Weekly Case Digests – May 26, 2020 – May 29, 2020

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: William Lund v. City of Rockford, Illinois, et al.,

Case No.: 19-1945

Officials: EASTERBROOK, ROVNER, and SCUDDER, Circuit Judges.

Focus: Malicious Prosecution Claim

William Lund, a reporter, was arrested in Rockford, Illinois after discovering a police‐run prostitution sting operation in the course of his news‐gathering activities. He sued the City and several officers for retaliatory arrest, malicious prosecution and several other alleged invasions of his rights under federal and state law. The district court granted summary judgment for the defendants. While Lund’s case was pending, the Supreme Court issued its decision in Nieves v. Bartlett, 139 S. Ct. 1715 (2019), which instructs that, in most cases, probable cause to arrest defeats a claim of retaliatory arrest. Because the police had probable cause to arrest Lund, Nieves controls, and we affirm the grant of summary judgment for the defendants.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Skyrise Construction Group, LLC, v. Annex Construction, LLC,

Case No.: 19-1461

Officials: RIPPLE, ROVNER, and BRENNAN, Circuit Judges.

Focus: Consumer Fraud – Negligent Misrepresentation

Skyrise Construction Group, LLC, a subcontractor, sued Annex Construction, LLC, a general contractor, for breach of contract, promissory estoppel, negligent misrepresentation, violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et seq., and violation of the Wisconsin Deceptive Trade Practices Act, Wis. Stat. 100.18. The district court granted summary judgment in favor of the defendants on all claims. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kenneth Mayle v. State of Illinois, et al.

Case No.: 19-1691

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

Focus: Court Error – Abuse of Discretion

For the second time, Kenneth Mayle has sued the State of Illinois to challenge state laws prohibiting bigamy, adultery, and fornication. The district court dismissed this second suit, in part on issue preclusion and in part for lack of standing. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Juan Carlos Perez

Case No.: 18-3156

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

Focus: Sentencing Guidelines

In December 2016, law enforcement officers facilitated a controlled buy of heroin from Juan Perez- —someone the officers suspected was a high-level drug dealer in the Beloit, Wisconsin area. The controlled buy was recorded: Perez sold 98 grams of heroin to a police informant. Based on that transaction alone, Perez was charged with, and pled guilty to, distributing heroin. At Perez’s sentencing hearing, the district judge expressed concern that the guidelines range of 33–41 months’ imprisonment presented in Perez’s presentence investigation report (“PSR”) did not reflect the full scope of his involvement in drug trafficking. This concern stemmed from the PSR’s description of Perez’s conduct suggesting that he was responsible for distributing large quantities of heroin, methamphetamine, and cocaine.

Unsatisfied with the disparity between Perez’s guidelines range and his conduct described in the PSR, the judge continued the sentencing hearing and directed the government to file a sentencing memorandum. The memorandum was to detail which offense conduct the government could support by a preponderance of the evidence and which offense conduct it could not so support. When the parties and judge reconvened, the government presented witness testimony that elaborated on conduct described in the PSR. The judge used that evidence to calculate a higher guidelines range and impose a 121-month sentence.

Perez appealed his sentence, arguing that the sentencing judge should have disqualified himself because his impartiality might reasonably be questioned. See 28 U.S.C. § 455(a). Because Perez has not demonstrated that a reasonable observer would have questioned the judge’s impartiality, we affirm the sentence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Leonard D. Fuqua v. United States Postal Service, et al.,

Case No.: 18-2415

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

Focus: Worker’s Compensation Claim – Subject-matter Jurisdiction

This appeal asks us to consider under which federal employee compensation act a postal worker’s claim of emotional distress must be resolved. The Federal Employees’ Compensation Act applied to Fuqua’s claim, its administrative scheme ran its course, and his claim for emotional distress was denied for lack of evidence. The district court correctly ruled it had no subject matter jurisdiction over his claims under the Federal Tort Claims Act. So we AFFIRM its judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Quincy Bioscience, LLC, v. Ellishbooks, et al.,

