In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 16-1989

CHICAGO JOE’S TEA ROOM, LLC and PERVIS CONWAY,

Plaintiffs-Appellants,

v.

VILLAGE OF BROADVIEW, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 07-CV-2680 — John Z. Lee, Judge.

____________________

ARGUED SEPTEMBER 8, 2017 — DECIDED JUNE 29, 2018

____________________

Before MANION, KANNE, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. For the last eleven years, the parties to this appeal have litigated a land contract that never 

closed and a strip club that never opened. Yet this appeal is 

still an interlocutory one. We conclude that the claim for injunctive relief that gives us appellate jurisdiction is actually 

moot, and we affirm its dismissal. Along the way to that conclusion, we address a tangled record of transactions that seem 
2 No. 16-1989

designed to conceal the real parties in interest and their substantive deals, and we decide issues of appellate jurisdiction, 

standing, and the law of the case.

I. Factual and Procedural Background

Plaintiff Chicago Joe’s Tea Room, LLC, was formed to operate not a tea room but a strip club, in a small, near-west suburb of Chicago that does not want one. The paper trail of legal 

entities, abandoned transactions, and apparently illusory obligations in this case makes for a dense record. We sketch the 

essential facts at the outset and provide more detail in discussing specific issues. 

The story begins in 2006 when plaintiff Pervis Conway 

contracted to sell land in the Village of Broadview to David 

Donahue. Donahue has never been a party to this lawsuit. Donahue assigned the land contract to Chicago Joe’s Tea Room, 

LLC. Joseph Inovskis (who also has never been a party to this 

lawsuit) was Chicago Joe’s sole manager. He applied for the

special-use permit needed to operate a strip club on the property. Broadview denied the application in 2007. The land sale 

agreed to in the contract between Conway and Chicago Joe’s 

Tea Room, LLC, has never closed, and the planned club, Chicago Joe’s Tea Room, has never opened.

Chicago Joe’s Tea Room, LLC and Conway (collectively, 

“Chicago Joe’s”) filed this suit in 2007 alleging that Broadview 

violated the First Amendment. Chicago Joe’s sought: (1) a declaration that certain Broadview ordinances are unconstitutional, (2) “such further relief pursuant to 28 U.S.C. § 2202 as 

this Court may deem appropriate, including requiring issuance of any necessary licenses or permits for Plaintiff 

CHICAGO JOE’S and CONWAY to use its property in the 
No. 16-1989 3

manner it seeks,” (3) an injunction blocking Broadview from 

enforcing its ordinances, and (4) damages and attorney fees.

Under Broadview’s zoning ordinance, Chicago Joe’s 

needed to apply for and be granted a special-use permit to 

operate a strip club there. Broadview also categorized strip 

clubs as “adult businesses” and used a separate adult-use 

zoning ordinance to regulate their placement. Broadview 

amended its ordinances multiple times during the lawsuit, so 

the district court has faced a moving target. One of those 

amendments led the district judge presiding over the first 

round of summary judgment, Judge Gottschall, to conclude 

that Broadview’s amendment to its adult-use setback ordinance was “aimed solely at Chicago Joe’s.” Chicago Joe’s Tea 

Room, LLC v. Village of Broadview (Chicago Joe’s I), No. 07 C 2680, 

2008 WL 4287002, at *6 (N.D. Ill. Sept. 11, 2008).

After the case was transferred from Judge Gottschall to 

Judge Lee in 2012, the parties litigated a third round of summary judgment motions. Broadview also moved for reconsideration of Judge Gottschall’s ruling from the first round of 

summary judgment and incorporated by reference its arguments on that motion into its motion for summary judgment. 

Judge Lee granted the motion to reconsider and granted 

Broadview’s motion for summary judgment on Chicago Joe’s 

declaratory judgment and injunction claims, but denied 

Broadview’s motion for summary judgment on the damages 

claim. Chicago Joe’s Tea Room, LLC v. Village of Broadview (Chicago Joe’s II), No. 07-cv-2680, 2016 WL 1270398, at *9 (N.D. Ill. 

