UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
June 1, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
No. 05-1616
STACEY MILLER, Appeal from the United States District
Petitioner-Appellant, Court for the Western District
of Wisconsin.
v.
No. 04 C 527
UNITED STATES OF AMERICA,
Respondent-Appellee. Barbara B. Crabb,
Chief Judge.
ORDER
Judge William J. Bauer and Judge Richard A. Posner summarily AFFIRM and
adopt as their own the attached opinion and order of the district court dated
December 29, 2004, and the orders dated March 8, 2005. Judge Kenneth F. Ripple’s
dissent is also attached.
No. 05-1616 Page 25
RIPPLE, Circuit Judge, dissenting. In my view, summary affirmance on the basis
of a memorandum order issued by the district court should be reserved for the most
extraordinary of situations. This principle is especially true when the decision of this
court is not the product of the usual processes of decision-making, but of a preliminary
screening. Before we truncate the usual appellate procedures, at a minimum, the
appeal ought to be facially frivolous, or the writing of the district court should be so
extensive that it fairly can be said to be responsive to all the arguments made by the
appellant in this court. In any event, our basis of decision should be clear to the
Supreme Court of the United States when it reviews our decision if a petition for
certiorari is filed.
In the case before us, the appeal cannot be considered facially frivolous. Indeed, both
parties have submitted extensive and thoughtful briefs. Nor can the discussion of the
issue on appeal by the district court be said to be totally responsive to the presentation
of the appellant in this court. Finally, our order in this case, adopting the order of the
district court, does not fulfill our obligation to provide the Supreme Court with an
adequate explanation of our decision.
Accordingly, I respectfully dissent from the order issued by the court today. I would
set this case for oral argument in due course.
Miller, Stacey v. United States
Combined Opinion