Case No.: 19-1799

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

Focus: Judgment – Injunctive Relief

Quincy Bioscience, LLC (“Quincy”) filed this civil action against Ellishbooks, related individuals, and entities (collectively “Ellishbooks”) alleging claims for trademark infringement, false advertising, dilution, and unfair competition under the Lanham Act, 15 U.S.C. §§ 1114, 1125, as well as claims under Illinois statutory and common law. The operative complaint alleged that Ellishbooks engaged in the unauthorized and unlawful sale of Quincy’s products bearing the Prevagen® trademark. Ellishbooks did not file a responsive pleading to the complaint. After entry of a default judgment, the district court awarded damages and permanent injunctive relief to Quincy.

Ellishbooks now challenges the district court’s judgment on several grounds. These arguments have been waived and, in any event, are meritless. We therefore affirm the judgment of the district court.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: MidCounty Bank v. Todd C Bork, et al.

Case No.: 2018AP1877; 2018AP1878

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

Focus: Court Error – Abuse of Discretion

MidCountry Bank appeals an order voiding a sheriff’s sale of Todd and Carolyn Bork’s home and prohibiting MidCountry from executing a judgment on the Borks’ real property for as long as it remains their primary residence. MidCountry argues that the circuit court erred by utilizing its equitable powers to prohibit execution of the Bank’s judgment against the Borks’ residential property under WIS. STAT. ch. 815 (2017-18). We agree.  Accordingly, we reverse the order.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Kane Michael Robinson

Case No.: 2018AP2079-CR

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

Focus: Ineffective Assistance of Counsel

Kane Robinson appeals from an amended judgment convicting him of felony murder, as a party to the crime, and from orders denying two postconviction motions. He claims he is entitled to a new trial based upon the ineffective assistance of trial counsel, judicial bias, and in the interest of justice. We reject each of Robinson’s claims and affirm.

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WI Court of Appeals – District III

Case Name: Dawn M. Petit v. Terrance A. Petit

Case No.: 2018AP2107

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

Focus: Divorce – Child Support

Dawn Petit appeals a divorce judgment dividing the marital estate, establishing monthly child support payments from her former husband, Terrance Petit, and ordering monthly maintenance to Dawn. Dawn argues the circuit court erred when calculating the amounts of child support and monthly maintenance by using what it found to be Terrance’s earning capacity rather than crediting evidence regarding Terrance’s income in prior years, before a market downturn in his industry. She also argues the court erroneously exercised its discretion when it determined which items comprised the marital estate and the value of certain items, and when it ordered an unequal division of the marital estate that slightly favored Terrance. We reject these arguments and affirm.

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WI Court of Appeals – District III

Case Name: Oneida County v. Sunflower Prop II, LLC,

Case No.: 2018AP2366

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

Focus: Ordinance Interpretation

Sunflower Prop II, LLC, appeals a judgment validating the enforceability of Oneida County’s pier ordinance and the County’s finding that Sunflower is in violation of that ordinance. Sunflower argues the ordinance is unenforceable because its pier complies with the requirements for a permit exemption under WIS. STAT. § 30.12(1g)(f), and a municipality lacks the authority to regulate the construction and location of piers that qualify for that exemption.

We agree with Sunflower that municipal regulations enacted pursuant to WIS. STAT. § 30.13(2) cannot be applied to a pier that qualifies for a permit exemption under WIS. STAT. § 30.12(1g)(f). Based on the appellate record, however, it is unclear whether Sunflower’s pier in fact qualifies for that exemption, specifically the requirement that a pier be “no more than 6 feet wide.” See § 30.12(1g)(f)1.a. Accordingly, we reverse the judgment and remand for further proceedings. If the circuit court determines that Sunflower’s pier satisfies the requirements of § 30.12(1g)(f), it is directed to dismiss the citation in accordance with our statutory analysis. If the court determines that Sunflower’s pier does not qualify under § 30.12(1g)(f), it may conduct further proceedings as are appropriate to resolve the case. The County has filed a cross-appeal regarding the proper interpretation of certain aspects of its ordinance, which we decline to resolve at this time given that our statutory analysis may be dispositive.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: James Schultz, et al. v. Seubert, Inc., et al.,

