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Weekly Case Digests – May 4, 2020 – May 8, 2020

By: Rick Benedict//May 8, 2020//

Weekly Case Digests – May 4, 2020 – May 8, 2020

By: Rick Benedict//May 8, 2020//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: National Immigrant Justice Center v. United States Department of Justice  

Case No.: 19-2088

Officials: RIPPLE, SYKES, and SCUDDER, Circuit Judges.

Focus: Freedom of Information Act – Deliberate Process Privilege

Receiving confidential advice is essential to sound decision-making. The law of privilege owes its existence to that reality and finds application in many settings, including decision-making within the executive branch of our national government. Consider the setting front and center in this appeal—immigration. Congress has empowered the Attorney General with enforcement, rulemaking, and adjudicatory authority. The exercise of that power is of great consequence on many fronts, including in the direction of the nation’s immigration policy and the lives of many noncitizen immigrants. Those very same reasons explain why the Attorney General, as part of exercising the responsibility conferred by Congress, will seek and receive confidential input from a range of advisors within the Department of Justice.

Unsettled by decisions made by Attorneys General across three presidential administrations, the National Immigrant Justice Center invoked the Freedom of Information Act and sought access to all records of communications to and from the Attorney General in certain immigration appeals certified for executive decision. The Department of Justice honored aspects of the requests but withheld many responsive documents on the basis of FOIA’s exemption for communications protected by the deliberative process privilege. The district court found the withholding proper, and so do we. To conclude otherwise would chill the deliberations that department and agency heads like the Attorney General undertake in confidence to execute the weighty responsibilities of their offices.

Affirmed

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7th Circuit Court of Appeals

Case Name: Jeffrey Orr, et al. v. Louis Shicker, et al.

Case No.: 19-1380; 19-1387; 19-1732

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

Focus: Abuse of Discretion – Class Certification

Plaintiffs are current and former inmates of the Illinois Department of Corrections (IDOC) who have been diagnosed with hepatitis C. They filed this lawsuit over ten years ago after fruitless efforts to receive treatment for their disease while incarcerated. Invoking 42 U.S.C. § 1983, their complaint alleges that the diagnostic and treatment protocols for IDOC inmates with hepatitis C violate the Eighth and Fourteenth Amendments. After many years, many motions, and the consolidation of many cases, the district court granted class certification and preliminary injunctive relief. The defendants—IDOC, Wexford Health Sources, Inc., and several doctors—asked us to accept an appeal from that decision under Federal Rule of Civil Procedure 23(f). We agreed to do so and now reverse the grant of class certification and vacate the injunction.

Vacated and remanded

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7th Circuit Court of Appeals

Case Name: John Hall, et al. v. City of Chicago

Case No.: 19-1347

Officials: BAUER, EASTERBROOK, and ST. EVE, Circuit Judges.

Focus: Unlawful-stop Claim

Plaintiffs in this case ask us to address the proper scope of a Terry stop. Police officers stopped Plaintiffs numerous times for violating a City ordinance while they were panhandling on the streets of Chicago. During the course of these street stops, the officers typically asked Plaintiffs to produce identification (“ID”). The officers then proceeded to use the provided ID cards to search for any outstanding warrants for their arrest or investigative alerts—a process we will call a “warrant check” or a “name check.” Plaintiffs contend the officers would not return their IDs to them until after completing the name checks.

Plaintiffs brought an action under 42 U.S.C. § 1983 against the City of Chicago, claiming that name checks unnecessarily prolong street stops and that the delays constitute unreasonable detentions in violation of the Fourth Amendment. They also assert that the City maintained an unconstitutional policy or practice of performing these name checks pursuant to Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978). Plaintiffs’ Monell claim arises under several possible theories: that the Chicago Police Department (“CPD”) Special Order regulating name checks omitted essential constitutional limits, that CPD failed to train on these same constitutional limits, and that former Superintendent Garry McCarthy promulgated an unconstitutional policy by promoting name checks in conjunction with every street stop.

