Weekly Case Digests — June 6-10, 2016

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7^th Circuit Court Digests

7^th Circuit Court of Appeals

Case Name: Calumet River Fleeting, Inc. v. International Union of Operating Engineers

Case No.: 15-3174

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

Focus: Collective Bargaining Agreement – Arbitration

Appellant did not appear to be party to collective bargaining agreement, therefore not required to submit to arbitration.

“Arbitration “is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648 (1986) (internal quotation marks omitted), quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960). The Union has failed to pose a genuine dispute of fact as to whether Calumet agreed to submit the termination of Zuccolo to arbitration. Its alter ego argument failed as discussed above, and the undisputed facts of record show that Calumet terminated its participation in the Floating Agreement in 2008. Nor has the Union presented any evidence that Calumet itself signed on to later versions of the agreement. On this record, Calumet was entitled to judgment as a matter of law.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Luis Aparicio-Brito v. Loretta Lynch

Case No.: 14-3062, 15-1720, 15-1769

Officials: POSNER and WILLIAMS, Circuit Judges, and PALLMEYER, District Judge.

Focus: Suppression of Evidence

Immigration judge complied with responsibilities during removal proceedings

“Here, the BIA properly denied Aparicio-Brito’s motions for reconsideration. Rather than highlighting overlooked facts or case law, Aparicio-Brito’s motions simply repeat earlier arguments presented to and rejected by the BIA. Indeed, aside from references to the BIA’s initial decisions, the two motions for reconsideration are almost identical to the opening motions—same argument structure, same wording, same case law quotations. A motion for reconsideration is properly denied when, as here, the petitioner presents the same arguments to a different judge hoping for a more favorable outcome. “

Petition to Review Denied

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7^th Circuit Court of Appeals

Case Name: United States of America v. Ladonta Gill et al.

Case No.: 14-3205; 14-1198

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

Focus: Pleas & Sentencing

Court erred as to supervised release conditions and did not make adequate findings regarding the conditions as to one appellant. Court also erred in assessment of appellant criminal history.

“We conclude that, pursuant to U.S.S.G. § 4A1.2 n.6, the district court erred when it assigned five criminal history points based on Gill’s previously invalidated AUUW conviction. And this court has held that “[a] district court’s adoption of erroneous information in a PSR that results in an incorrect Guidelines range, however correct such information appears, constitutes plain error on review.” Jenkins, 772 F.3d at 1098 (collecting cases). Thus, the district court committed plain error in its assessment of Gill’s criminal history”

Sentence Vacated and Remanded as to Gill

Affirmed as to Bostic

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7^th Circuit Court of Appeals

Case Name: Jose Crespo v. Carolyn W. Colvin

Case No.: 14-3779

Officials: POSNER, KANNE, and HAMILTON, Circuit Judges.

Focus: Misrepresentation – Untimely Appeal

Appellant appeal dismissed as untimely for misrepresentations to Social Security Administration triggering a civil monetary penalty.

“Crespo did not file a notice of appeal until April 16, 2014— five days late. The DAB ordered Crespo to show cause as to why his appeal should not be dismissed as untimely. Crespo responded that he “reasonably believed” he had thirty days from March 18, 2014—the date the decision was “actually de‐ livered.” He claimed “he received only approximately 24 days or so” because the decision was not delivered “in the normal expected period of 5 days.””

Affirmed

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7^th Circuit Court of Appeals

Case Name: Hubert E. Walker et al. v. Trailer Transit, Inc.

Case No.: 15-1482

Officials: POSNER, EASTERBROOK, and WILLIAMS, Circuit Judges

Focus: Profit-Share – Contract

Class of drivers not entitled to profits from profit share arrangement after-the-fact

