Weekly Case Digests – April 6, 2020 – April 10, 2020

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: INTL FCStone Financial Inc. v. Dave Jacobson, et al.,

Case No.: 19-2111; 19-2123

Officials: MANION, KANNE, and BRENNAN, Circuit Judges.

Focus: Arbitration

Investors in commodities futures appeal an order to arbitrate their trading disputes. But they stumble out of the blocks: our review is limited to “final decisions of the district courts.” 28 U.S.C. § 1291. Here, the district court ordered arbitration and designated an arbitration forum, then stayed the case to address related issues, including the arbitration venue. Put more simply, the district court made non‐final decisions.

Although statutory exceptions exist to the rule of finality, none apply here. Because this case remained open to resolve certain issues, we dismiss defendants’ appeal for lack of jurisdiction.

Dismissed
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7^th Circuit Court of Appeals

Case Name: Physicians Healthsource, Inc., v. A-S Medication Solutions, LLC, et al.,

Case No.: 19-1452

Officials: FLAUM, MANION, and KANNE, Circuit Judges.

Focus: TCPA Violation

In February 2010, A-S Medication Solutions, LLC (“AMS”) sent a fax advertisement to 11,422 different numbers from a recently acquired customer list. Nearly two years later, Physicians Healthsource, Inc. (“PHI”) filed a putative class action suit asserting that those faxes violated the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227. The district court subsequently: certified the proposed class; granted PHI’s motion for summary judgment on liability against AMS and its CEO, Walter Hoff; entered a nearly $6 million judgement; and approved a distribution plan for that judgment. On appeal, AMS challenges all those decisions but the certification of the class. We affirm.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Sharif Pharmacy, Inc., v. Prime Therapeutics, LLC,

Case No.: 18-2725; 18-3003

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

Focus: Sherman Act Violation – Consolidated Appeal

The issue in these consolidated appeals is whether plaintiffs in two similar cases have stated viable claims under Sections 1 or 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2. They have not. We affirm the judgments of both district courts dismissing the cases on the plaintiffs’ pleadings, though in one case with slight modifications.

Affirmed in part. Affirmed as modified in part.

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7^th Circuit Court of Appeals

Case Name: Viamedia, Inc., Comcast Corporation, et al.,

Case No.: 18-2852

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

Focus: Sherman Act Violation

Plaintiff Viamedia, Inc. has sued defendant Comcast Corporation for violating Section 2 of the Sherman Act, 15 U.S.C. § 2. Viamedia accuses Comcast of using its monopoly power in one service market to exclude competition and gain monopoly power in another service market. The district court dismissed Viamedia’s case, in part on the pleadings and in part on summary judgment. We reverse. Viamedia’s allegations and evidence are sufficient to state and support claims that should be presented to a jury.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Gregory Koger v. Thomas J. Dart

Case No.: 19-2892

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

Focus: Due Process Violation

While he was confined in the Cook County Jail, Gregory Koger accumulated books in his cell. Eventually guards removed more than 30, relying on a policy that prisoners may not have more than three books or magazines at a time (excluding religious and legal materials, which do not count against the limit). A magistrate judge, presiding by consent under 28 U.S.C. §636(c), dismissed the resulting suit without reaching the merits. In a prior decision we agreed with that ruling in part but remanded with instructions to resolve two claims on the merits: whether the policy is valid and whether Koger is entitled to compensation for the books he lost as a result of its enforcement. Lyons v. Dart, 901 F.3d 828 (7th Cir. 2018).

The magistrate judge then granted summary judgment to the defendants. She held that the three-book policy is valid under the First Amendment (applied to states via the Due Process Clause of the Fourteenth) and that it makes no difference whether the guards asked Koger which three books he wanted to keep or what the Jail did with the confiscated books, because his complaint does not articulate a due process (or Takings Clause) theory. 2019 U.S. Dist. LEXIS 106447 (N.D. Ill. June 26, 2019), reconsideration granted and original decision reaffirmed with additional reasoning, 2019 U.S. Dist. LEXIS 152878 (N.D. Ill. Sept. 9, 2019). We start with Koger’s contention that the three-book limit violates his right to freedom of speech, which defendants concede includes a right to read what other persons have spoken or written.

The judgment is affirmed to the extent that it finds the Jail’s three-book policy consistent with the First Amendment but otherwise is vacated, and the case is remanded for further proceedings consistent with this opinion.

Affirmed in part. Vacated and remanded in part.

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7^th Circuit Court of Appeals

Case Name: Adam Gibson, et al., v. Curtis Lovelace, et al.,

Case No.: 19-2342

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

Focus: Writ of Mandamus

Defendants in a civil rights case in the Central District of Illinois moved to disqualify the as‐ signed judge under 28 U.S.C. § 455(a). When the judge denied their motion, defendants filed a petition for a writ of mandamus in this court seeking an order requiring the judge to dis‐ qualify herself on two grounds. We denied the petition by order of August 8, 2019, saying that an opinion would follow.