We conclude that officers may execute a name check on an individual incidental to a proper stop under Terry v. Ohio, 392 U.S. 1, 16 (1968), as long as the resulting delay is reasonable. Plaintiffs have failed to establish that they suffered an underlying constitutional violation such that the City can be held liable under Monell. We therefore affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: U.S. Futures Exchange, LLC, et al. v. Board of Trade of the City of Chicago, Inc., et al.

Case No.: 18-3558

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

Focus: Anti-trust Violation

This antitrust case comes to us from the commodities and futures marketplace. As USFE tells it, Defendants torpedoed its new futures exchange by delaying the regulatory approval process and enacting an internal rule that deprived the new exchange of liquidity. The real question is whether Defendants violated the antitrust laws in doing so. We hold they did not.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Edmundo Manriquez-Alvarado

Case No.: 19-2521

Officials: EASTERBROOK, KANNE, and ST. EVE, Circuit Judges.

Focus: Immigration – Removal Order

Edmundo Manriquez-Alvarado, a citizen of Mexico, has entered the United States repeatedly by stealth. How often we do not know, but the record shows that he was ordered removed in 2008, 2010, 2012, 2014, and 2017, each time following a criminal conviction. (His record includes convictions for burglary, domestic violence, trafficking illegal drugs, and unauthorized reentry.) The gaps between the removal orders stem from the time it takes to catch him, plus time he spends in prison following his convictions.

Manriquez-Alvarado was found in the United States yet again in 2018 and indicted for illegal reentry. 8 U.S.C. §1326(a), (b)(2). His drug crime is defined by 8 U.S.C. §1101(a)(43)(B) as an “aggravated felony”. This increases the maximum punishment for unauthorized reentry. After the district court denied his motion to dismiss the indictment, Manriquez-Alvarado pleaded guilty and was sentenced to 39 months’ imprisonment. The plea reserved the right to contest on appeal the denial of the motion to dismiss.

All of the convictions for reentry rest on the 2008 removal order. Manriquez-Alvarado contends that this order is invalid because immigration officials never had “jurisdiction” to remove him. That’s because a document captioned “Notice to Appear” that was served on him in February 2008 did not include a date for a hearing. Pereira v. Sessions, 138 S. Ct. 2105 (2018), holds that a document missing this information does not satisfy the statutory requirements, 8 U.S.C. §1229(a)(1), for a Notice to Appear. We held in Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019), that Pereira identifies a claims processing doctrine rather than a rule limiting the jurisdiction of immigration officials. Manriquez-Alvarado wants us to overrule Ortiz-Santiago, but that’s not in the cards. No other circuit has disagreed with its holding, and its reasoning is powerful.

Manriquez-Alvarado asserts that seeking review would have been futile in a second sense: Pereira was not decided until 2018, so he could not have relied on it in 2008. Once again this is irrefutable, but Pereira interpreted a statute that long predates 2008. Manriquez-Alvarado was free to rely on that statute. If the agency and court ruled against him, the relevant decision by the Supreme Court might have carried his name rather than Pereira’s. The statute does not ask whether administrative and judicial remedies would have been futile. It asks whether they were available. The best way to determine whether a remedy works is to use it and see what happens, rather than to bypass it and speculate years later about what might have happened. 534 U.S. 516 (2002) (an administrative remedy is “available” for the purpose of a different exhaustion rule if it offers the prospect of any relief, even if not the remedy the applicant wants).