Mar. 31, 2016). Chicago Joe’s has appealed that order but limited its arguments on appeal to the denials of injunctive relief. 
4 No. 16-1989

II. Analysis

This appeal presents a series of issues. We begin with appellate jurisdiction, which we have. We then move to the district court’s subject-matter jurisdiction over the claims over 

which we have appellate jurisdiction, and we examine both 

standing and mootness. We conclude by considering the application of the law-of-the-case doctrine.

The decisive issue of mootness turns on the limits of the 

vested-rights doctrine of Illinois law and a recently amended 

state statute that prevents Chicago Joe’s from operating a strip 

club anywhere in Broadview. The Illinois vested-rights doctrine can be used to recognize property rights to use property 

in established or planned ways even when state or local law 

changes to prohibit those uses. Under the doctrine, though, a 

property owner’s claims must be based on a timely assertion 

of a right to use the property in a way that is actually allowed 

by law. See City of Elgin v. All Nations Worship Ctr., 860 N.E.2d 

853, 856–57 (Ill. App. 2006). The vested-rights doctrine cannot 

help plaintiffs here because the undisputed facts show that at 

every stage of the process through the district court’s decision, 

Chicago Joe’s has proposed to use the property in a way prohibited by then-current local law. And since 2007, Chicago 

Joe’s has been proposing to use the property in a way prohibited by an Illinois statute, yet without challenging that statute.

A. Appellate Jurisdiction

We have jurisdiction over this interlocutory appeal because the district court’s order granted summary judgment 

for Broadview on all of Chicago Joe’s equitable claims. With a 

few key exceptions, federal courts of appeal can review only 
No. 16-1989 5

final judgments, but 28 U.S.C. § 1292(a)(1) permits an interlocutory appeal of an order refusing an injunction. We construe the statute narrowly, as a limited exception. E.g., Albert 

v. TransUnion Corp., 346 F.3d 734, 737 (7th Cir. 2003) (“Therefore, we approach the § 1292(a)(1) exception ‘somewhat gingerly lest a floodgate be opened’ that would deluge the appellate courts with piecemeal litigation.”), quoting Gardner v. 

Westinghouse Broadcasting Co., 437 U.S. 478, 481–82 (1978). In 

Albert, we said that interlocutory appeals “represent a continuum” with unreviewable orders not denying any injunctive 

relief at one end and reviewable orders denying all injunctive 

relief at the other end. Id. at 739. 

This appeal falls toward the reviewable end of that continuum, at least in this circuit. Even though the district court denied summary judgment on the damages count, it granted 

summary judgment for Broadview on the two counts requesting equitable relief. Chicago Joe’s II, 2016 WL 1270398, at *9. So 

the order “stripped the case of its equitable component,” 

which we have held is sufficient to allow an interlocutory appeal based on the denial of injunctive relief. Holmes v. Fisher, 

854 F.2d 229, 230 (7th Cir. 1988). Chicago Joe’s has limited its 

appellate arguments to the injunction issues, so we need not 

worry here about what narrow vestiges remain of pendent appellate jurisdiction. See Swint v. Chambers County Comm’n, 514 

U.S. 35 (1995); Abelesz v. OTP Bank, 692 F.3d 638, 647 (7th Cir. 

2012). 

Even with those limits, appeals like this one call for jurisdictional caution. Holmes held that irreparable harm is not required for appellate jurisdiction for an interlocutory appeal of 

an order denying an injunction. “Asking whether an order 

plainly denying an injunction also caused irreparable injury 
6 No. 16-1989

would add a gratuitously complicating factor to the simple 

statutory rule. We therefore ... hold that an order denying injunctive relief is immediately appealable even though a request for damages remains pending.” 854 F.2d at 232. But allowing interlocutory appeals from grants of summary judgment for defendants on permanent injunction claims invites 

piecemeal appeals. That is especially true in cases like this

one, where parties appeal after years of litigation and without 

ever having asked for a preliminary (i.e., interlocutory) injunction. Nevertheless, under the logic of Holmes and the substantial authority it relied upon, we have jurisdiction over this 

appeal.1

B. District Court’s Jurisdiction Over Equitable Claims

We now turn to the district court’s subject-matter jurisdiction over the claims properly before us, those seeking injunctive relief. (We see no basis to question the court’s jurisdiction 

over the rest of the case.) The question of subject-matter jurisdiction here lies close to the sometimes blurry line between 

standing and mootness, which has sometimes been called 

“the doctrine of standing set in a time frame,” Friends of the 

Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 

U.S. 167, 189 (2000), quoting Arizonans for Official English v. 