As we explain below, neither ground for recusal required the judge to disqualify herself from this case. We first set the scene with the underlying lawsuit and summarize proceedings on the recusal issues in the district court. We then address the use of mandamus to litigate dis‐ qualification after our decision in Fowler v. Butts, 829 F.3d 788 (7th Cir. 2016). Finally, we turn to the defendant‐petitioners’ specific arguments for disqualification.

Petition Denied

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7^th Circuit Court of Appeals

Case Name: Meriyu v. William P. Barr

Case No.: 19-1892

Officials: RIPPLE, SYKES, and ST. EVE, Circuit Judges.

Focus: Immigration – Removal Order – Abuse of Discretion

Meriyu, an Indonesian citizen who is of Chinese descent and of the Buddhist faith, petitions for review of the denial of her motion to reopen removal proceedings that concluded more than fourteen years ago. In 2002, Ms. Meriyu sought relief based on fear of persecution on account of race and religion but was ordered removed after she failed to appear at a hearing before an immigration judge. Fourteen years later, she moved to reopen the proceedings. The Board of Immigration Appeals (“the Board”) upheld an IJ’s ruling that the motion was untimely and that she could not show a material change in country conditions since the hearing. She subsequently filed two motions to reopen that were denied for similar reasons. In this petition for review, Ms. Meriyu challenges the denial of her most recent motion to reopen. The Board did not abuse its discretion in denying her motion, and we therefore deny her petition for review.

Petition denied

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7^th Circuit Court of Appeals

Case Name: Lexington Insurance Company v. Chicago Flameproof & Wood Specialties Corporation

Case No.: 19-1062

Officials: FLAUM, MANION, and BARRETT, Circuit Judges.

Focus: Insurance Claim – Duty to Defend

The district court held that Lexington Insurance Company (“Lexington”) owed no duty to defend Chicago Flameproof & Wood Specialties Corporation (“Chicago Flameproof”) in three underlying lawsuits. We affirm. The underlying complaints do not allege an “occurrence”—or accident—as is required to trigger Lexington’s duty to defend under the insurance policy at issue.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Travis Dorvit, et al. v. Gary S. Winemaster, et al.,

Case No.: 19-2755

Officials: FLAUM, MANION, and BARRETT, Circuit Judges.

Focus: Court Error – Settlement Agreement

The named plaintiff in a failed state derivative action seeks to reverse the district court’s approval of a settlement in a related federal suit. The court below adequately considered the propriety of the settlement’s terms and we now affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Vistelar, LLC, v. Cincinnati Specialty Underwriters Insurance Company

Case No.: 2019AP633

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

Focus: Insurance Claim – Duty to Defend

Vistelar, LLC, appeals the order granting summary judgment to Cincinnati Specialty Underwriters Insurance Company (Cincinnati), in which the circuit court determined that Cincinnati did not have a duty to defend Vistelar against claims of trademark infringement brought against Vistelar by Verbal Judo Institute, Inc. (Verbal Judo). We affirm.

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WI Court of Appeals – District III

Case Name: LaVerne J. Springer v. Springer Bros., et al., 

Case No.: 2019AP249

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

Focus: Court Error – Damages

This appeal and cross-appeal involve a dispute between two brothers—LaVerne and Robert Springer—who formerly operated a family farm together through a partnership known as Springer Brothers (“the Partnership”). Following a jury trial, the circuit court entered a judgment awarding LaVerne $10,500 in damages for Robert’s breach of his fiduciary duty to LaVerne. After a subsequent bench trial, the court entered a second judgment that dissolved the Partnership; partitioned the Partnership’s real estate; and awarded LaVerne an additional $13,020.50 in damages for income the court found Robert diverted from the Partnership.

We conclude the circuit court erred when it determined the Partnership had obtained sole title, via adverse possession, to certain real estate partially owned by two of LaVerne and Robert’s siblings. The court was required, but failed, to determine whether the Partnership’s use of the land was hostile, open and notorious, exclusive, and continuous. We therefore reverse and remand for the court to make that determination. If the court determines the Partnership did not obtain sole title to the relevant property via adverse possession, it must reconsider the manner in which it partitioned the Partnership’s real estate.

We further conclude that the circuit court erred by considering anew during the bench trial items of damages that the jury had already considered during the jury trial. We therefore reverse the court’s award to LaVerne of $13,020.50 for LaVerne’s share of the proceeds from the sales of timber harvested from the Partnership’s land. We affirm in all other respects.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Charlie L. New

Case No.: 2018AP2171-CR

Officials: Reilly, P.J., Gundrum and Davis, JJ.

Focus: Plea & Sentencing – Resentencing

Charlie L. New appeals a judgment convicting him, upon his no-contest pleas, of substantial battery, strangulation and suffocation, false imprisonment, and victim intimidation. New also appeals the order denying his postconviction motion in which he sought either (1) plea withdrawal, claiming counsel was ineffective for misadvising him that a charge dismissed “outright” could not be considered at sentencing or (2) sentence modification. On appeal, he again seeks plea withdrawal but now asks for resentencing. We deny both requests and affirm the judgment and order.