Much the same may be said about Manriquez-Alvarado’s contention that the removal order was “fundamentally unfair”. He asserts that because he waived his rights without knowing about Pereira, which lay a decade in the future, the waiver was necessarily involuntary. To repeat: Pereira is a statutory decision, and Manriquez-Alvarado could have consulted the statute and invoked its benefit, small as that was. (Recall that the only effect of securing a complete Notice to Appear would have been a slight delay in removal.) We held in Ortiz-Santiago, 924 F.3d at 964–65, that the statute creates a procedural right that is lost if not asserted or the failure excused, and we applied that rule to an alien whose removal order predated Pereira. If that did not produce a fundamentally unfair outcome for Ortiz-Santiago, it does not produce one for Manriquez-Alvarado either. His removal was the result of his criminal conduct, coupled with the fact that he lacked permission to enter the United States at all. He has never asserted a legitimate claim of entitlement to be in the United States. It is not unfair, fundamentally or otherwise, to order such an alien to depart.

Affirmed

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7th Circuit Court of Appeals

Case Name: Jennifer Beardsall, et al. v. CVS Pharmacy, Inc., et al.

Case No.: 19-1850

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

Focus: Consumer Fraud – Misrepresentation

Plaintiffs brought state consumer deception claims against defendant Fruit of the Earth and its retailer clients. They alleged that defendants’ aloe vera products did not contain any aloe vera and lacked acemannan, a compound that plaintiffs say is responsible for the plant’s therapeutic qualities. But uncontested facts drawn from discovery showed these allegations to be false: the products were made from aloe vera and contained at least some acemannan.

To stave off summary judgment, plaintiffs changed their theory, claiming that the products were degraded and did not contain enough acemannan. Plaintiffs said that it was therefore misleading to call the products aloe vera gel, to represent them as “100% Pure Aloe Vera Gel,” and to market them as providing the therapeutic effects associated with aloe vera. Plaintiffs have not, however, presented evidence that some concentration of acemannan is necessary to call a product aloe or to produce a therapeutic effect. Nor have they offered evidence that consumers care at all about acemannan concentration. Whatever theoretical merit these claims might have had on a different record, this record simply does not contain evidence that would allow a reasonable jury to find in favor of plaintiffs. With this dearth of evidence, the district court granted summary judgment in favor of defendants. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Carl Castetter v. Dolgencorp, LLC,

Case No.: 19-2026

Officials: BAUER, EASTERBROOK, and ST. EVE, Circuit Judges.

Focus: ADA Violation

Carl Castetter brings this appeal against his former employer, Dolgencorp, LLC, d/b/a Dollar General (“Dollar General”), for disability discrimination in violation of the Americans with Disabilities Act of 1990 (“ADA”). Dollar General contends Castetter was terminated for policy violations. The district court granted summary judgment in favor of Dollar General and for the following reasons, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Nichole L. Richards v. PAR, Inc., et al.

Case No.: 19-1184

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

Focus: FDCPA Violation

When Nichole Richards defaulted on her car loan, her lender hired PAR, Inc., to repossess the vehicle. PAR subcontracted with Lawrence Towing to carry out the repossession. Richards protested when employees of the towing company arrived at her Indianapolis home and tried to take the car. She ordered them off her property. They summoned the police, and a responding officer handcuffed Richards and threatened her with arrest. The officer removed the handcuffs after the car was towed away.

Richards sued PAR and Lawrence Towing for violating the Fair Debt Collection Practices Act (“FDCPA” or “the Act”). As relevant here, the Act makes it unlawful for a debt collector to take “nonjudicial action” to repossess property if “there is no present right to possession of the property claimed as collateral through an enforceable security interest.” 15 U.S.C. § 1692f(6)(A). Richards concedes the validity of the security interest and admits that she defaulted on her loan. Her argument is that the defendants lacked a present right to possess the vehicle because Indiana law authorizes nonjudicial repossession only if the repossession “proceeds without breach of the peace.” IND. CODE § 26-1-9.1-609. If a breach of the peace occurs, the repossessor must immediately stop and seek judicial remedies.

The district judge viewed the claim as an improper attempt to repackage a state-law violation as a violation of the FDCPA and entered summary judgment for the defendants.

