Weekly Case Digests — May 8-12, 2017

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Sealed Defendant Juvenile Male

Case No.: 16-3311

Officials: FLAUM, KANNE, and HAMILTON, Circuit Judges

Focus: Juvenile Prosecution Transfer to Adult Prosecution

Three juveniles—including M.G., who is the defendant-appellant here—and one adult allegedly robbed an Indianapolis CVS pharmacy at gunpoint on October 14, 2015. They were charged with Hobbs Act Robbery, 18 U.S.C. § 1951(a), and possession of a firearm during that robbery, 18 U.S.C. § 924(c). The government sought to transfer the juveniles’ cases for adult prosecution. See 18 U.S.C. § 5032.

Appeal Dismissed

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7^th Circuit Court of Appeals

Case Name: Milwaukee Police Association, et al v. City of Milwaukee

Case No.: 16-4151

Officials: WOOD, Chief Judge, and KANNE and ROVNER, Circuit Judges

Focus: Statutory Challenge

The Milwaukee Police Association and officers Michael V. Crivello and Joshua A. Anderer challenge a provision in Milwaukee’s corporate charter requiring all law enforcement, fire, and emergency personnel to reside within fifteen miles of city limits.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Our Country Home Enterprises, Inc., v. Commissioner of Internal Revenue

Case No.: 16-1279

Officials: BAUER and KANNE, Circuit Judges, and FEINERMAN, District Judge

Focus: Tax Liability

This case presents an issue of first impression in our circuit—one that requires us to delve into the abstruse world of federal‐tax procedure. In this appeal, we address whether Our Country Home Enterprises, Inc. may challenge its liability for a tax penalty in a Collection Due Process (“CDP”) hearing after having unsuccessfully challenged its liability for that penalty in an administrative hearing before the IRS Office of Appeals. The tax court determined that the earlier liability challenge precluded the later one. Our Country Home appealed. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Charles Petrunak

Case No.: 16-3631

Officials: WOOD, Chief Judge, and FLAUM and ROVNER, Circuit Judges.

Focus: Court Error – Sentencing

On May 6, 2014, Charles Petrunak was indicted on three counts of making and subscribing false and fraudulent IRS forms, in violation of 26 U.S.C. § 7206(1). The counts corresponded to IRS forms 1096, 1120S, and 1040, filed by Petrunak. A jury convicted him on all counts, and he was sentenced to 24 months’ imprisonment. Petrunak now argues that the court erred in excluding certain evidence at his trial and he also challenges his sentence

Affirmed

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7^th Circuit Court of Appeals

Case Name: Sherlyn Brown v. Milwaukee Board of School Directors

Case No.: 16-1971

Officials: BAUER, MANION, and HAMILTON, Circuit Judges.

Focus: ADA – Accommodation

This appeal under the Americans with Disabilities Act addresses a disabled employee’s obligation to participate in identifying reasonable accommodations for her condition. Plaintiff Sherlyn Brown was an assistant principal for defendant Milwaukee Public Schools until she badly injured her knee while restraining a student. When she returned to work following surgery, she and her doctor told Milwaukee Schools that she could not be “in the vicinity of potentially unruly students.” Since virtually all students are “potentially” unruly, Milwaukee Schools understood that limit to bar virtually all contact with students. It repeatedly communicated that understanding to Brown as it tried to accommodate her disability by finding her a new position. When Brown’s three-year leave of absence expired before a suitable position was found, Milwaukee Schools fired her. Brown sued under the Americans with Disabilities Act, claiming that her disability had never prevented interaction with students and that Milwaukee Schools failed to accommodate her disability. The district court granted summary judgment for Milwaukee Schools, and Brown has appealed. We affirm. Because Brown and her doctors repeatedly told Milwaukee Schools that she could not be “in the vicinity of potentially unruly students,” Milwaukee Schools is not liable for failing to move her to a position requiring such proximity. All but one of the other jobs Brown identifies as reasonable accommodations would have required such proximity. The lone exception would have been a promotion for which Brown was not the most qualified candidate. The Act did not require Milwaukee Schools to promote her as an accommodation.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Taron Cherry

