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

March 2010 News

Decisions in Criminal, Tax, and Civil Rights Matters

Today, the Seventh Circuit decided a criminal matter, a former inmate's civil rights action and a tax matter involving a taxpayer's challenge to the IRS's increase the amount of income tax withholdings. 

In US v. Krumwiede, No. 08-4081, the court faced a challenge to the district court's imposition of a 140-month sentence for stealing thirty-four firearms from a federally licensed firearms dealer and other crimes.  In rejecting the defendant's contention that the district court erred in applying s four-level enhancement, the court held that there was no error as under Application Note 14(B) , section 2K2.1(b)(6) applies when a defendant during the course of a burglary, finds and takes a firearm even if the defendant did not engage in any other conduct with that firearm. 

Wrightsell v. Cook County, No. 09-2634, involved a former inmate's 42 U.S.C. section 1983 suit claiming that the county's failure to make more than a single dentist available to the jail's 10,000 inmates was cruel and unusual punishment.  In affirming district court's denial of class certification and dismissal of another former inmate's petition to intervene, the court held that the first inmate had no personal stake in having the class certified as he already settled  his claim and received all the relief he sought.  As for the second inmate, the court held that the dismissal was correct as he failed to ask the district court for permission to intervene within the statutory deadline for filing notice of appeal.

In Cleveland v. Comm'r of Internal Revenue, No. 09-2952, the court faced a challenge to the Tax Court's denial of a taxpayer's petition to keep the IRS from increasing the amount of his withholdings of his wages.  In affirming the dismissal, the court held that even if the taxpayer's theory that the underlying dispute concerned a collection action within the ambit of section 6330 was accepted, the Tax Court would lack subject matter jurisdiction because there was no issuance of a notice of determination. 

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Brown v. Chicago, No. 08-4265, concerned a 42 U.S.C. section 1983 action claiming that an officer used excessive force.  The court of appeals affirmed summary judgment for defendant, holding that, because plaintiff had been convicted of aggravated assault, aggravated unlawful use of a weapon, and unlawful possession of a weapon by a felon based on his encounter with defendant-officer, plaintiff's suit was barred by collateral estoppel.

In US v. Simmons, No. 08-3603, the court of appeals affirmed defendant's bank robbery conviction on the ground that any possible error in admitting gloves and photos related to the robbery was harmless given the defendant's own testimony, and the fact that the government's evidence challenged by defendant merely supported defendant's own theory of the case.

Sandra T.E. v. S. Berwyn Sch. Dist. 100, No. 08-3344, involved a law firm's appeal from the district court's order requiring it to produce documents it created in an internal investigation of a school district.  The court of appeals reversed, holding that 1) factual investigations performed by attorneys as attorneys fell comfortably within the protection of the attorney-client privilege; and 2) the work-product doctrine also protected the materials at issue from disclosure; and 3) to the extent some of the witnesses interviewed by the attorneys were not district employees, this was an independent rather than a duplicate source of protection.

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Santiago v. Walls, No. 07-1219, involved a pro se action under 42 U.S.C. section 1983 against certain officers and employees of the Illinois correctional department alleging that they had violated his constitutional rights by failing to protect him from other inmates, failing to provide him with medical care and retaliating against him for speaking out against the department.

The court affirmed the trial court's dismissal and other rulings against the plaintiff but reversed in part where the district court erred in dismissing one count of plaintiff's complaint and abused its discretion by not recruiting counsel for plaintiff during discovery.

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In US v. Barnhart, No. 07-2729, the Seventh Circuit faced a challenge to a conviction for wire fraud involving a fraud of a former employer and a fraudulent scheme to obtain $500,000 from a bank.  In affirming the conviction, the court held that although the district judge's questioning of the witnesses during defendant's trial went too far, it did not prejudice defendant's substantial rights given the overwhelming evidence of defendant's guilt.  The court also held that defendant's "parading" argument regarding his prior conviction is meritless with regard to his claim that the district court improperly calculated the amount of loss.  However, the case was remanded for the limited purpose as the district court should not have ordered the restitution based on relevant conduct.

Chang v. Baxter Healthcare Corp., No. 09-2280, involved the district court's dismissal of Taiwanese-plaintiffs' suit against a manufacturer of clotting factors on the ground of untimeliness of some claims and forum non conveniens on others.  The court affirmed the district court's dismissal of plaintiffs' claims as untimely and its alternative ruling that a California court would apply the Taiwanese 20-year statute of repose because the plaintiffs' tort claims arose under Taiwanese law.  Furthermore, district court's dismissal on forum nonconveniens ground is affirmed including a plaintiff's product liability  claim as convenience favors Taiwan and the statute of limitations applicable to this claim will be the same whether the case is tried in California or Taiwan.

