7th Circuit Tells Lower Court To Address Merits

CHICAGO (CN) - The 7th Circuit ordered the district court to quit getting sidetracked by procedural issues and address the merits of Gov. Rod Blagojevich's claim that the government illegally moved planes from an Air National Guard base in Illinois to Indiana without his consent.

The district court initially dismissed the suit for lack of standing, but on remand the court again threw out the case without reaching the merits. It concluded that the United States had not waived its sovereign immunity.

"There was no need to raise a sovereign-immunity defense that the United States had not asserted on its own behalf," Judge Easterbrook wrote. But because it did, the appeals court was forced to explain why the sovereign-immunity argument fails.

It sent the case back a second time, reiterating that "whether the base-closure mechanism overrides the statutes on which the governor relies is, to repeat, the question on the merits and not a reason to avoid reaching the merits."

Easterbrook added, "If the district court again perceives some new procedural obstacle, the court should address the merits as an additional ground of decision, so that the next appeal can bring this case to a conclusion."

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