Case No.: 16-1891

Officials: FLAUM, EASTERBROOK, and WILLIAMS, Circuit Judges

Focus: Sentencing – Sentence Enhancement

Taron Cherry was indicted for various charges involving heroin distribution and gun possession. Without a plea agreement, he pled guilty to all four counts of the indictment and was sentenced to 106 months’ imprisonment. Cherry now challenges the district court’s application of U.S.S.G. § 2K2.1(a)(3), which enhanced his base offense level for possession of a firearm capable of accepting a large capacity magazine. Cherry argues that he constructively possessed the firearm at issue as it was actually possessed by an alleged co‐conspirator. However, Cherry pled guilty to possessing the firearm and never stated that his possession was merely constructive. This is fatal to his appeal, so we affirm the district court’s sentence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Nicole Blow v. Bijora, Inc.,

Case No.: 16-1484; 16-1608

Officials: RIPPLE, KANNE, and ROVNER, Circuit Judges

Focus: Class Certification – Sanctions

In May 2011, Nicole Strickler brought this class‐action lawsuit against Chicago‐based retailer

Bijora, Inc., doing business as Akira  Strickler was later replaced as named plaintiff by Nicole Blow, who alleged that Akira’s practice of sending promotional text messages violates the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1‐12, and sought approximately $1.8 billion in damages. The district court ultimately certified a class of individuals with a series of Illinois telephone area codes who had received automated texts from Akira in the preceding four years. After Strickler filed her third amended complaint, Akira impleaded the company that supplied its software for the text transmissions, Opt It, Inc. Opt It then settled its claims with Strickler, who was replaced by Blow as the named plaintiff in the suit against Akira. On Blow and Akira’s cross motions for summary judgment,thedistrict court ultimately granted summary judgment in favor of Akira after concluding that Blow had failed to demonstrate that Akira used an automatic telephone dialing system in violation of the TCPA. Blow appeals, and Akira cross‐appeals, challenging the class certification and renewing its request for sanctions against Blow’s counsel for alleged misconduct and frivolous filings. As detailed below, we affirm the judgment of the district court, although on different grounds.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Derrick Echols, Jr. v. Frederick A. Craig

Case No.: 14-1829

Officials: EASTERBROOK, KANNE, and HAMILTON, Circuit Judges

Focus: 8^th Amendment violation – Deliberate Indifference

Derrick Echols, an Illinois in‐ mate, claims in this suit under 42 U.S.C. § 1983 that prison dentist Dr. Frederick Craig (an employee of Wexford Health Sources) violated the Eighth Amendment by providing dental care with deliberate indifference to Echols’ serious health needs. While Dr. Craig was extracting a wisdom tooth, a drill bit broke. Dr. Craig sutured Echols’ gum with gauze and at least one half‐inch long piece of the broken bit still inside, where it caused pain for about two weeks before it was finally removed. Knowledge is the key issue in this lawsuit. Echols alleges that Craig sutured the extraction site after intentionally packing it with non‐soluble gauze and without first locating the missing shards from the broken drill bit. The district court screened Echols’ operative complaint, see 28 U.S.C. § 1915A, and dismissed it with the explanation that Echols’ allegations are factually frivolous. On appeal, we conclude that Echols’ allegations are quite plausible and state a claim for violation of the Eighth Amendment. We vacate the judgment and remand for further proceedings.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Jennifer J. Myrick v. Richard G. Greenwood, et al

Case No.: 16-3342

Officials: WOOD, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges

Focus: Divorce – Court Error

Dismayed that her former husband has been awarded custody of their son, Jennifer Myrick brought this suit seeking damages from the six state judges and court commissioners who presided over parts of the lengthy divorce and child‐custody proceedings. She maintains that, by ruling against her, the judges manifested bias in favor of her former husband, violating her right to due process of law in that and other ways, and overlooked misconduct by her former husband, her son’s guardians ad litem, and her own attorney. She did not ask the federal court in this suit under 42 U.S.C. §1983 to change the award of custody but did re‐ quest damages

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Wallace B. Carson

Case No.: 16-2694

Officials: WOOD, Chief Judge, and RIPPLE and SYKES, Circuit Judges.