In Al's Serv. Ctr. v. BP Prod. N. Am., Inc., No. 09-3006, the court dealt with district court's denial of plaintiff's motion to amend in granting summary judgment in favor of the defendant in a suit under the Petroleum Marketing Practices Act, where the plaintiff claimed that the defendant drove his small gas station out of business.  However, in affirming the judgment, the court held that defendant was entitled to terminate the franchise or not renew the franchise based on government's condemnation of the property, no matter how small, as it significantly degraded the marketing premises.  Furthermore, the evidence shows that defendant complied with the district court's order of injunction and the franchise relationship ended only when the plaintiff abandoned its business.

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In Miller v. Herman, No. 08-3093, the Seventh Circuit dealt with the district court's dismissal of plaintiff's action against a homebuilder under the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act and state law in connection with defendant's installation of windows in plaintiff's newly constructed home causing personal and property damage due to water leaks.  In affirming the district court's dismissal of the Magnuson-Moss claims with modification, the court held that the claim is dismissed under Rule 56 as the determination that windows are not consumer products is properly understood as a merit-based rather than a jurisdictional determination.  Thus, dismissal of the state law claims and any cross claims and counterclaims are vacated and remanded for determination of whether supplemental jurisdiction is warranted for these claims.

In Ojeda v. Goldberg, No. 09-2008, the court faced a challenge to district court's reversal of the bankruptcy court's conclusion that the loan owed to the creditors was dischargeable and that even if it wasn't dischargeable, the amount excepted from the discharge was only the amount of unpaid interest and attorney fees.  In affirming the reversal of the bankruptcy court's judgment, the court held that the it was a clear err in finding that the creditor was unjustified in relying on debtor's continued asserted ownership of McDonald's restaurants and in finding that creditor did not establish a claim for fraudulently inducing forbearance.  Furthermore, the bankruptcy court committed an error of law in concluding that the only unpaid interest and attorney's fees were non-dischargeable.

W. Bend Mut. Ins. Co. v. U.S. Fid. & Guar. Co., No. 09-2519, involved an action for breach of contract arising from defendant's refusal to defend a mutual insured in a class action lawsuit alleging that the insured's gas station contaminated groundwater in a residential neighborhood.  Here, because the pollution exclusion to the defendant's policy was sufficiently explicit to exclude gasoline contamination from coverage, district court's judgment that the policy excluded this type of claim in granting summary judgment was correct.  Also, the district court did not err in holding that neither the excess liability coverage nor the products-completed operations hazard coverage contained in the supplemental defendant's umbrella policy provide grounds for the relief that plaintiff seeks. 

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Today, the Seventh Circuit decided a case involving an Indian tribe's sawmill operations on its reservation and whether it was subject to OSHA review, and another case involving the issue of whether a litigant who initiates a lawsuit in state court can remove the case after becoming a counterclaim defendant.

In Menominee Tribal Enter. v. Solis, No. 09-2806, the court addressed an Indian Tribe's petition for reivew of an order of the Occupations Safety and Health Review Commission, citing the tribe for violations of OSHA in operation of a sawmill on its reservation.  The OSHA contains an express exemption for the federal government and for state and local governments, but says nothing about Indian tribes.  Furthermore, the Act does not interfere with tribal governance nor does the Act clash with rights granted Indians by other statutes or by treaties with Indian tribes.  Therefore, the sawmill and related commercial activities of the Menominees' enterprise are subject to OSHA.

In First Bank v. DJL Prop., LLC., No. 10-8008, the court faced a challenge to the district court's decision to remand plaintiff's case to state court after plaintiff had removed the case under the Class Action Fairness Act of 2005 in response to defendant's counterclaim.  In granting the plaintiff's petition, the court held that the district court was correct to remand the suit as a litigant who initially chooses a state forum cannot remove even after becoming a counterclaim defendant., in accordance with the holding in Shamrock Oil.  

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The Seventh Circuit decided an employment matter, a case involving breach of an insurance contract, and Tax Court's determination of settlement payments and incurred litigation costs for deduction purposes.

In Luster v. Allstate Ins. Co., No. 09-2483, the court faced a challenge to the district court's grant of summary judgment in favor of an insurance company in an attorney's action for breach arising from the insurer's refusal to cover extensive fire damage to the attorney's deceased client, that had occurred while the home was unoccupied for more than four years, and had remained unoccupied until the client's  death.  In reversing the summary judgment, the court remanded the case in determining that the plaintiff was entitled to a hearing on whether an exclusion applies as the district court's decision was based not on cancellation but on the hazard exclusion.

