We now dismiss the first two appeals based on the parties' settlement. Following the procedure described in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 29, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994), and Marseilles Hydro Power LLC v. Marseilles Land Water Co., 481 F.3d 1002, 1003-04 (7th Cir. 2007), we reverse the district court's order denying Ameritech's Rule 60(b) motion and remand with instructions to vacate the earlier judgment enforcing the second award and enter judgment for Ameritech enforcing the third arbitration award. Because the parties agreed that the third arbitration would finally resolve their dispute, and the third arbitrator's award is inconsistent with the second, Ameritech is entitled to relief from the earlier judgment under Rule 60(b).
smissing action pursuant to joint motion and settlement); Nichols Motorcycle Supply Inc. v. Dunlop Tire Corp., 913 F. Supp. 1088, 1147 (N.D. Ill. 1995), vacated pursuant to settlement ("Pursuant to the parties' Settlement Agreement and the Stipulation of the parties, [portions of opinions granting plaintiff's motion for partial summary judgment] are vacated pending dismissal of this action in its entirety by further agreement of the parties and therefore without the need of the Court to address reconsideration on the merits."); Schulze v. Illinois State Police, 764 F. Supp. 495 (N.D. Ill. 1990) (granting joint motion to vacate court's opinion that denied motions to dismiss ADEA and Illinois Human Rights Act claims). In light of the Supreme Court's reservation of the district court's authority to vacate on remand even after an appellate determination that vacatur was inappropriate under exceptional circumstances, Bonner Mall strongly indicates — as the Seventh Circuit recently noted in Marseilles Hydro Power LLC v. Marseilles Land Water Co., 481 F.3d 1002 (7th Cir. 2007) — that the "exceptional circumstances" test does not bind district courts considering Rule 60(b) requests for vacatur of judgment on remand from an appellate court. Id. at 1003-04.
The opinion in Bonner Mall was subsequently issued in 1994, and in 2007, in Marseilles Hydro Power LLC v. Marseilles Land Water Co., the Seventh Circuit recognized the Supreme Court's "exceptional circumstances" standard for vacatur of an underlying judgment as a result of settlement on appeal as well as the recommended procedure for remand to the district court, relying in addition on Circuit Rule 57.Marseilles, 481 F.3d 1002, 1003 (7th Cir. 2007) (Posner, J.). Seventh Circuit Rule 57 provides:
While the parties do not indicate under which provision of Rule 60(b) they move for relief, subsections (1)-(5) do not appear to apply, and courts have generally construed Rule 60(b) motions in this context as invoking the catchall provision of subsection (6). See, e.g., Asher v. Unarco Material Handling, Inc., No. CIV. 06-548, 2012 WL 3912761, at *2 (E.D. Ky. Sept. 7, 2012); see also Marseilles Hydro Power LLC v. Marseilles Land & Water Co., 481 F.3d 1002, 1003 (7th Cir. 2007). "[R]elief under Rule 60(b)(6) should be granted "only in 'unusual and extreme situations where principles of equity mandate relief.'" GenCorp, Inc. v. Olin Corp., 477 F.3d 368, 373 (6th Cir. 2007) (quoting Blue Diamond, 249 F.3d at 524). "
After reviewing the joint motion, this Court ordered the parties to file a joint statement "explaining why they have conditioned settlement on vacatur of the August 10, 2017 order and opinion." ECF No. 130 at 2 (citing Marseilles Hydro Power LLC v. Marseilles Land & Water Co., 481 F.3d 1002, 1004 (7th Cir. 2007)). The parties responded with the following statement:
OPINIONUnder the applicable law in this circuit, Marseilles Hydro Power LLC v. Marseilles Land & Water Co., 481 F.3d 1002 (7th Cir. 2007), a district court may vacate an opinion under Fed. R. Civ. P. 60(b), which allows the court to relieve a party from an order in a number of different circumstances, including those in which the judgment has been satisfied, released or discharged, Rule 60(b)(5), or for any other reason that justifies relief. Rule 60(b)(6). A showing of "exceptional circumstances" is not required. Marseilles Hydro Power, 481 F.3d at 1003.