Focus: Sentencing

Wallace Carson robbed a convenience store by pulling a gun on the cashier. The police caught him in short order, and he pleaded guilty to Hobbs Act robbery and other charges. The district court sentenced Carson as an armed career criminal, classifying as violent felonies prior convictions for robbery and armed robbery. Carson now appeals, arguing that under Johnson v. United States, 559 U.S. 133 (2010), none of those crimes is a violent felony. Because the appeal waiver in Carson’s plea agreement precludes this argument, we dismiss the appeal. Carson robbed a Walgreens store in 2015. He waited in line until the cashier opened the register to make change for the woman in front of him. He pulled a loaded, semiautomatic pistol out of his pants and held it in his right hand while reaching across the counter and grabbing cash from the register. Carson fled by bicycle, but witnesses told police his direction of travel and he was quickly caught. Carson was charged with Hobbs Act robbery, 18 U.S.C. § 1951(a); brandishing a firearm in furtherance of a crime of violence, id. § 924(c); and possessing a firearm as a felon, id. § 922(g)(1). Carson pleaded guilty to all charges and waived his right to appeal with limited exceptions in exchange for the government’s agreement to recommend a 3-level reduction for acceptance of responsibility and a prison sentence of 272 months. That sentence represented the low end of the range calculated by the parties based on a shared assumption that Carson would be sentenced as an armed career criminal. See 18 U.S.C. § 924(e); U.S.S.G. § 4B1.4.

Dismissed

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7^th Circuit Court of Appeals

Case Name: Ashoor Rasho v. Willard O. Elyea, et al

Case No.: 14-1902

Officials: POSNER and WILLIAMS, Circuit Judges, and WOOD, District Judge

Focus: 8^th Amendment – Deliberate Indifference

Ashoor Rasho arrived at the Pontiac Correctional Center (“Pontiac”), an Illinois prison, in 2003.

Rasho has a history of mental illness and, after he stopped taking his medication and began showing escalating symptoms, he was transferred into Pontiac’s Mental Health Unit. He remained in the Mental Health Unit until 2006, when he was transferred to the North Segregation Unit. Rasho believes that he was transferred out of the Mental Health Unit not because he no longer required the specialized treatment offered there but instead in retaliation for complaints he had lodged against various prison staff. According to Rasho, after he was transferred, he was denied even minimally adequate mental health care for more than 20 months. Rasho subsequently filed a lawsuit pursuant to 42 U.S.C. § 1983 against the Pontiac staff psychiatrist and psychology services administrator who recommended his transfer out of the Mental Health Unit, as well as the warden, medical director, and director of mental health, alleging that each acted with deliberate indifference to his serious medical needs in violation of the Eighth Amendment to the United States Constitution. The district court granted summary judgment in favor of all of the defendants. Rasho now appeals.

Affirmed in part reversed and remanded in part

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WI Court of Appeals Digests

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Robert Alan Schumacher, Jr.

Case No.: 2015AP1263-CR

Officials: Brennan, P.J., Kessler and Brash, JJ.

Focus: Plea Withdrawal

Robert Alan Schumacher, Jr., pro se, appeals from an order of the circuit court that denied his motion for plea withdrawal without a hearing. We conclude the motion is procedurally barred, so we affirm.

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WI Court of Appeals – District I

Case Name: 200 Broadway LLC

Case No.: 2016AP273

Officials: Brennan, P.J., Brash and Dugan, JJ.