We reverse. Whether a repossessor had a “present right to possession” for purposes of § 1692f(6)(A) can be determined only by reference to state law. Based on the evidentiary record, a reasonable jury could find that the towing company employees did not have a present right under Indiana law to possess Richards’s vehicle when they seized it. Accordingly, she has a viable FDCPA claim.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: Darryl Turner v. Reena D. Paul, et al.

Case No.: 19-2225

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

Focus: 8th Amendment & 14th Amendment Violation

Darryl Turner suffered a broken nose during an altercation with another inmate while in pre-trial detention at the Cook County Jail. The injury left him with pain and shortness of breath. A doctor determined that he needed surgery to treat his problems, but to Turner’s great frustration, the surgery was repeatedly rescheduled and postponed. Over a year after the initial injury, he finally received the surgery following his release from custody.

Claiming that his treatment was unconstitutionally deficient under the Eighth and Fourteenth Amendments to the U.S. Constitution, Turner sued a number of administrators and medical professionals at the Cook County Health and Hospitals System and at Cermak Health Services, a county operated clinic located in the jail. He also sued Cook County itself. The district court granted summary judgment with respect to all defendants, and Turner appealed. We affirm the district court’s grant of summary judgment.

Affirmed

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7th Circuit Court of Appeals

Case Name: Rexing Quality Eggs v. Rembrandt Enterprises, Inc.,

Case No.: 19-2146

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

Focus: Claim Splitting Ban

This case is the second to arise out of an ill-fated relationship between Rexing Quality Eggs and Rembrandt Enterprises, Inc. The first case addressed various claims arising under a contract that the two parties formed at the outset of their business dealings. Although this case arises out of the same transaction, this time Rexing, the plaintiff, has raised tort claims. The question on appeal is whether its effort to bring a new action is consistent with Indiana’s prohibition on claim splitting, under which a plaintiff is forbidden to bring a case presenting claims that arise out of the same transaction or events that underlie claims brought in another lawsuit. We hold that the claim-splitting ban applies here, and so we affirm the district court’s judgment.

Affirmed

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7th Circuit Court of Appeals

Case Name: John Worman v. Frederick Entzel

Case No.: 19-2048

Officials: BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Sentencing Guidelines – Resentencing 

John Worman reacted to losing his job and a business opportunity by mailing a pipe bomb to his former supervisor. Federal charges ensued, and a jury convicted Worman on all counts, leading to a sentence of 44 years’ imprisonment. Worman was unsuccessful in challenging his sentence on direct appeal and in a motion to vacate his sentence. The Supreme Court then decided Dean v. United States, 137 S. Ct. 1170 (2017), which Worman was right to recognize as calling into question the length of his sentence. But Congress has limited prisoners to one pursuit of habeas corpus relief, subject to very narrow exceptions. So Worman’s challenge became finding a viable path to file a second request for habeas relief, and he ultimately invoked 28 U.S.C. § 2241. The district court concluded that, even though Dean provided Worman a surefire basis for a meaningful sentencing reduction (from 44 to 30 years), he did not meet the exacting and narrow requirements for being able to use § 2241 to pursue a new sentence. We agree and affirm, with today’s decision exemplifying the stark reality that the limitations on habeas corpus relief can have very real and lasting consequences for prisoners laboring to navigate its complexities.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America, et al. v. DISH Network, L.L.C.,

Case No.: 17-3111

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

Focus: TCPA Violation

After a bench trial that lasted five weeks and produced 475 typed pages of findings, a district judge concluded that DISH Network and its agents committed more than 65 million violations of telemarketing statutes and regulations. 256 F. Supp. 3d 810 (C.D. Ill. 2017) (183 printed pages). The penalty: $280 million. DISH does not challenge any finding of fact. This simplifies the appellate task, but legal issues remain.

