U.S. Seventh Circuit - The FindLaw 7th Circuit Court of Appeals Opinion Summaries Blog

August 2009 News

Dakaj v. Holder, No. 08-2554

Petition for review of a decision of the Board of Immigration Appeals affirming a denial of Albanian petitioners' applications for asylum and related relief is granted and BIA's decision vacated and remanded for reconsideration of the petitioners' motion to file their brief out-of-time as the Board was required to consider relevant factors that supported petitioners' claim that they never received notice of their asylum proceedings, along with any others of which it might be aware, and to explain its decision in light of them.   

Read Dakaj v. Holder, No. 08-2554

Appellate Information

Petitioner for Review of an Order of the Board of Immigration Appeals
Argued January 28, 2009
Decided August 31, 2009

Judges

Before Bauer, Ripple and Tinder, Circuit Judges 

Per Curium Opinion.

Muro v. Target Corp., No. 08-1256

In plaintiff's action against retail giant, Target, alleging that it had violated sections 1642 and 1637 of the Truth in Lending Act (TILA), district court's grant of summary judgment in favor of Target and denial of plaintiff's motion for class certification of TILA claims is affirmed where: 1) the district court did not clearly err in denying plaintiff's motion for class certification of her section 1642 claim as it is readily apparent that her claim is very different from the claims of the majority of the class members; and 2) district court did not err in denying plaintiff's motion for class certification with respect to the section 1637 claims as plaintiff was ineligible to serve as a class representative because she did not have a claim under either section 1637(a) or section 1637(b).     

Read Muro v. Target Corp., No. 08-1256

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued September 12, 2009
Decided August 31, 2009

Judges

Before Ripple, Rovner and Evans, Circuit Judges 

Opinion by Ripple, Circuit Judge.

Terry v. Astrue, No. 09-1045

ALJ's denial of claimant's application for Disability Insurance Benefits is vacated and remanded to a different ALJ where: 1) the ALJ's RFC determination is unsupported by substantial evidence as he relied on an unsigned medical report that should have been excluded from the record; 2) ALJ failed to consider an entire line of evidence of claimant's impairments; and 3) ALJ failed to support his conclusion that claimant's testimony was not credible. 

Read Terry v. Astrue, No. 09-1045

Appellate Information

Appeal from the United States District Court for the Eastern District of Wisconsin
Argued July 8, 2009
Decided August 28, 2009

Judges

Before Rovner, Wood and Williams, Circuit Judges 

Per Curium Opinion.

Cruz v. Safford, No. 08-3083

District court's judgment, involving an inmate's pro se civil rights action against a prison guard claiming violation of his Eighth Amendment right to be free from excessive force, is affirmed where: 1) district court did not err in instructing the jury that it had to find that the Eighth Amendment protected plaintiff from excessive force; 2) district court did not abuse its discretion when it kept tardy assault and battery claims out of the pretrial order and refused to consider them in plaintiff's section 1983 excessive force action; and 3) district court did not err in denying plaintiff the opportunity to cross-examine defendant's supervisor regarding prior arrest as the witness's seven arrests and one battery conviction were not credibility matters, but highly prejudicial. 

Read Cruz v. Safford, No. 08-3083

 Appellate Information

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.
Argued April 16, 2009
Decided August 28, 2009

Judges

Before Easterbrook, Chief Judge, and Bauer and Manion, Circuit Judges 
Opinion by Bauer, Circuit Judge.

US v. Booker, No. 07-3094

Conviction of a defendant for being a felon in possession of a firearm is affirmed in part and reversed in part where: 1) the district court did not err in denying defendant's motion to suppress because the officers did have reasonable suspicion to stop defendant's van and the gun, which was in plain view inside the van, should not be suppressed; and 2) district court plainly erred in using defendant's prior involuntary manslaughter conviction to enhance his sentence as it does not qualify as a crime of violence. 

US v. Booker, No. 07-3094

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Western Division.
Argued September 23, 2009
Decided August 28, 2009

Judges

Before Bauer, Cudhay, and Williams, Circuit Judges 
Opinion by Williams, Circuit Judge.

FTC v. Trudeau, No. 08-4249

District court's judgment is affirmed in part and reversed in part where:  1) district court did not err in finding defendant in contempt as he failed to diligently comply with the Consent Order banning him from appearing in infomercials for any product or misrepresenting contents of books; 2) district court's $37.6 million sanction is vacated and remanded with instructions that the district court must explain why it chose the calculation method it did, show how the record supports its calculations, and outline how the sanction should be administered; 3) district court's ruling banning infomercials is vacated and remanded as there is no indication in the record that defendant had any notice that the court was considering such a broad sanction as an outright ban; and 4) defendant is not entitled to any special process on remand regarding the sanction.      '

FTC v. Trudeau, No. 08-4249

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued May 14, 2009
Decided August 27, 2009

Judges

Before Ripple, Manion, and TinderCircuit Judges 
Opinion by Tinder, Circuit Judge.

US v. Shabaz, No. 08-3751

District court's denial of defendant's motion to suppress his confession and other incriminating statements resulting in his conviction for bank robberies is affirmed where: 1) defendant's question was not a clear and unambiguous request for counsel under the circumstances; and 2) district court did not err in denying defendant's motion to suppress his post-conviction statements where the magistrate judge made a credibility determination that despite defendant's failure to sign the waiver form, he was advised  of his Miranda rights and voluntarily agreed to waive them.     

Read US v. Shabaz, No. 08-3751

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued June 4, 2009
Decided August 27, 2009

Judges

Before Flaum, Wood, and TInder, Circuit Judges 
Opinion by Wood, Circuit Judge.

Roby v. CWI, Inc., No. 08-3513

In an employment sex discrimination and retaliation case, summary judgment in favor of defendants is affirmed where:  1) plaintiff failed to demonstrate actual employment action as she was merely on leave and not terminated; 2) plaintiff's hostile work environment claim failed on alternative theory of constructive discharge as there was insufficient evidence showing that working conditions were so intolerable that she had to quit; 3) defendant was entitled to raise its affirmative defense that it exercised reasonable care to prevent and correct the problem, and defendant demonstrated that plaintiff failed to take advantage of the complaint procedure policy; and 4) plaintiff failed to prove retaliation claim by either the direct method of proof or the indirect method and she cannot make out a prima facie case of retaliation as she suffered no adverse employment action.     

Read Roby v. CWI, Inc., No. 08-3513

 Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued May 7, 2009
Decided August 27, 2009

Judges

Before Flaum and Williams, Circuit Judges, Lawrence, District Judge 
Opinion by Lawrence, District Judge.

Salmeron v. Enter. Recovery Sys., Inc., No. 08-3375

In a qui tam action involving allegations of fraudulent student loan debt collection practices, grant of defendants' motion to dismiss is affirmed as the district court did not abuse its discretion in dismissing the suit with prejudice as a sanction for the willful leaks of a document where: 1) the district court did not clearly err in finding that the "attorneys' eyes only" agreement encompassed the Guarantee Services Agreement; 2) district court did not clearly err in finding that plaintiff's attorney had willfully violated the "attorneys' eyes only" agreement by leaking the Guarantee Services Agreement to unauthorized third parties; and 3) plaintiff's attorney had been given a final warning after pattern of misconduct and had been warned that further misconduct was likely to result in more drastic sanctions.     

Read Salmeron v. Enter. Recovery Sys., Inc., No. 08-3375

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued May 14, 2009
Decided August 27, 2009

Judges

Beofre Ripple, Manion, and Tinder, Circuit Judges 
Opinion by Manion, Circuit Judge.

Joseph v. Holder, No. 08-2393

Petition for review of the BIA's denial of a Pakistani petitioner's motion to reopen removal proceedings is granted and remanded where the BIA committed legal error in adopting an overly narrow interpretation of 8 C.F.R. section 1003.2(c)(3)(ii) that runs counter to the plain language of the regulation.     

Joseph v. Holder, No. 08-2393

Appellate Information

Peition for Review of an Order of the Board of Immigration Appeals

Argued February 24, 2009
Decided August 27, 2009

Judges

Before Rovner, Wood and Sykes, Circuit Judges 
Opinion by Wood, Circuit Judge.

US v. Villegas-Miranda, No. 08-2308

District court's sentence of a defendant charged with illegal reentry from Mexico while in state custody on a domestic battery charge is vacated and remanded as the district court failed to address defendant's concurrent-sentences argument, one of his principal arguments, that were not so weak as to not merit discussion. 

Read US v. Villegas-Miranda, No. 08-2308

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued May 7, 2009
Decided August 27, 2009

Judges

Before Bauer, Flaum, and Williams, Circuit Judges 
Opinion by Williams,  Circuit Judge.