Focus: Violation of City Ordinance – Lost Profits

200 Broadway, LLC, appeals an order of the trial court granting summary judgment in favor of the City of Milwaukee on 200 Broadway’s claim for damages for lost profits. The claim was the result of the City informing 200 Broadway that it would be in violation of a City ordinance if it utilized its property as a parking lot during Summerfest in June and July of 2013. 200 Broadway argues that existing Wisconsin law is not clear as to whether an alleged violation of a City ordinance can preclude a business from recovering lost profits, and therefore summary judgment was not appropriate. 200 Broadway further contends that there are disputed material facts that mandate reversal of the summary judgment order. In contrast, the City contends that there is good, albeit old, case law that prohibits the award of damages for lost profits from an unlawful business. The trial court agreed, and granted summary judgment in favor of the City. We affirm.

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WI Court of Appeals – District III

Case Name: Peoples State Bank v. Michael C. Deedon, et al

Case No.: 2016AP331

Officials: Stark, P.J., Hruz and Brennan, JJ.

Focus: Insurance Coverage

Michael Deedon appeals a summary judgment declaring that Peoples State Bank’s misrepresentation claims against Deedon were not covered by Triangle Insurance Company’s insurance policy. We affirm.

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WI Court of Appeals – District III

Case Name: Daniel D. Bethards

Case No.: 2016AP409

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Whistleblower – Statutory Interpretation

The issue presented in this WIS. STAT. ch. 227 (2013-14)1 review is whether the Wisconsin Department of Workforce Development’s Equal Rights Division (“ERD”) erred when it concluded a former state employee failed to comply with the Whistleblower Protection Law, WIS. STAT. §§ 230.80-230.89. Specifically, the employee challenges as unreasonable the ERD’s interpretation of the term “supervisor” in § 230.81(1) as including only those individuals within an employee’s supervisory chain of command. He also argues his agency’s human resources director was one of his “supervisors,” or at a minimum this is a factual issue warranting an evidentiary hearing. Applying due weight deference to the ERD’s interpretation of WIS. STAT. § 230.81(1), we conclude the employee’s interpretation of that statute is not more reasonable than the ERD’s. We also conclude the ERD could reasonably determine, based on the undisputed evidence before it, that the agency’s human resources director was not a “supervisor” of the employee. We therefore reverse the circuit court’s determination to the contrary and uphold the ERD’s decision

Recommended for publication

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Dannis L. Mitchell

Case No.: 2016P816-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Abuse of Discretion – Motion Denial

Dennis Mitchell appeals judgments convicting him of soliciting prostitution and attempted kidnapping. He also appeals an order denying his postconviction motion. Mitchell argues: (1) the circuit court should have granted his motion to sever trial on the two charges; and (2) the court

improperly exercised its discretion by ordering Mitchell to register as a sex offender. We affirm the judgments and order.

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WI Court of Appeals – District I

Case Name: Marvel D. Russ et al v. Richard A. Gotz

Case No.: 2016AP861

Officials: Brennan, P.J., Kessler and Brash, JJ

Focus: Declaratory Judgment

This is an appeal of an order that 1) denied plaintiffs’ motion for declaratory judgment regarding arbitration and 2) dismissed plaintiffs’ action as a sanction for filing a motion four days after a filing deadline. We conclude that the trial court correctly interpreted the inspection agreement to require arbitration between the parties, including Richard A. Gotz, and affirm as to that part of the order. We also conclude that the trial court erroneously exercised its discretion in dismissing the action as a sanction because it did so without making a finding of egregiousness, and the record does not support such a finding. Accordingly, we reverse the dismissal and remand for further proceedings consistent with this opinion.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Christopher M. Gibson

Case No.: 2016AP1003-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Ineffective Assistance of Counsel

Christopher Gibson appeals a judgment of conviction and an order denying his motion for postconviction relief. Gibson argues: (1) the circuit court erroneously exercised its discretion by giving a falsus in uno jury instruction over defense counsel’s objection; and (2) his trial counsel

was ineffective by questioning Gibson about prior bad acts, failing to object to the State’s subsequent introduction of other acts evidence, and failing to request a limiting instruction regarding the other acts evidence. We conclude the circuit court did not err by giving a falsus in uno jury instruction. We further conclude Gibson was not prejudiced by counsel’s alleged deficiencies. We therefore affirm.