WellPoint, Inc. v. Comm'r of Internal Revenue, No. 09-3163, involved an appeal of the decision of the Tax Court that plaintiff could not deduct from its taxable income, either the amount it paid to the states in its settlement or the legal expenses incurred in defending the case.  The underlying litigation against the plaintiff by three states arose from its acquisition of nonprofit companies some years ago and allegedly used the assets for its purposes as a for-profit company.  In affirming the Tax Court's judgment, the court held that under the application of the "origina of the claim" doctrine, costs incurred in defending the lawsuit were capital expenditures and not ordinary and necessary business expenses.

Fleszar v. U.S. Dep't of Labor, No. 09-2423, involved a plaintiff's petition for review a decision by the Administrative Review Board declining to investigate her allegation that her termination from employment by the American Medical Association violated the whistleblower-provision, section 806 of the Sarbanes-Oxley Act.  In affirming the decision, the court denied plaintiff's petition and held that the AMA, a nonprofit membership association that does not issue stock, is not covered under the Act. 

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Today, the Seventh Circuit decided a criminal matter involving a defendant's challenge to his sentence and an employment case involving a plaintiff's claim for overtime pay under the FLSA.

In US v. Portman, No. 09-1083, the Seventh Circuit faced a challenge to a conviction for multiple counts of mail fraud, wire fraud, bank fraud, and possessing and creating falsely altered checks, and a sentence near the low end of the guideline range on remand , from 60 months' to 48 months' imprisonment.

As stated in the decision: "Diminished capacity is a ground of 'recognized legal merit' for seeking a lesser sentence...and we have found abuse of discretion when judges have not considered or addressed uncontested evidence of diminished capacity."

Thus, in rejecting defendant's claim that the district court abused its discretion in not reducing his sentence based on diminished capacity, the court held that the district court found no causal link between his alleged diminished capacity and his crime.  In addition, the court held that the district court did not abuse its discretion in refusing to reduce defendant's sentence based on the theory that the loss calculation of over $1 million overstated the seriousness of his offense.

In Schmidt v. Eagle Waste & Recycling, Inc., No. 09-1902, the Seventh Circuit faced a challenge to the district court's grant of summary judgment in favor of the defendant in plaintiff's action for monetary relief under the Fair Labor Standards Act (FLSA) alleging that she was not paid overtime under the Act.

The court addressed the plaintiff's argument that she was not an "outside salesperson" as defined in the FLSA regulations.  As stated in the decision: "The undisputed facts show that Schmidt's primary duty was outside sales.  On average, Schmidt spent four to eight hours a day outside the office making in-person sales calls.  She visited the office on only about half of her workdays.  At the office, much of her work furthered her efforts to make sales."

Thus, in concluding that plaintiff's work related directly to her outside sales work and was exempt.  Furthermore, the district court did not err in holding that even if plaintiff's primary duty was not outside sales, the combination of her outside sales and administrative work exempts plaintiff from overtime requirements under the Act. 

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The Seventh Circuit decided two criminal matters today, and a 42 U.S.C. section 1983 case brought by a mother and a grandmother against an elementary school principal and others for their arrest.

In Brown v. Watters, No. 08-1171, the court faced a challenge to the district court's denial of defendant's petition for habeas relief for his civil commitment as a sexually violent person.  Defendant argued that he was denied due process because the state court relied on evidence that was not supported by scientific knowledge or accepted in the medical community. 

First, although the court noted that the diagnosis for paraphilia NOS nonconsent was minimally sufficient for due process purposes, it was not so lacking in scientific validity that relying upon it for civil commitment amounts to a denial of due process. Second, the court rejected defendant's claim that the diagnosis for APD was overbroad and too imprecise to provide a meaningful evidence of a mental disorder.  Finally, the court rejected defendant's claim that the expert testimony was unreliable under Daubert as he pointed to no authority in which the Daubert standard has been imposed on states as a requirement of due process.

In US v. Thompson, No. 09-1926, the court deal with an issue of first impression involving a district court's imposition of an 8 month re-imprisonment sentence on a defendant for violating the conditions of his supervised release via video conference hearing.  In vacating the sentence of re-imprisonment, the court held that a supervised-release revocation hearing by video conference violates Rule 32(b)(2) as the form and substantive quality of the hearing is altered when a key participant, here the judge, is absent from the hearing room even if participating by virtue of a cable or satellite link. 