Case No.: 2019AP179

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

Focus: Trusts & Estates – Slander of Title

James Schultz, as trustee for the Thomas Seubert & Nancy Seubert Revocable Trust (the Trust), appeals a summary judgment order dismissing the Trust’s slander of title and interference with contract claims against the Jensen, Scott, Grunewald & Shiffler, S.C., law firm. The Trust does not seek review of the interference with contract claim and we conclude the law firm’s actions giving rise to the Trust’s slander of title claim were conditionally privileged. We therefore affirm.

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WI Court of Appeals – District III

Case Name: Karen Mayo v. MODS International, Inc.,

Case No.: 2019AP621

Officials: STARK, P.J.

Focus: Contract Termination – Equitable Adjustment

MODS International, Inc., appeals a small claims judgment awarding Karen Mayo $10,000, plus costs. MODS argues the circuit court erred by determining that MODS was not entitled to an equitable adjustment of the time in which to complete its obligations under the parties’ contract. MODS also argues that Mayo did not terminate the contract for cause, and MODS is therefore entitled to costs incurred as a result of the termination, along with overhead and profit on work not executed. We reject MODS’ arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Quaid Q. Belk

Case No.: 2019AP982-CR

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

Focus: Ineffective Assistance of Counsel

Quaid Q. Belk appeals from his judgment of conviction and an order denying his motion for postconviction relief. Belk was convicted on several counts relating to an automobile accident caused by Belk’s intoxicated use of a vehicle, which killed one victim and injured another. Those counts were hit and run causing death; hit and run causing great bodily harm;  homicide by intoxicated use of a vehicle; injury by intoxicated use of a vehicle; second-degree reckless homicide; and second-degree reckless injury.

In his postconviction motion, Belk asserted several claims of ineffective assistance of counsel, including that his trial counsel failed to call a witness to the crash who would have testified that Belk was not trying to flee the scene of the accident. We conclude that Belk’s motion is sufficient to entitle him to a postconviction evidentiary hearing on that claim as it relates to the two counts of hit and run causing death and great bodily harm. We therefore reverse the trial court’s order denying a hearing on that claim.

However, Belk’s other ineffective assistance claims—which would have an effect on the other four counts for which he was convicted—were not sufficiently pled in his postconviction motion to warrant the grant of an evidentiary hearing. Therefore, we affirm the trial court’s order denying an evidentiary hearing on those claims. We also affirm Belk’s judgment of conviction for the remaining four counts.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Wyatt William Kontny

Case No.: 2019AP1257-CR

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

Focus: Sentence Credit

Wyatt Kontny appeals a judgment of conviction and an order denying his postconviction motion seeking one day of additional sentence credit under WIS. STAT. § 973.155 (2017-18). Kontny argues he is entitled to 162 days of sentence credit instead of 161 days because he should have been granted credit for the date of his arrest, during which he spent fourteen minutes in custody. The circuit court denied Kontny’s motion for additional sentence credit, concluding Kontny was barred from seeking additional credit because he had stipulated to 161 days of sentence credit during his sentencing hearing.