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WI Court of Appeals – District III

Case Name: Country World Media Group, Inc. v. Erie Insurance company

Case No.: 2016AP1343

Officials: Stark, P.J., Hruz and Seidl, JJ

Focus: Insurance Coverage

Country World Productions, Inc., (CWP) appeals a judgment dismissing its insurer, Erie Insurance Company, from this case. The circuit court determined Erie’s insurance policy did not cover claims made against CWP by Country World Media Group, Inc., (Media) because the property that Media’s complaint alleged was damaged—specifically, “television shows, master copies and field footage”—constituted electronic data and was therefore excluded from the policy’s definition of property damage. The court therefore concluded Erie had no duty to defend CWP. We conclude Media’s complaint arguably alleged damage to both tangible, physical property—that is, the videotapes on which the television shows, master copies, and field footage were recorded—and the intangible electronic data stored on those tapes. Because Erie’s policy covers claims for damage to tangible property, Erie had a duty to defend CWP against all of the allegations in Media’s complaint. It is undisputed that, if Erie had a duty to defend CWP, it breached that duty by refusing to provide a defense. We therefore reverse the judgment dismissing Erie from this case. We remand for the circuit court to enter a declaratory judgment in CWP’s favor on the duty-to-defend issue and to determine the damages CWP is entitled to recover as a result of Erie’s breach

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. J.L.C.

Case No.: 2017AP197

Officials: Kessler, J.

Focus: Termination of Parental Rights

J.L.C. appeals the order terminating his parental rights to his son, K.C. We affirm

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Eugene B. Santiago

Case No.: 2016AP1267

Officials: Neubauer, C.J., Gundrum and Hagedorn, JJ.

Focus: Plea Withdrawal – Ineffective Assistance of Counsel

Eugene B. Santiago appeals from an order denying his motion pursuant to WIS. STAT. 974.06 (2015-16) to withdraw his plea on the ground that he was denied the effective assistance of counsel when trial counsel failed to alert the circuit court to the fact that Santiago had been charged under the law as it existed at that time and not when he committed the offense four years earlier. Santiago further appeals from an order denying his motion to correct the corrected judgment of conviction, which erroneously indicated that he committed the offenses on May 17, 1996. We affirm the first order but reverse the second order and remand with directions for the circuit court to enter the correct date of Santiago’s commission of the offenses.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Joyce M. Schneider

Case No.: 2016AP934-CR

Officials: Kloppenburg, P.J., Lundsten and Blanchard, JJ.

Focus: Ineffective Assistance of Counsel – Jury Instructions

Joyce M. Schneider appeals a judgment of conviction entered after a jury found her guilty of substantial battery and obstructing an officer. She also appeals an order denying her motion for postconviction relief. Schneider asserts that trial counsel was ineffective because counsel (1) provided incomplete information and misleading advice about Schneider’s case, which led her to reject a favorable plea deal and proceed to trial, and (2) neglected to request an appropriate jury instruction on the obstructing charge. We reject Schneider’s claims and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Justin A. Hill

Case No.: 2016AP1088-CR; 2016AP1089-CR; 2016AP1090-CR; 2016AP1091-CR

Officials: Kloppenburg, P.J., Lundsten and Blanchard, JJ.

Focus: Sentencing – Sentence Credit

Justin Hill seeks resentencing because, as he argues, the circuit court erroneously exercised its discretion in determining the sentences in these Jefferson County cases by improperly relying on the amount of sentence credit to which Hill was entitled. More specifically, Hill argues that case law allows the consideration of sentence credit due as a reason to impose a more lengthy sentence only for a rehabilitative purpose, and that the circuit court acted contrary to that case law because it considered the sentence credit due solely with a “punitive purpose” in mind. Hill’s argument fails because he does not demonstrate that the court relied on the amount of sentence credit due at all.  Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jason Napiwocki

Case No.: 2016AP1264-Cr

Officials: Blanchard, J.