“Perhaps the Drivers could have argued that the exclusion of “items intended to reimburse [Trailer Transit] for special services” limits this category to items provided at cost. They then would be entitled to 71% of everything else on the bill sent to the shipper. So if Trailer Transit paid someone $1,000 to accompany an over-wide shipment and display a “WIDE LOAD” banner, and billed the shipper $1,250, then the Driver would be entitled to $887.50 for that escort service—and Trailer Transit would lose $637.50 ($1,250 less $1,000 less $887.50 equals -$637.50). But that’s not the argument made in the district court. The Drivers asked for $177.50 (71% of Trailer Transit’s gain of $250) on this item, and their appellate brief is full of similar examples in which they claim 71% of the net. Only in passing (a few sentences in the brief, and one at oral argument) did the Drivers suggest that the use of the word “reimburse” entitles them to 71% of the gross on all special services billed at even a dollar over cost. That’s not enough to preserve the argument—which as this example shows also has little to recommend it. Why would Trailer Transit lock itself into automatic losses on special services?”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Commodity Futures Trading Commission v. Monex Deposit Company, et al

Case No.: 15-1467

Officials: POSNER, EASTERBROOK, and WILLIAMS, Circuit Judges.

Focus: Regulatory Authority – Jurisdiction

CFTC has authority and jurisdiction to investigate and gather information to assess whether Monex meets exception to regulation.

“An administrative agency is entitled to gather information that is “reasonably relevant” to an inquiry within its purview. United States v. Morton Salt Co., 338 U.S. 632, 652 (1950); see also, e.g., EEOC v. Aerotek, Inc., 815 F.3d 328 (7th Cir. 2016). The Commission’s subpoena sought from Monex information such as how much gold and silver it holds in inventory and what portion of its customers accepts delivery within 28 days. These and similar facts bear on the statutory exceptions. If customers rarely take delivery but instead trade their positions with each other (or sell them back to Monex), then the CFTC may be authorized to treat Monex as a futures merchant rather than leave it unregulated as a retail seller of metals. If Monex lacks enough inventory to deliver on all of its contracts, it may be acting more like a bank in a system of fractional-reserve banking (as the Federal Reserve did in the days when the United States adhered to the gold standard but lacked enough gold to pay off every bit of paper currency). Monex tells us that it has on hand metals enough to fulfill all contracts, and that its customers always take delivery (at least in the sense that metals are transferred to a depository until the full price is paid). If so, Monex may prevail in any enforcement action. But it has not given a good reason why the CFTC is forbidden even to gather the facts that will show whether the exception applies”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Beatrice Boyer et al v. BNSF Railway Company

Case No.: 14-3131, 14-3182

Officials: BAUER, ROVNER, and WILLIAMS, Circuit Judges.

Focus: Sanctions

Plaintiff’s counsel decision to file in State court was unreasonable; actions warrant sanctions

“The plaintiffs’ request to certify that question to the Wisconsin Supreme Court is denied. BNSF’s request that we impose Rule 38 sanctions is also denied. Finally, the decision of plaintiffs’ counsel to file this litigation in Arkansas state court was objectively unreasonable and vexatiously multiplied the proceedings, warranting sanctions pursuant to section 1927. We remand with directions to impose sanctions on the plaintiffs’ lead counsel, Christopher D. Stombaugh, in the amount of $34,575.80. Costs of the appeal are awarded to BNSF.”

Affirmed in Part

Reversed and Remanded in Part

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7^th Circuit Court of Appeals

Case Name: Lincoln Brown v. Chicago Board of Education

Case No.: 15-1857

Officials: WOOD, Chief Judge, and SYKES and HAMILTON, Circuit Judges

Focus: 1^st amendment violation.

Suspension of teacher for poorly executed discussion of racial epithets did not violate constitutional rights.

“Brown is indignant that he was suspended for using a ra‐ cial slur while attempting to teach his students why such lan‐ guage is inappropriate. His frustration is understandable, but it is not legally actionable. This is really a First Amendment case, which gains nothing from the addition of the substantive due process argument. And from a First Amendment stand‐ point, Garcetti dooms his position. The Board may have acted in a short‐sighted way when it suspended him for his effort to educate the students about a sensitive and socially important issue, but it did not trample on his First Amendment rights.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Justin Hancock

Case No.: 15-1779

Officials: WOOD, Chief Judge, and BAUER and WILLIAMS, Circuit Judges

Focus: Pleas & Sentencing

Judge properly addressed appellant arguments before imposing sentence.