US v. Corson, No. 08-2094

District court's conviction of defendants charged with conspiracy to rob and sell the stolen drugs as a result of a setup by the government and an informant, is affirmed where: 1)there was sufficient evidence for a rational jury to conclude that the defendants agreed, amongst themselves, to the robbery plan; and 2) the district court did not commit clear error in denying the safety valve to one of the defendants as he did not meet his burden of proving eligibility for the safety valve. 

Read US v. Corson, No. 08-2094

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued May 14, 2009
Decided August 27, 2009

Judges

Before Ripple, Manion and Tinder, Circuit Judges 
Opinion by Tinder, Circuit Judge.

Am. River Transp. Co. v. Ryan, No. 08-1545

District court's dismissal of plaintiff's lawsuit against defendant for injuries sustained in a collision is reversed and remanded as neither the injunction by the district court, nor the law, requires plaintiff to dismiss her state suit, as plaintiff can maintain her preexisting state claim so long as she stays the suit during the pendency of the Shipowner's Limitation of Liability Act proceedings.  The district court abused its discretion in ordering the plaintiff to dismiss her state suit as a sanction.     

Read Am. River Transp. Co. v. Ryan, No. 08-1545

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued February 11,  2009
Decided August 27, 2009

Judges

Before Bauer, Ripple and Wood, Circuit Judges 
Opinion by Wood, Circuit Judge.

US v. Thyfault, No. 07-2769

District court's grant of defendant's motion to dismiss retrial for mail fraud is reversed as it incorrectly determined that issue preclusion applied since the defendant failed to meet his burden of demonstrating that the acquittals in the first trial necessarily decided in his favor an issue that would be ultimately be required to convict him in the second, and as such, nothing about defendant's conspiracy acquittal leads to a conclusion that the jury necessarily determined that he did not act with an intent to defraud. 

Read US v. Thyfault, No. 07-2769

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued October 20, 2009
Decided August 26, 2009

Judges

Before Bauer, Kanne and Williams, Circuit Judges 
Opinion by Bauer, Circuit Judge.

US v. Hargrove, No. 06-2883

District court's denial of defendant's motion to dismiss mail fraud charges on the ground that the honest-services provision of 18 U.S.C. section 1346 is unconstitutionally vague is affirmed where the circuit court has soundly rejected the claim that the mail fraud statute, as applied to the intangible-rights theory, is void for vagueness.

Read US v. Hargrove, No. 06-2883

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued October 20, 2009
Decided August 26, 2009

Judges

Before Bauer, Kanne and Williams, Circuit Judges 
Opinion by Bauer, Circuit Judge.

US v. Elst, No. 09-1175

In a prosecution for conspiracy to distribute cocaine, denial of defendant's motion to suppress is affirmed where: 1) the police officers acted in objective good faith reliance on a warrant; and 2) defendant has not rebutted that presumption, and the defendant has not shown that the affidavit was so lacking in indicia of probable cause as to make entirely unreasonable a belief that probable cause existed.     

Read US v. Elst, No. 09-1175

Appellate Information

Appeal from the United States District Court for the Eastern District of Wisconsin.
Argued June 5, 2009
Decided August 25, 2009

Judges

Before Manion, Rovner, and Tinder, Circuit Judges 
Opinion by Tinder, Circuit Judge.

US v. Apex Oil Co. Inc., No. 08-3433

In an environmental case, district court injunction requiring the defendant to clean up a contaminated site is affirmed where the government's claim to an injunction was not discharged in bankruptcy and thus can be renewed in a subsequent lawsuit as the government's equitable claim entitles it to require defendant to clean up the contaminated site at defendant's expense.   

Read US v. Apex Oil Co. Inc., No.  08-3433

Appellate Information

Appeal from the United States District Court for the Southern District of Illinois.
Argued May 11, 2009
Decided August 25, 2009

Judges

Before Cudhay, Posner, and Kanne, Circuit Judges 
Opinion by Posner, Circuit Judge.

Ishitiaq v. Holder, No. 08-2834

Petition for review of an order of the Board of Immigration Appeals' (BIA) denying Pakistani petitioner's application for asylum, withholding of removal and relief under the Convention Against Torture (CAT) is denied where: 1) BIA's factual determination that petitioner failed to file his asylum application within one year and the board's decision that he does not qualify for a time extension are unreviewable; 2) BIA's denial of petition for withholding of removal and protection under the CAT is sufficiently supported by the record to establish that petitioner had not suffered past persecution or the likelihood of future persecution.   

Read Ishitiaq v. Holder, No. 08-2834

Appellate Information

Petition for Review of an Order of the Board of Immigration Appeals. 
Argued March 30, 2009
Decided August 25, 2009

Judges

Before Kanne,  Wood, and Williams, ircuit Judges 
Opinion by Williams, Circuit Judge.

US v. Oros, No. 08-2511

Conviction and sentencing of a defendant for bribery is affirmed where: 1) district court's error in allowing the government to present summary charts to the jury was harmless error in that it did not have a substantial and injurious effect on the jury's verdict; 2) the evidence presented at trial was sufficient to find defendant guilty of bribery beyond a reasonable doubt; and 3) district court did not commit clear  error in calculating the amount of loss in determining defendant's offense level.       

Read US v. Oros, No. 08-2511

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued April 8, 2009
Decided August 25, 2009

Judges

Before Easterbrook, Chief Judge, and  Kanne, and WIlliams, Circuit Judges 
Opinion by Williams, Circuit Judge.

LG v. Astrue, No. 08-2491

Decision by the administrative law judge (ALJ) denying plaintiff's application for Supplemental Security Income benefits is vacated and remanded as the ALJ's determination that plaintiff's daughter's impairment is not functionally equivalent to the listing for ADHD was not supported by substantial evidence.      

Read LG v. Astrue, No. 08-2491

 Appellate Information

Appeal from the United States District Court for the Eastern District of Wisconsin.
Argued March 30, 2009
Decided August 25, 2009

Judges

Before Kanne,  Wood,  and Williams, Circuit Judges 
Opinion by Williams, Circuit Judge.

US v. Gibbs, No. 08-2186

Defendant's sentence of ten years' supervised release is vacated as the district court never acknowledged that the advisory range under the sentencing Guidelines was five years.  District court's order conditioning defendant's supervised release on repaying the money used by the government to buy the drugs is premature and the court appropriately deferred any such consideration until defendant's release from prison.     

Read US v. Gibbs, No. 08-2186

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued March 30, 2009
Decided August 25, 2009

Judges

Before Kanne, Wood and Williams,  Circuit Judges 
Opinion by Wood, Circuit Judge.

US v. Salem, No. 08-2034

In a prosecution for witness intimidation and possessing a firearm in furtherance of that offense, a denial of defendant's request for a new trial is vacated and remanded for an evidentiary hearing where: 1) under Brady, the government was required to disclose evidence materially favorable to the accused; and 2) defendant never had a sufficient opportunity to make a showing of whether certain evidence at issue was material by demonstrating reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. 

Read US v. Salem, No. 08-2034

 Appellate Information

Appeal from the United States District Court for the Eastern District of Wisconsin.
Argued January 14, 2009
Decided August 25, 2009

Judges

Before Cudhay, Kanne, and TInder, Circuit Judges 
Opinion by Tinder, Circuit Judge.

US v. Deloney, No. 07-3451

Defendant's sentence for drug possession with intent to deliver is affirmed where: 1) a sentence that falls within the properly calculated Guidelines is presumed reasonable and the district court analyzed the factors and explained the reasons for defendant's sentence; and 2) defendant's argument that the district court should have considered the soon to be amended Guidelines in deciding what sentence to impose is frivolous as a district court is to apply the Guidelines in effect at the time of sentencing.   

Read US v. Deloney, No. 07-3451

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued May 15, 2009
Decided August 25, 2009

Judges

Before Easterbrook, Chief Judge, and Bauer and Flaum, Circuit Judges 
Opinion by Bauer, Circuit Judge.

US v. Hart, No. 07-3395

Sentencing of a defendant convicted of bank robbery as a career offender under the Sentencing Guidelines is vacated and remanded for resentencing as a conviction for escape under 18 U.S.C. section 751(a), as a categorical matter, is not a crime of violence under the Sentencing Guidelines.     