In Stokes v. Bd. of Educ. of the City of Chicago, No. 09-1180, the court faced a challenge to the trial court's dismissal of plaintiffs' 42 U.S.C. section 1983 case against an elementary school principal and the city's board of education for alleging that the principal violated their constitutional rights by swearing to false complaints leading to their arrests.  In affirming the district court's grant of summary judgment in favor of the defendants, the court held that the undisputed facts showed that the principal had probable cause to sign criminal complaints for disorderly conduct against the parent and the grandparent based on the verbal and physical altercation between the plaintiffs and the parent of another student on the school premises while school was in session. 

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Decisions in Section 1983 Cases and Criminal and Tax Matters

The Seventh Circuit decided a tax matter involving tax deductions of an S corporation, criminal matters, and 42 U.S.C. section 1983 cases involving sex offender registration requirement.

In US v. Corner, No. 08-1033, the court faced a challenge to the district court's holding that, in light of US v. Welton, district courts are not entitled to disagree with U.S.S.G section 4B1.1, in sentencing defendant to 188 months for possession of more than five grams of cocaine with intent to distribute as a career offender.  However, in reversing the decision, the court concluded that under Kimbrough and Spears, district judges are at liberty to reject any Guideline on policy grounds.  Thus, the court overruled Welton to the extent that it holds that section 4B1.1 differs from other Guidelines.

In Brown v. Finnan, No. 08-3151, the court dealt with a defendant's request for relief claiming ineffective assistance of counsel at both trial and appellate levels.  The defendant had claimed that his counsel declined to request a hearing to determine the impact of an in-court statement by one of the victim's mother and her out-of-court statement on the jury.  However, in rejecting defendant's ineffective assistance claim the court held that he failed to demonstrate that his counsel's assistance was objectively unreasonable and resulted in a substantial risk of prejudice.

In US v. Panice, No. 08-3323, the court faced a challenge to the district court's imposition of a 360 month sentence on a defendant convicted of various fraudulent schemes including a scheme to defraud people seeking jobs in the technology sector.  The court rejected most of defendant's contentions and affirmed the conviction but vacated and remanded his sentence as the sentencing record left too much doubt about whether the judge impermissibly started the presumption that a within-guidelines sentence in entitled to a rebuttable presumption of reasonableness and whether he completed adequate consideration of all the relevant section 3553(a) factors.

In Rosin v. Monken, No. 08-4132, the court addressed the issue of whether a plaintiff, having pleaded guilty to a misdemeanor offense of non-consensual sexual contact in New York under assurances that he would not be required to register as a sex offender, is nevertheless subject to mandatory life-long registration by Illinois.  In affirming the district court's dismissal of plaintiff's section 1983 suit in holding that the New York order was merely stricken and was silent on the subject.  Furthermore, because plaintiff's plea agreement did not purport to prevent any state other than New York from registering plaintiff as a sex offender, and any such provision would have been ineffective anyway.

In US v. Ray, No. 09-2392, the court addressed defendant's motion for a reduction in his 263 month sentence for possessing almost two kilograms of crack cocaine, which was significantly lower than the guidelines range of 292-365 months.  In affirming that the district court was correct to conclude that the defendant's sentence was not based on the guidelines, the court held that in the absence of explicit language in the plea agreement to the contrary, a sentence imposed under 11(c)(1)(C) plea agreement is not based on the sentencing guidelines.

In T.E. v. Grindle, No. 09-2920, the court faced a challenge to the district court's denial of a school principal's  motion for summary judgment claiming she was entitled to qualified immunity because plaintiffs failed to establish a clearly established right in their 42 U.S.C. section 1983 suit against the principal and a district band teacher who allegedly molested the plaintiff-children.   The court affirmed the summary judgment motion denial and held that the plaintiffs have put forth evidence that is sufficient to create liability under clearly established law of the circuit. 


In Tully v. Barada, No. 09-3237, the court faced a challenge to the district court's dismissal of plaintiff's 42 U.S.C. section 1983 suit against a prosecutor for failure to state a claim upon which relief can be granted.  In deciding on the merits of the case, because the defendant waived defense of absolute immunity and others, the court held that a section 1983 claim cannot lie for a mere court summons and prosecution without probable cause.

In Vainisi v. Comm'r of Internal Revenue, No. 09-3314, the court addressed the issue of whether the plaintiffs were entitled to deduct from their taxable income the entire interest expense that their QSub bank had incurred in borrowing money with which to buy qualified tax-exempt obligations.  In reversing the Tax Court's conclusion that the plaintiffs were entitled to deduct only 80 percent of that expense, the court held that for firms that have been S corporations for at least three years escape the "except" clause in section 291, and as such, the zero percent rule and the 80 percent rule are replaced by a 100 percent rule so that all the interest expense incurred in acquiring qualified tax-exempt obligations is deductible.