“Hancock’s lawyer acknowledged the lack of precision, stating during the hearing that the comparison was “not scientific” and that the court could not devise any guidelines “from just looking at six cases.” He conceded that his analysis revealed “no discernible pattern as to how the judges of this district are dealing with the cases.” Hancock’s sentencing brief also noted the lack of a clear pattern, and urged only that the comparisons “provid[e] some information that may be of assistance” to the district court. That is hardly a “principal argument in mitigation” that the district court was required to address. United States v. Castaldi, 743 F.3d 589, 598 (7th Cir. 2014) (“Castaldi cannot prove that his sentence is unfair by pointing to a few other cases around the country where similar or worse defendants received lighter sentences, and this was not such a major part of his sentencing position as to trigger special obligations to explain … .”); United States v. Martinez, 650 F.3d 667, 672 (7th Cir. 2011) (“The key word, however, is principal—non-principal arguments can be considered and rejected by the district court without explicit discussion.”); United States v. Martinez, 520 F.3d 749, 753 (7th Cir. 2008). Hancock’s sentence was substantially below the low end of his Guidelines range, and it fell right in the middle of the range of sentences imposed on the offenders he identified. The district judge committed no error by not explaining why Hancock’s sentence did not create an unwarranted disparity with the sentence(s) of (one or more of) those offenders.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: D.U. v. Kitty Rhoades et al

Case No.: 15-1243

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

Focus: State Funded Services

Appellant failed to demonstrate that she would suffer irreparable harm if injunction preventing reduction of hours for private duty nurse to provide appellant with care, not granted.

“Because money damages could make D.U. whole again should she prevail in her lawsuit, she does not meet the standard for irreparable harm. Girl Scouts, 549 F.3d at 1095 (a party seeking a preliminary injunction must demonstrate, among other things, that traditional legal remedies, such as money damages, would be inadequate). See also Sampson v. Murray, 415 U.S. 61, 90 (1974) (noting that “[m]ere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough” to demonstrate irreparable harm and that the “possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.”). At oral argument, D.U.’s attorney asserted that there was no mechanism in Wisconsin law for obtaining a refund of the money expended on skilled nursing. But if D.U. prevails on the merits of her suit, a federal court order will provide the only process required. Because D.U. failed to demonstrate irreparable harm, the district court did not err in denying the preliminary injunction.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jermaine Jackson v. City of Peoria, Illinois

Case No.: 14-3701

Officials: WOOD, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges.

Focus: Probable Cause

Officers had sufficient probable cause to arrest and hold appellant in custody.

“The arrest (as opposed to the trial) did subject Jackson to a period of custody, but it was justified by the probable cause to arrest and later by an indictment. Jackson maintains that he was mistreated during this custody by being held incommunicado and without food for several days. That would be a good ground for recovery against the jailers (if it happened), but Jackson did not sue any of the guards. He sued only the arresting officers. His theory is that the officers instructed the guards to mistreat him. For this assertion he has—once again—not a smidgen of evidence. He does not say that he heard any police officer issue such instructions. He does not explain how he learned about these supposed instructions. Discovery did not turn up instructions to mistreat him. The police and the jailers said in discovery that no such instructions had been issued or received. An argument of this kind, resting on nothing at all, is irresponsible. Attorney Kamin should count himself lucky that the appellees have not requested sanctions under Fed. R. App. P. 38.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Juan Amaya

Case No.: 14-2617

Officials: EASTERBROOK, KANNE, and WILLIAMS, Circuit Judges.

Focus: Sufficiency of Evidence

Evidence more than sufficient to support jury verdict in multiple-count indictment

“Amaya argues that the government relied heavily at trial on the rules governing the Latin Kings and in particular the Latin Kings in the Little Village neighborhood, but failed to show that Amaya himself actually agreed to abide by those rules. Pressing that argument, Amaya notes there was evi‐ dence that gang members did not always follow all of the rules. But Amaya ignores that two former Latin Kings—again, Caquias and Shanna—testified that Amaya, as Regional Inca, was in charge of enforcing the rules. The jury was entitled to credit that testimony and conclude that Amaya agreed to the rules. See Garcia, 754 F.3d at 471 (considering “documentary evidence of the gang’s rules” as evidence that the Latin Kings’ Corona participated in a RICO conspiracy). The rules man‐ dated the shooting of trespassers, killing of police coopera‐ tors, retaliatory shooting of rival gang members, and beatings of Latin Kings who broke the rules. And though Amaya ar‐ gues there were instances in which gang members failed to follow the rules, he ignores the evidence of instances in which the rules were followed. In particular, Amaya took credit for twenty‐six shootings of rival gang members that took place while he was Regional Inca.”