Read US v. Hart, No. 07-3395

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued April 9, 2009
Decided August 25, 2009

Judges

Before Posner, Ripple, and Manion, Circuit Judges 
Opinion by Ripple, Circuit Judge

Middleton v. City of Chicago, No. 08-2806

In an employment discrimination action brought against the City of Chicago by a former member of the United States Air Force, district court's judgment is affirmed where: 1) plaintiff's claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 was barred by the four-year statute of limitations provided by 28 U.S.C. section 1658(a); and 2) the Veterans' Benefits Improvement Act's amendment expressly stating that statute of limitations does not apply to USERRA, has no retroactive effect.     

Read Middleton v. City of Chicago, No. 08-2806 

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued April 14, 2009
Decided August 24, 2009

Judges

Before Kanne, Rovner, and Wood, Circuit Judges 
Opinion by Kanne, Circuit Judge.

US v. Canady, No. 08-1267

Sentence and conviction for being a felon in possession of a firearm and ammunition is affirmed where: 1) the district court's admission of defendant's home invasion and shooting evidence was proper as they were integral in establishing defendant's possession of the firearm; 2) the district court was correct in determining that the evidence did not support defendant's theory of defense instruction; 3) district court's sentencing was proper under the sentencing guidelines.     

Read US v. Canady, No. 08-1267 

Appellate Information

Appeal from the United States District Court for the Western District of Wisconsin.

Argued October 22, 2008
Decided August 24, 2009

Judges

Before Cudhay, Manion, and Williams, Circuit Judges 
Opinion by WIlliams, Circuit Judge.

US v. Fouse, No. 07-3945

Conviction and sentencing of a defendant for conspiracy to distribute cocaine and possession of firearm in furtherance of that conspiracy is affirmed where: 1) the district court correctly determined that under 21 U.S.C. section 846, it is not whether the government can sustain a conspiracy charge without proving conclusively that every alleged co-conspirator had more than a buyer-seller relationship with the defendant, but rather, whether the government can prove the requisite agreement between the defendant and at least one other conconspirator; 2) a jury could conclude that defendant constructively possessed the guns found at his home and a jury could rely on circumstantial evidence in finding that a gun in defendant's constructive possession was kept to further the drug trafficking crime; 3) district court's decision to give the jury a "dynamite charge" during deliberations and the charge itself was not in error as there is no basis to conclude that the court encouraged the jurors to cast aside their opinions for the expedience of reaching a verdict; and 4) district court's sentencing of the defendant was presumptively reasonable based on the properly calculated guidelines range.      

Read US v. Fouse, No. 07-3945 

Appellate Information

Appeal from the United States District Court for the Eastern District of Wisconsin.
Argued November 5, 2008
Decided August 24, 2009

Judges

Before Easterbrook, Chief Judge, and Ripple and Rovner, Circuit Judges 
Opinion by Rovner, Circuit Judge.

US v. Marrocco, No. 07-3101

In forfeiture proceedings involving cash that was suspected to be connected to drugs, district court's grant of defendant's motion to suppress dog-sniff test evidence is reversed and remanded where: 1) the police officers' suspicion that a briefcase contained drugs or money associated with drugs was reasonable; 2) detention of the briefcase was reasonable; and 3) officer's unlawful search of the briefcase fell under the inevitable discovery doctrine where the government obtained an independent legal justification for conducting a search which led to the discovery of the evidence and officers inevitably would have sought the warrant and conducted a lawful search.      

Read US v. Marrocco, No. 07-3101

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Decided August 24, 2009

Judges

Before Easterbrook, Chief Judge, and Ripple and Rovner, Circuit Judges 
Opinion by Ripple, Circuit Judge

Fincher v. S. Bend Hous. Auth., No. 09-1964

In a case involving alleged violations under the United States Housing Act and the Fair Housing Act, defendant's motion for dismissal of the appeal is granted where an order remanding a case to the state court from which it was removed is not reviewable on appeal or otherwise, as remands based on the Rooker-Feldman doctrine are jurisdictional, and thus subject to the prohibition of the appellate review in section 1447(d).    

Fincher v. S. Bend Hous. Auth., No. 09-1964

Appellate Information

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division.
Decided August 20, 2009

Judges

Before Posner, Williams, and Sykes, Circuit Judges 
Per Curiam

CenTra Inc. v. Central States, No. 08‐4041

In an ERISA case involving employer withdrawal liability under the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), district court's judgment vacating an arbitrator's reduced award to a fund and reinstating the fund's assessment is affirmed where the withdrawal liability was properly based on the contribution histories of two of plaintiff's former subsidiaries and such contribution histories were assumed by plaintiff in a merger as none of the steps in the reorganization met the MPPAA's statutory requirements for avoiding withdrawal liability. 

Read CenTra Inc. v. Central States, No. 08‐4041

 

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued May 27, 2009
Decided August 20, 2009

Judges

Before Cudhay, Ripple and Wood, Circuit Judges 
Opinion by Cudhay, Circuit Judge.

US v. Nurek, No. 07-3568

Sentencing of a defendant convicted of receiving child pornography under U.S.S.G. section 3C1.1 is affirmed where: 1) district court did not err in applying a two-level obstruction of justice enhancement in finding that defendant's repeated contacts with a minor victim in violation of his pretrial release order was intended to hamper prosecution; 2) defendant was not entitled to receive an additional point reduction for acceptance of responsibility as the court could not consider the additional one point reduction in the absence of a motion from the government under section 3E1.1(b); 3) district court did not violate the Ex Post Facto Clause in using the 2006 guidelines rather than the 2003 Guidelines Manual, which was in effect at the time the crime was committed, as defendant's argument is foreclosed by precedent; and 4) the sentence was not unreasonable as defendant did not rebut the presumption that the district court did not abuse its discretion and in light of the extremely aggravated circumstances in the case.  

Read US v. Nurek, No. 07-3568

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued September 3, 2009
Decided August 21, 2009

Judges

Before Easterbrook, Chief Judge, and Rovner and Sykes, Circuit Judges 
Opinion by Sykes, Circuit Judge.

Flying J, Inc. v. Van Hollen, No. 09-1883

In a case involving preemption of the Wisconsin Uniform Sales Act, Wis. Stat. section 100.30, by the Sherman Act, denial of a motion by an association of Wisconsin gasoline dealers for leave to intervene as a matter of right and permissively is vacated where: 1) appellant has an interest in limiting price competition; 2) motion to intervene was made in timely manner; and 3) even if appellant were not able to demonstrate impediment for purposes of intervention as a matter of right, permissive intervention may be satisfied by showing applicant's claim or defense and the main action have a question of law or fact in common. 

Read Flying J, Inc. v. Van Hollen, No. 09-1883

Appellate Information

Appeal from the United States District Court for the Eastern District of Wisconsin.
Argued June 2, 2009
Decided August 20, 2009

Judges

Before Posner, Ripple, and Kanne, Circuit Judges 
Opinion by Posner, Circuit Judge.

Brooks v. Ross, No. 08-4286

In a case raising 42 U.S.C. section 1983 and state law claims, district court's dismissal for failure to state a claim is affirmed where: 1) section 1983 conspiracy claims and state-law civil conspiracy and intentional infliction of emotional distress claims were time-barred; 2) a state-law malicious prosecution claim was barred by sovereign immunity; and 3) plaintiff failed to adequately plead a section 1983 due process claim. 

Read Brooks v. Ross, No. 08-4286

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued June 4, 2009
Decided August 20, 2009

Judges

Before Flaum, Wood, and Tinder, Circuit Judges 
Opinion by Wood, Circuit Judge.

US v. Dooley, No. 08-4131

Conviction of defendant-police officer for stealing from evidence locker of the police department is affirmed in part and reversed in part where: 1) the government failed to prove an element of a wire fraud charge, specifically, that the defendant transmitted or caused to be transmitted a wire communication; 2) district court did not err in finding sufficiency of the indictment under FRCP 7(c)(1); 3) the court did not abuse its discretion in the exclusion of evidence about possible previous robberies as irrelevant; 4) district court did not err in refusing to give a proposed jury instruction as defendant was not entitled to a theory-of-defense jury instruction where the proposed instruction was not an accurate statement of the law and defendant's recantation defense is unsupported by evidence in the case. Defendant's sentence is vacated and remanded for resentencing. 

Read US v. Dooley, No. 08-4131

 

Appellate Information

Appeal from the United States District Court for the Southern District of Illinois.
Argued May 27, 2009
Decided August 20, 2009

Judges

Before CudhayRipple, and Wood, Circuit Judges 
Opinion by Ripple, Circuit Judge.