Arizona, 520 U.S. 43, 68 n.22 (1997), and the merits of the 

 

1 Our approach has been criticized and, in a proper case, may need a 

fresh look. See 16 Wright & Miller, Federal Practice and Procedure § 3924.1 

(3d ed.) (comparing different circuits’ approaches and concluding that 

“these considerations suggest that ordinarily § 1292(a)(1) appeals should 

be limited to orders refusing express requests for preliminary injunctions. 

Routine appeal from interlocutory orders that narrow or deny permanent 

relief is unwarranted.”).
No. 16-1989 7

claims. We conclude that at least plaintiff Conway had standing to seek injunctive relief at earlier stages of the case, but 

that a new Illinois statutory amendment that plaintiffs have 

not challenged renders their claims for injunctive relief moot. 

A court could not grant them the relief they seek from the Village of Broadview.

1. Standing

The standing of Chicago Joe’s Tea Room, LLC itself is at 

least doubtful, especially in view of the obscure trail of contracts, trusts, and illusory commitments, but we need not 

wrestle those issues to the ground. The other plaintiff-appellant, Conway, had standing, at least at earlier stages of the 

case. “As long as there is ‘at least one individual plaintiff who 

has demonstrated standing to assert these rights as his own,’ 

a court ‘need not consider whether the other ... plaintiffs have 

standing to maintain the suit.’” Bond v. Utreras, 585 F.3d 1061, 

1070 (7th Cir. 2009), quoting Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264 & n.9 

(1977). 

Standing requires three elements, and Conway satisfied 

all three. “The plaintiff must have (1) suffered an injury in 

fact, (2) that is fairly traceable to the challenged conduct of the 

defendant, and (3) that is likely to be redressed by a favorable 

judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 

(2016), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 

(1992), and Friends of the Earth, 528 U.S. at 180–81. Additionally, a plaintiff must have standing for each form of relief 

sought. E.g., Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 

1645, 1651 (2017) (“At least one plaintiff must have standing 

to seek each form of relief requested in the complaint.”); Laurens v. Volvo Cars of North America, LLC, 868 F.3d 622, 625 (7th 
8 No. 16-1989

Cir. 2017) (“an individual plaintiff ‘bears the burden of showing that he has standing for each type of relief sought’”), quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). 

It is undisputed that Conway owned the property when 

Broadview denied the application for a special-use permit 

and that Conway still owns the property.2 The original contract between Chicago Joe’s and Conway was contingent not 

on Chicago Joe’s actually obtaining zoning approval but on its 

being satisfied that it could obtain that approval. Broadview’s 

denial killed the deal—at least as the parties originally envisioned it. The evidence of that result means that Conway has 

offered evidence of a concrete, actual injury traceable to 

Broadview’s conduct and redressable by all three forms of relief sought in the complaint. See Parvati Corp. v. City of Oak 

Forest, 630 F.3d 512, 516 (7th Cir. 2010) (property owner had 

 

2 On August 9, 2007, Conway and the State Bank of Countryside as 

Trustee under Trust No. 072982 executed “Articles of Agreement for 

Deed.” In that contract, Conway agreed to deed the property to the trust 

following receipt of all payments from the trust. The agreement provided 

for a quitclaim deed and a warranty deed to be tendered at the initial closing and held in escrow until the trust performed all of its obligations under 

the agreement. In the district court, Broadview did not dispute that Conway owned 2850 Indian Joe Drive “at all times relevant herein.” But 

Broadview also attempted to designate the Articles of Agreement for Deed

as evidence that Conway sold the property, which Chicago Joe’s disputed. 