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Jason L. Edmonson v. Lamond Carson et al

Case No.: 2014AP2582

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

Focus: Breach of Contract – Court Error

Jason Edmonson appeals a judgment awarding him $2200 for breach of contract against Lamond Carson, but denying his request for punitive damages against Carson, and dismissing all claims against Edmonson’s former wife, Lori Fleming. Edmonson argues: (1) the circuit court erroneously failed to consider Carson’s and Fleming’s statements at a scheduling conference, their failure to respond to requests for admissions, and Edmonson’s itemization of damages; (2) the court erred by denying Edmonson’s request for default judgment and summary judgment; and (3) the court improperly denied Edmonson a jury trial. We reject these arguments and affirm the judgment.

WI Court of Appeals – District III

Case Name: Robert J. Daniels, Sr. v. Paula B. McGeshick

Case No.: 2015AP198

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

Focus: Ownership of Property

Robert Daniels, Sr., appeals a judgment, following a trial to the court, dismissing his complaint alleging entitlement to a 1971 Chevrolet El Camino. We affirm the circuit court’s judgment

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Michael S. Dengsavang

Case No.: 2015AP637-CR

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

Focus: Machner Hearing

Michael S. Dengsavang appeals from a judgment of conviction and the circuit court’s order denying postconviction relief. First, Dengsavang claims his trial counsel was ineffective for: (1) opening the door to testimony on an excluded crime lab shoe print report; (2) failing to object to Detective Hudson’s shoe print testimony on evidentiary grounds of double hearsay and improper expert testimony; and (3) failing to expose exculpatory discrepancies in descriptions of the shooter. Additionally he claims that the trial court erred when it limited the scope of questioning at the Machner hearing by limiting testimony to the specific issue of opening the door to the shoe print report, thereby excluding testimony about the alleged discrepancies in descriptions of the shooter. The State responds that Dengsavang failed to show that his trial counsel’s performance was deficient as to the first two claimed ineffective assistance issues: (1) opening the door on the shoe print report; and (2) failing to object to Detective Hudson’s shoe print testimony on evidentiary grounds. Further, even if he could show deficient performance, any such deficiency was not prejudicial. As to the third claimed ineffective representation issue—failure to expose the alleged description discrepancies—the State argues that this issue is not properly before us because Dengsavang abandoned this issue before his first appeal, and this court’s remand for a Machner hearing neither required a hearing on this issue nor permitted it. Thus the State contends that the trial court did not err in excluding testimony about the alleged discrepancies from the Machner hearing. We agree with the State and affirm.

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WI Court of Appeals – District II

Case Name: Jana L. Tetzlaff v. County of Green Lake et al

Case No.: 2015AP1120-AC

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J

Focus: Injunctive Relief

In this Public Records Law case, Jana Tetzlaff brought an action under WIS. STAT. § 19.356 (2013-14) to enjoin Green Lake County from disclosing to County Supervisor Joy Waterbury an investigative report in which Tetzlaff was named. The circuit court dismissed the action, concluding that no statutory or common-law exceptions barred the report’s release and that the presumption of public access, see WIS. STAT. § 19.31, outweighed any public interest in nondisclosure. We affirm the order.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. James Johnson

Case No.: 2015AP1153

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

Focus: Domestic Abuse Modifier

James Johnson appeals from an amended judgment of conviction, entered upon his guilty pleas, for one count of substantial battery and one count of attempted false imprisonment, both as domestic abuse incidents. See WIS. STAT. §§ 940.19(2), 940.30, 939.32, 968.075(1)(a) (2013-14). The judgment included domestic abuse surcharges under WIS. STAT. § 973.055. Johnson also appeals the order denying his postconviction motion. He seeks to have all references to the domestic abuse modifier stricken from the amended judgment of conviction and requests that the domestic abuse surcharges be vacated. Because there was an adequate factual basis to establish a qualifying relationship for the domestic abuse modifier and the circuit court made the requisite finding to support the domestic abuse surcharges, we affirm.”