Dear v. Shinseki, No. 08-3728

In an employment discrimination case involving claims of race discrimination, retaliation, and hostile work environment, summary judgment for defendant-Secretary of Veterans Affairs is affirmed where: 1) plaintiff failed to prove a prima facie case under the indirect theory of race discrimination that she was meeting legitimate expectations, judged by whether the employee was performing adequately at the time of the adverse employment action, and whether she has identified a similarly situated employee; 2) plaintiff failed to prove that she suffered retaliation by showing more or less the same factors required under the race discrimination claim; and 3) plaintiff failed to prove (a) that her work environment was both objectively and subjectively offensive; (b) that the harassment was based on her membership in a protected class;(c) that the conduct was either severe or pervasive; and (d) that there is a basis for employer liability in order to pursue a hostile work environment claim.

Read Dear v. Shinseki, No. 08-3728

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued May 27, 2009
Decided August 20, 2009

Judges

Before Cudhay, Ripple, and Wood, Circuit Judges 
Opinion by Wood, Circuit Judge.

Laouini v. CLM Freight Lines, Inc., No. 08-3721

In an employment discrimination case, district court's grant of summary judgment for defendant on grounds that the plaintiff failed to timely file a charge with the EEOC is vacated and remanded where defendant failed to show absence of a genuine factual dispute over whether plaintiff's charge had been timely filed via fax where it was not the plaintiff who had to prove receipt, but the defendant who had to prove the absence of receipt and a fax confirmation creates a factual dispute sufficient to preclude summary judgment. 

Read Laouini v. CLM Freight Lines, Inc., No. 08-3721

Appellate Information

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.
Argued August 4, 2009
Decided August 20, 2009

Judges

Before Flaum, Kanne, and Wood, Circuit Judges 
Opinion by Flaum, Circuit Judge.

Gatimi v. Holder, No. 08-3197

Petition for review a denial of Kenyan petitioner's application for asylum by the BIA is granted where the Board wrongly held that a group must have social visibility to be a particular social group. Further question is whether the Kenyan government is either complicit in the tribe's persecution of defectors from the group or unable or unwilling to protect.  In regards to petitioner's wife's derivative claim, BIA's denial on grounds that the the wife did not file within the one-year limit is vacated where the one-year deadline became relevant to her situation only much later when her spouse sought asylum. 

Read Gatimi v. Holder, No. 08-3197

Appellate Information

Petition for Review an Order of the Board of Immigration Appeals.
Argued April 7, 2009
Decided August 20, 2009

Judges

Before Posner, Ripple, and Wood, Circuit Judges 
Opinion by Posner, Circuit Judge.

Gonzalez v. City of Elgin, No. 08-2658

In a case involving allegations of a Fourth Amendment violation against city and numerous police officers, summary judgment for defendants is reversed where: 1) the district court erred in ruling that the defendants had probable cause as a matter of law to arrest plaintiffs for mob action as there are disputes of material fact with respect to the elements of mob action; 2) it erred in finding that defendants had probable cause to arrest plaintiffs for resisting arrest or obstructing a peace officer as there were dispute of facts as to whether the plaintiffs knowingly resisted or obstructed the officers' work; 3) it erred in finding that there was probable cause for arresting plaintiffs for battery as there are accounts, including police videotape, that create a genuine issue of material fact; 4) taking the facts in the light most favorable to the plaintiffs, a jury could find that defendant officers used excessive force in the course of plaintiffs' arrest; 5) district court erred in dismissing plaintiffs' claim against officers standing by that they were culpable for failing to intervene in the beatings.  The defendant officers are not entitled to qualified immunity where Fourth Amendment is violated by a full-blown arrest not supported by probable cause.  Plaintiffs' Illinois state law claims for malicious prosecution and state-law action against the City is reinstated on remand as plaintiffs have demonstrated that there is an issue of fact on these issues. 

Read Gonzalez v. City of Elgin, No. 08-2658

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued Januarty 21, 2009
Decided August 20, 2009

Judges

Before Posner, Flaum, and Wood, Circuit Judges 
Opinion by Wood, Circuit Judge.

Anderson v. AB Painting and Sandblasting, No. 08-2102

In an ERISA benefit plan case, judgment reducing an award of plaintiff's attorney's fees on grounds that it was disproportionate to the damages claimed is reversed and remanded where, in the context of comparison between a plaintiff's damages and his attorney's fees, the notion that the fees must be calculated proportionally to damages is rejected. 

Read Anderson v. AB Painting and Sandblasting, No. 08-2102

 

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued February 20, 2009
Decided August 20, 2009

Judges

Before BauerManion, and Sykes, Circuit Judges 
Opinion by Bauer, Circuit Judge.

US v. Bright, No. 08-1770

A conviction for bank robbery is affirmed where: 1) the district court did not commit plain error in admission of an eye-witness identification from a photograph array, as defendant failed to file a suppression motion before trial and failed to object at trial, and defendant cannot now cure by showing good cause; 2) district court did not err in allowing introduction of defendant's prior conviction for bank robbery and guilt-by-association evidence as their probative value was not substantially outweighed by unfair prejudice; and 3) it did not err in applying an obstruction of justice enhancement where, under U.S.S.G. section 3C1.1, escaping or attempting to escape from custody justifies the enhancement.     

Read US v. Bright, No. 08-1770

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued April 16, 2009
Decided August 20, 2009

Judges

Before Easterbrook, Chief Judge, and Bauer and Manion, Circuit Judges 
Opinion by Bauer, Circuit Judge.

Haber v. Biomet, Inc., No. 08-1670

In a contract case involving two separate agreements involving the applicability of an arbitration clause in the latter of the two agreements, dismissal of the case is affirmed where: 1) res judicata bars consideration of the arbitrability issue as a state court already reached that issue and resolved it with sufficient finality; and 2) a finding of improper venue was proper as only the district court in the particular forum of the forum selection clause can issue an order compelling arbitration. 

Read Haber v. Biomet, Inc., No. 08-1670

 

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued February 17, 2009
Decided August 20, 2009

Judges

Before Posner, Kanne, and Wood Circuit Judges 
Opinion by Wood, Circuit Judge.

Coffman v. Indianapolis Fire Dep't., No. 08-1642

In an action brought by a female firefighter against a fire department and several employees alleging sex and disability discrimination, privacy violations, and state law claims, dismissal and summary judgment rulings for defendants are affirmed where: 1) requiring plaintiff to undergo performance and psychological evaluations did not violate Title VII as plaintiff did not prove sex discrimination by direct or circumstantial evidence, and thus failed to link her treatment with the fact that she is female; 2) for purposes of a hostile work environment claim, plaintiff failed to prove, objectively and subjectively, that she suffered harassment so severe and pervasive; 3) requiring plaintiff to under psychological evaluations was not in violation of the ADA as such examination or inquiry was shown to be job-related and consistent with business necessity; and 4) plaintiff's substantive due process was not violated by disclosure of her medical records where the department had a compelling interest in ensuring both the physical and mental well-being of the its force; 5) plaintiff's procedural due process was not violated by defendant's failure to give notice and hearing prior to her suspension, as plaintiff failed to identify any statutory provision granting her a property interest in her employment as a firefighter.    

Read Coffman v. Indianapolis Fire Dep't , 08-1642 

Appellate Information

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.
Argued October 24, 2009
Decided August 20, 2009

Judges

Before Easterbrook, Chief Judge, and Posner and Rovner, Circuit Judges 
Opinion by Rovner, Circuit Judge.

Fairley v. Andrews, No. 07-3343

In a case involving prison guards' suit against other guards, complaint handlers, sheriff, and a County, after plaintiffs' peers allegedly threatened to kill them, summary judgment for defendants is affirmed in part and reversed in part where:  1) requiring guards to report, or maintain a code of silence, on misconduct by their colleagues is not part of freedom of speech as the first amendment does not protect statements made as part of one's job; and 2) a prior-restraint claim, that plaintiffs were bullied and threatened in order to deter them from testifying in a separate suit by inmates, was erroneously dismissed. 

Read Fairley v. Andrews, No. 07-3343

 Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued May 6, 2009
Decided August 20, 2009

Judges

Before Easterbrook, Chief Judge, and Posner and Wood, Circuit Judges 
Opinion by Easterbrook, Chief Judge.

Rodriguez v. Plymouth Ambulance Service, et. al., No. 06-4260

In a case alleging violation of the Eighth Amendment's prohibition against cruel and unusual punishment against private entities under 42 U.S.C. section 1983, dismissal of the case for failure to state a claim is affirmed in part and vacated and remanded in part to allow the plaintiff to conduct discovery for the true identity of the defendants.  Section 1983 may impose liability on a private entity when he/she is a physician employed by the state to provide medical services to state prison inmates, and the physician's conduct in providing medical services is fairly attributable to the state.   