Focus: Restitution – Abuse of Discretion

Jason Napiwocki was convicted of contractor fraud related to a single remodeling contract with a single identified victim. He disputed the restitution amount. The court referred the restitution issue to a court commissioner for an evidentiary hearing and a recommendation. In this appeal, Napiwocki challenges the resulting restitution order by the court, and the court’s denial of his post-conviction motion to vacate the order. Napiwocki argues that the court commissioner erroneously exercised his discretion by admitting evidence over Napiwocki’s objections. Napiwocki argues that, because the commissioner erroneously exercised his discretion, the court erred in ordering restitution in reliance on the commissioner’s flawed findings, and that the court did not “adequately” provide analysis of its own to support its decision. I conclude that the court did not erroneously exercise its discretion regarding the amount of restitution ordered and properly denied Napiwocki’s post-conviction motion, and accordingly affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Timothy L. Stewart

Case No.: 2016AP1581-CR

Officials: Kloppenburg, P.J., Sherman and Blanchard, JJ.

Focus: Sentence Modification – Motion to Withdraw as Counsel

Timothy Stewart, pro se, appeals a judgment of conviction and an order denying postconviction relief. Stewart contends that: (1) he is entitled to sentence modification, resentencing, or plea withdrawal based on evidence as to Stewart’s mental health and the extent of the victim’s injury; (2) Stewart’s trial counsel was ineffective; (3) the circuit court erroneously exercised its discretion by denying Stewart’s trial counsel’s motion to withdraw so that new counsel could be appointed; (4) Stewart did not waive his preliminary hearing as to his substantial battery charge; (5) Stewart’s appointed postconviction counsel was ineffective; and (6) Stewart is entitled to an in-camera inspection of the victim’s mental health records. For the reasons set forth below, we reject these contentions and affirm.

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WI Supreme Court

WI Supreme Court

Case Name: Carolyn Moya v. Aurora Healthcare, Inc, et al

Case No.: 2017 WI 45

Focus: Fee Exemption – HIPAA Release Form

Today, we are asked to interpret the meaning of the phrase “person authorized by the patient” in Wis. Stat. § 146.83(3f)(b)4.-5. (2013-14),  which exempts a “patient or a person authorized by the patient” from paying certification charges and retrieval fees for obtaining copies of the patient’s health care records. More particularly, we are asked to determine whether an attorney whose client authorized him via a HIPAA release form to obtain her health care records may benefit from this fee exemption. Because the phrase “person authorized by the patient” is defined in Wis. Stat. § 146.81(5) to include “any person authorized in writing by the patient,” we hold that an attorney authorized by his or her client in writing via a HIPAA release form to obtain the client’s health care records is a “person authorized by the patient” under Wis. Stat. § 146.83(3f)(b)4.-5. and is therefore exempt from certification charges and retrieval fees under these subdivisions. Consequently, the decision of the court of appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and Remanded

Concur:

Dissent: Ziegler

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WI Supreme Court

Case Name: Lela M. Operton v. Labor and Industry Review Commission

Case No.: 2017 WI 46

Focus: Unemployment Benefits

We conclude that LIRC incorrectly denied Operton unemployment benefits. Operton was entitled to unemployment benefits because her actions do not fit within the definition of substantial fault as set forth in Wis. Stat. § 108.04(5g)(a)(2013-14)3. Stated more fully, Operton was terminated for committing “One or more inadvertent errors” during the course of her employment, and therefore pursuant to Wis. Stat. § 108.04(5g)(a)2., she was not terminated for substantial fault. We further conclude that, as a matter of law, Operton’s eight accidental or careless cash-handling errors over the course of 80,000 cash-handling transactions were inadvertent.

Accordingly, we affirm the court of appeals and remand to LIRC to determine the amount of unemployment compensation Operton is owed.