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Nyrobi William Allen

Case No.: 2015AP1190

Officials: Kessler, Brennan and Brash, JJ.

Focus: Identity Theft – Ineffective Assistance of Counsel

Nyrobi William Allen appeals from a judgment of conviction for two counts of unauthorized use of personal identifying information to obtain a thing of value, contrary to WIS. STAT. § 943.201(2)(a) (2013-14). He also appeals from two postconviction orders that partially denied his requests for relief. Allen, who pled guilty pursuant to a plea agreement, asserts that the trial court committed errors at sentencing that entitle Allen to one of several remedies. He also alleges ineffective assistance of trial counsel with respect to the pleas and challenges the imposition of a single discretionary DNA surcharge. We reject Allen’s arguments and affirm the judgment and orders.

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WI Court of Appeals – District I

Case Name: Milwaukee Deputy Sheriff’s Association v. David A. Clarke, Jr. et al

Case No.: 2015AP1577

Officials: Kessler, Brennan and Brash, JJ.

Focus: Failure to State Legal Basis For Relief

Sheriff David A. Clarke, Jr. appeals an order granting Milwaukee County’s motion to dismiss. Sheriff Clarke argues that the circuit court erred in dismissing his claim on the grounds that he failed to establish that he has a legal basis for the relief he sought. Specifically, Sheriff Clarke argues that he is entitled to relief on the grounds that: (1) the County’s 2015 budget is arbitrary and unreasonable because it prevented him from fulfilling his constitutional and statutory duties; (2) the hiring and appointment of deputy sheriffs is a constitutionally protected power of the sheriff; and (3) WIS. STAT. § 59.26(2) (2013-14) gives him the authority to appoint as many law enforcement officers as he considers necessary to fulfill his constitutional and statutory duties. We disagree and affirm.

WI Court of Appeals – District II

Case Name: Megan J. Coronado v. Labor and Industry Review Commission, et al

Case No.: 2015AP1588

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

Focus: Unemployment – Untimely Appeal

Megan J. Coronado appeals from a circuit court order affirming a decision of the Labor and Industry Review Commission (LIRC) which dismissed her unemployment appeal as untimely. Coronado contends that her failure to timely appeal a series of adverse unemployment benefits determinations was due to a reason beyond her control within the meaning of WIS. STAT. § 108.09(4)(c) (2013-14). Because LIRC’s decision was reasonable and supported by credible and substantial evidence, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Marlon Russell Britton

Case No.: 2015AP1783

Officials: Kessler, Brennan and Brash, JJ.

Focus: Due Process – General Appeal

Marlon Russell Britton appeals from a judgment of conviction, entered on a jury’s verdicts, on one count of disorderly conduct as a domestic abuse incident and one count of possession of a firearm by a felon, both as a repeater. Britton also appeals from an order that denied his postconviction motion without a hearing. Britton contends that trial counsel was ineffective for failing to challenge certain “other acts” evidence. We affirm.

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Michael A. Durham

Case No.: 2015AP1978-CR

Officials: STARK, PJ

Focus: Sufficiency of Evidence

Michael Durham appeals a judgment convicting him of resisting an officer. He argues the evidence was insufficient to support his conviction. We disagree, concluding the evidence introduced at trial was sufficient to sustain the jury’s verdict.

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WI Court of Appeals – District IV

Case Name: Ross Shrago v. Sean P. Burke. Et al

Case No.: 2014AP2462; 2015AP572

Officials: BLANCHARD, J.

Focus: Eviction

In this consolidated appeal from two eviction actions, tenants Sean Burke and Marilyn Martin2 appeal two grants of summary judgment ordered by two circuit court judges for Burke’s failure to pay rent to landlord Ross Shrago during two distinct time periods. As to the first eviction action, Burke argues that the court erred in rejecting Burke’s retaliation defense. As to the second eviction action, Burke argues that the court erred in rejecting his “plea in abatement” defense under WIS. STAT. § 802.06(2)(a)10. and his claim preclusion defense. Burke also asserts that it was “basically unfair” for the court to require a bond for the appeal of the second eviction.” Affirmed

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Steven D. Hopgood

Case No.: 2014AP2742

Officials: Lundsten, Higginbotham, and Blanchard, JJ.

