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

June 2010 News

CWCapital Asset Mgmt. LLC. v. Chicago Properties, LLC., No. 09-3506, concerned a challenge to the district court's dissmissal of plaintiff's suit against a defendant-commercial landlord and a mortgagor, claiming that the plaintiff-mortgage servicer is contractually entitled to the money the defendant received from its tenant for unpaid rent in the settlement of a suit.  In reversing, the court held that the servicer can sue in its own name as the suit relates to a loan that's servicing, and even if the servicer is not a real part in interest in this case, there is still no need to dismiss under Rule 17(a)(3). The court also held that there has been no event that could trigger the tenant's liability under the SNDA as defendant has continued to make its monthly mortgage payments in full.

Habitat Educ. Ctr. v. US Forest Serv., No. 09-1672, concerned a plaintiff's suit against the U.S. Forest Service challenging the environmental impact statement (EIS) prepared by the agency in connection with a timber sale in the Chequamegon-Nicolet National Forest in northern Wisconsin.  In affirming the district court's grant of summary judgment in favor of the agency, the court held that at the time the EIS was being prepared, the project was too nebulous to be discussed in any meaningful way.

Malave v. Holder, No. 08-3578, concered a Nicaraguan citizen's petition for review of a decision ordering her removed from the U.S. after a finding that she had paid $1000 to her ex-husband to enter into a sham marriage for the purpose of obtaining an immigration benefit.  In granting the petition, the court held that, although section 202(f) of NACARA insulates from judicial review the decision whether to believe particular evidence of immigration fraud, before exercising this unreviewable power, the IJ must furnish the alien with compulsory process to seek the adverse witness's presence so that th etruth of the writings may be tested.

US v. Loniello, No. 09-1494, concerned a challenge to the district court's dismissal of the section 2113(a) charges, which forbids attempting to rob a bank by force or intimidation, in a prosecution of three defendants pursuant to the federal bank-robbery statute, 18 U.S.C. section 2113.  In reversing, the court held that under Blockburger, section 2113(a) creates two crimes, and here, there is no double jeopardy problem as the defendants have been acquitted of the crimes defined in section 2113(a), paragraph 1, and they have yet to be tried on the charge that they committed the separate crime defined in section 2113(a), paragraph 2.

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Kenseth v. Dean Health Plan, Inc., No. 08-3219, concerned a plaintiff's suit against her HMO pursuant to ERISA, arising from the denial of coverage for a surgical procedure to resolve the severe acid reflux related to her original vertical gastric banding surgery for morbid obesity.  The court affirmed in part the district court's grant of summary judgment to defendant on plaintiff's claims for equitable estoppel and for alleged violation of state law limit on exclusions for preexisting conditions.  However, the court vacated the district court's grant of summary judgment on plaintiff's claim for breach of fiduciary and remanded for a determination of whether plaintiff is seeking any form of equitable relief that is authorized by 29 U.S.C. section 1132(a)(3).

Restrepo v. Holder, No. 08-4029, involved a Colombian national's petition for review of a decision denying his application for asylum and related relief.  In denying the petition, the court held that a BIA's denial of application for asylum is unreviewable for lack of jurisdiction under 8 U.S.C. section 1158(a)(3).  Furthermore, the court held that the BIA did not err in concluding that petitioner had failed to make the necessary showing required for withholding of removal.  And consequently, because Convention Against Torture has a higher standard than withholding of removal, relief for petitioner on this claim is foreclosed as well.

In US v. White, No. 09-2916, the court faced a challenge to an indictment of defendant for soliciting a crime of violence in violation of 18 U.S.C. section 373, for posting on his website personal information about a juror who served on a jury in a prosecution of a leader of a white supremacy organization and postings calling for the use of violence on enemies of white supremacy.  In reversing the district court's dismissal of the indictment on the ground that the postings were protected by the First Amendment, the court first addressed the issue of validity of the indictment and held that the indictment is valid on its face.  The court held that the potential First Amendment concern is addressed by the requirement of proof beyond a reasonable doubt at trial, and not by a dismissal at the indictment stage, as whether or not the First Amendment protects defendant's right to post personal information about the juror first turns on his intent in posting that informaiton.