Broadview did not designate any evidence to show that the deeds referenced in the Articles of Agreement for Deed ever changed hands or that 

the sale ever closed. Without that evidence, the record contradicts Broadview’s assertions in its appellate brief, at oral argument, and again in its 

post-argument submission that the property was sold and that Conway 

has no ownership interest in the property. In its post-argument submission, Chicago Joe’s told this court that the sale “has not yet closed.” As far 

as we can tell, the record supports that claim. 
No. 16-1989 9

standing at outset of litigation because city’s denial of buyer’s 

zoning application “scuttled the ... deal and prevented the 

sale” but later lost standing by selling property).3 Unlike the 

seller in Parvati, Conway still has standing because he still 

owns the property—even though he entered into a different 

contract with another buyer that purports to lease the property to Chicago Joe’s and even though all of the nominal rent 

is supposedly “due and owing.”

2. Mootness

Judge Lee correctly held that plaintiffs’ injunction claims 

are moot. Because mootness is a jurisdictional issue, not a 

merits issue, Broadview should have raised its jurisdictional 

arguments as a motion under Rule 12(b)(1), not Rule 56. See 

Winslow v. Walters, 815 F.2d 1114, 1116 (7th Cir. 1987) (“Seeking summary judgment on a jurisdictional issue, therefore, is 

the equivalent of asking a court to hold that because it has no 

 

3 All three forms of relief would redress the injury the ordinances allegedly impose on Conway. A declaration that the ordinances violated the 

First Amendment would remove an impediment to a sale for a buyer like

Chicago Joe’s who intended a use prohibited by the ordinances. Enjoining 

Broadview from enforcing its ordinances would have a similar effect. 

Damages based on the abandoned sale could also redress Conway’s injury.

Although the complaint seems to frame the damages request primarily from Chicago Joe’s perspective, the complaint states that both plaintiffs 

seek $10 million in damages. The complaint does not explain the nature of 

Conway’s damages. Its references to a singular plaintiff imply that the 

damages for Conway would be different than the damages for Chicago 

Joe’s. The complaint alleges that the permit denial “deprived Plaintiff of 

its investment in [the] property, and has also deprived it of the profits it

would have earned had Plaintiff been able to use its property for the purposes it desires.” 
10 No. 16-1989

jurisdiction the plaintiff has lost on the merits. This is a nonsequitur.”), citing Exchange Nat’l Bank v. Touche Ross, 544 F.2d 

1126, 1130–31 (2d Cir. 1976).4 The distinction matters because 

the res judicata effect of a dismissal for lack of jurisdiction is 

limited to the jurisdictional issue. Id. (At the same time, a defendant challenging jurisdiction need not accept as true the 

allegations in the complaint and may ask the court to decide 

the jurisdictional issue by considering additional documents 

and affidavits, which makes the motion look a lot like a summary judgment motion, or by holding an evidentiary hearing 

and making factual findings. See, e.g., Apex Digital, Inc. v. 

Sears, Roebuck & Co., 572 F.3d 440, 444–45 (7th Cir. 2009) (affirming dismissal for lack of jurisdiction based on affidavits 

that plaintiff was unable to rebut); Sapperstein v. Hager, 188 

F.3d 852, 855–56 (7th Cir. 1999) (reversing dismissal for lack of 

jurisdiction based on affidavit plaintiff never had opportunity 

to challenge).)

The boundary between mootness and the merits, as with 

the boundary between standing and the merits, can sometimes be difficult to discern, as it is in this case. As in Winslow, 

and because jurisdictional issues like standing and mootness 

are not waivable, we overlook the misnomer and address the 

substance of the motion. Because the district court was correct 

that the injunction claims are moot, we affirm their dismissal 

on that ground. 

 4 As Judge Gottschall noted in her order on Broadview’s second summary judgment motion, Broadview made this same error in that earlier 

motion. See Chicago Joe’s Tea Room, LLC v. Village of Broadview, 790 F. Supp. 

2d 693, 694–95 (N.D. Ill. 2011).
No. 16-1989 11

“Whether a case has been rendered moot is a question of 

law that we review de novo.” Zessar v. Keith, 536 F.3d 788, 793 

(7th Cir. 2008), quoting Federation of Advertising Industry Representatives, Inc. v. City of Chicago, 326 F.3d 924, 928–29 (7th Cir. 

2003). Mootness strips a federal court of subject-matter jurisdiction. DJL Farm LLC v. EPA, 813 F.3d 1048, 1050 (7th Cir. 