Focus: Ineffective Assistance of Counsel – Court Error

Steven Hopgood appeals a judgment of conviction for felony murder following a jury trial at which the State presented evidence that Hopgood and two other men participated in an armed robbery that resulted in a fatal shooting. Hopgood also appeals the circuit court’s order denying his motion for postconviction relief. Hopgood argues that: (1) his trial counsel provided ineffective assistance in multiple ways; (2) the State failed to disclose material, exculpatory evidence in time for use at trial; (3) the same material, exculpatory evidence constitutes newly discovered evidence warranting a new trial; (4) the circuit court erroneously exercised its discretion in denying two mistrial motions, each based on improper statements by a prosecutor; and (5) this court should grant Hopgood a new trial in the interest of justice. We reject each of Hopgood’s arguments and affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Officer of Lawyer Regulation v. Matthew S. MacLean

Case No.: 2015AP1433-D

Focus: Disciplinary Proceedings

Attorney license suspended for two years.

“Upon careful review of the matter, we agree with the referee’s recommendation for a two-year suspension of Attorney MacLean’s license to practice law in Wisconsin. Attorney MacLean’s misconduct was serious and warrants a significant penalty. However, Attorney MacLean did present a number of mitigating factors, including the fact that he self-reported his conduct to the OLR, he sought assistance from WisLAP and voluntarily submitted to WisLAP for monitoring of his treatment for bipolar disorder, he made full restitution, and he cooperated with the investigation into his conduct. The referee commented that from the referee’s observation at the hearing, Attorney MacLean “clearly appeared to be remorseful, regretful and concerned for the victims of his misconduct.” In addition, Attorney MacLean’s lack of previous disciplinary history also warrants some consideration. “

US Supreme Court Digests

US Supreme Court

Case Name: Army Corps of Engineers v. Hawkes Co.

Case No.: 15-290

Focus: Judicial Review

The Corps’ approved jurisdictional determination is a final agency action judicially reviewable under the ADA

“In general, two conditions must be satisfied for an agency action to be “final” under the APA: “First, the action must mark the consummation of the agency’s decision making process,” and “second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U. S. 154, 177–178.”

Affirmed

Concurring: KENNEDY, ALITO, THOMAS, KAGAN, GINSBURGE

Dissenting:

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US Supreme Court

Case Name: Simmons et al v. Himmerlreich

Case No.: 15-109

Focus: Statutory Interpretation

The judgment bar provision of the Federal Tort Claims (FTCA) act does not apply to claims dismissed for falling within the exceptions section of the FTCA.

“The FTCA explicitly excepts from its coverage certain categories of claims, including the one into which Himmelreich’s first suit fell. If, as the Government maintains, Chapter 171’s judgment bar provision applies to claims in that “Exceptions” category, it applied to Himmelreich’s first suit and would preclude any future actions, including his second suit. On Himmelreich’s reading, however, the provision does not apply and he may proceed with his second suit”

Affirmed

Concurring:

Dissenting:

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US Supreme Court

Case Name: Ross v. Blake

Case No.: 15-339

Focus: Prison Litigation Reform Act

4^th circuits unwritten “special circumstances” exception is inconsistent with the Prison Litigation Reform Act.

“The PLRA speaks in unambiguous terms, providing that “[n]o action shall be brought” absent exhaustion of available administrative remedies. §1997e(a). Aside from one significant qualifier—that administrative remedies must indeed be “available”—the text suggests no limits on an inmate’s obligation to exhaust. That mandatory language means a court may not excuse a failure to exhaust, even to take “special circumstances” into account. When it comes to statutory exhaustion provisions, courts have a role in creating exceptions only if Congress wants them to. So mandatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion. See, e.g., McNeil v. United States, 508 U. S. 106. Time and again, this Court has rejected every attempt to deviate from the PLRA’s textual mandate. See Booth v. Churner, 532 U. S. 731; Porter v. Nussle, 534 U. S. 516; Woodford v. Ngo, 548 U. S. 81. All those precedents rebut the Fourth Circuit’s “special circumstances” excuse for non-exhaustion. “

Vacated and Remanded

Concurring: THOMAS, BREYER

Dissenting:

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