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WI Court of Appeals – District II

Case Name: Demonta Antonio Hall v. Wisconsin Department of Justice

Case No.: 2018AP2274

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

Focus: Sentencing Guidelines – Expungement

Demonta Antonio Hall was arrested on September 21, 2015, for possession of an electronic weapon and on January 11, 2017, for second-degree sexual assault. In both instances, the state, within two days of arrest, decided not to charge Hall. Wisconsin law provides that if a person is arrested but then not charged or cleared of the offense that person has the right to have the record of his or her arrest expunged from the state’s crime database. WIS. STAT. § 165.84(1). Hall requested that his arrests from September 21, 2015, and January 11, 2017, be expunged. The Department of Justice (DOJ) refused.

DOJ admits that while standing alone the arrests would be expunged, it could not do so because DOJ had administratively appended (“cycled”) some earlier ordinance violations to those arrests. The circuit court ordered expungement of the September 21, 2015 and January 11, 2017 arrest records, and we affirm as a plain reading of WIS. STAT. § 165.84(1) so requires.

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WI Court of Appeals – District II

Case Name: Dr. Alfred M. Habel v. Estate of Alfred John Capelli

Case No.: 2019AP314; 2019AP315

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

Focus: Estate – Contract Enforceability

Dr. Alfred M. Habel appeals from a judgment and an order in favor of the Estate of Dr. Alfred John Capelli and his widow, Julie Capelli (collectively “the Estate”). The dispute is whether an alleged contract between Capelli and Habel, under which Habel could sell Capelli’s sports memorabilia collection for a commission after Capelli’s death, is enforceable. We conclude that because Habel can choose whether or not to perform under the contract, his promise is illusory and lacks consideration, thereby rendering the contract unenforceable. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Lois M. Bertrand

Case No.: 2019AP1240-CR

Officials: REILLY, P.J.

Focus: OWI – Warrantless Search – Probable Cause

Lois M. Bertrand appeals from a judgment of conviction for operating a motor vehicle while intoxicated (OWI), second offense, with a passenger under the age of sixteen pursuant to WIS. STAT. §§ 346.63(1)(a) and 346.65(2)(f)2. Bertrand argues that the circuit court erred in denying her motion to suppress based on her unlawful seizure within the curtilage of her home. As the officer’s intrusion into Bertrand’s attached garage occurred without a warrant and without probable cause or exigent circumstances, we conclude that the circuit court erred in denying Bertrand’s motion to suppress. We reverse.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. A.A.,

Case No.: 2018AP1497

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

Focus: Statutory Interpretation – Nonsecure Custody Sanction

This case involves the interpretation of the phrase “not more than 10 days” in WIS. STAT. § 938.355(6)(d)1. This provision sets the maximum length for a nonsecure custody sanction that a circuit court may impose on a juvenile who has violated a dispositional order. A.A. challenges one aspect of the order imposing a sanction on him and the circuit court’s subsequent decision reaffirming the length of the sanction. Specifically, he challenges the court’s decisions to extend his placement from January 16, 2018, to January 26, 2018, arguing that the court should have set January 25, 2018, as the end date. That is, A.A. contends that the sanction as ordered exceeded the “not more than 10 days” allowed under § 938.355(6)(d)1. because it included 10 days plus part of an 11th day, when “day” is understood to mean a calendar day. In contrast, the State argues that the length of the sanction was proper because it did not exceed 240 hours (i.e., 10 consecutive 24-hour periods), because “day” in this context means 24 consecutive hours.

We agree with A.A. that the word “day” in WIS. STAT. § 938.355(6)(d)1. means a calendar day and not a series of hours. We interpret the statute this way in light of the general common law rule that fractions of days are not recognized when a time period is framed in terms of “days” in the circumstances present here. Under the common law rule, neither a juvenile’s entering custody or being released is referable to a particular hour or minute of a day. These events are deemed to have occurred on the first and last days of the sanction.

We also briefly address the circuit court’s application of WIS. STAT. § 990.001(4) to resolve the issue here and conclude that § 990.001(4) does not apply in this context. Accordingly, we modify the sanctions order so that the end date is shown as January 25, 2018, and affirm the order as modified.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Rosalee M. Tremaine

Case No.: 2018AP1963-CR

Officials: NASHOLD, J.

Focus: Ineffective Assistance of Counsel

Rosalee Tremaine appeals a judgment of conviction and an order denying her postconviction motion. Tremaine argues that her trial counsel was ineffective for failing to raise a meritorious ground for suppressing the evidence against her. I agree and reverse.

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WI Court of Appeals – District IV

Case Name: Paustian Medical & Surgical Center, S.C., v. IMT Insurance Company, et al.,

Case No.: 2019AP141

Officials: Blanchard, Kloppenburg and Graham, JJ.