DISH sold its satellite TV service through its own staff plus third parties. These fell into three categories. DISH hired “telemarketing vendors” to conduct campaigns on its behalf. It used thousands of “full service retailers” that sold, installed, and serviced satellite gear and service in their areas. Finally, it had some 50 “order-entry retailers”, which used phones to sell nationwide. The order-entry retailers took orders from customers and entered them directly into DISH’s computer system. DISH was responsible for installing the necessary equipment and received payments from the customers, remitting to the order-entry retailers a commission for each new customer. This appeal concerns the acts of DISH and four order-entry retailers: Dish TV Now, Star Satellite, JSR, and Satellite Systems Network.

The United States, California, North Carolina, Illinois, and Ohio filed suit against DISH, alleging violations of federal and state laws. The district court found that DISH and its agents violated the Telemarketing Sales Rule, 16 C.F.R. §310 (propagated under 15 U.S.C. §45, part of the Federal Trade Commission Act), the Telephone Consumer Protection Act, 47 U.S.C. §227, and related state laws. The appeal concerns the extent to which DISH had to coordinate do-not-call lists with and among these retailers or was otherwise responsible for their acts. The Telemarketing Sales Rule prohibits (i) calls to people who placed their names on the National Do Not Call Registry, (ii) calls to people who placed their names on a vendor’s internal do-not-call list, and (iii) “abandoned” calls (so named because a system that fails to put the consumer in contact with a live person within two seconds of the call connecting is deemed “abandoned”). See 16 C.F.R. §310.4(b)(1)(iii)(B), (A), and (b)(1)(iv). Those prohibitions give rise to most of the issues.

We start with DISH’s challenge to the district court’s conclusion that it caused violations of statutes and regulations just by hiring others to sell its services. One provision in the Rule makes it unlawful for a seller to “cause a telemarketer to engage in” violations. 16 C.F.R. §310.4(b). Neither the regulation nor any judicial decision addresses what “cause” means. Plaintiffs maintain, and the district court found, that “cause” occurs whenever an act plays any role in the chain of acts leading to a violation. On this understanding the very existence of DISH “causes” all violations by anyone who, in the absence of satellite TV, would be in some other line of work. DISH maintains, to the contrary, that “cause” means “proximate cause,” a phrase that excludes some effects that are remote from the violation. See Hemi Group, LLC v. New York City, 559 U.S. 1 (2010) (applying a proximate-cause approach to civil RICO).

The judgment of the district court is affirmed, except for its holding that DISH is liable for “substantially assisting” Star Satellite and its measure of damages. With respect to those matters, the judgment 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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WI Court of Appeals Digests

WI Court of Appeals – District II

Case Name: S.L.H. v. J.J.D.

Case No.: 2019AP1554

Officials: DAVIS, J.      

Focus: Termination of Parental Rights

“John” appeals from an order involuntarily terminating his parental rights to “Adam” and from an order denying his postdispositional claim of ineffective assistance of counsel. We find that counsel’s performance, although deficient, was not prejudicial. Therefore, John cannot establish that his attorney’s assistance in the underlying termination of parental rights (TPR) matter constitutes ineffective assistance of counsel under Sixth Amendment standards. For this reason, we affirm both orders.

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Supreme Court Digests

United States Supreme Court

Case Name: Pedro Pablo Guerrero-Lasprilla, et al. v. William Barr, et al.

Case No.: 18-776; 18-1015

Focus: Statutory Interpretation – Immigration and Nationality Act – Limited Review Provision

