The Seventh Circuit recently issued two decisions — one in mid-February 2026, one in early March — that together touch nearly every corner of civil practice. One is a cautionary tale about appellate waiver. The other reshapes what it means for an organization to have standing in federal court.

Tabernacle Church v. Church Mutual: When Waiver Is Final

The facts are straightforward and sympathetic. A small Indiana church suffered a devastating fire. Its insurer paid roughly $1.7 million — the actual cash value of the damage — but the policy contained a replacement cost provision that could have entitled the church to significantly more, conditioned on repairing or replacing the damaged property "as soon as reasonably possible after the loss." Disputes about repair scope dragged on for years, no repairs were started, and eventually the church sued.

The insurer moved for summary judgment, arguing that the replacement cost trigger had simply never been pulled — too much time had passed with nothing done. The district court agreed. The church appealed.

What followed is where the case becomes essential reading. The original appellate attorney was suspended from practice before the Seventh Circuit. Substitute counsel came in, spotted two potentially favorable Indiana Court of Appeals decisions that had never been raised below, and, in an act of candor the court acknowledged, admitted the arguments were new and explicitly asked for plain error review.

The court, in an opinion by Judge Sykes joined by Judges Hamilton and Brennan, said no.

The court drew a sharp line between forfeiture and waiver. Forfeiture is the inadvertent or negligent failure to raise an argument. Waiver is the intentional relinquishment of a known right. When a lawyer responds to a summary judgment motion and chooses which arguments to make — even if unknowingly omitting others — that is a strategic choice. The court found that to be waiver, not forfeiture. Plain error review, which exists in civil cases but is rare, applies only to forfeiture. Waived arguments cannot be reviewed. 

The practical upshot is significant. Courts will not look inside a lawyer's head to ask whether they actually knew about the omitted argument. The act of making one set of arguments at summary judgment (and not another) is treated as an objective intentional choice. That means almost any failure to raise a legal argument will be classified as waiver rather than forfeiture, and no plain error review will be available.

The court also made clear that the pure legal nature of the omitted argument — the fact that it required no additional record development — did not change the analysis. Nor did the sympathetic facts, the severity of the original lawyer's misconduct, or the magnitude of the financial dispute. The penultimate sentence of the opinion pointed the church toward a malpractice claim.

For litigators on the appellee side, this is now among the strongest Seventh Circuit statements on the finality of waiver. The opinion also raises deeper questions about the court's discretion. The Seventh Circuit has traditionally described waiver and forfeiture as rules that bind litigants but leave courts with some discretion to excuse them. This opinion is written without the language typically used to invoke that discretion. Whether the court intended to foreclose it, or simply did not address it, is a question worth watching.

One useful distinction survives: forfeiture may still be available where a deadline, rather than a strategic choice, is the culprit. But the qualifying conditions the court articulates are demanding—exceptional circumstances, substantial rights affected, and a miscarriage of justice if plain error review is not applied.

Wisconsin Voter Alliance v. Millis: Organizational Standing After Hippocratic Medicine

The second case involves an advocacy organization that filed complaints with the Wisconsin Elections Commission under the Help America Vote Act, alleging that the commissioners themselves had violated the statute. The commission declined to adjudicate complaints directed at its own members. Rather than pursue available state-law avenues, the organization sued in federal court, arguing the commission was required by federal law to resolve the complaints.

The district court dismissed for lack of standing. A Seventh Circuit panel: Chief Judge Brennan, Judge Kirsch, and Judge Jackson-Akiwumi—affirmed in a published per curiam opinion, with a concurrence from Chief Judge Brennan.

The per curiam quickly dispatches the argument that the organization suffered a cognizable injury simply because the commission failed to act. Statutory violations do not automatically confer Article III standing — that was the holding of TransUnion, and it applies with full force here. The organization's claimed injury was procedural, “we were entitled to a decision and did not receive one.” The court found that insufficient. 

A constitutional hook — the claim that the commission's inaction violated the First Amendment's petition clause — was rejected on the merits. The court noted that a constitutional violation does not substitute for concrete injury.

The more consequential part of the opinion addresses what courts have called organizational or Havens Realty standing — the theory that an organization can establish standing because a defendant's conduct has impaired the organization's ability to fulfill its own mission, forcing it to divert resources in response.

The per curiam applies Justice Kavanaugh's 2024 opinion in FDA v. Alliance for Hippocratic Medicine here instead. An organization cannot manufacture its own standing by spending money to advocate against a defendant's actions. The commission's refusal to act on the complaint does not become a concrete injury simply because the organization characterizes resolving Help America Vote Act complaints as central to its mission. If that sufficed, any advocacy group could establish standing against any government action it opposed simply by pointing to its own purpose.

Chief Judge Brennan writes separately to argue that the Seventh Circuit should explicitly repudiate its pre-Hippocratic Medicine precedents that permitted organizational standing on Havens Realty grounds. He identifies the diversion-of-resources theory, once extremely common, as no longer viable. Organizations that incurred costs in response to a defendant's disfavored actions can no longer point to those costs alone as a basis for standing.

A cert petition has been filed in this case. The underlying question — how much life Havens Realty has after Hippocratic Medicine — is one the lower courts are actively wrestling with.

For defense counsel, the diversion-of-resources theory of organizational standing is now squarely in play as a challenge in the Seventh Circuit. For plaintiffs' counsel, the question is whether the organization can show direct interference with its core operations—not merely that it has responded to conduct it opposes. And for appellate counsel on both sides, standing remains jurisdictional and cannot be waived, meaning new standing arguments are always fair game on appeal. That is the exact opposite of the lesson from Tabernacle Church, and the contrast is worth keeping in mind.

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