Focus: Insurance Claim – Duty to Defend

This is an insurance coverage dispute between Paustian Medical & Surgical Center, S.C., and IMT Insurance Company involving the determination of whether IMT owes a duty to defend or indemnify its insured, RC Heating & Cooling, against the claims that Paustian has brought against RC. Whether IMT owes such a duty hinges on whether RC has coverage under the IMT insurance policy for Paustian’s negligence and breach of contract claims arising out of a project to design and install an HVAC system in Paustian’s facility.

The circuit court granted IMT’s motions for summary judgment and declaratory judgment and dismissed IMT from the action, ruling that Paustian’s allegations do not establish an “occurrence” or “property damage” under the terms of the insurance policy, and that, even if an occurrence and property damage had occurred, the policy’s “impaired property” exclusion applies to bar coverage.

We conclude that IMT has no duty to defend RC against the allegations in Paustian’s amended complaint (referred to in this opinion as the complaint) under the IMT policy, because assuming, without deciding, that Paustian’s allegations establish that an occurrence and property damage occurred, the allegations also establish that the policy’s “impaired property” exclusion applies to bar coverage for Paustian’s claims. We also deem Paustian to concede that no exception to the exclusion applies to restore coverage. Accordingly, we affirm the circuit court’s order dismissing IMT from this action.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Michael B. Kingsley

Case No.: 2019AP714-CR

Officials: Blanchard, Kloppenburg, and Graham, JJ.

Focus: OWI – Suppression of Evidence

Michael Kingsley appeals a judgment convicting him of operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood, as a fifth offense, and felony bail jumping, both as repeaters. WIS. STAT. §§ 346.63(1)(am), 946.49(1)(b), 939.62(1)(b) (2017-18). Kingsley argues that the circuit court erred in denying his motion for suppression of evidence. For the reasons discussed below, we affirm the judgment of the circuit court.

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WI Court of Appeals – District IV

Case Name: Tree Lane Apartments, LLC, v. Kimberly Gaddis, et al.,

Case No.: 2019AP803; 2019AP810

Officials: Blanchard, Kloppenburg, and Graham, JJ.

Focus: Abuse of Discretion – Eviction

Tree Lane Apartments, LLC (“the landlord”) issued 5-day notices to terminate the tenancies of Kimberly Gaddis and Pamela Windom, both based on alleged nonpayment of rent. The landlord followed the notices with eviction actions. Gaddis contested her eviction in the circuit court, but the landlord prevailed. Windom stipulated with the landlord that she would move out and thereby avoided entry of a judgment of eviction. About 60 days later, after both former tenants had vacated their units, each moved for relief from judgment under WIS. STAT. § 806.07(1). Each former tenant argued, for the first time, that she was entitled to relief because the landlord did not have a right to evict her using a 5-day notice, in light of the fact that the lease was “void and unenforceable” under WIS. STAT. § 704.44(10). The circuit court judge in each case denied the motion for relief and both former tenants appeal. We reject one set of arguments advanced by the former tenants based on forfeiture and reject the remaining arguments because the circuit court judges did not erroneously exercise their broad discretionary authority in denying the respective motions under § 806.07(1)(h).

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WI Court of Appeals – District IV

Case Name: State of Wisconsin ex rel. Timothy Zigengo, et al. v. Wisconsin Elections Commission, et al.

Case No.: 2019AP2397; 2020AP112

Officials: Fitzpatrick, P.J., Kloppenburg and Nashold, JJ.

Focus: Mandamus Relief

The respondents in this appeal, who were the plaintiffs in the circuit court, are three Wisconsin taxpayers and registered voters. The appellants are the Wisconsin Elections Commission and five of its six individual commissioners. Plaintiffs brought suit against the Commission in the Ozaukee County Circuit Court alleging that the Commission failed to comply with a particular election law. The circuit court agreed with Plaintiffs and granted a writ of mandamus ordering the Commission to “comply with the provisions of [WIS. STAT.] § 6.50(3) and deactivate the registrations” of thousands of electors in the State of Wisconsin. The circuit court later found the Commission, and three of its individual commissioners, in contempt of court for failure to comply with the court’s writ of mandamus.

The Commission appealed both the writ of mandamus and the contempt order in separate appeals. In orders dated January 14, 2020, this court: (1) stayed the circuit court’s writ of mandamus against the Commission; and (2) stayed the circuit court’s order for contempt which was based on the Commission’s failure to comply with the writ of mandamus. We entered those stay orders after the Wisconsin Supreme Court denied Plaintiffs’ Petition to Bypass the Court of Appeals. See WIS. STAT. RULE 809.60. This court set an expedited briefing schedule for this appeal with the final brief filed on February 19, 2020.

The explicit basis for the circuit court’s writ of mandamus, and a necessary premise for Plaintiffs’ arguments, is that the Commission has statutory duties pursuant to WIS. STAT. § 6.50(3). We reject Plaintiffs’ arguments, and reverse the writ of mandamus entered by the circuit court, because the plain language of § 6.50(3) neither refers to the Commission nor places any duties on the Commission.