Read Rodriguez v. Plymouth Ambulance Service, et. al., No.  06-4260

Appellate Information

Appeal from the United States District Court for the Eastern District of Wisconsin.
Argued September 19, 2009
Decided August 18, 2009

Judges

Before EVANS and Posner and Ripple Circuit Judges 
Opinion by Ripple,Circuit Judge.

US. v. Cox, No. 08-1807

In a prosecution for transporting and knowingly transporting a person under the age of 18 in interstate commerce with the intent that the person transported engage in prostitution, the district court's judgment is affirmed where: 1) the government need not prove for purposes of the section 2423(a)charge that defendant knew that the person he transported was under the age of 18 because knowledge of the victim's minor status is not an element of the statute; and 2) the court did not abuse its discretion in  admitting at trial evidence of defendant's credit card fraud, where such prior act was an essential part of the overall crime.      

Read US. v. Cox, No. 08-1807

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued February 24, 2009
Decided August 18, 2009

Judges

Before Rovner, Wood, and Sykes, Circuit Judges 
Opinion by Wood, Circuit Judge.

US v. Foster, No. 08-1914

District court's enhanced sentencing of a felon convicted of possessing a firearm and firing a gun under the Armed Career Criminal Act (ACCA) is affirmed where, based on defendant's own testimony, there was sufficient evidence that he had used his firearm in connection with a violent crime. 

Read US v. Foster, No. 08-1914

Appellate Information

Appeal from the United States District Court for the Southern District of Indiana, Evansville Division.
Argued Decmber 2, 2008
Decided August 18, 2009

Judges

Before Cudahy, Flaum, and Sykes, Circuit Judges 
Opinion by Cudahy, Circuit Judge.

Sharp Elec. Co. v. Metropolitan Life Ins. Co., No. 08-2959

In an ERISA case, judgment granting defendant-Metropolitan Life Insurance Company's (MetLife) motion to dismiss for failure to state a claim against Sharp Electronics (Sharp) is affirmed in part where:  1) the court did not act inconsistently with the law of the case doctrine as its first ruling was not binding, and in any event the case had changed with Sharp's amended cross-complaint against MetLife; 2) ERISA does not impose the type of fiduciary duties alleged and only imposes liability for Plan losses, and not for attorney fees and other costs incurred by Sharp in defending an employee's suit; and 3) the district court did not err when it dismissed Sharp's claim for indemnification. District court's ruling on the merits of state law claims is vacated and remanded so that the dismissal is without prejudice.     

Read Sharp Elec. Co. v. Metropolitan Life Ins. Co., No.  08-2959

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued April 14, 2009
Decided August 18, 2009

Judges

Before Kanne, Rovner, and Wood, Circuit Judges 
Opinion by Wood, Circuit Judge.

Durable Manufacturing Co. v. US Dep't of Labor, No. 08-4122

In an action brought against the Employment Training Administration of the Department of Labor (DOL) and the Bureau of Citizenship and Immigration Services of the Department of Homeland Security (DHS) challenging a DOL regulation retroactively invalidating labor certifications that had been issued to plaintiffs, judgment for defendants is affirmed where: 1) 20 C.F.R. section 656.6.30(b) as amended is within the scope of DOL's statutory authority in compliance with the explicit language from section 1182(a)(5)(A)(i)(I) which imposes a time limit between the certification and the visa application; and 2) the application of the amended section 656.30(b) has no retroactive effect in this case.      

Read Durable Manufacturing Co. v. US Dep't of Labor, No. 08-4122

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued June 5, 2009
Decided August 18, 2009

Judges

Before Manion, Rovner, and Tinder, Circuit Judges 
Opinion by Manion Circuit Judge.

Hanes v. Zurick, No. 09-1043

In a civil rights case claiming police denied plaintiff and only plaintiff equal protection  of the law (based on personal animus), district court's denial of police officers' motion to dismiss is affirmed where: 1) the issue of qualified immunity was unambiguously before the court and its denial of the motion to dismiss necessarily included a denial of the defense of the qualified immunity; and 2) circuit precedent holding that a class-of-one claim can be made against police officers for unequal protection of the law is not undermined by the recent holding in Engquist v. Oregon Dep't of Agriculture, 128 S. Ct. 2146 (2008), that no class-of-one equal protection claim can be made in the public-employment context.     

Read Hanes v. Zurick, No. 09-1043

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued July 8, 2009
Decided August 18, 2009

Judges

Before Rovner, Wood, and Williams, Circuit Judges 
Opinion by Wood, Circuit Judge.

US v. Gear, No. 07-4038

District court's sentencing of a felon convicted of possession of firearm to 84 months is vacated and remanded for resentencing where the the sentencing judge miscalculated the recommended range by starting with a base offense level of 20 under U.S.S.G. section 2K2.1(a)(4) based on defendant's state conviction for reckless discharge of a firearm. 

Read US v. Gear, No. 07-4038

Appellate Information

Appeals from the United States District Court for the Northern District of Illinois, Western Division.
Argued January 5, 2009
Decided August 17, 2009

Judges

Before EASTBROOK, Chief Judge, and POSNER and WILLIAMS, Circuit Judges 
Per Curiam Opinion 

Eskridge v. Cook County, No. 08-2980

In a medical malpractice action, denial of plaintiffs' motion for relief from a voluntary dismissal order under Fed. R. Civ. P. 60(b) is affirmed where the district court did not abuse its discretion in finding that plaintiffs' actions were voluntary and their counsel's actions did not amount to mistake, inadvertence, surprise, or excusable neglect in order to obtain relief.       

Read Eskridge v. Cook County, No. 08-2980

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued May 28, 2009
Decided August 17, 2009

Judges

Before EVANS and WILLIAMS and TINDER, Circuit Judges 
Opinion by TINDER, Circuit Judge.

Ruth v. Triumph Partnerships, No. 08-3458

In an action brought under the Fair Debt Collection Practices Act (FDCPA), district court's judgment is reversed and remanded with instructions to enter judgment in favor of plaintiff where: 1) as a matter of law, the letter and notice at issue were sent in connection with an attempt to collect a debt; 2) the notice constituted "a threat to take . . . action that cannot legally be taken," and a "false representation or deceptive means to collect or attempt to collect a[] debt"; and 3) plaintiff was entitled to summary judgment in her favor on defendants' assertion of the bona fide error defense.

Read Ruth v. Triumph Partnerships, No. 08-3458

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Western Division.
Argued May 5, 2009
Decided August 17, 2009

Judges

Before RIPPLE and SYKES, Circuit Judges, and LAWRENCE, District Judge 
Opinion by RIPPLE, Circuit Judge.

US v. Orozco, No. 06-4235

Conviction and sentence for drug crimes and firearms possession is affirmed where: 1) the district court properly denied defendant's suppression motion as the affidavit was sufficient to establish probable cause to search defendant's home, and even were it not, the officer acted in good faith when he executed the search of defendant's home in reliance on the warrant; 2) the court did not abuse its discretion in admitting evidence relating to defendant's prior firearm conviction as the evidence relating to the conviction was admissible under Fed. R. Evidence 404(b); and 3) district court properly applied the U.S.S.G. sec. 2D1.1(b)(1) enhancement for possession of a gun in connection with a drug offense.    

Read US v. Orozco, No. 06-4235

Appellate Information
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued September 3, 2008
Decided August 13, 2009

Judges
Before EASTERBROOK, Chief Judge, and ROVNER and SYKES, Circuit Judges.
Opinion by SYKES, Circuit Judge.

Lemus-Losa v. Holder, No. 07-3942

Petition for review of an order of the Board of Immigration Appeals is granted where the Board did not adequately take into account the difference between 8 U.S.C. sec. 1182(a)(9)(B)(i)(II) and 8 U.S.C. sec. 1182(a)(9)(C)(i)(I) when it concluded plaintiff was statutorily ineligible for permanent residence because he had accumulated more than a year of unlawful presence.    

Read Lemus-Losa v. Holder, No. 07-3942

Appellate Information
Petition for Review of a Final Order of the Board of Immigration Appeals.
Argued December 9, 2008
Decided August 13, 2009

Judges
Before FLAUM, WOOD, and WILLIAMS, Circuit Judges.
Opinion by WOOD, Circuit Judge.

US v. Smith, No. 08-1369

Conviction for drug crimes is affirmed where: 1) the district court did not err in denying defendant a Franks hearing as an officer made a simple scrivener's error in the affidavit and there was sufficient information to establish probable cause with respect to the search of a house; and 2) the court did not abuse its discretion in its handling of a juror's misconduct in discussing the case with another juror. 