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Also, Criminal and Class Action Matters

US v. Womack, No. 09-2488, concerned a challenge to the district court's application of the career offender enhancement in imposing a sentence of 360 months in a conviction of defendant for distributing cocaine base.  In vacating the sentence and remanding, the court held that, although the district court did not err by applying the career offender enhancement in defendant's guidelines calculation and the sentence imposed was within a correctly calculated guidelines range, the district court erred in stating that it could not consider the sentencing disparity between crack and powder cocaine offenses under the guidelines because district court's may disagree with the career offender enhancement on policy grounds related to the crack/powder disparity and impose sentences accordingly.   

Pickett v. Sheridan Health Care Ctr., No. 09-3028, concerned a plaintiff's Title VII suit against her former employer for being fired in retaliation for her complaints about sexual harassment by residents of the defendant's nursing home.  In affirming the district court's denial of defendant's motions for a new trial and remittitur, the court held that plaintiff presented enough evidence to persuade a reasonable jury that her complaints caused defendant to fire her.  The court also held that the district court did not abuse its discretion in denying the motion for a new trial on the basis of plaintiff's counsel's closing arguments, nor was it an abuse of discretion in denying remittitur on the compensatory damages as enough evidence supported a jury award of $25,000, which is well within the $200,000 cap set out in 42 U.S.C. section 1981a(b)(3)(C).  Lastly, the court held that it was not an abuse of discretion in denying remittitur on the punitive damage award and the logic of Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008) does not apply to this Title VII case.    

Lincoln Nat'l Life Ins., Co. v. Bezich, No. 10-8013, concerned a petition for permission to appeal, arising from the district court's remand of plaintiff's class action lawsuit against the insurer for breach of contract claims on the basis that CAFA's exception to federal jurisdiction for the action applied.  In dismissing the petition for lack of jurisdiction, the court held that the plaintiff's claim "related to the rights, duties,...and obligations relating to or created by or pursuant to...a security," as defined in the Securities Act of 1933. 

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Muscarello v. Ogle County Bd. of Comm'rs, No. 08-2464, concerned a plaintiff's suit against multiple defendants asserting various claims based on the U.S. Constitution, the Illinois Constitution, Illinois statutes, and the common law, arising from the county's decision to amend its zoning ordinances to allow special permits for the construction of windmills used to generate power, and in particular, the construction of 40 windmills adjacent to plaintiff's property.

In affirming the judgment of the district court, the court held that plaintiff's federal takings, equal protection, and due process claims failed to state a claim upon which relief can be granted.  With respect to plaintiff's state law trespass and nuisance claims, the court held that the claims are not ripe for review.  Lastly, the court held that plaintiff has failed to avail herself of the opportunity to allege and support an independent basis of federal subject-matter jurisdiction over the other seven claims.  And, with respect to defendant's motion for an administrative stay, the court held that the district court did not abuse its discretion in denying the motion. 

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In re McKinney, No. 08-1271, concerned an appeal by a tax debt owner in Chapter 13 proceedings, arising from the bankruptcy court's denial of its objections to the debtor's proposed plan to pay off the tax debt with interest within five years.  In dismissing the appeal for lack of jurisdiction, the court held that, although the issue that the tax debt owner cares about may have been resolved, its basic dispute with the bankrupt estate has not been resolved and therefore the judgment of the bankruptcy court is not final.   

Parra v. Neal, No. 09-1404, concerned a 42 U.S.C. section 1983 suit, brought by registered voters against the Board of Election Commissioners for the City of Chicago and its members, claiming that their votes for a disqualified candidate on the ballot were invalidated in violation of their Fourteenth Amendment rights.  In affirming the district court's grant of defendants' motion for summary judgment, the court held that plaintiffs' suit is meritless as they provide no grounds for federal court interference with the state supreme court's decision or the Board's implementation of that decision.   

Ebert v. Gaetz, No. 09-1627, concerned a challenge to the district court's denial of defendant's petition for habeas relief but granting a certificate of appealability on the issue of ineffective assistance of counsel with respect to the Fourth Amendment motions related to his murder and armed robbery conviction.  In affirming the judgment, the court held that the state court's conclusion that the new statements from a witness did not negate its earlier finding of probable cause to arrest defendant was not so erroneous as to be objectionably unreasonable.  Furthermore, defendant's counsel was not constitutionally deficient in failing to file what would have been an unmeritorious motion to quash his arrest and suppress inculpatory statement.   