Affirmed

Concur: Abrahamson, Bradley, Ziegler, Gablemen, Kelly

Dissent:

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US Supreme Court Digests

US Supreme Court

Case Name: Bolivarian Republic of Venezuela, et al v. Helmerich & Payne International Drilling Co.

Case No.: 15-423

Focus: Non-Frivolous Standard – Foreign Sovereign Immunity

The nonfrivolous-argument standard is not consistent with the FSIA. A case falls within the scope of the expropriation exception only if the property in which the party claims to hold rights was indeed “property taken in violation of international law.” A court should decide the foreign sovereign’s immunity defense “[a]t the threshold” of the action, Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 493, resolving any factual disputes as near to the outset of the case as is reasonably possible.

“The expropriation exception grants jurisdiction only where there is a legally valid claim that a certain kind of right is at issue (property rights) and that the relevant property was taken in a certain way (in violation of international law). Simply making a nonfrivolous argument to that effect is not sufficient. This reading is supported by the provision’s language, which applies in a “case. . . in which rights in property taken in violation of international law are in issue.” Such language would normally foresee a judicial decision about the jurisdictional matter. This interpretation is supported by precedent. See, e.g., Permanent Mission of India to United Nations v. City of New York, 551 U. S. 193, 201–202. It is also supported by a basic objective of the FSIA, which is to follow international law principles, namely, that granting foreign sovereigns immunity from suit both recognizes the “absolute independence of every sovereign authority” and helps to “induc[e]” each nation state, as a matter of “international comity,” to “respect the independence and dignity of every other,” Berizzi Brothers Co. v. S. S. Pesaro, 271 U. S. 562, 575. Nothing in the FSIA’s history suggests that Congress intended a radical departure from these principles in codifying the mid-20th-century doctrine of “restrictive” sovereign immunity, which denies immunity in cases “arising out of a foreign state’s strictly commercial acts,” but applies immunity in “suits involving the foreign sovereign’s public acts,” Verlinden, supra, at 487. It is thus not surprising that the expropriation exception on its face emphasizes conformity with international law, requiring both a commercial connection with the United States and a taking of property “in violation of international law.” A “nonfrivolous-argument” reading of the exception would under mine the objectives embedded in the statute’s language, history, and structure. It could also embroil a foreign sovereign in an American lawsuit for some time by adopting a standard limited only by the bounds of a lawyer’s (nonfrivolous) imagination. And it could cause friction with other nations, leading to reciprocal actions against this country.”

Vacated and Remanded

Dissent:

Concur

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US Supreme Court

Case Name: Bank of America Corp, et al v. City of Miami, Florida

Case No.: 15-1111

Focus: Fair Housing Act –  Statutory Interpretation

The City is an “aggrieved person” authorized to bring suit under the FHA.

“In addition to satisfying constitutional standing requirements, see Spokeo, Inc. v. Robins, 578 U. S. ___, ___, a plaintiff must show that the statute grants the plaintiff the cause of action he or she asserts. It is presumed that a statute ordinarily provides a cause of action “only to plaintiffs whose interests ‘fall within the zone of interests protected by the law invoked.’ ” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U. S. ___, ___. The City’s claims of financial injury are, at the least, “arguably within the zone of interests” the FHA protects. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 153. The FHA defines an “aggrieved person” as “any person who” either “claims to have been injured by a discriminatory housing practice” or believes that such an injury “is about to occur,” 8 U. S. C. §3602(i). This Court has said that the definition of “person aggrieved” in the original version of the FHA “showed ‘a congressional intention to define standing as broadly as is permitted by Article III of the Constitution,’ ” Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205, 209; and has held that the Act permits suit by parties similarly situated to the City, see, e.g., Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91 (village alleging that it lost tax revenue and had the racial balance of its community undermined by racial-steering practices). Against the backdrop of those decisions, Congress did not materially alter the definition of person “aggrieved” when it reenacted the current version of the Act.”

Vacated and remanded

Concur: Roberts, Ginsburg, Sotomayor, Kagan, Thomas

Dissent: Thomas, Kennedy, Alito

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