Read US v. Smith, No. 08-1369

Appellate Information
Appeal from the United States District Court for the Southern District of Illinois.
Argued December 9, 2008
Decided August 13, 2009

Judges
Before FLAUM, WOOD, and WILLIAMS, Circuit Judges.
Opinion by WOOD, Circuit Judge.

US v. Evans, No. 08-2424

Sentence for armed bank robbery and other crimes is vacated where defendant's previous conviction of aggravated battery in violation of Illinois law does not constitute a crime of violence within the meaning of U.S.S.G. sec. 4B1.2(a).    

Read US v. Evans, No. 08-2424

Appellate Information
Appeal from the United States District Court for the Western District of Wisconsin.
Argued January 5, 2009
Decided August 13, 2009

Judges
Before EASTERBROOK, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.
Per Curium Opinion.

US v. Daniel, No. 08-2672

Conviction for knowingly persuading, inducing, enticing, or coercing an individual under the age of 18 to engage in criminal sexual activity is affirmed where the government's failure to disclose the identity behind two of the screen names did not violate Brady and entitle defendant to a new trial as the information was not material.    

Read US v. Daniel, No. 08-2672

Appellate Information
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division.
Argued April 9, 2009
Decided August 13, 2009

Judges
Before MANION, ROVNER, and WOOD, Circuit Judges.
Opinion by WOOD, Circuit Judge.

Schor v. City of Chicago, No. 08-2837

In an action challenging the constitutionality of a Chicago municipal ordinance prohibiting the use of wireless telephones without a "hands-free" device while driving a motor vehicle, district court judgment is affirmed where: 1) the court properly dismissed plaintiff's Fourth Amendment claims as the police had probable cause to stop them based on their violation of the hands free law; 2) the court properly dismissed plaintiff's equal protection claims as the distinction between plaintiffs and those who were not ticketed was rational; 3) plaintiffs have not alleged any plausible constitutional violation that might become the basis for holding the City liable; and 4) the court did not abuse its discretion by not permitting plaintiffs to amend their complaint as the proposed amendments would be futile.    

Read Schor v. City of Chicago, No. 08-2837

Appellate Information
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued April 9, 2009
Decided August 13, 2009

Judges
Before MANION, ROVNER, and WOOD, Circuit Judges.
Opinion by WOOD, Circuit Judge.

Pollack v. US Dep't of Justice, No. 08-3857

In an environmental action brought under the Clean Water Act and other laws, district court's dismissal for lack of subject matter jurisidiction is affirmed where plaintiffs have not demonstrated that they were concretely affected by the activities they challenge and thus do not have standing to pursue this case.    

Read Pollack v. US Dep't of Justice, No. 08-3857

Appellate Information
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued May 8, 2009
Decided August 13, 2009

Judges
Before CUDAHY, MANION, and TINDER, Circuit Judges.
Opinion by MANION, Circuit Judge.
Concurring opinion by CUDAHY, Circuit Judge. 

US v. Pansier, No. 07-3771

Conviction for obstructing the administration of the IRS, filing false IRS forms, and passing phony financial instruments with the intent to defraud is affirmed where: 1) the delays in defendant's trial did not violate the Speedy Trial Act as the the district court was permitted to exclude at least thirty days to resolve multiple pretrial motions; 2) the indictment for defendant's conviction for obstructing the due administration of the IRS is not duplicitous as the indictment solely charges a violation of the omnibus clause of 26 U.S.C. sec. 7212(a); 3) the indictment sufficiently charged that defendant willfully made and subscribed false statements on IRS forms in violation of 26 U.S.C. sec. 7206(1); and 4) the court correctly applied Daubert and allowed the expert testimony.   

Read US v. Pansier, No. 07-3771

Appellate Information
Appeal from the United States District Court for the Eastern District of Wisconsin.
Argued September 9, 2008
Decided August 12, 2009

Judges
Before FLAUM, WILLIAMS, and SYKES, Circuit Judges.
Opinion by WILLIAMS, Circuit Judge.

Fry v. Exelon Corp. Cash Balance Pension Plan, No. 08-1135

Motion by the AARP and the Pension Rights Center to reconsider the denial of leave to participate as amici curiae is denied where Fed. R. App. P. 29(e) requires that the amicus brief be filed within seven days of the principal brief of the party being supported, and the principal brief of plaintiff was filed more than a year before the potential amici tendered their brief.   

Read Fry v. Exelon Corp. Cash Balance Pension Plan, No. 08-1135

Appellate Information
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Decided August 12, 2009

Judges
Before EASTERBROOK, Chief Judge, in chambers.
Opinion by EASTERBROOK, Chief Judge.

US v. Mendoza, No. 08-2403

Sentence for cocaine conspiracy is affirmed where: 1) the district court did not abuse its discretion in applying a two-level enhancement for his aggravating role in the conspiracy under U.S.S.G. sec. 3B1.1(c); and 2) the court did not err in failing to articulate reasons for rejecting his arguments for mitigation under 18 U.S.C. sec. 3553(a) as the record shows that although the court did not explicitly discuss each of defendant's arguments for mitigation, it did consider them, and also gave meaningful consideration to the 18 U.S.C. sec. 3553(a) factors and adequately explained its reasons for imposing the sentence.   

Read US v. Mendoza, No. 08-2403

Appellate Information
Appeal from the United States District Court for the Northern District of Illinois, Western Division.
Argued May 8, 2009
Decided August 12, 2009

Judges
Before CUDAHY, MANION, and TINDER, Circuit Judges.
Opinion by TINDER, Circuit Judge.

US v. Betts, No. 08-3555

Sentence for drug crimes is affirmed where: 1) the district court's drug-type finding was not clearly erroneous as the court properly relied on the testimony of people familiar with crack to determine that the substance was crack; and 2) the judge's disputed comments at sentencing did not constitute reversible error.    

Read US v. Betts, No. 08-3555

Appellate Information
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued May 28, 2009
Decided August 12, 2009

Judges
Before EVANS, WILLIAMS, and TINDER, Circuit Judges.
Opinion by WILLIAMS, Circuit Judge.

US v. Smith, No. 07-4045

Conviction for armed bank robbery and related crimes is affirmed where: 1) the evidence is sufficient to support defendant's conviction for aiding and abetting the use of a firearm during and in relation to a crime of violence; and 2) the district court did not err in  dismissing defendant's first indictment without prejudice as the period of time spent in appeals did not violate the Speedy Trial Act.    

Read US v. Smith, No. 07-4045

Appellate Information
Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division.
Argued February 9, 2009
Decided August 11, 2009

Judges
Before POSNER and SYKES, Circuit Judges, and DOW, District Judge.
Opinion by DOW, District Judge.

Estate of Moreland v. Dieter, No. 08-1478

District court judgment denying plaintiff's motion for a writ of execution to enforce a wrongful death judgment against third party defendant St. Joseph County is affirmed where the subsequent amendment to Ind. Code. sec. 34-13-4-1 does not apply retroactively, and thus St. Joseph County is not required to indemnify its public employees and compensate plaintiff for the conduct of its officers.    

Read Estate of Moreland v. Dieter, No. 08-1478

Appellate Information
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division.
Argued February 9, 2009
Decided August 11, 2009

Judges
Before POSNER and SYKES, Circuit Judges, and DOW, District Judge.
Opinion by DOW, District Judge.

McBride v. Grice, No. 08-3556

In an action stemming from an allegedly unlawful arrest brought under 42 U.S.C sec. 1983, district court judgment is affirmed where plaintiff failed to establish the existence of a genuine issue of material fact concerning whether the officer had probable cause to arrest him for battery, and probable cause is an absolute bar to a 42 U.S.C sec. 1983 claim for false arrest.    

Read McBride v. Grice, No. 08-3556

Appellate Information
Appeal from the United States District Court for the Central District of Illinois.
Argued July 7, 2009
Decided August 11, 2009

Judges
Before POSNER, KANNE, and SYKES, Circuit Judges.
Per Curium Opinion.

US v. Deberry, No. 09-1111

Sentence for firearms possession is affirmed where government did not err in failing to file a motion under the federal sentencing guidelines which would have entitled defendant to a further sentencing discount for acceptance of responsibility as the the decision to file the motion is under the prosecutor's discretion and there was nothing unreasonable about the government's deciding not to file the motion in this case.    

Read US v. Deberry, No. 09-1111

Appellate Information
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division.
Argued July 7, 2009
Decided August 11, 2009

Judges
Before POSNER, KANNE, and SYKES, Circuit Judges.
Opinion by POSNER, Circuit Judge.