On appeal, the State concedes the circuit court erred by concluding that Kontny’s stipulation to the amount of sentence credit during his sentencing hearing barred him from seeking additional credit following his conviction. The State also concedes that Kontny was entitled to one day of credit for the date of his arrest, even though he was in custody for only fourteen minutes that day. The State argues, however, that Kontny is nevertheless entitled to only 161 days of sentence credit because he is not entitled to any credit for the date on which he was sentenced. We agree with the State that a defendant’s sentencing date should not be included when calculating the amount of sentence credit to which the defendant is entitled. We therefore affirm Kontny’s judgment of conviction and the order denying his postconviction motion, albeit on different grounds than those relied upon by the circuit court. See State v. Smiter, 2011 WI App 15, ¶9, 331 Wis. 2d 431, 793 N.W.2d 920 (2010) (court of appeals may affirm a circuit court’s decision on different grounds).

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Mister N.P. Bratchett

Case No.: 2018AP2305-CR

Officials: FITZPATRICK, J.

Focus: Sufficiency of Evidence

Mister N.P. Bratchett appeals a judgment of conviction for mutilating a body with the intent to conceal a crime, contrary to WIS. STAT. § 940.11(1) (2015-16), following a jury trial.  Bratchett contends that the evidence presented at trial was not sufficient to support his conviction. Bratchett also raises due process arguments. We conclude that the evidence was sufficient to support Bratchett’s conviction. We further conclude that Bratchett forfeited any due process arguments he seeks to raise on appeal because those arguments were not made in the circuit court. Accordingly, we affirm.

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WI Court of Appeals – District II

Case Name: Mechanical, Inc., v. Venture Electrical Contractors, Inc.,

Case No.: 2018AP2380

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

Focus: Statutory Interpretation – Economic Loss Doctrine

At issue in this construction dispute is whether the economic loss doctrine bars a negligence claim seeking purely economic losses—delay damages—by one subcontractor against another with whom there was no contract. Each subcontractor did enter a subcontract with the general contractor that addressed their individual obligations, duties of care, schedules of work, changes, and remedies for delays. Because the complaining subcontractor’s negligence claim is rooted in the duties imposed by the interrelated construction contracts, contract law provides the remedies for the economic loss at issue, foreclosing tort remedies. The economic loss doctrine bars the negligence claim. We affirm.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Brandin L. McConochie

Case No.: 2019AP2149-CR

Officials: REILLY, P.J.

Focus: Sentencing Guidelines – Supervised Release

Brandin L. McConochie appeals from a judgment convicting him of three counts of lewd and lascivious behavior, as a repeater, and from an order denying his postconviction motion. McConochie argues a condition of probation prohibiting him from traveling within a finite area (where his victims reside) is an unconstitutional infringement on his right to travel and associate. As the court’s banishment of McConochie from the restricted area is narrowly drawn, protects his victims and the public, and furthers McConochie’s rehabilitative needs, we affirm.

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WI Court of Appeals – District IV

Case Name: Keagen M. Gunderson, et al. v. Jennifer L. Franks, Happy Trails Transport, LLC, et al.

Case No.: 2018AP981

Officials: Blanchard, Kloppenburg and Nashold, JJ.

Focus: Jury Instructions

After a vehicular accident, Leslie Gunderson and his son, Keagen Gunderson, brought a personal injury lawsuit against Jennifer Franks; her employer, Happy Trails Transport, LLC; and her employer’s insurer, Artisan and Truckers Casualty Company (collectively, Franks). The case went to trial, and the jury found in part for the Gundersons and in part for Franks. The Gundersons appeal, challenging portions of the jury’s verdict and the jury instructions. Franks cross-appeals, challenging the circuit court’s monetary spoliation sanction award to the Gundersons. We affirm the circuit court on all of the issues presented.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Brandon L. Ritter

Case No.: 2019AP381-CR

Officials: Blanchard, Graham and Nashold, JJ.

Focus: Court Error – Restitution

Brandon Ritter appeals a judgment of conviction requiring him to pay $31,089.93 in restitution. Ritter argues that the circuit court erred by deferring the determination of his ability to pay. Ritter also argues that the circuit court failed to make a necessary finding that justice required the restitution. We reject these arguments and affirm.