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US v. Brown, No. 09-1028, concerned a challenge to the district court's imposition of a 120-month mandatory minimum sentence, despite defendant's two previous convictions for aggravated assault qualified him as a career offender for purposes of section 4B1.1, in a conviction for distributing more than five grams of crack cocaine.  In vacating and remanding for re-sentencing, the court held that the district court failed to articulate the necessary justification for such a sizable departure from the guidelines.   

In Jay E. Hayden Found. v. First Neighbor Bank, NA, No. 09-2781, the court faced a challenge to the district court's grant of defendants' motion to dismiss on the ground that the complaint itself showed that plaintiffs had missed the four-year deadline governing RICO suits, in plaintiffs' suit against a bank, two law firms, and affiliated individuals.  In affirming, the court held that the suit was barred by the four year statute of limitations as by the summer of 2003 at the latest, the plaintiffs knew that the lawyer had looted the estate and that the bank's employees were trying to prevent further investigation of the lawyer.   

US v. Wheaton, No. 09-3171, concerned an Anders brief, where defendant's appeal of the district court's imposition of a 36-month sentence upon revocation of his supervised release for distributing marijuana, is dismissed as defendant has admitted violation of the terms of his supervised release, and motion to withdraw is granted.   

Anderson v. Bayer Corp., No. 10-8003, involved defendants' petition for leave to appeal under 28 U.S.C. section 1453(c) of district court's order remanding four of the five cases, in plaintiffs' suit for personal injuries caused by Trasylol, a prescription medication manufactured by Bayer.  In denying the petition for lack of jurisdiction, the court held that the district court properly concluded that the four cases were not mass actions under CAFA.   

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In Med. Assurance Co., Inc. v. Hellman, No. 08-2887, the Seventh Circuit faced a challenge to the district court's order issuing a stay of the federal proceedings in an insurer's request for declaratory judgment, claiming that it no longer has a duty to defend or indemnify a doctor due to his disappearance in more than 350 medical malpractice claims.  In reversing, the court held that it was an abuse of discretion for the district court to stay the action, and on remand, instructed the court to proceed on the merits. 

Junkert v. Massey, No. 09-2908, concerned an attorney's 42 U.S.C. section 1983 suit, claiming that the searches of her law office and residence for stolen laptop computers and controlled substances violated her Fourth Amendment rights.  In affirming the judgment of the district court, the court held that the affidavit is not so deficient that any reasonably well-trained officer would have known that probable cause was lacking, requiring the second-guessing of the judge's authorization, and thus, the officer has a qualified immunity defense against the attorney's section 1983 suit.   

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In Wilson v. Gaetz, No. 09-2111, the Seventh Circuit faced a challenge to a district court's denial of defendant's petition for habeas relief from a conviction in state court of murder while mentally ill.  In vacating and remanding the case, the court held that the defendant is entitled to an evidentiary hearing on the issue of prejudice, given the gravity of the charge against defendant and the ample evidence that he was driven to kill the victim by an insane delusion, the counsel's assistance to defendant fell below the minimum professional level required of a lawyer representing a murder defendant.

US v. Hall, No. 09-2682, concerned a challenge to defendants' convictions for drug and firearm offenses related to an undercover sting to rob a "drug stash house." In rejecting a defendant's challenge to his conviction, the court held that the district court did not err by refusing to give a jury instruction on entrapment as there is no evidence that defendant was not predisposed to join in the proposed robbery plan.  Also, in rejecting the other defendant's challenge to his sentence, the court affirmed the sentence as defendant cannot show that his is that "rate case" in which a within guidelines sentence should be considered unreasonable.   

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US v. Parker, 09-4044, concerned a petition for habeas relief based on ineffective assistance of counsel claim in proceedings arising from the conviction of defendant for conspiring to possess more than 5 kilograms of cocaine with intent to distribute, and the imposition of a 121-month sentence.  In denying the petition, the court held that defendant provided no reasons to suggest that his counsel's erroneous advice, and not his own perjury, caused him to receive the sentence he received.  Further, defendant's sentence is affirmed as his contention that the district court should not have believed his statements made under oath is rejected.     