The Immigration and Nationality Act provides for judicial review of a final Government order directing the removal of an alien from this country. 8 U. S. C. §1252(a). Section 1252(a)(2)(C) limits the scope of that review where the removal rests upon the fact that the alien has committed certain crimes. And §1252(a)(2)(D), the Limited Review Provision, says that in such instances courts may consider only “constitutional claims or questions of law.” Petitioners Guerrero-Lasprilla and Ovalles, aliens who lived in the United States, committed drug crimes and were subsequently ordered removed (Guerrero-Lasprilla in 1998 and Ovalles in 2004). Neither filed a motion to reopen his removal proceedings “within 90 days of the date of entry of [the] final administrative order of removal.” §1229a(c)(7)(C)(i). Nonetheless, Guerrero-Lasprilla (in 2016) and Ovalles (in 2017) asked the Board of Immigration Appeals to reopen their removal proceedings, arguing that the 90-day time limit should be equitably tolled. Both petitioners, who had become eligible for discretionary relief due to various judicial and Board decisions years after their removal, rested their claim for equitable tolling on Lugo Resendez v. Lynch, 831 F. 3d 337, in which the Fifth Circuit had held that the 90-day time limit could be equitably tolled. The Board denied both petitioners’ requests, concluding, inter alia, that they had not demonstrated the requisite due diligence. The Fifth Circuit denied their requests for review, holding that, given the Limited Review Provision, it “lack[ed] jurisdiction” to review petitioners’ “factual” due diligence claims. Petitioners contend that whether the Board incorrectly applied the equitable tolling due diligence standard to the undisputed facts of their cases is a “question of law” that the Provision authorizes courts of appeals to consider.

Because the Provision’s phrase “questions of law” includes the application of a legal standard to undisputed or established facts, the Fifth Circuit erred in holding that it had no jurisdiction to consider petitioners’ claims of due diligence for equitable tolling purposes. Pp. 3–13.

Nothing in the statute’s language precludes the conclusion that Congress used the term “questions of law” to refer to the application of a legal standard to settled facts. A longstanding presumption, the statutory context, and the statute’s history all support the conclusion that the application of law to undisputed or established facts is a “questio[n] of law” within the meaning of §1252(a)(2)(D). Pp. 5–11.

Vacated and remanded

Concur:

Dissent: THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined as to all but Part II–A–1.

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United States Supreme Court

Case Name: Frederick L. Allen, et al. v. Roy A. Cooper, III, et al,

Case No.: 18-877

Focus: Copyright Infringement – Sovereign Immunity

In 1996, a marine salvage company named Intersal, Inc., discovered the shipwreck of the Queen Anne’s Revenge off the North Carolina coast. North Carolina, the shipwreck’s legal owner, contracted with Intersal to conduct recovery operations. Intersal, in turn, hired videographer Frederick Allen to document the efforts. Allen recorded videos and took photos of the recovery for more than a decade. He registered copyrights in all of his works. When North Carolina published some of Allen’s videos and photos online, Allen sued for copyright infringement. North Carolina moved to dismiss the lawsuit on the ground of state sovereign immunity. Allen countered that the Copyright Remedy Clarification Act of 1990 (CRCA) removed the States’ sovereign immunity in copyright infringement cases. The District Court agreed with Allen, finding in the CRCA’s text a clear congressional intent to abrogate state sovereign immunity and a proper constitutional basis for that abrogation. The court acknowledged that Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, precluded Congress from using its Article I powers—including its authority over copyrights—to deprive States of sovereign immunity. But the court held that Congress could accomplish its objective under Section 5 of the Fourteenth Amendment. The Fourth Circuit reversed, reading Florida Prepaid to prevent recourse to both Article I and Section 5. Congress lacked authority to abrogate the States’ immunity from copyright infringement suits in the CRCA. Pp. 4–17.

Affirmed

Concur: THOMAS, J., filed an opinion concurring in part and concurring in the judgment. BREYER, J., filed an opinion concurring in the judgment, in which GINSBURG, J., joined.

Dissent:

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United States Supreme Court

Case Name: James K. Kahler v. Kansas

Case No.: 18-6135

Focus: Due Process Violation

This case is about Kansas’s treatment of a criminal defendant’s insanity claim. In Kansas, a defendant can invoke mental illness to show that he lacked the requisite mens rea (intent) for a crime. He can also raise mental illness after conviction to justify either a reduced term of imprisonment or commitment to a mental health facility. But Kansas, unlike many States, will not wholly exonerate a defendant on the ground that his illness prevented him from recognizing his criminal act as morally wrong. The issue here is whether the Constitution’s Due Process Clause forces Kansas to do so—otherwise said, whether that Clause compels the acquittal of any defendant who, because of mental illness, could not tell right from wrong when committing his crime. We hold that the Clause imposes no such requirement.