We also vacate the circuit court’s contempt order because of our reversal of the writ of mandamus. We further reject Plaintiffs’ request to construe the contempt order to allow for monetary sanctions against the Commission and three of its individual commissioners for the less-than-24-hour period between the issuance of the contempt order and our stay of that order.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Dennis Brantner

Case No.: 2020 WI 21

Focus: Sentencing Guidelines – Double Jeopardy – Multiplicity

Fond du Lac County sheriff’s detectives arrested Mr. Brantner at the Kenosha County courthouse and transported him to the Fond du Lac County jail to face criminal charges unrelated to this case. During the booking process, a sheriff’s deputy discovered a cache of narcotics and prescription medications in Mr. Brantner’s boot, a discovery that gave rise to his trial in this case in the Fond du Lac County circuit court. Mr. Brantner says he should not have been tried in Fond du Lac County because he did not possess the drugs when the deputy discovered them——not because the drugs were not there——but because the arrest in Kenosha County terminated, as a matter of law, his ability to possess any contraband on his person. We disagree. Mr. Brantner did not lose possession of the drugs in his boot upon his arrest in Kenosha County. And because he still possessed the drugs in Fond du Lac County, venue there was proper.

Mr. Brantner also says that two of the charges on which the jury convicted him were multiplicitous. One of the charges was for possession of 20mg oxycodone pills in violation of Wis. Stat. § 961.41(3g)(am) (2017-18). The other was for possession of 5mg oxycodone pills in violation of the same statute. We agree with Mr. Brantner, and so reverse the court of appeals with respect to his multiplicity challenge.

Affirmed in part. Reversed and remanded in part.

Concur: C.J., filed a concurring opinion, in which ZIEGLER, J., joined.

Dissent:

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WI Supreme Court

Case Name: DSG Evergreen Family Limited Partnership v. Town of Perry

Case No.: 2020 WI 23

Focus: Claim Preclusion

The Town of Perry (the “Town”) acquired a portion of property belonging to DSG Evergreen Family Limited Partnership (“DSG”) through its power of eminent domain. In exercising that power, the Town committed itself to building a replacement road over part of the acquired property. DSG says the Town failed to build the road to the standards required by either the condemnation petition or Wis. Stat. § 82.50(1) (2017-18), which applies to the construction of town roads. It seeks a declaratory judgment establishing the Town’s road-building obligations or, in the alternative, damages sufficient to allow it to build the promised road. The Town says the claim preclusion doctrine bars DSG from raising its claims in this case. It also says that, in any event, DSG lacks a cognizable claim because the statutes on which it relies do not create a private cause of action.

We conclude that claim preclusion does not bar DSG’s claim that the Town did not build the replacement road to the standards required by the condemnation petition. However, we also conclude that Wis. Stat. § 82.50(1) does not impose obligations on the Town that are susceptible to a declaration of rights, nor does it create a private cause of action by which DSG can recover damages for the alleged failure to construct a proper road. Therefore, we reverse the decision of the court of appeals and remand to the circuit court for further proceedings on this claim.

Reversed and remanded

Concur:

Dissent:

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WI Supreme Court

Case Name: Waukesha County v. J.J.H.

Case No.: 2020 WI 22

Focus: Mootness

J.J.H. petitioned for review of the decision of the court of appeals, Waukesha Cty. v. J.J.H., No. 2018AP168, unpublished order (Wis. Ct. App. Jan. 30, 2019), dismissing her appeal as moot. After reviewing the record and the briefs of both parties, and after hearing oral arguments, we conclude this matter should be dismissed as improvidently granted.

Dismissed as improvidently granted.

Concur:

Dissent: REBECCA FRANK DALLET, J., dissents.

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Supreme Court Digests

United States Supreme Court

Case Name: Roman Catholic Archdiocese of San Juan, Puerto Rico v. Yali Acevedo Feliciano, et al.

Case No.: 18-921

Focus: Pension Benefits – Jurisdictional Defect

In 1979, the Office of the Superintendent of Catholic Schools of the Archdiocese of San Juan created a trust to administer a pension plan for employees of Catholic schools, aptly named the Pension Plan for Employees of Catholic Schools Trust (Trust). Among the participating schools were Perpetuo Socorro Academy, San Ignacio de Loyola Academy, and San Jose Academy. In 2016, active and retired employees of the academies filed complaints in the Puerto Rico Court of First Instance alleging that the Trust had terminated the plan, eliminating the employees’ pension benefits. The employees named as a defendant the “Roman Catholic and Apostolic Church of Puerto Rico,” which the employees claimed was a legal entity with supervisory authority over all Catholic institutions in Puerto Rico. App. to Pet. for Cert. 58–59, 152–153 (emphasis deleted). The employees also named as defendants the Archdiocese of San Juan, the Superintendent, the three academies, and the Trust.

The Solicitor General agrees that the Court of First Instance lacked jurisdiction but argues that this defect does not prevent us from addressing additional errors, including those asserted under the Free Exercise Clause. That may be correct, given that the Puerto Rico courts do not exercise Article III jurisdiction. But we think the preferable course at this point is to remand the case to the Puerto Rico courts to consider how to proceed in light of the jurisdictional defect we have identified. The petition for certiorari and the motions for leave to file briefs amici curiae are granted, the judgment of the Puerto Rico Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

Petition granted. Vacated and remanded.