Judge v. Quinn, No. 09-2219, concerned a 42 U.S.C. section 1983 suit against the governor of Illinois, brought by two registered voters, claiming that the governor's failure to issue a writ of election to fill the senate seat vacated by President Obama violated their Seventh Amendment rights.  In affirming the  district court's denial of plaintiffs' motion for preliminary injunction, the court held that, although plaintiffs have show a strong likelihood of success on the merits and the governor has a duty to issue a writ of election to fill President Obama's vacancy, the plaintiffs failed to demonstrate they they will suffer irreparable harm if the preliminary injunction they want does not issue.   

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In US v. Lewis, No. 09-3804, the court affirmed defendant's firearm possession conviction, holding that defendant voluntarily consented to the police's entry into defendant's girlfriend's apartment, and thus the district court properly denied defendant's motion to suppress the firearm at issue.

Siefert v. Alexander, No. 09-1713, concerned an action for declaratory and injunctive relief against the members of the Wisconsin Judicial Commission, challenging under the First Amendment certain judicial ethical rules.  The court of appeals affirmed summary judgment for plaintiff in part, holding that the partisan affiliation ban at issue impermissibly acted to prohibit plaintiff's speech on both his political views and his qualifications for office.  However, the court reversed in part, on the ground that, unlike restrictions designed, for example, to regulate federal employees' political activity, restrictions on judicial speech may, in some circumstances, be required by the Due Process Clause, and the solicitation ban was drawn closely enough to the state's interest in preserving impartiality and preventing corruption to be constitutional.

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US v. Rodriguez-Gomez, No. 08-3173, concerned a challenge to the district court's imposition of an enhanced sentence of 100 months' imprisonment upon a defendant convicted of illegal re-entry.  In affirming the sentence, the court held that the district court did not commit plain error in concluding that defendant's prior conviction for aggravated battery was a crime of violence.     

In US v. Boyd, No. 09-1425, the court faced a challenge to the district court's imposition of a sentence of 334 months' imprisonment upon a defendant for his drug and firearm related conviction.  The court affirmed the sentence but modified part of the judgment as the district court's order requiring defendant to participate in the Inmate Financial Responsibility Program (IFRP) was plain error as IFRP is voluntary.   

Khan v. Holder, No. 09-1425, concerned a Pakistani citizens' petition for review from a removal order and a motion to stay removal pending resolution of the petition.  In denying the petition and granting the government's motions to dismiss the petitions, the court held that it lacks jurisdiction to review the merits of the question of whether the CBP officer correctly initiated expedited removal proceedings after determining that the petitioners intended to immigrate to the U.S. from Pakistan rather than temporarily visit.     

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In Chen v. Holder, No. 09-2619, the Seventh Circuit dealt with a Chinese citizen's petition for review of BIA's denial of her application for asylum on the ground that the petitioner's lawsuit against a local government in China did not amount to a "political opinion" within the meaning of 8 U.S.C. section 1158(b)(1)(B)(i). 

In granting the petition, the court remanded the matter in holding that the Board has never addressed the question of whether it is appropriate to treat suing a unit of government as a legitimate means of expressing one's political opinion.  Furthermore, the Board needs to consider the possibility that, if China has classified petitioner as a public protester, then perhaps an imputed political opinion is "at least one central reason" for the attempted arrest for filing suit against the local government for confiscating her father's land without just compensation.     

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In US v. Connors, No. 09-1143, the Seventh Circuit faced a challenge to the district court's judgment in civil forfeiture proceedings of defendant's home allegedly used to facilitate his illegal operation of Cuban cigar smuggling and distribution business, for which he was eventually convicted of.  In affirming the district court's judgment and the forfeiture order, the court held that the district court properly denied defendant's motion to dismiss based on the statute of limitations as the government filed its complaint within five years of the alleged offenses.  Furthermore, the district court's grant of summary judgment on the income deficiency theory is affirmed and, held that the property remains forfeited to the United States.   