In DeKoven v. Plaza Assocs., No. 09-2016, the court faced a challenge to the district court's grant of summary judgment in favor of defendants in a class action lawsuit brought under the Fair Debt Collection Practices Act.  The case involved two letters sent to plaintiffs concerning a statement that the offer of settlement is valid for only 35 days and an additional statement in another letter regarding "satisfactory proof" that the account is in error.  As required, the plaintiffs conducted a consumer survey, but the court affirmed the district court's decision and held it was inadmissible under the standards governing admission of survey evidence as it was confusing and misleading. 

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The Seventh Circuit decided two criminal cases and one civil case involving a claim under the Federal Employer's Liability Act (FELA).

In McBride v. CSX Transp. Inc., No. 08-3557, the court faced a challenge to a judgment in favor of plaintiff in his FELA suit against his employer for injuries he sustained while performing certain work duties.  At issue was the proper standard for causation under the FELA and whether section 1 of the FELA abrogates the common-law rule of proximate cause.  In affirming the decision, the court held that the common law proximate causation is not required to establish liability under the FELA, as this is in line with the Congress' intent as well as among circuits that there is a "relaxed" standard of probable cause under the FELA.

In Smith v. McKee, No. 09-1744, the court faced a challenge to a conviction for first degree murder and attempted robbery convictions.  In denying defendant's petition for habeas relief and in affirming the conviction, the court rejected all of defendant's contentions as procedurally defaulted and because he failed to show adequate cause and prejudice.  The court also rejected defendant's actual innocence claim as affidavits of two purported witnesses do not warrant the application of the miscarriage of justice exception. 

Lastly, in US v. Bell, No. 09-2555, the court faced a challenge to the district court's conviction and sentencing of defendant to 24 months' imprisonment, and an order to pay a restitution of $83,890.37 for willful failure to pay child support. 

In affirming the conviction, the court held that section 3282(a) is a continuing offense, and as such, district court properly rejected defendant's statute of limitations argument and denied his motion to dismiss the indictment.  The court also concluded that the district court did not err in instructing the jury on standard of willfulness.  However, the sentence is vacated and remanded for resentencing as the district court double counted by applying a cross reference for section 228 and then enhancing it for conduct that constitutes an element of the offense, which is court order violation.

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Decisions in a Case Claiming Deceptive Pricing and Criminal Matters

The Seventh Circuit decided two criminal matters, both involving defendants' challenge to their sentences and a civil suit against a well known children's clothing retailer accused of deceptive pricing. 

In US v. Angle, No. 08-2087, the court faced a challenge to district court's significant upward departure in sentencing a defendant convicted of child pornography crimes, on appeal for the fourth time.

In affirming the sentence, the court pointed to the several reasons given by the district court in imposing an above-range sentence plus "pattern of abuse" adjustment.  Defendant had an unbroken 20-year pattern of abusive conduct and exploited positions of trust to get at his young victims and created child pornography as well as consumed it.  Furthermore, he showed no remorse and the court reiterated that defendant would have faced a significantly higher sentence if sentenced under the current version of the guidelines.

In US v. Lewis v. No. 08-3278, the court addressed the issue of government's failure to file a section 851 information in conviction of defendant for attempted possession. with intent to distribute over 500 grams of cocaine and sentenced to a mandatory minimum term of 20 years.  In affirming the sentence, the court held that, although it was a mistake, government's failure to file the section 851 information did not cause prejudice.  First, defendant did not suffer from a lack of formal notice as he was aware of his prior conviction.  Second, the lack of notice did not affect defendant's decision on how to plead, as he proceeded to trial.

In Kim v. Carter's Inc., No. 09-2169, the court faced a challenge to the district court's dismissal of plaintiffs' complaint for failure to state a claim in their suit against a children's clothing retailer for damages under Illinois contract and consumer protection law.  In their complaint, the plaintiffs claimed that they were victims of deceptive pricing.

In affirming the decision, the court concluded that the plaintiffs received the benefit of the bargain as defendant fulfilled its obligations under the straightforward contract.  And, although defendant's alleged deceptive practice may violate the Illinois Consumer Fraud and Deceptive Business Practices Act, plaintiffs have failed to show actual damages. 

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Today, the Seventh Circuit decided three criminal cases involving a first degree murder conviction and two felonious firearm possession convictions.  The court also ruled regarding the Social Security Administration's denial of benefits to a claimant, an immigration case, a train engineer's claim for injuries, and last but not least, a suit by white firefighters against a city for employment discrimination.

