Weekly Case Digests — Dec. 8-12, 2014

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CIVIL CASES

U.S. Court of Appeals For the Seventh Circuit
Civil Procedure — abstention

A lawsuit alleging that a debt collector lied in state court was properly dismissed under the Rooker-Feldman doctrine.

“The Rooker-Feldman doctrine is a matter of statutory interpretation, not of constitutional command. Congress is free to authorize federal collateral review of state civil judgments—though there may be limits to how far national law can specify procedures that state courts must use, as Judge Sykes’s concurring opinion in Suesz explains, 757 F.3d at 650–55—but 15 U.S.C. §1692e does not approach the limits of federal power. Section 1692e forbids debt collectors to tell lies but does not suggest that federal courts are to review state-court decisions about whether lies have been told. Section 1692e does not even hint that federal courts have been authorized to monitor how debt-collection litigation is handled in state courts. Section 1692i (the subject of Suesz) authorizes federal courts to address one specific aspect of state debt-collection litigation; §1692e lacks a parallel reference to the conduct of litigation in state courts, so the norm from the Rooker-Feldman doctrine controls.

Harold might have used §1692e to file a counterclaim in Indiana and could have appealed within the state system.

He did neither. His federal suit was properly dismissed.”

Affirmed.

14-1875 Harold v. Steel

Appeal from the United States District Court for the Southern District of Indiana, Pratt, J., Easterbrook, J.

U.S. Supreme Court
Civil Procedure — Juror bias

Rule 606(b) applies to juror testimony during a proceeding in which a party seeks to secure a new trial on the ground that a juror lied during voir dire.

This reading accords with the plain meaning of Rule 606(b),which applies to “an inquiry into the validity of [the] verdict.” This understanding is also consistent with the underlying common-law rule on which Congress based Rule 606(b). The so-called “federal rule” made jury deliberations evidence inadmissible even if used to demonstrate dishonesty during voir dire. Both the majority of courts and this Court’s pre-Rule606(b) cases, see McDonald v. Pless, 238 U. S. 264, 268; Clark v. United States, 289 U. S. 1, favored this rule over the “Iowa rule,” which permitted the use of such jury deliberations evidence. The federal approach is clearly reflected in the language Congress chose when it enacted Rule 606(b), and legislative history confirms that Congress’ choice was no accident. See Tanner v. United States, 483 U. S. 107, 125.

721 F. 3d 606, affirmed.

13-517 Warger v. Shavers

Sotomayor, J.

Wisconsin Court of Appeals
Civil Procedure – school meal program reimbursement

Holy Redeemer Church of God in Christ Inc. appeals a circuit court order upholding an administrative decision denying reimbursements for its school meals program for September 2010 through March 2012, and appeals an administrative decision prohibiting Holy Redeemer from relitigating meal claims prior to the 2011-12 academic year. We affirm.

2014AP293 Holy Redeemer Church of God in Christ Inc. v. State of Wisconsin Department of Public Instruction

Dist I, Milwaukee County, Conen, J., Kessler, J.

U.S. Court of Appeals For the Seventh Circuit
Employment — USERRA

An employee was entitled to a longevity bonus for time that would have accrued but for a leave of absence.

“Applying the Alabama Power test to DeLee’s situation, there is no question that a full longevity payment would have accrued but for his leave of absence. And, as described above, every meaningful aspect of the ‘perquisites of seniority’ considered by the Supreme Court in Alabama Power and Coffy cuts decisively in DeLee’s favor.