US v. Rollins, No. 09-2293, the court faced a challenge to the district court's denial of defendant's motion for reconsideration of the court's denial of a motion for a new trial based on newly discovered evidence.  In vacating the judgment, the court held that the defendant filed his motion to reconsider within the time available for appeal and sought a substantive modification of the judgment, and therefore, the motion suspended the finality of the district court's order.  Here, the district court should have treated defendant's motion as a petition under section 2255 and asked him whether he wished to proceed on that basis or to have the motion dismissed.   

Tindle v. Pulte Home Corp., No. 09-2293, the court faced a challenge to the district court's grant of defendant's motion for summary judgment in plaintiff's suit against the builder of his new home for sustaining serious injuries when his foot and leg sank into a hole concealed underneath the sod in the backyard. 

In affirming the jugment, the court held that the summary judgment on plaintiff's vendor liability under Restatement (Second) of Torts section 353 claim was properly granted because plaintiff knew or had reason to know the condition and risk involved. The court went onto hold that plaintiff's claim also fails because he has failed to produce evidence that defendant knew or had reason to know of the dangerous condition at the time of the sale.   

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In US v. Arita-Campos, No. 09-2368, the Seventh Circuit faced a challenge to a conviction of defendant for illegal re-entry after being deported in violation of 8 U.S.C. section 1326(a), claiming that the 1994 order of deportation could not serve as the basis for the underlying offense as it was entered in absentia. 

In order to collaterally attack an underlying deportation order, it is the defendant's burden to satisfy the three requirements contained in section 1326: (1) that the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. 

Here, the court held that the defendant cannot establish any of the elements required by section 1326, and as such, affirmed the district court's denial of defendant's motion to dismiss the indictment.

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In Lantz v. Comm'r of Internal Revenue, No. 09-3345, the Seventh Circuit faced a challenge to the Tax Court's judgment invalidating the two-year deadline that the Treasury has imposed on claims under section 6015(f), and thus reversing the IRS's denial of a taxpayer's application for innocent-spouse relief.

As the court wrote: "The Tax Court's basic thought seems to have been that since some statutes...prescribe deadlines, whenever a statute (or provision) fails to prescribe a deadline, there is none.  That is not how statutes that omit a statute of limitations are usually interpreted.  Courts 'borrow' a statute of limitations from some other statute..."

Thus, in reversing the Tax Court's judgment, the court held that the fact that Congress designated a deadline in two provisions of the same statute and not in a third is not a compelling argument that Congress meant to preclude the Treasury Department from imposing a deadline applicable to cases governed by that third provision.     

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In In re: Sherwin-Williams, Co., No. 10-1639, the Seventh Circuit dealt with a defendant's petition for a writ of mandamus requesting that a district judge be recused from presiding over four cases against manufacturers of white lead carbonate pigments, claiming that a law review article co-written by the judge creates an appearance of bias.

As stated in the decision: "Where a judge's comments, writings, or rulings are the basis for recusal request, our analysis assumes that a reasonable person is familiar with the documents at issue, as well as the context in which they came into being."  The court went on to state: "In addition to being a  well-informed about the surrounding facts and circumstances, for purposes of our analysis, a reasonable person is a 'thoughtful observer rather than...hypersensitive or unduly suspicious person.'"

Thus, in denying the petition, the court held that the petitioner has not established that the judge's article would make a reasonable, thoughtful, and well-informed observer question his impartiality.   

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Prate Installations, Inc. v. Chicago Reg'l Council of Carpenters, No. 09-2453 concerned a challenge to the district court's judgment in an enforcement proceeding to confirm an arbitration award in favor of a construction firm, arising from a breach of contract by a union.

In affirming the district court's decision, the court held that the arbitrator permissibly interpreted the CBA to find that the union violated the MFN clause.  The court also held that the district court did not err in striking the portion of the arbitrator's award that extends past the expiration for the 2001 CBA. The court concluded that the issue of whether the arbitrator inappropriately adjusted wage rates is moot because the award of equitable relief is vacated.  In addition, the court held that the district court properly dismissed the union's argument that the arbitrator improperly relief on facts covered by the 2002 release, and that the arbitrator permissibly awarded attorneys' fees.   

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