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WI Court of Appeals – District IV

Case Name: Oasis Irrigation, Inc., v. Bruchs Farms, Inc.,

Case No.: 2019AP471

Officials: Blanchard, Graham, and Nashold, JJ.

Focus: Damages

This dispute arises from the purchase by Bruchs Farms, Inc., of two irrigation systems from Oasis Irrigation, Inc., and Oasis’s installation of those systems in Bruchs Farms’ fields. After Bruchs Farms refused to pay Oasis’s invoices in full, Oasis brought this action to recover the outstanding balances. Following a bench trial, the circuit court entered judgment in Oasis’ favor. It determined that there was no “meeting of the minds” and therefore no contracts between the parties, and that Oasis was entitled to recover the remaining balances as damages for unjust enrichment. We reverse in part, affirm in part, and remand for a recalculation of damages in light of our conclusions.

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WI Court of Appeals – District IV

Case Name: Witt Properties, LLC, v. Laura Schaeffer

Case No.: 2019AP1262

Officials: GRAHAM, J.

Focus: Abuse of Discretion – Testimony

Laura Schaeffer appeals a judgment of eviction entered after a bench trial. She claims that the circuit court erred by improperly exercising control over witness testimony during trial, and also by rejecting her retaliatory eviction defense. I affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Robert B. Moodie

Case No.: 2020 WI 39

Focus: Attorney Disciplinary Hearing

This disciplinary matter comes to the court on Attorney Robert B. Moodie’s appeal of a report and recommendation of Referee James W. Mohr, Jr. The referee based his report in part on Attorney Moodie’s stipulation to the two counts of misconduct alleged in the Office of Lawyer Regulation’s (OLR) complaint involving his conversion of fees belonging to his law firm to his personal use. Attorney Moodie reserved his right to be heard on the matter of sanctions. After holding a hearing on sanctions and receiving post-hearing briefs, the referee issued a report recommending that the court suspend Attorney Moodie’s law license for a period of six months, and order Attorney Moodie to pay the full costs of this proceeding, which total $6,081.63 as of January 15, 2020.

When we review a referee’s report and recommendation in an attorney disciplinary case, we affirm the referee’s findings of fact unless they are found to be clearly erroneous, but we review the referee’s conclusions of law on a de novo basis. In re Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125. We determine the appropriate level of discipline to impose given the particular facts of each case, independent of the referee’s recommendation, but benefiting from it. In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

After reviewing this matter and considering Attorney Moodie’s appeal, we accept the referee’s factual findings and legal conclusions based on the parties’ stipulation. We agree with the referee’s recommendation that a six-month suspension is appropriate, despite Attorney Moodie’s arguments to the contrary. We order Attorney Moodie to pay the full costs of this disciplinary hearing.

The OLR initiated this disciplinary proceeding with the filing of a two-count complaint. Attorney Moodie filed an answer in which he generally admitted the factual allegations of the complaint, as well as the two counts of alleged misconduct. Attorney Moodie later entered into a stipulation in which he pled no contest to the misconduct alleged in the complaint, and agreed that the referee could use the allegations of the complaint as an adequate factual basis for a determination of misconduct. The referee’s report accepted the parties’ stipulation and determined that the stipulated facts supported legal conclusions that Attorney Moodie had engaged in the two counts of misconduct alleged by the OLR. The referee’s factual findings and conclusions of law are described in the following paragraphs.

License suspended

Concur:

Dissent: ZIEGLER, J. dissents, joined by ROGGENSACK, C. J.

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WI Supreme Court

Case Name: London Scott Barney, et al. v. Julie Mickelson, MD., et al.

Case No.: 2020 WI 40

Focus: Jury Instructions

This case centers on whether, based on the evidence introduced at trial, a circuit court properly instructed a jury on the “alternative methods” paragraph of Wis JI——Civil 1023 (2019) (the “alternative methods instruction”). London Barney was born with severe and permanent neurologic injuries. London and his mother, Raquel Barney, filed a medical malpractice action alleging that Dr. Julie Mickelson, M.D., was negligent for failing to accurately trace London’s fetal heart rate during Mrs. Barney’s labor. The Barneys alleged that without an accurate tracing of London’s heart rate, Dr. Mickelson did not recognize signs that London’s oxygenation status was depleting.