Nevertheless, Plymouth maintains that its longevity benefit is compensation for work done during the prior year, staking its position on the ‘simple idea that wages are earned through work.’ But longevity payments are not wages. And, in any event, that ‘simple idea’ contravenes USERRA’s guarantee of seniority benefits, which include seniority-based bonuses. See 38 U.S.C. § 4303(2). In Coffy, the Supreme Court emphasized that ‘[e]ven if eligibility for SUB payments were closely related to hours worked, that fact would not, by itself, render them compensation rather than seniority rights.’ 447 U.S. at 203. That is because the nature of the benefit, not the formula by which it is calculated, is the ‘crucial factor, “for even the most traditional kinds of seniority privileges could be as easily tied to a work requirement as to the more usual criterion of time as an employee.”’ Id. at 204 (quoting Alabama Power, 431 U.S. at 592). Ultimately, the history of SUB plans, as well as the plan’s specific provisions, compelled the Coffy Court’s conclusion that the benefit was a reward for lengthy service. Id. These same considerations dictate the outcome here, where we conclude that the original purpose of Plymouth’s longevity pay for police was to reward them for lengthy service and that that purpose survived the subsequently-enacted proration ordinance.

Accordingly, the ‘real nature’ of longevity pay forecloses the City’s argument that its prorated payments to police officers are compensation for work actually performed that year.

Reversed and Remanded.

14-1970 DeLee v. City of Plymouth

Appeal from the United States District Court for the Northern District of Indiana, Moody, J, Flaum J.

U.S. Court of Appeals For the Seventh Circuit
Employment — age discrimination

Although an employee was not hired after a restructuring, she failed to show age discrimination.

“Ripberger points to no other evidence in the record that Schoenradt or any other decisionmaker  arbored any discriminatory animus based on age. Indeed, the notion that Schoenradt desired to eliminate Ripberger because of her age is unlikely given that he had hired Ripberger to return to work at Pendleton just two years before when she was 57 years old.

See Rand v. CF Indus., Inc., 42 F.3d 1139, 1147 (7th Cir. 1994) (‘It seems rather suspect to claim that the company that hired him at age 47 “had suddenly developed an aversion to older people” two years later.’) (quoting Lowe v. J.B. Hunt Transport, Inc., 963 F.2d 173, 174-75 (8th Cir. 1992)). Any inference of age discrimination is further undercut by the fact that of the six employees Corizon hired at Pendleton, three were relatively close to Ripberger’s age: Anna Sasin was 51, Diane Diggins was 57, and Avery Thomas was over 60. Cf. O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312-13 (1996) (no inference of age discrimination can be drawn from the replacement of one worker with another worker insignificantly younger). Simply put, Ripberger has presented no evidence that her age motivated Corizon’s decision not to hire her.”

Affirmed.

13-2070 Ripberger v. Corizon, Inc.

Appeal from the United States District Court for the Southern District of Indiana, Pratt, J., Rovner, J.

U.S. Supreme Court
Employment — FLSA

The time that employees spent waiting to undergo and undergoing security screenings is not compensable under the FLSA.

The security screenings at issue are noncompensable postliminary activities. To begin with, the screenings were not the principal activities the employees were employed to perform—i.e., the workers were employed not to undergo security screenings but to retrieve products from warehouse shelves and package them for shipment. Nor were they “integral and indispensable” to those activities. This view is consistent with a 1951 Department of Labor opinion letter, which found noncompensable under the Portal-to-Portal Act both a preshift screening conducted for employee safety and a postshift search conducted to prevent employee theft. The Ninth Circuit’s test, which focused on whether the particular activity was required by the employer rather than whether it was tied to the productive work that the employee was employed to perform, would sweep into “principal activities” the very activities that the Portal-to-Portal Act was designed to exclude from compensation. See, e.g., IBP, supra, at 41. Finally, respondents’ claim that the screenings are compensable because Integrity Staffing could have reduced the time to a de minimis amount is properly presented at the bargaining table, not to a court in an FLSA claim.

713 F. 3d 525, reversed.

13-433 Integrity Staffing solutions, Inc., v. Busk

Thomas, J.; Sotomayor, J., concurring.