Dissenting:

Concurring: JUSTICE ALITO, with whom JUSTICE THOMAS joins, concurring.

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United States Supreme Court

Case Name: Michelle Monasky v. Domenico Taglieri

Case No.: 18-935

Focus: ICARA – Habitual Residence

Petitioner Monasky, a U. S. citizen, asserts that her Italian husband, respondent Taglieri, became abusive after the couple moved to Italy from the United States. Two months after the birth of the couple’s daughter, A. M. T., in Italy, Monasky fled with the infant to Ohio. Taglieri petitioned the U. S. District Court for the Northern District of Ohio for A. M. T.’s return to Italy under the Convention, pursuant to 22 U. S. C. §9003(b), on the ground that the child had been wrongfully removed from her country of “habitual residence.” The District Court granted Taglieri’s petition, concluding that the parents’ shared intent was for their daughter to live in Italy. Then two-year-old A. M. T. was returned to Italy. The en banc Sixth Circuit affirmed. Under its precedent, the court first noted, an infant’s habitual residence depends on the parents’ shared intent. It then reviewed the District Court’s habitual-residence determination for clear error and found none. In doing so, the court rejected Monasky’s argument that Italy could not qualify as A. M. T.’s “habitual residence” in the absence of an actual agreement by her parents to raise her there.

A first-instance habitual-residence determination is subject to deferential appellate review for clear error. A trial court’s habitual residence determination presents a mixed question of law and fact that is heavily fact laden. The determination thus presents a task for fact finding courts and should be judged on appeal by a clear-error review standard. See U. S. Bank N. A. v. Village at Lakeridge, LLC, 583 U. S. ___, ___–___. There is no “historical tradition” indicating otherwise. Pierce v. Underwood, 487 U. S. 552, 558. Clear-error review has a particular virtue in Hague Convention cases: By speeding up appeals, it serves the Convention’s emphasis on expedition. Notably, courts of other treaty partners also review first-instance habitual-residence determinations deferentially. Pp. 14–16. Given the circumstances of this case, it is unnecessary to disturb the judgment below and remand the case to give the lower courts an opportunity to apply the governing totality-of-the-circumstances standard in the first instance. Pp. 16–17.

Affirmed

Dissenting:

Concurring: THOMAS, J., and ALITO, J., filed opinions concurring in part and concurring in the judgment.

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United States Supreme Court

Case Name: Jesus C. Hernandez, et al., v. Jesus Mesa, Jr.,

Case No.: 17-1678

Focus: Damages

United States Border Patrol Agent Jesus Mesa, Jr., shot and killed Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, in a tragic and disputed cross-border incident. Mesa was standing on U. S. soil when he fired the bullets that struck and killed Hernández, who was on Mexican soil, after having just run back across the border following entry onto U. S. territory. Agent Mesa contends that Hernández was part of an illegal border crossing attempt, while petitioners, Hernández’s parents, claim he was playing a game with his friends that involved running back and forth across the culvert separating El Paso, Texas, from Ciudad Juarez, Mexico. The shooting drew international attention, and the Department of Justice investigated, concluded that Agent Mesa had not violated Customs and Border Patrol policy or training, and declined to bring charges against him. The United States also denied Mexico’s request for Agent Mesa to be extradited to face criminal charges in Mexico. Petitioners sued for damages in U. S. District Court under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, alleging that Mesa violated Hernández’s Fourth and Fifth Amendment rights. The District Court dismissed their claims, and the United States Court of Appeals for the Fifth Circuit affirmed. After this Court vacated that decision and remanded for further consideration in light of Ziglar v. Abbasi, 582 U. S. ___, the Fifth Circuit again affirmed, refusing to recognize a Bivens claim for a cross-border shooting. Bivens’ holding does not extend to claims based on a cross-border shooting. The most important question is whether Congress or the courts should create a damages remedy. Here the answer is Congress. Congress’s failure to act does not compel the Court to step into its shoes.

Affirmed

Dissenting: GINSBURG, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

Concurring: THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined.

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United States Supreme Court

Case Name: Simon E. Rodriguez v. Federal Deposit Insurance Corporation

Case No.: 18-1269

Focus: Tax Refund

The Internal Revenue Service (IRS) allows an affiliated group of corporations to file a consolidated federal return. See 26 U. S. C. §1501. The IRS issues any refund as a single payment to the group’s designated agent. The tax regulations say very little about how the group members should then distribute that refund among themselves. If a dispute arises and the members have no tax allocation agreement in place, federal courts normally turn to state law to resolve the distribution question. Some courts, however, have crafted their own federal common law rule, known as the Bob Richards rule. See In re Bob Richards Chrysler-Plymouth Corp., 473 F. 2d 262. The rule initially provided that, in the absence of an agreement, a refund belongs to the group member responsible for the losses that led to it. But it has since evolved, in some jurisdictions, into a general rule that is always followed unless an agreement unambiguously specifies a different result. Soon after United Western Bank suffered huge losses, its parent, United Western Bancorp, Inc., was forced into bankruptcy. When the IRS issued the group a $4 million tax refund, the bank’s receiver, respondent Federal Deposit Insurance Corporation (FDIC), and the parent corporation’s bankruptcy trustee, petitioner Simon Rodriguez, each sought to claim it. The dispute wound its way through a bankruptcy court and a federal district court before the Tenth Circuit examined the parties’ tax allocation agreement, applied the more expansive version of Bob Richards, and ruled for the FDIC.