Buchel-Ruegsegger v. Buchel, No. 07-3415

In a dispute involving a transfer of money from Switzerland to Wisconsin, district court judgment is vacated for lack of subject-matter jurisdiction where defendant-son is a United States citizen and plaintiff-mother and the decedent were United States citizens as well as citizens of foreign states, and thus plaintiff is unable to invoke subject-matter jurisdiction as a citizen of a foreign state under 28 U.S.C. sec. 1332(a)(2).   

Read Buchel-Ruegsegger v. Buchel, No. 07-3415

Appellate Information
Appeal from the United States District Court for the Eastern District of Wisconsin.
Argued June 5, 2009
Decided August 6, 2009

Judges
Before MANION, ROVNER, and TINDER, Circuit Judges.
Opinion by MANION, Circuit Judge.

Jan v. Holder, No 08-1093

Petition for review of an order denying asylum, withholding of removal, and protection under the Convention Against Torture is denied where: 1) plaintiff did not prove a likelihood that he would be tortured upon return to Pakistan by government officials; and 2) the Board of Immigration Appeals properly concluded that he did not identify an appropriate social group as his indebtedness to a creditor is not an immutable characteristic since it is not innate or fundamental to his identity.   

Read Jan v. Holder, No 08-1093

Appellate Information
On Petition for Review from the Board of Immigration Appeals.
Argued July 7, 2009
Decided August 6, 2009

Judges
Before POSNER, KANNE, and SYKES, Circuit Judges.
Per Curium Opinion.

Illinois Commerce Comm'n v. FERC, No. 08-1306

Petitions for review of an FERC decision holding that the transmission of electricity be priced on the basis of the cost to American Electric of transmitting one more unit of electricity is denied where there is no economic basis for American Electric reflecting sunk costs in its rates and shifting the costs to other members as it did not expect when it built the facilities that any part of their cost would be defrayed by anyone besides its customers. Petition for review of the FERC's holding concerning the pricing of new facilities that have a capacity of 500 kilovolts or more is granted where the Commission failed to articulate how the new lines are enough of a benefit to justify the costs that it wants shifted to those utilities.    

Read Illinois Commerce Comm'n v. FERC, No. 08-1306

Appellate Information
Petitions to Review Orders of the Federal Energy Regulatory Commission.
Argued April 13, 2009
Decided August 6, 2009

Judges
Before CUDAHY, POSNER, and TINDER, Circuit Judges.
Opinion by POSNER, Circuit Judge.
CUDAHY, Circuit Judge, concurring in part and dissenting in part.

US v. Gearhart, No. 08-1558

Conviction and sentence for drug crimes is affirmed where: 1) defendant's claim under the Speedy Trial Act is waived as defendant failed to move for dismissal and thus did not preserve his claim for appellate review; 2) a twenty-month delay between indictment and trial did not violate defendant's Sixth Amendment right to a speedy trial as the circumstances of the delay fell short of establishing a Sixth Amendment violation; and 3) the court did not err in disqualifying defendant's attorney.    

Read US v. Gearhart, No. 08-1558

Appellate Information
Appeal from the United States District Court for the Southern District of Illinois.
Argued April 13, 2009
Decided August 6, 2009

Judges
Before CUDAHY, POSNER, and TINDER, Circuit Judges.
Opinion by CUDAHY, Circuit Judge.

US v. Jackson, No. 08-2295

Conviction and sentence for firearms possession is affirmed where: 1) the district court did not err in denying defendant's motion to suppress evidence as the police had probably cause to enter the apartment; and 2) defendant's above guidelines sentence was not an abuse of discretion, as it was not unreasonable for the court to conclude that defendant is a menace and an above-Guidelines sentence was needed to deter further criminal activity.    

Read US v. Jackson, No. 08-2295

Appellate Information
Appeal from the United States District Court for the Northern District of Illinois, Western Division.
Argued May 11, 2009
Decided August 6, 2009

Judges
Before CUDAHY, POSNER, and KANNE, Circuit Judges.
Opinion by CUDAHY, Circuit Judge.

Raybourne v. Cigna Life Ins. Co. of New York, No. 08-2754

In a dispute involving a denial of long-term disability benefits, district court judgment is vacated and remanded where, although the court properly reviewed defendant's decision under the abuse-of-discretion standard, the case must be remanded to allow the court  to adequately account for defendant's structural conflict of interest as required by the decision in Glenn.    

Read Raybourne v. Cigna Life Ins. Co. of New York, No. 08-2754


Appellate Information
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued July 8, 2009
Decided August 6, 2009

Judges
Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.
Opinion by ROVNER, Circuit Judge.

Crichton v. Golden Rule Ins. Co., No. 07-3333

In an action for fraud, district court judgment dismissing plaintiff's case is affirmed where: 1) the court properly dismissed plaintiff's claim under the Illinois Consumer Fraud and Deceptive Business Practices Act for lack of standing as the circumstances of the alleged fraudulent activity did not occur primarily and substantially in Illinois; 2) the court properly concluded that plaintiff failed to state an actionable claim of common-law fraud as none of the alleged statements made by defendant gave rise to a duty to disclose; and 3) the court properly dismissed plaintiff's claim under the RICO statute as his allegations are insufficient to state a claim based on an association-in-enterprise or a claim that defendant controlled the operation or management of the organization defendant sold its insurance through.    

Read Crichton v. Golden Rule Ins. Co., No. 07-3333

Appellate Information
Appeal from the United States District Court for the Southern District of Illinois.
Argued March 31, 2008
Decided August 5, 2009

Judges
Before KANNE, EVANS, and SYKES, Circuit Judges.
Opinion by SYKES, Circuit Judge.

US v. Woods, No. 07-3851

Sentence for drug crimes and firearms possession is vacated and remanded where defendant's prior conviction for involuntary manslaughter required only a finding of recklessness and does not constitute a crime of violence under the residual clause in U.S.S.G. sec. 4B1.2(a)(2), and defendant thus does not have the requisite number of predicate convictions to authorize sentencing him as a career offender.   

Read US v. Woods, No. 07-3851

Appellate Information
Appeal from the United States District Court for the Northern District of Illinois, Western Division.
Argued January 6, 2009
Decided August 5, 2009

Judges
Before KANNE, WOOD, and SYKES, Circuit Judges.
Opinion by KANNE, Circuit Judge.
EASTERBROOK, Chief Judge, with whom Posner and Tinder, Circuit Judges, join, dissenting

RAG American Coal Company v. Buchanan, No. 08-1653

Judgment of the Benefits Review Board awarding benefits to defendant under the Black Lung Benefits Act is affirmed where: 1) defendant's second claim for benefits is not barred by res judicata as long as he has demonstrated a material change in his condition; 2) substantial evidence supported the ALJ's finding that defendant established a material change in conditions, and that he is totally disabled by pneumoconiosis caused at least in part by coal mine employment and thus entitled to black lung benefits.    

Read RAG American Coal Company v. Buchanan, No. 08-1653

Appellate Information
Petition for Review of an Order of the Benefits Review Board.
Argued January 14, 2009
Decided August 5, 2009

Judges
Before CUDAHY, KANNE, and TINDER, Circuit Judges.
Opinion by TINDER, Circuit Judge.

US v. High, No. 08-1970

Sentence for firearms possession is remanded where the court erred in sentencing defendant as an armed career criminal as his prior conviction for recklessly endangering safety does not count as a violent felony.    

Read US v. High, No. 08-1970

Appellate Information
Appeal from the United States District Court for the Western District of Wisconsin.
Argued January 5, 2009
Decided August 5, 2009

Judges
Before EASTERBROOK, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.
Per Curium Opinion.

US v. Patterson, No. 08-2240

Sentence for transporting a minor in interstate commerce with intent that the minor engage in prostitution is affirmed in part and reversed in part where: 1) the district court did not abuse its discretion in denying defendant's motion to withdraw his plea without an evidentiary hearing; 2) defendant's plea agreement cannot be voided because of mutual mistake with regard to the sentence imposed as the defendant's actual sentence was not an essential term of the agreement; 3) the court did not err in determining that defendant was a career offender as his conviction for transporting a minor in interstate commerce for the purpose of prostitution is similar in kind to the enumerated crimes in U.S.S.G. sec. 4B1.2(2), and is a crime of violence for purposes of the Sentencing Guidelines; 4) the court properly enhanced defendant's sentence for undue influence; and 5) the court erred when it applied a sentencing enhancement for use of a computer.   