2016) (per curiam), citing Pakovich v. Verizon LTD Plan, 653 F.3d 

488, 492 (7th Cir. 2011). If “an event occurs while a case is 

pending ... that makes it impossible for the court to grant ‘any 

effectual relief whatever’ to a prevailing party, the [case] must 

be dismissed.” Cornucopia Institute v. USDA, 560 F.3d 673, 676 

(7th Cir. 2009) (alterations in original), quoting Church of Scientology of California v. United States, 506 U.S. 9, 12 (1992). This 

analysis proceeds claim by claim. See, e.g., Pakovich, 653 F.3d 

at 492 (holding that district court retained jurisdiction over 

claim for attorney fees despite moot claim for benefits and 

noting that an “entire claim is not mooted simply because the 

specific relief it sought has been rendered moot”), quoting Cornucopia Institute, 560 F.3d at 676); see also 13B Wright & Miller, 

Federal Practice and Procedure § 3533 (3d ed.) (“As long as 

damages can be claimed, it remains necessary to resolve the 

issues that control damages liability. The continuing availability of an injunction, declaratory judgment, or other form of 

specific relief may be much more uncertain.”).

a. Vested Rights

To explain the mootness problem the district court faced, 

we must detour briefly into the vested-rights doctrine under 

Illinois law. The general rule is that a property owner has no 

right to the continuation of an existing zoning classification. 

Under the vested-rights doctrine, however, a party may acquire a vested right to continue using its property in accord 
12 No. 16-1989

with existing law, particularly zoning classifications. See 1350 

Lake Shore Associates v. Healey, 861 N.E.2d 944, 950 (Ill. 2006). 

A right may vest before actual use begins where “there has 

been a substantial change of position, expenditures or incurrence of obligations made in good faith by an innocent party 

under a building permit or in reliance upon the probability of 

its issuance. . . .” Id., quoting People ex rel. Skokie Town House 

Builders, Inc. v. Village of Morton Grove, 157 N.E.2d 33, 37 (Ill. 

1959).

The problem for Chicago Joe’s here is that when it claims 

its rights vested, its proposal to use the property would have 

violated at least one Broadview ordinance. This is not a case 

where Chicago Joe’s made substantial investments in good 

faith, filed a special-use permit application that complied 

with existing law, and the local government then responded 

by amending its ordinances to prohibit the planned use. The 

undisputed facts here show that Chicago Joe’s original application proposed a use with sales of alcoholic beverages, which 

would have violated a presumptively valid ordinance that 

Chicago Joe’s did not challenge before applying for the permit.

The Illinois courts have made clear that a property owner 

who claims a vested right must proceed according to the law 

as it existed at an earlier time, by “attempting to comply with 

an ordinance as written.” City of Elgin, 860 N.E.2d at 857 (no 

vested right for church that conducted worship services in 

district where zoning ordinance prohibited churches because 

church attempted to “claim a vested right to ignore the existing ordinance”). See generally Christian Assembly Rios de Agua 

Viva v. City of Burbank, 948 N.E.2d 251, 255 (Ill. App. 2011) 

(plaintiff must show “probability” of municipal approval and 
No. 16-1989 13

substantial change in position based upon that probability), 

quoting Bank of Waukegan v. Village of Vernon Hills, 626 N.E.2d 

245, 251 (Ill. App. 1994).

Chicago Joe’s vested-rights theory fails that requirement. 

Inovskis sought permission to do what Broadview’s adult-use 

ordinance expressly forbade at the time. That is the opposite 

of what the vested-rights doctrine requires. When he applied 

for the special-use permit, it was “unlawful for any adult business to sell, distribute, or permit beer or alcoholic beverages 

on the premises.” Inovskis was seeking permission to violate

the adult-use ordinance:

I am seeking the following from the Village of Broadview:

Permission to operate an adult use facility in all adult 

use categories as defined in the Code of Ordinances of 

the Village of Broadview, permission to operate a restaurant with the ability to sell alcohol, permission to operate 

24 hours per day – seven days per week, permission to 

operate a valet parking service for customers and employees in order not to disturb current traffic or parking patterns in the surrounding area, and permission 

to use an off site parking lot in addition to on site parking. 