See, e.g. , Camreta v. Greene , 563 U.S. 692, 712-14, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) ; Alvarez v. Smith , 558 U.S. 87, 94-97, 130 S.Ct. 576, 175 L.Ed.2d 447 (2009) ; Arizonans for Official English v. Arizona , 520 U.S. 43, 71-72, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) ; Anderson v. Green , 513 U.S. 557, 560, 115 S.Ct. 1059, 130 L.Ed.2d 1050 (1995) (per curiam); Murphy v. Fort Worth Indep. Sch. Dist. , 334 F.3d 470, 470-71 (5th Cir. 2003) (per curiam); AT&T Commc'ns of the Sw., Inc. v. City of Dall. , 243 F.3d 928, 931 (5th Cir. 2001) ; AT&T Commc'ns of the Sw., Inc. v. City of Austin , 235 F.3d 241, 243-44 (5th Cir. 2000) ; Pederson v. La. State Univ. , 213 F.3d 858, 883 (5th Cir. 2000) ; Harris v. City of Hous. , 151 F.3d 186, 191 (5th Cir. 1998) ; In re Int'l Aviation Servs. I, Ltd. , 1999 WL 301893 (5th Cir. May 5, 1999) (per curiam) (unpublished).Marseilles Hydro Power LLC v. Marseilles Land & Water Co. , 481 F.3d 1002, 1003 (7th Cir. 2007) ; Valero Terrestrial Corp. v. Paige , 211 F.3d 112, 116-17 (4th Cir. 2000) ; Am. Games, Inc. v. Trade Prods., Inc. , 142 F.3d 1164, 1167-70 (9th Cir. 1998). Driving this decision is the basic judicial tenet that "cases cannot be read as foreclosing an argument [with which] they never dealt."
Although the Johnson plaintiff initially appealed that order, the parties settled and requested that we dismiss the appeal, which we did. “[B]y agreeing to a settlement the parties to an appeal renounce the right to challenge the decision that was appealed.” Marseilles Hydro Power LLC v. Marseilles Land & Water Co., 481 F.3d 1002, 1003 (7th Cir.2007) (citing U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994)). Further, the order was not vacated.
The exact terms of the two settlement agreements remain undisclosed, so we have no idea how the parties actually resolved the extent of White Mountains' duty to defend McFatridge and Edgar County. National Casualty argues that under the doctrine of law of the case, we may not review the district court's judgment for McFatridge. It asserts that because White Mountains voluntarily dismissed its appeal against McFatridge and Edgar County, the part of the district court's judgment as to these two parties must stand as we adjudicate the dispute between White Mountains and National Casualty, lest the district court be required to enter a judgment that is “impermissibly inconsistent” on remand. But that is incorrect. While the doctrine of the law of the case “creates a presumption against a court's reexamining its own rulings in the course of a litigation ... [i]t has no application to the review of rulings by a higher court.” Marseilles Hydro Power LLC v. Marseilles Land & Water Co., 481 F.3d 1002, 1004 (7th Cir.2007) (holding that a district court judgment regarding a party that settled out of the case could not prejudice the remaining parties in the litigation on appeal). Indeed, we have repeatedly held that “[t]he doctrine of law of the case never blocks a higher court from examining a decision of an inferior tribunal.” Belbachir v. County of McHenry, 726 F.3d 975, 978 (7th Cir.2013) (quoting Payne v. Churchich, 161 F.3d 1030, 1038 n. 9 (7th Cir.1998)) (internal quotation marks omitted).
But that is incorrect. While the doctrine of the law of the case "creates a presumption against a court's reexamining its own rulings in the course of a litigation ... [i]t has no application to the review of rulings by a higher court." Marseilles Hydro Power LLC v. Marseilles Land & Water Co., 481 F.3d 1002, 1004 (7th Cir. 2007) (holding that a district court judgment regarding a party that settled out of the case could not prejudice the remaining parties in the litigation on appeal). Indeed, we have repeatedly held that "[t]he doctrine of law of the case never blocks a higher court from examining a decision of an inferior tribunal." Belbachir v. County of McHenry, 726 F.3d 975, 978 (7th Cir. 2013) (quoting Payne v. Churchich, 161 F.3d 1030, 1038 n.9 (7th Cir. 1998)) (internal quotation marks omitted).