Affirmed

Concur:

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

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United States Supreme Court

Case Name: Comcast Corporation v. National Association of African American-Owned Media, et al.

Case No.: 18-1171

Focus: Title VII Violation

Entertainment Studios Network (ESN), an African-American-owned television-network operator, sought to have cable television conglomerate Comcast Corporation carry its channels. Comcast refused, citing lack of programming demand, bandwidth constraints, and a preference for programming not offered by ESN. ESN and the National Association of African American-Owned Media (collectively, ESN) sued, alleging that Comcast’s behavior violated 42 U. S. C. §1981, which guarantees “[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” The District Court dismissed the complaint for failing plausibly to show that, but for racial animus, Comcast would have contracted with ESN. The Ninth Circuit reversed, holding that ESN needed only to plead facts plausibly showing that race played “some role” in the defendant’s decision-making process and that, under this standard, ESN had pleaded a viable claim.

A §1981 plaintiff bears the burden of showing that the plaintiff’s race was a but-for cause of its injury, and that burden remains constant over the life of the lawsuit. Pp. 3–13. The plaintiffs before us suggest that 42 U. S. C. §1981 departs from this traditional arrangement. But looking to this particular statute’s text and history, we see no evidence of an exception.

Vacated and remanded

Concur: GINSBURG, J., filed an opinion concurring in part and concurring in the judgment.

Dissent:

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United States Supreme Court

Case Name: Charles Earl Davis v. United States

Case No.: 19-5421

Focus: Sentencing Guidelines and Plain Error

In July 2016, police officers in Dallas, Texas, received a tip about a suspicious car parked outside of a house in the Dallas area. The officers approached the car and encountered Charles Davis in the driver’s seat. They ordered him out of the car after smelling marijuana. As Davis exited the car, the officers spotted a black semiautomatic handgun in the door compartment. They then searched Davis and found methamphetamine pills. Davis had previously been convicted of two state felonies. In this case, a federal grand jury in the Northern District of Texas indicted Davis for being a felon in possession of a firearm, 18 U. S. C. §§922(g)(1), 924(a)(2), and for possessing drugs with the intent to distribute them, 21 U. S. C. §§841(a)(1), (b)(1)(C). Davis pleaded guilty to both counts. The presentence report prepared by the probation office noted that Davis was also facing pending drug and gun charges in Texas courts stemming from a separate 2015 state arrest. The District Court sentenced Davis to four years and nine months in prison and ordered that his sentence run consecutively to any sentences that the state courts might impose for his 2015 state offenses. Davis did not object to the sentence or to its consecutive nature.

Davis appealed to the U. S. Court of Appeals for the Fifth Circuit. On appeal, he argued for the first time that the District Court erred by ordering his federal sentence to run consecutively to any sentence that the state courts might impose for his 2015 state offenses. Davis contended that his 2015 state offenses and his 2016 federal offenses were

In this Court, Davis challenges the Fifth Circuit’s outlier practice of refusing to review certain unpreserved factual arguments for plain error. We agree with Davis, and we vacate the judgment of the Fifth Circuit. Rule 52(b) states in full: “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” The text of Rule 52(b) does not immunize factual errors from plain-error review. Our cases likewise do not purport to shield any category of errors from plain-error review. See generally Rosales-Mireles v. United States, 585 U. S. ___ (2018); United States v. Olano, 507 U. S. 725 (1993). Put simply, there is no legal basis for the Fifth Circuit’s practice of declining to review certain unpreserved factual arguments for plain error.

The petition for certiorari and the motion for leave to proceed in forma pauperis are granted, the judgment of the Fifth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. We express no opinion on whether Davis has satisfied the plain-error standard.

Petition granted. Vacated and remanded

Concur:

Dissent:

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