Complaint at 17 (emphasis added). That was the basis for 

Broadview’s denial of the application. Because adult-use facilities could not serve alcohol, Chicago Joe’s cannot make the 

required showing that it probably would have won approval 

under the law as it stood when it applied for a special-use permit.
14 No. 16-1989

On appeal, Chicago Joe’s argues that it could still acquire 

a vested right because the application was for a special-use 

permit and not for serving alcohol, which would have required a separate liquor license. This argument is unpersuasive. In considering an application under the special-use ordinance, Broadview did not have to blind itself to proposed violations of other ordinances. In fact, the special-use ordinance 

required Broadview to consider the restrictions in the adultuse ordinance: “Special uses shall be authorized or denied by 

the village board of trustees in accordance with the statutes of 

the state applicable to amendments of this title, and the regulations and conditions set forth in this title for special uses.” 

Because the vested-rights doctrine does not apply to Chicago 

Joe’s planned operation of a strip club in Broadview, we need 

not explore a number of further issues that would arise otherwise.5

b. The Illinois Statute

In the end, we agree with the district court that Chicago 

Joe’s claims for injunctive relief are moot because an applicable Illinois statute now prohibits Chicago Joe’s from opening 

anywhere in Broadview. Chicago Joe’s has not challenged that 

statute, and it would effectively prohibit a court from granting effective relief to Chicago Joe’s even if Chicago Joe’s prevailed on its federal constitutional challenges to the Broadview ordinances. That is so whether Chicago Joe’s had a 

 5 The district court assumed that the vested-rights doctrine “applies 

to federal claims such as those at issue here.” Chicago Joe’s II, 2016 WL 

1270398, at *5. We have made that same assumption for purposes of argument.
No. 16-1989 15

vested right or not, though it is certainly clearer in the absence 

of a vested right.

Illinois statutes preempt conflicting ordinances by nonhome-rule municipalities. Village of DePue v. Exxon Mobil 

Corp., 537 F.3d 775, 787 (7th Cir. 2008), citing Hawthorne v. Village of Olympia Fields, 790 N.E.2d 832, 842 (Ill. 2003). It is undisputed that Broadview is a non-home-rule municipality. 

And we have declined to apply the vested-rights doctrine before because Illinois state courts “would not interpret a common law doctrine in a manner that neutralizes the meaning of 

a state statute.” Vision Church, United Methodist v. Village of 

Long Grove, 468 F.3d 975, 1005 (7th Cir. 2006) (vested right in 

zoning classification would have made Illinois involuntary 

annexation statute “meaningless”). We reach the same conclusion here. 

In August 2007, a few months after Broadview had denied 

Chicago Joe’s permit application in March 2007, the Illinois 

legislature amended its “Adult entertainment facility” statute 

to prohibit “locat[ing], construct[ing], or operat[ing] a new 

adult entertainment facility within one mile of the property 

boundaries of any school, day care center, cemetery, public 

park, forest preserve, public housing, or place of religious 

worship located in that area of Cook County outside of the 

City of Chicago.” 65 Ill. Comp. Stat. Ann. 5/11-5-1.5 (emphasis 

added). The prior version was less restrictive, with only a

1,000-foot setback. Plaintiff Conway’s property is within one 

mile of a cemetery, two schools, three parks, and a church. By 

its terms, the state statute forecloses any attempt to operate a 

strip club on Conway’s property, and apparently anywhere 

else in Broadview. Chicago Joe’s II, 2016 WL 1270398, at *6. A 
16 No. 16-1989

court could not grant Chicago Joe’s “any effectual relief whatever,” see Cornucopia Institute, 560 F.3d at 676, quoting Church 

of Scientology, 506 U.S. at 12, by enjoining Broadview from enforcing its ordinances. Chicago Joe’s has not sued any defendants who could be enjoined from enforcing the Illinois statute 

and has not otherwise challenged it. We agree with the district 

court that Chicago Joe’s claims for injunctive relief are moot.6

3. Law of the Case

Finally, Chicago Joe’s has also suggested that under the 

law-of-the-case doctrine, the district court erred by even entertaining any arguments about mootness and vested rights. 