In Gray v. Hardy, No. 07-3704, the court faced a challenge to the district court's denial of defendant's request for habeas relief for his conviction of first-dgree murder and sentenced to an extended term of sentence of 80 years based on a finding that the murder was exceptionally brutal and heinous. In dispensing with defendant's various claims, the court concluded that defendant has procedurally defaulted each claim and even if he had adequately preserved  his claim of ineffective assistance claim, he cannot show that he was prejudiced by his counsel's failure to raise the Apprendi claim.

In US v. Sykes, No. 08-3624, the court faced a challenge to defendant's enhanced sentence under ACCA in his conviction for being a felon in possession of a firearm.  In affirming the district court's determination, the court held that the propr conviction of fleeing a police in a vehicle in violation of Ind. Code is sufficiently similar to ACCA's enumerated crimes in kind and degree of pose risked.

In US v. Jackson, No. 09-2279, once again, the court faced a challenge to a conviction for being a felon in possession of a firearm.  Here, the defendant's main challenge was the district court's denial of his motion to suppress.  However, in ultimately affirming the district court's conclusions, the court held that the officer had reasonable basis for believing that defendant's mother had authority to consent to the search of the computer and the computer case.  The court concluded that the officer did not exceed the scope of his search and that the district court did not err in denying defendant's request to raise an "innocent possession" defense.

In Juarez v. Holder, No. 08-1788, the court faced a challenge to BIA's denial of Guatemalan petitioner's and her son's application for withholding of removal and related relief as untimely.  In upholding the denial, the court stated that the petitioners had ample time to file their applications and were given ample time to provide biometrics and did not have good cause for their delay. 

In a decision of two consolidated cases Parker v. Astrue, No. 09-2270, the court faced a challenge to the  denial of social security benefits. In a case of a claimant suffering from chronic pelvic pain, incontinence, and asthma, the ALJ founf that the claimant can stand and sit for six hours during a workday, and decided that she would be capable of working as a counter attendant, assembler, sorter, or packager, despite unanimus opinions by examining professionals that she has severe, nearly constant, delibitating physical pain.

In the case of the other claimant, a Cambodian refugee, suffering from diabetes, hepatitis B, depression, and PTSD, the ALJ used much of the same boilerplate language used in the other case in denying this petitioner's claim for disability benefits.  Thus, in reversing the district court's affirmance of ALJ's denial of benefits, the court held that an administrative decision that fails to mention highly pertinent evidence, conducts limited analysis based on boilerplate paragraphs, cannot be upheld.

In Serafinn v. Int'l Brotherhood of Teamsters, Local 722, No. 08-1114, the court faced a challenge to the district court's grant of summary judgment to a joint council and a jury verdict in favor of the plaintiff in plaintiff's suit against his local union and the joint council claiming violation of his free speech and assembly rights.  In affirming the decision, the court first concluded that the local's claims fail because the jury instructions either benefited the local union or otherwise waived any challenge.  Next, the court affirmed the district court's denial of plaintiff's claim regarding the atttorneys' fee award and affirmed the denial of relief from summary judgment because the new eivdence plaintiff asked for was cumulative.

In Stockwell v. City of Harvey, No. 09-2355, the court dealt with a claim, by white firefighters, that the city failed to promote them within the fire department because of their race.  The firefighters attempted to establish their claim using the McDonnell-Douglas indirect method of proof and asked the court to reconsider the "background circumstances" requirement, that is used in reverse discrimination cases.  In declining to do so, the court held that it need not address any of plaintiffs' argument with respect to whether they demonstrated a prima facie case because they have failed to produce sufficient evidence of pretext.  And the city, through its fire chief, has set forth legitimate nondiscriminatory reasons for declining to promote plaintiffs to deputy and/or assistance chief positions.

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Conviction for Felonious Possession and Sentence Under the ACCA

In US v. Neff, No. 08-3643, the Seventh Circuit faced a challenge to a conviction for possession of a firearm by a felon and an enhanced sentence based on defendant's status as an armed career criminal. 

First, the court addressed the issue of the time limits in Rule 4(b) and concluded that it is a claim-processing rule, rather than jurisdictional, that can be forfeited.  The court then addressed defendant's claim that Amendment 709 was clarifying and that it applied retroactively to reduce his sentence.  In rejecting his claim, the court held that Amendment 709 is substantive, and as such, it is not retroactive. 