The Bob Richards rule is not a legitimate exercise of federal common lawmaking. Federal judges may appropriately craft the rule of decision in only limited areas, Sosa v. Alvarez-Machain, 542 U. S. 692, 729, and claiming a new area is subject to strict conditions. One of the most basic is that federal common lawmaking must be “ ‘necessary to protect uniquely federal interests.’ ” Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 640. The Bob Richards rule has not satisfied this condition. The federal courts applying and extending Bob Richards have not pointed to any significant federal interest sufficient to support the Bob Richards rule. Nor have the parties in this case. State law is well-equipped to handle disputes involving corporate property rights, even in cases, like this one, that involve federal bankruptcy and a tax dispute. Whether this case might yield the same or a different result without Bob Richards is a matter the court of appeals may take up on remand.

Vacated and remanded

Dissenting:

Concurring:

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United States Supreme Court

Case Name: James Erin McKinney v. Arizona  

Case No.: 18-1109

Focus: Pleas & Sentencing – Collateral Review

An Arizona jury convicted petitioner James McKinney of two counts of first-degree murder. The trial judge found aggravating circumstances for both murders, weighed the aggravating and mitigating circumstances, and sentenced McKinney to death. Nearly 20 years later, the Ninth Circuit held on habeas review that the Arizona courts violated Eddings v. Oklahoma, 455 U. S. 104, by failing to properly consider as relevant mitigating evidence McKinney’s posttraumatic stress disorder. McKinney’s case then returned to the Arizona Supreme Court. McKinney argued that he was entitled to a jury resentencing, but the Arizona Supreme Court itself reweighed the aggravating and mitigating circumstances, as permitted by Clemons v. Mississippi, 494 U. S. 738, and upheld both death sentences.

A Clemons reweighing is a permissible remedy for an Eddings error, and when an Eddings error is found on collateral review, a state appellate court may conduct a Clemons reweighing on collateral review. McKinney’s argument that a jury must resentence him does not square with Clemons, where the Court held that a reweighing of the aggravating and mitigating evidence may be conducted by an appellate court. 494 U. S., at 741. Because Clemons involved an improperly considered aggravating circumstance, McKinney maintains that it is inapposite here, where the case involves an improperly ignored mitigating circumstance. Clemons, however, did not depend on any unique effect of aggravators as distinct from mitigators. For purposes of appellate reweighing, there is no meaningful difference between subtracting an aggravator from one side of the scale and adding a mitigator to the other side. McKinney also argues that Clemons is no longer good law in the wake of Ring v. Arizona, 536 U. S. 584, and Hurst v. Florida, 577 U. S. ___, where the Court held that a jury must find the aggravating circumstance that makes the defendant death eligible But that does not mean that a jury is constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision within the relevant sentencing range. See Apprendi v. New Jersey, 530 U. S. 466, 481. McKinney notes that the Arizona trial court, not the jury, made the initial aggravating circumstance finding that made him eligible for the death penalty. But McKinney’s case became final on direct review long before Ring and Hurst, which do not apply retroactively on collateral review, see Schriro v. Summerlin, 542 U. S. 348, 358, and the Arizona Supreme Court’s 2018 decision reweighing the aggravators and mitigators did not constitute a reopening of direct review.

Affirmed

Dissenting: GINSBURG, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

Concurring:

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United States Supreme Court

Case Name: Eddie Lee Shular v. United States

Case No.: 18-6662

Focus: Statutory Interpretation – Armed Career Criminal Act

The Armed Career Criminal Act (ACCA) mandates a 15-year minimum sentence for a defendant convicted of being a felon in possession of a firearm who has at least three convictions for “serious drug offense[s].” 18 U. S. C. §924(e)(1). A state offense ranks as a “serious drug offense” only if it “involv[es] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” §924(e)(2)(A)(ii). To determine whether an offender’s prior convictions qualify for ACCA enhancement, this Court has used a “categorical approach,” looking “only to the statutory definitions of the prior offenses.” Taylor v. United States, 495 U. S. 575, 600. Under some statutes, a court employing a categorical approach must come up with a “generic” version of a crime—that is, the elements of the offense as commonly understood. The court then determines whether the elements of the offense of conviction match those of the generic crime. Other statutes, which ask the court to determine whether the conviction meets some other criterion, require no such generic-offense analysis. Shular pleaded guilty to being a felon in possession of a firearm and received a 15-year sentence, the mandatory minimum under ACCA. In imposing this sentence, the District Court held that Shular’s six prior cocaine-related convictions under Florida law qualified as “serious drug offense[s]” triggering ACCA enhancement. The Eleventh Circuit affirmed, concluding that §924(e)(2)(A)(ii)’s “serious drug offense” definition does not require a comparison to a generic offense.