Judge Gottschall’s first summary judgment ruling in 2008 

held that Chicago Joe’s had a “vested right” in the setback 

subsection of Broadview’s adult-use ordinance, but only in 

that subsection. Chicago Joe’s I, 2008 WL 4287002, at *6 & n.10. 

Chicago Joe’s argues that the issue of its vested rights should 

have been closed after that ruling, at least in the district court. 

Because Chicago Joe’s raised the issue only in a footnote and 

without any citation, this issue was waived. Evergreen Square 

of Cudahy v. Wisconsin Housing & Economic Dev. Auth., 848 F.3d 

822, 829 (7th Cir. 2017), citing United States v. Warner, 792 F.3d 

847, 856 (7th Cir. 2015), and Harmon v. Gordon, 712 F.3d 1044, 

1053 (7th Cir. 2013).

 6 In the last summary judgment order, the district court noted that 

Chicago Joe’s briefing “suggest[ed] that Broadview’s local analog to the 

[statute] is unconstitutional,” but that this is “quite different from challenging the validity of the statute itself.” Chicago Joe’s II, 2016 WL 1270398, 

at *7 n.7. On appeal, Chicago Joe’s appears to have made the strategic decision not to challenge the statute. Reply Br. at 7 (“Chicago Joe’s will have 

the opportunity to challenge the state statute once it has overcome the hurdle of the Village’s wrongful denial of its special use permit.”). 
No. 16-1989 17

In any event, Judge Lee did not abuse his discretion by 

taking a fresh look at the issue of vested rights. The law of the 

case is a discretionary doctrine, not an inflexible dictate. E.g., 

Pepper v. United States, 562 U.S. 476, 506–07 (2011), quoting Arizona v. California, 460 U.S. 605, 618 (1983); Galvan v. Norberg, 

678 F.3d 581, 587 (7th Cir. 2012), citing Gallimore v. Missouri 

Pacific R.R. Co., 635 F.2d 1165, 1170–72 (5th Cir. 1981); Minch v. 

City of Chicago, 486 F.3d 294, 302 (7th Cir. 2007), citing Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 572 (7th Cir. 2006); 

Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1227 

(7th Cir. 1995) (law of the case is “a presumption ... not a 

straitjacket”), citing Philips Medical Sys. Int’l B.V. v. Bruetman, 

8 F.3d 600, 603 (7th Cir. 1993); see also Best v. Shell Oil Co., 107 

F.3d 544, 546–47 (7th Cir. 1997) (second judge’s discretion to 

revisit issues depends on standard of appellate review and 

records and procedural postures for different decisions); Peterson v. Lindner, 765 F.2d 698, 704 (7th Cir. 1985) (“[W]hen 

good reasons for [re-examination] appear (such as new evidence or controlling law, or clear error), the ‘law of the case’ 

doctrine must yield to rational decisionmaking.”) (second alteration added), citing 20 A.L.R. Fed. 13 (1974). Also, a second 

judge is “significantly less constrained by the law of the case 

doctrine with respect to jurisdictional questions.” Gilbert v. Illinois State Bd. of Educ., 591 F.3d 896, 903 (7th Cir. 2010), quoting O’Sullivan v. City of Chicago, 396 F.3d 843, 849–50 (7th Cir. 

2005). And the doctrine does not apply when the first judge 

never decided the precise issue before the second judge. Id., 

citing FMS, Inc. v. Volvo Construction Equipment North America, 

Inc., 557 F.3d 758, 762–63 (7th Cir. 2009).

In this case, several factors made it reasonable for Judge 

Lee to revisit the issue of vested rights. The issue affects sub-
18 No. 16-1989

ject-matter jurisdiction; the two judges actually decided different questions, particularly since Judge Gottschall limited 

her decision to only the setback subsection of the local ordinance rather than the planned use of the property; and Judge 

Lee had a more detailed and complete record, after discovery 

had been completed. Judge Lee did not err by reconsidering 

Judge Gottschall’s order; Chicago Joe’s claims for an injunction are moot.

The district court’s dismissal of Chicago Joe’s claims for injunctive relief is

AFFIRMED.