Moreover, even if Amendment 709 was clarifying, the sentencing guidelines authorize the use of a clarifying amendment only when the clarifying guidelines precedes the sentence.  Here, defendant's sentence does not meet this requirement because he was sentenced in 1994 and Amendment 709 became effective in 2007.

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Today, the Seventh Circuit decided a criminal case, a sewer district's suit against a liability insurer, and a case involving a preliminary injunction enjoining a defendant from engaging in piracy.

In US v. Oglesby, No. 09-1334, the court faced a challenge to the district court's denial of defendant's motion to suppress evidence of a firearm discovered during a Terry stop.  In affirming the denial, the court held that based on the totality of the circumstances, the officer clearly had articulable facts upon which he could reasonably suspect that the defendant was armed or dangerous, and moreover, the pat-down was extremely limited to the area on the defendant where the gun was found.

In Russian Media Group, LLC v. Cable Am., Inc., No. 09-1554, the court faced a challenge to the district court's grant of preliminary injunction enjoining the defendant-cable television company from pirating Russian-language satellite television programming and distributing it to customers in certain apartment houses.  In affirming the decision, the court held that the trial court did not err in writing the injunction as it did.  The court also rejected all of defendant's claims including res judicata defense, preemption defense and its argument that the preliminary injunction was inappropriate because the plaintiff was not the "aggrieved party."

In Milwaukee Metro. Sewerage Dist. v. American Int'l Specialty Lines Ins. Co., No. 09-1645, the court faced a challenge to the district court's judgment in favor of a sewerage district in its suit against an environmental liability insurer for denying coverage for pollution clean-up costs.  In reversing the decision, the court held that the trial court erred in finding that, by a clear and convincing proof, that a prior agreement existed with respect to the parcel at issue would be covered property. 

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In US v. Salem, No. 08-2378, the Seventh Circuit faced a challenge to defendants' contention that the district court erred in its relevant conduct findings, in its sentencing of defendants for wire fraud and receiving stolen funds related to a scheme to defraud buyers of various items on the internet.

As stated in the decision: "A district court must first determine the scope of the criminal activity the defendant agreed to jointly undertake, and then determine whether the conduct of others was in furtherance of, and reasonably foreseeable to the defendant in connection with, that activity."

In remanding the sentences, the court concluded that the district court only made findings as to the reasonableness of the co-schemers' acts only, and made no finding as to the scope of the jointly undertaken criminal activity. 

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Ruling in Standing Requirement in Bankruptcy Case

In In Re: Ray, No. 09-2984, the Seventh Circuit faced a challenge to the district court's order affirming the bankruptcy court's dismissal of two Chapter 11 proceedings. 

In concluding that the district court erred in finding that the petitioner-law firm satisfied the prerequisites for being a "person aggrieved" and had standing to appeal the dismissal order, the court vacated the decision and held that the law firm did not appear and object as required for bankruptcy standing.  The record is devoid of any evidence that the lawyer ever informed the bankruptcy court that he was appearing on behalf of the law firm and the transcript is devoid of any mention of the law firm by the lawyer or any other party.

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The Seventh Circuit decided an immigration case and a criminal case involving a defendant convicted of distributing crack cocaine.

In Gonzalez-Balderas v. Holder, No. 09-1890, the court faced a challenge to the BIA's denial of a Mexican National's request to reapply for admission retroactive to the date of her second reentry.  The petitioner initially entered the U.S. illegally by using someone else's documentation and removed, which made her ineligible to seek readmission for five years.  She illegally reentered a second time, which meant that she would be prevented from reapplying for permission to enter for ten years.  Thus, in affirming the denial, the court held that application for retroactive relief cannot be granted when the effect would be to lift the ten-year bar.

In US v. White, No. 09-2053, the court faced a challenge to the district court's denial of defendant's motion to withdraw his guilty plea.  The defendant's motion was based on a "mutual mistake" that upon learning that his criminal history made him ineligible for a "safety valve" reduction, the two other reductions the government had agreed to had the practical effect of being negated.  However, in rejecting defendant's claims, the court affirmed the denial in concluding that the defendant know the possible consequences of his plea and the government did not promise a specific sentence. 

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In Budde v. Kane County Forest Pres., No. 09-2040, the Seventh Circuit faced a challenge to the district court's grant of summary judgment against a police chief claiming employment discrimination based on his alcoholism disability, after he was fired for causing an accident while driving drunk.

Under 29 C.F.R. section 1630.2(m), in order for the plaintiff to prevail on his discrimination claim, he must first establish that he is a "qualified individual with a disability" by showing that he is someone who, "satisfies the requisite skill, experience, education, and other job-related requirements of the employment position," and "can perform the essential functions of the position held, with or without reasonable accommodation."