Affirmed

Dissenting:

Concurring: KAVANAUGH, J., filed a concurring opinion.

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United States Supreme Court

Case Name: Gonzalo Holguin-Hernandez v. United States

Case No.: 18-7739

Focus: Sentencing Guidelines

Petitioner Holguin-Hernandez was convicted on drug charges and sentenced to 60 months in prison and five years of supervised release while he was still serving a term of supervised release for an earlier conviction. The Government asked the District Court to impose an additional consecutive prison term of 12 to 18 months for violating the conditions of the earlier term. Petitioner countered that 18 U. S. C. §3553’s sentencing factors either did not support imposing any additional time or supported a sentence of less than 12 months. The court nonetheless imposed a consecutive 12-month term. Petitioner argued on appeal that this sentence was unreasonably long because it was “ ‘greater than necessar[y]’ to accomplish the goals of sentencing,” Kimbrough v. United States, 552 U. S. 85, 101, but the Fifth Circuit held that he had forfeited that argument by failing to object to the reasonableness of the sentence in the District Court.

Petitioner’s district-court argument for a specific sentence (nothing or less than 12 months) preserved his claim on appeal that the sentence imposed was unreasonably long. A party who informs the court of the “action” he “wishes the court to take,” Rule 51(b), ordinarily brings to the court’s attention his objection to a contrary decision. That is certainly true where, as here, the defendant advocates for a sentence shorter than the one actually imposed. Judges, having in mind their “overarching duty” under §3553(a) “to ‘impose a sentence sufficient, but not greater than necessary,’ to serve the purposes of sentencing,” would ordinarily understand that a defendant in that circumstance was making the argument that the shorter sentence would be “ ‘sufficient’ ” and a longer sentence “ ‘greater than necessary.’ ” Pepper v. United States, 562 U. S. 476, 493 (quoting §3553(a)). Nothing more is needed to preserve a claim that a longer sentence is unreasonable. Defendants need not also refer to the “reasonableness” of a sentence. Rule 51 abolished the requirement of making formal “exceptions” to a district court’s decision. And, in any event, reasonableness pertains to the standard of “appellate review” of a trial court’s sentencing decision, Gall v. United States, 552 U. S. 38, 46 (emphasis added); it is not the substantive standard that trial courts apply under §3553(a). A defendant who, by advocating for a particular sentence, communicates to the trial judge his view that a longer sentence is “greater than necessary” has thereby informed the court of the legal error at issue in an appellate challenge to the substantive reasonableness of the sentence. Other issues raised by the Government and amicus are not addressed here because they were not considered by the Fifth Circuit.

Vacated and remanded

Dissenting:

Concurring: ALITO, J., filed a concurring opinion, in which GORSUCH, J., joined.

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United States Supreme Court

Case Name: Intel Corporation Investment Policy Committee, et al., v. Christopher M. Sulyma

Case No.: 18-1116

Focus: ERISA – Fiduciary Duty

The Employee Retirement Income Security Act of 1974 (ERISA) requires plaintiffs with “actual knowledge” of an alleged fiduciary breach to file suit within three years of gaining that knowledge, 29 U. S. C. §1113(2), rather than within the 6-year period that would otherwise apply. Respondent Sulyma worked at Intel Corporation from 2010 to 2012 and participated in two Intel retirement plans. In October 2015, he sued petitioners—administrators of those plans—alleging that they had managed the plans imprudently. Petitioners countered that the suit was untimely under §1113(2) because Sulyma filed it more than three years after they had disclosed their investment decisions to him. Although Sulyma had visited the website that hosted many of these disclosures many times, he testified that he did not remember reviewing the relevant disclosures and that he had been unaware of the allegedly imprudent investments while working at Intel. The District Court granted summary judgment to petitioners under §1113(2). The Ninth Circuit reversed. That court agreed with petitioners that Sulyma could have known about the investments from the disclosures, but held that his testimony created a dispute as to when he gained “actual knowledge” for purposes of §1113(2).

A plaintiff does not necessarily have “actual knowledge” under §1113(2) of the information contained in disclosures that he receives but does not read or cannot recall reading. To meet §1113(2)’s “actual knowledge” requirement, the plaintiff must in fact have become aware of that information. This opinion does not foreclose any of the “usual ways” to prove actual knowledge at any stage in the litigation. Farmer v. Brennan, 511 U. S. 825, 842. Plaintiffs who recall reading particular disclosures will be bound by oath to say so in their depositions. Actual knowledge can also be proved through “inference from circumstantial evidence.” Ibid. And this opinion does not preclude defendants from contending that evidence of “willful blindness” supports a finding of “actual knowledge.” Cf. Global-Tech Appliances, Inc. v. SEB S. A., 563 U. S. 754, 769.

Affirmed

Dissenting:

Concurring:

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