Over the Barneys’ objection, the circuit court read the jury the alternative methods instruction. This instruction generally informed the jury that Dr. Mickelson was not negligent if she used reasonable care, skill, and judgment in administering any one of the recognized reasonable treatment methods for monitoring London’s heart rate. The jury found Dr. Mickelson not negligent in her care and treatment of the Barneys. The court of appeals reversed the judgment dismissing the Barneys’ medical malpractice action and remanded the case for a new trial.

We conclude that based on all of the expert testimony introduced at trial, the jury was properly given the alternative methods instruction in this case. Therefore, we reverse the court of appeals and uphold the jury verdict.

Reversed

Concur:

Dissent:

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WI Supreme Court

Case Name: Langlade County v. D.J.W.

Case No.: 2020 WI 41

Focus: Prisoner – Involuntary Commitment and Medication 

The petitioner, D.J.W., seeks review of an unpublished, authored decision of the court of appeals affirming the circuit court’s order extending his involuntary commitment. The court also continued his involuntary medication and treatment on an inpatient basis. D.J.W. contends that Langlade County (the County) did not present sufficient evidence of his dangerousness to sustain an extension of his involuntary commitment.

At the recommitment hearing, the County’s expert witness testified that D.J.W. had lost a job, relied on his parents for housing, and received disability benefits due to schizophrenia and delusions. D.J.W. takes issue with the County’s reliance on this information in demonstrating that he is “dangerous” to himself pursuant to Wis. Stat. § 51.20(1)(a)2. In response, the County asserts that taken as a whole the testimony is sufficient to determine that D.J.W. would be a proper subject for commitment if treatment were withdrawn under § 51.20(1)(am).

We determine that going forward circuit courts in recommitment proceedings are to make specific factual findings with reference to the subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. on which the recommitment is based. Further, we conclude that the evidence introduced at the recommitment hearing was insufficient to support a conclusion that D.J.W. is “dangerous” pursuant to either §§ 51.20(1)(a)2.c. or 2.d. and 51.20(1)(am).

Accordingly, we reverse the decision of the court of appeals.

Reversed

Concur:

Dissent: ROGGENSACK, C.J., filed a dissenting opinion. REBECCA GRASSL BRADLEY, J., filed a dissenting. opinion.

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Supreme Court Digests

United States Supreme Court

Case Name: Atlantic Richfield Company v. Gregory A. Christian, et al.,

Case No.: 17-1498

Focus: CERCLA Violation – Jurisdiction

For nearly a century, the Anaconda Copper Smelter in Butte, Montana contaminated an area of over 300 square miles with arsenic and lead. Over the past 35 years, the Environmental Protection Agency has worked with the current owner of the smelter, Atlantic Richfield Company, to implement a cleanup plan under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. EPA projects that the cleanup will continue through 2025.

A group of 98 landowners sued Atlantic Richfield in Montana state court for common law nuisance, trespass, and strict liability. Among other remedies, the landowners sought restoration damages, which under Montana law must be spent on rehabilitation of the property. The landowners’ proposed restoration plan includes measures beyond those the agency found necessary to protect human health and the environment.

We consider whether the Act strips the Montana courts of jurisdiction over the landowners’ claim for restoration damages and, if not, whether the Act requires the landowners to seek EPA approval for their restoration plan.

Affirmed in part. Vacated and remanded in part.

Dissenting: ALITO, J., filed an opinion concurring in part and dissenting in part. GORSUCH, J., filed an opinion concurring part and dissenting in part, in which THOMAS, J., joined.