Wisconsin Court of Appeals
Foreclosure; redemption period 

Reading WIS. STAT. § 846.101(2) in context with other sections of WIS. STAT. ch. 846 supports the argument that the statutory language stating notice of a foreclosure sale “shall be given” within the six-month redemption period is directory, rather than mandatory.   Each of these statutes establishes a redemption period for the type of property addressed, during which the borrower may pay off his or her debt and redeem the property before it is sold at a foreclosure sale.   If the lender agrees to waive its right to a deficiency judgment, the redemption period for owner-occupied one- to four-family residences is reduced to six months, and the redemption period for commercial properties is reduced to three months.  Secs. 846.101(2), 846.103(2).  As the circuit court observed, it simply “does not make sense” that owner-occupied residential properties with deficiency waivers would be treated differently from the other kinds of foreclosed properties.

Accordingly, the lender was permitted, but not required, to publish notices of foreclosure sale during the borrowers’ redemption periods.  Because publication of the notices during the borrower’s redemption periods was not required, the circuit court properly exercised its discretion by denying the borrowers’ motions to vacate the foreclosure judgments.

Affirmed.

Recommended for publication in the official reports.

2014AP642, 2014AP647  Bank of America v. Prissel, Bank of America v. Gerlach

Dist. III   , Pierce County. Duvall, J. Hoover, J., Hruz, J.

Wisconsin Supreme Court
Property — Eminent domain

A property owner is not entitled to damages for diminution in value due to a temporary limited easement.

“We conclude that the LLC is precluded from seeking damages under Wis. Stat. § 32.09(6g) for the commercial property’s diminution in value which resulted from its loss of direct access and proximity to 118th Avenue due to the 118th Avenue relocation.  The temporary limited easement did not cause the commercial property to lose direct access and proximity to 118th Avenue, so damages under § 32.09(6g) for the temporary limited easement cannot include damages for the loss of direct access and proximity to 118th Avenue.  Because the LLC seeks damages for its loss of direct access and proximity to 118th Avenue, the circuit court did not err by excluding evidence of those damages in the § 32.09(6g) claim for taking an easement.  Thus, the LLC improperly seeks compensation under § 32.09(6g) for the commercial property’s diminution in value based on its lost direct access and proximity to 118th Avenue when 118th Avenue was relocated.  Because our resolution of the narrow issue presented disposes of the LLC’s claim, we need not address the other issues presented.  See Maryland Arms Ltd. P’ship v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15.”

Reversed and remanded.

2012AP2784 118th Street Kenosha, LLC, v. DOT

Ziegler, J.

Wisconsin Court of Appeals
Property – boundary dispute

Peter Logghe appeals an order granting summary judgment to Charles and Laurie Herbert in his declaratory judgment action to settle a boundary dispute. Logghe’s deed, and those of his predecessors in interest, granted him property bounded, in part, by the northern edge of County Trunk Highway I as it was traveled at the time of the grant in 1938. Logghe claims the Herberts failed to establish a prima facie case for summary judgment because their submissions did not include any averment, made on the basis of personal knowledge, or other competent evidence as to the location of the highway at the relevant time. As such, the parties’ respective rights regarding the disputed land remain undetermined. We agree with Logghe, reverse, and remand for further proceedings consistent with this opinion.

2014AP149 Logghe v. Hebert

Dist III, Chippewa County, Isaacson, J., Per Curiam

U.S. Court of Appeals for the 7th Circuit
Public Health — disability benefits

Where an applicant for disability benefits was found disabled immediately on her 55th birthday, she is entitled to back benefits.

“The applicant’s treating physicians, together with three consultative physicians selected by the Social Security Administration who examined the applicant and studied her medical records, advised the administrative law judge that she suffers from fibromyalgia, spinal disk disease, ‘photophobia’ (abnormal sensitivity to light), and other ailments unnecessary to discuss, and that as a result she walks haltingly, has difficulty gripping objects, experiences difficulty in rising from a sitting position, has trouble concentrating in a bright room or when looking at a computer screen, and as a result of this assemblage of impairments cannot do even light work on a full-time basis. If this is right she was disabled before she turned 55 and is therefore entitled to a back payment of Supplemental Security Income.”

Reversed and Remanded.