In affirming the grant of summary judgment in favor of the defendant, the court held that plaintiff's claim must fail because he was fired as a result of his miconduct since he cannot perform the essential functions of his position as a police chief due to his suspended driver's license and thus, cannot operate a motor vehicle as his job requires.  Plaintiff's other claims of failure to accommodate and retaliation  for seeking accommodation for his alcoholism are without merit.

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In In re: Whirlpool Corp., No. 09-3777, the Seventh Circuit dealt with both an appeal and a petition for a writ of mandamus challenging district court's order for Whirlpool to disclose communications between its attorneys and outside advertising agencies, arising from an action for trademark infringement against Whirlpool relating to a clothes dryer.

As stated in the decision: "At the time there was uncertainty about whether rulings on the attorney-client privilege could be appealed as collateral orders, because Mohawk Indus., Inc. v. Carpenter, 130S. Ct. 599 (2009), which addressed this very issue, was pending before the Supreme Court." 

Based on the Supreme Court's holding in Mohawk with respect to Whirlpool's appeal, the court held that the appeal must be dismissed for lack of jurisdiction as rulings that allegedly infringe upon the attorney-client privilege are not appealable as collateral orders.  In addition, the court denied Whirlpool's petition for a writ of mandamus in rejecting its argument that the unavailability of collateral appeal requires the court to relax the standards for issuing writs of mandamus. 

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Ruling Against Plaintiff in Bivens Suit

In Williams v. Fleming, No. 09-2410, the Seventh Circuit dealt with plaintiff's claim against a bank, the US, and an associate examiner with the FDIC brought under the Federal Tort Claims Act.  Asserting various causes of action, plaintiff claimed that the bank's decision to stop making loans to him was due to an FDIC's associate examiner's racially motivated bias toward plaintiff and other African-Americans.

The court affirmed the district court's conclusion but based on a different reason ... that the proper inquiry is not one of jurisdiction but whether the United States has a defense to the suit.  Thus, because the case was dismissed pursuant to section 2680(h), the claim was not dismissed for lack of jurisdiction, but for  the existence of a defense. As such, since the dismissal was on the merits, the conclusion that plaintiff's remaining Bivens action was barred was correct. 

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Ruling in Civil Rights Suit Involving a Suicide in Jail

In Minix v. Canarecci, No. 09-2001, the court decided a 42 U.S.C. section 1983 suit against prison officials by a mother claiming her son died as a result of defendants' alleged indifference to her son's suicide risk.

In affirming the district court's ruling in favor of the defendants, the court held that summary judgment was appropriate as plaintiff has not met the high hurdle of meeting the standard for deliberate indifference liability. Thus, summary judgment was proper as defendants either lacked the knowledge of the significant likelihood that the plaintiff's son may imminently take his own life, were only at most negligent, and there is no causal link between the mental health services' conduct and the suicide. 

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The Fourth District decided three criminal case matters today involving a Fourth Amendment claim, a defendant's claim that a magistrate judge erred in granting government's motion to take defendant's money held in US Marshal's custody for restitution, and a defendant's challenge to his sentence. 

In Gentry v. Sevier, No. 08-3574, the court faced a challenge to the district court's denial of habeas relief on his conviction for burglary related crimes.

In reversing the decision of the Court of Appeals of Indiana, the court held that the when the officers arrived at the scene of the arrest they did not have any basis to form a reasonable suspicion necessary to conduct a Terry stop, and consequently, the appeals court unreasonably applied federal law when it held that the evidence concerning the search of the wheelbarrow was admissible and that defendant's counse's performance did not fall below an objective standard of reasonableness.

In US v. Meux, No. 09-1430, the court faced a challenge to a magistrate judge's order granting government's motion for Turnover of Funds for Restitution $4,881.00 that belonged to the defendant held in US Marshal's custody in an unrealted criminal matter.  In upholding the order, the court held that the defendant was provided the same due process protections he would have been given in garnishment proceedings as he was provided with notice of the motion, was appointed counsel to represent the defendant related to the motion, and was granted a hearing before the magistrate judge.

In US v. Curby, No. 09-2583, the court faced a challenge to a sentence of a defendant convicted of distributing cocaine arguing that the district court failed to adequately evaluate his principle argument in mitigation.  However, under the totality of the circumstances, the district court's discussion showed that it had considered defendant's extensive criminal history and other argument and provided a basis for rejecting it.  Thus, although the district court's discussion was not lengthy, it was enough and defendant's sentence is affirmed.

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