth Amendment. In rejecting the narrow interpretation, we necessarily rejected all the reasons that the city gave for its interpretation, whether or not we mentioned each and every one of them. Parts & Electric Motors, Inc. v. Sterling Electric, Inc., 866 F.2d 228, 232 (7th Cir.1988); Knotts v. United States, 893 F.2d 758, 761 (5th Cir.1990). If the city thought we had overlooked some of its reasons it could have filed a petition for rehearing. It did not. The statutory interpretation adopted in our opinion is the law of the case, binding on the district judge. Key v. Sullivan, 925 F.2d 1056, 1060 (7th Cir.1991).

The city’s misdescription of its own brief is sanctionable misconduct. The railroad shall have 14 days within which to submit a statement of its reasonable attor *621 ney’s fees incurred in defending against the city’s appeal.

Motion to Dismiss Granted, With Sanctions.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

The appellee (Burlington Northern) has asked us to dismiss this appeal and to impose sanctions against the appellant (the City of Superior) under Fed.R.App.P. 38 for filing a frivolous appeal. The railroad had sued the city, claiming that the city’s tax on docks that load iron-ore concentrates violated the Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. § 11503, which forbids states or their subdivisions to impose taxes that discriminate against interstate rail carriers. The district judge had granted summary judgment for the city, and the railroad appealed and we reversed, holding that there was a genuine issue of material fact concerning the legality of the tax under the Act. We did not reach, or even mention, what the city in its response to the motion to dismiss the appeal describes as its “alternate grounds for summary judgment ... that the 4-R Act violated the City’s Tenth Amendment and Due Process rights under the United States Constitution.” The district judge held that we had by implication necessarily rejected these grounds.

She was right. The city has ex-plicably mischaracterized its own brief in the prior appeal. It did not argue that the federal statute was unconstitutional. It argued that its narrow interpretation of the statute should be accepted in order, among other reasons, to avoid constitutional questions under the due process clause and the Tenth Amendment. In rejecting the narrow interpretation, we necessarily rejected all the reasons that the city gave for its interpretation, whether or not we mentioned each and every one of them. Parts & Electric Motors, Inc. v. Sterling Electric, Inc., 866 F.2d 228, 232 (7th Cir.1988); Knotts v. United States, 893 F.2d 758, 761 (5th Cir.1990). If the city thought we had overlooked some of its reasons it could have filed a petition for rehearing. It did not. The statutory interpretation adopted in our opinion is the law of the case, binding on the district judge. Key v. Sullivan, 925 F.2d 1056, 1060 (7th Cir.1991).

The city’s misdescription of its own brief is sanctionable misconduct. The railroad shall have 14 days within which to submit a statement of its reasonable attor *621 ney’s fees incurred in defending against the city’s appeal.

Motion to Dismiss Granted, With Sanctions.

Cite This Page — Counsel Stack

Bluebook (online)

962 F.2d 619, 1992 WL 87719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burlington-northern-railroad-company-v-city-of-superior-wisconsin-ca7-1992.

Opinion

Related

Cite This Page — Counsel Stack