13-3624 Herrmann v. Colvin

CRIMINAL CASES

Wisconsin Court of Appeals
Criminal Procedure – reasonable suspicion

Gary Gibson appeals a judgment, entered upon his guilty plea, convicting him of the manufacture/delivery of between 200 and 1000 grams of THC, as party to a crime. Gibson argues the circuit court erred by denying his suppression motion because the officer lacked reasonable suspicion to stop him. We reject Gibson’s argument, and affirm.

2013AP2569-CR State v. Gibson

Dist III, St. Croix County, Needham, J., Per Curiam

Wisconsin Court of Appeals
Criminal Procedure – postconviction motion

John H. Jones, Jr., pro se, appeals the order denying his postconviction motion for a restitution hearing. He argues that the postconviction court erred when it concluded that his motion was procedurally barred. We agree. Accordingly, we reverse and remand for proceedings consistent with this opinion.

2014AP1501 State v. Jones

Dist I, Milwaukee County, Donald, J., Per Curiam

Wisconsin Court of Appeals
Search and Seizure — probable cause

Steven Kaulfuerst appeals his judgment of conviction for possession of tetrahydrocannabinols (THC) following the circuit court’s denial of his motion to suppress evidence obtained from a protective frisk.  We affirm.

2014AP001428-CR           State v. Steven L. Kaulfuerst

DISTRICT II; Ozaukee County; PAUL V. MALLOY, Judge; GUNDRUM, J.

Attorneys: For Appellant: Fay, Daniel P. For Respondent: Weber, Gregory M.; Gerol, Adam Y.

Wisconsin Court of Appeals
Search and Seizure — community caretaker function

David C. Marker appeals from his conviction for operating his vehicle while intoxicated with children under age sixteen as passengers and denial of his motion for postconviction relief.  Marker contends that the circuit court erred when it determined that the community caretaker function justified a police officer’s warrantless stop of Marker’s vehicle, based upon Marker’s former wife’s report that Marker was driving while intoxicated with their children in his vehicle.

Affirmed.

2014AP1122-CR State v. David C. Marker

DISTRICT II; Waukesha County; LLOYD CARTER, Judge; BROWN, C.J.

Attorneys: For Appellant: Zellner, Kiley For Respondent: Bayer, Bryan C.; Weber, Gregory M.

U.S. Court of Appeals For the Seventh Circuit
Sentencing — fraud; amount of loss

Where the defendants were convicted for fraudulently obtaining government contracts as a minority owned business, the sentence was properly calculated based on the entire amount of the government contracts.

“As the district court noted during Potter’s sentencing hearing, Application Note 3(F)(v) of § 2B1.1 appears to contemplate the scheme here. Application Note 3(F)(v) provides that where regulatory approval by a government agency is obtained by fraud, the ‘loss shall include the amount paid for the property, services, or goods transferred, rendered, or misrepresented, with no credit provided for the value of those items or services.’United States Sentencing Commission Guidelines Manual § 2B1.1 cmt. n.3(F)(v) (2013). It is undisputed that ICS obtained MBE certification from the City of Chicago through fraud, putting Potter’s conduct squarely within the scheme considered by Application Note 3(F)(v). It is also undisputed that RCN paid $8.3 million for ICS’s services. Taken together, RCN’s $8.3 million expenditure is within the ambit of Application Note 3(F)(v).”

Affirmed.

13-3283 & 13-3537 U.S. v. Giovenco

Appeals from the United States District Court for the Northern District of Illinois, Pallmeyer, J., Bauer, J.

Wisconsin Court of Appeals
Sentencing — sentence credit

This case concerns the sentence credit due Jimi P. McDonald as a result of his overlapping criminal offenses in Illinois and Wisconsin.  He seeks immediate release from confinement, arguing that additional periods of incarceration in Illinois should count toward his Wisconsin sentence, fully satisfying it.  We disagree and affirm.

2014AP384 Jimi P. McDonald v. David H. Schwarz

DISTRICT II; Racine County; JOHN S. JUDE, Judge; Before Brown, C.J., Neubauer, P.J., and Gundrum, J; PER CURIAM

For Respondent: Murphy, S. Michael