Read US v. Patterson, No. 08-2240

Appellate Information
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued April 17, 2009
Decided AUGUST 5, 2009

Judges
Before FLAUM, EVANS, and WILLIAMS, Circuit Judges.
Opinion by FLAUM, Circuit Judge.

BKCAP, LLC v. CAPTEC Franchise Trust 2000-1, No. 08-3239

In a dispute involving the interpretation of contract language, district court's grant of summary judgment for defendant is reversed where the contract language defining the Prepayment Premium was ambiguous and thus resolving the meaning of the contract on summary judgment was inappropriate.   

Read BKCAP, LLC v. CAPTEC Franchise Trust 2000-1, No. 08-3239


Appellate Information
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division.
ARGUED APRIL 6, 2009
DECIDED JULY 13, 2009
AMENDED AUGUST 5, 2009

Judges
Before BAUER, SYKES, and TINDER, Circuit Judges.
Opinion by TINDER, Circuit Judge.

US v. Williams, No. 08-1470

Convictions for armed bank robbery and other crimes are reversed and remanded where: 1) the district court abused its discretion in denying defendants' motion for a continuance as the record shows no reason to deny a continuance and several compelling reasons to grant one, and the defendants suffered actual prejudice from the denial; and 2) any error in admitting certain expert evidence was harmless.

Read US v. Williams, No. 08-1470

Appellate Information
Appeals from the United States District Court for the Northern District of Illinois, Western Division.
Argued: November 4, 2008
Decided: August 4, 2009

Judges
Before POSNER, WOOD, and TINDER, Circuit Judges.
Opinion by WOOD, Circuit Judge.

US v. Peleti, No. 08-1507

District court judgment denying defendant's motion to withdraw his guilty plea to charges of bribery and smuggling bulk cash is affirmed where: 1) the court properly found there was a factual basis for his plea; and 2) defendant received effective assistance of counsel, and any ineffective assistance did not prejudice him.   

Read US v. Peleti, No. 08-1507

Appellate Information
Appeals from the United States District Court for the Central District of Illinois.
Argued: December 3, 2008
Decided: August 4, 2009

Judges
Before EASTERBROOK, Chief Judge, and MANION and WOOD, Circuit Judges.
Opinion by WOOD, Circuit Judge.

Fischer v. Liberty Life Assurance Company of Boston, No. 08-2617

In a dispute involving the termination of long term disability benefits, district court's grant of summary judgment for defendant is affirmed where defendant's determination cannot be branded arbitrary and capricious as its decision to deny benefits was not unreasonable and had rational support in the record.    

Read Fischer v. Liberty Life Assurance Company of Boston, No. 08-2617

Appellate Information
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued: January 21, 2009
Decided: August 4, 2009

Judges
Before POSNER, FLAUM, and WOOD, Circuit Judges.
Opinion by WOOD, Circuit Judge.

Janky v. Lake County Convention and Visitors Bureau, No. 07-2350

In a copyright infringement action, summary judgment for plaintiff is reversed and remanded for summary judgment in favor of defendant where plaintiff and her bandmate qualified as co-authors of the song in question, as they intended to be joint authors of the song at the time the work was created and they both contributed independently copyrightable material. 

Read Janky v. Lake County Convention and Visitors Bureau, No. 07-2350

Appellate Information
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division.
Argued October 28, 2008
Decided August 3, 2009

Judges
Before BAUER, RIPPLE, and EVANS, Circuit Judges.
Opinion by EVANS, Circuit Judge.
RIPPLE, Circuit Judge, dissenting.

US v. Westcott, No. 08-1211

Conviction for firearms possession is affirmed where: 1) the evidence was sufficient to convict him on the charged offense, and the order of protection against him was valid; 2) the court did not abuse its discretion in allowing a limited amount of evidence regarding the ammunition found in the house for a proper purpose; 3) defendant's claims of prosecutorial misconduct have no merit; and 4) the court did not err in admitting the torn, initialed, edited and unsigned statement drafted by the detective who interviewed him.   

Read US v. Westcott, No. 08-1211

Appellate Information
Appeal from the United States District Court for the Northern District of Illinois, Western Division.
Argued October 31, 2008
Decided August 3, 2009

Judges
Before FLAUM, ROVNER and WOOD, Circuit Judges.
Opinion by ROVNER, Circuit Judge.

Baird v. Renbarger, No. 08-2436

In an excessive force action brought under 42 U.S.C. sec. 1983, district court judgment denying defendant's s motion for summary judgment is affirmed where the district court did not err in holding that defendant was not entitled to qualified immunity as a reasonable jury could find that defendant violated the plaintiffs' clearly established right to be free from excessive force when he seized and held them by pointing his firearm at them when there was no hint of danger.   

Read Baird v. Renbarger, No. 08-2436

Appellate Information
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.
Argued January 6, 2009
Decided August 3, 2009

Judges
Before BAUER, FLAUM, and WOOD, Circuit Judges.
Opinion by WOOD, Circuit Judge.

US v. Aguilar-Huerta, No.08-2505

Sentence for being illegally in the United States after having been deported is affirmed where the court did not err in applying a 16-level increase in defendant's offense level under the Sentencing Guidelines, and is not required to consider the argument that the guideline is invalid and unworthy of application because it was promulgated without adequate deliberation by the Sentencing Commission.    

Read US v. Aguilar-Huerta, No.08-2505

Appellate Information
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued July 7, 2009
Decided August 3, 2009

Judges
Before POSNER, KANNE, and SYKES, Circuit Judges.
Opinion by POSNER, Circuit Judge.

Smith v. Duffey, No. 08-2804

District court's dismissal for failure to state a claim is affirmed where defendants had no duty to tell plaintiff that defendants' employer was about to declare bankruptcy, and none of the their actions were actionable as fraud. 

Read Smith v. Duffey, No. 08-2804

Appellate Information
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued May 11, 2009
Decided August 3, 2009

Judges
Before CUDAHY, POSNER and KANNE, Circuit Judges.
Opinion by POSNER Circuit Judge.

US v. Ramirez, No. 08-3216

Conviction for wire fraud is affirmed where: 1) the district court did not err in giving the conscious or deliberate avoidance instruction as substantial evidence showed defendant deliberately avoided learning the truth; 2) the court did not err in refusing to include negligence language, and the jury was appropriately instructed that it could not convict absent a finding that defendant acted knowingly; and 3) any error in the instructions was harmless given the extensive evidence of defendant's direct knowledge.    

Read US v. Ramirez, No. 08-3216

Appellate Information
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued February 27, 2009
Decided August 3, 2009

Judges
Before MANION, ROVNER, and TINDER, Circuit Judges.
Opinion by TINDER, Circuit Judge.

Nemsky v. ConocoPhillips Co., No. 08-4028

In an action for breach of a collective bargaining agreement and breach of the duty of fair representation brought under the Labor Management Relations Act, district court judgment is affirmed where: 1) the court did not err in ruling against plaintiff in his claim that co-defendant International Union of Operating Engineers, Local 399 breached its duty of representation as no rational jury could find that the union was irrational in executing the memorandum of agreement with the company, and the union did not abandon the arbitration of plaintiff's termination in bad faith; 2) plaintiff's argument that the enactment of the substance abuse policy breached the collective bargaining agreement failed as the memorandum of agreement the union entered into operated as an amendment to the collective bargaining agreement, and thus any claim that the company breached the agreement was resolved by the memorandum; and 3) the court did not abuse its discretion in denying defendant's motion Rule 11 sanctions against plaintiff as defendant has not shown that plaintiff litigated in bad faith or that he advanced a frivolous claim.   

Read Nemsky v. ConocoPhillips Co., No. 08-4028

Appellate Information
Appeal from the United States District Court for the Southern District of Illinois.
Argued June 4, 2009
Decided August 3, 2009

Judges
Before FLAUM, WOOD, and TINDER, Circuit Judges.
Opinion by FLAUM, Circuit Judge.

Schlacher v. Law Offices of Phillip J. Rotche & Assoc., No. 08-4267

In a dispute involving attorney's fees, district court's fee award is affirmed where: 1) the court did not err in reducing the requested fee as the collaboration among four attorneys led to duplicative work and excessive billing; 2) the court did not abuse its discretion in failing  to specifically enunciate how it calculated the ultimate fee as substantial fees were not at stake and the reasons for the court's fee award are apparent from the record; and 3) the court did not abuse its discretion in denying the motion to compel the defendant to produce its counsel's billing records.    

Read Schlacher v. Law Offices of Phillip J. Rotche & Assoc., No. 08-4267

Appellate Information
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued July 8, 2009
Decided August 3, 2009

Judges
Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.
Opinion by WILLIAMS, Circuit Judge.