Concurring: ALITO, J., filed an opinion concurring in part and dissenting in part. GORSUCH, J., filed an opinion concurring part and dissenting in part, in which THOMAS, J., joined.

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United States Supreme Court

Case Name: Thryv, Inc., Inc. v. Click-to-call Technologies, LP, et al.,

Case No.: 18-916

Focus: Inter Partes Review – Patent Claim Validity

Inter partes review is an administrative process in which a patent challenger may ask the U. S. Patent and Trademark Office (PTO) to reconsider the validity of earlier granted patent claims. This case concerns a statutorily prescribed limitation of the issues a party may raise on appeal from an inter partes review proceeding. When presented with a request for inter partes review, the agency must decide whether to institute review. 35 U. S. C. §314. Among other conditions set by statute, if the request comes more than a year after suit against the requesting party for patent infringement, “[a]n inter partes review may not be instituted.” §315(b). “The determination by the [PTO] Director whether to institute an inter partes review under this section shall be final and nonappealable.” §314(d).

In this case, the agency instituted inter partes review in response to a petition from Thryv, Inc., resulting in the cancellation of several patent claims. Patent owner Click-toCall Technologies, LP, appealed, contending that Thryv’s petition was untimely under §315(b).

The question before us: Does §314(d)’s bar on judicial review of the agency’s decision to institute inter partes review preclude Click-to-Call’s appeal? Our answer is yes. The agency’s application of §315(b)’s time limit, we hold, is closely related to its decision whether to institute inter partes review and is therefore rendered nonappealable by §314(d).

We vacate the judgment of the United States Court of Appeals for the Federal Circuit and remand the case with instructions to dismiss for lack of appellate jurisdiction.

Vacated and remanded

Dissenting: GORSUCH, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined as to Parts I, II, III, and IV.

Concurring:

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United States Supreme Court

Case Name: Evangelisto Ramos v. Louisiana

Case No.: 18-5924

Focus: 6^th Amendment Violation

In 48 States and federal court, a single juror’s vote to acquit is enough to prevent a conviction. But two States, Louisiana and Oregon, have long punished people based on 10-to-2 verdicts. In this case, petitioner Evangelisto Ramos was convicted of a serious crime in a Louisiana court by a 10-to-2 jury verdict. Instead of the mistrial he would have received almost anywhere else, Ramos was sentenced to life without parole. He contests his conviction by a nonunanimous jury as an unconstitutional denial of the Sixth Amendment right to a jury trial.

Reversed

Dissenting: ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., joined, and in which KAGAN, J., joined as to all but Part III–D.

Concurring: SOTOMAYOR, J., filed an opinion concurring as to all but Part IV–A. KAVANAUGH, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment.

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United States Supreme Court

Case Name: County of Maui, Hawaii v. Hawaii Wildlife Fund, et al.,

Case No.: 18-260

Focus: Statutory Interpretation – Clean Water Act – Navigable Waters

The Clean Water Act forbids “any addition” of any pollutant from “any point source” to “navigable waters” without an appropriate permit from the Environmental Protection Agency (EPA). §§ 301(a), 502(12), 86 Stat. 844, 886. The Act defines “pollutant” broadly, §502(6); defines a “point source” as “ ‘any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged,’ ” including, e.g., any “ ‘container,’ ” “ ‘pipe, ditch, channel, tunnel, conduit,’ ” or “ ‘well,’ ” §502(14); and defines the term “discharge of a pollutant” as “ ‘any addition of any pollutant to navigable waters [including navigable streams, rivers, the ocean, or coastal waters] from any point source,’ ” §502(12). It then uses those terms in making “unlawful” “ ‘the discharge of any pollutant by any person’ ” without an appropriate permit. §301.

Petitioner County of Maui’s wastewater reclamation facility collects sewage from the surrounding area, partially treats it, and each day pumps around 4 million gallons of treated water into the ground through four wells. This effluent then travels about a half mile, through groundwater, to the Pacific Ocean. Respondent environmental groups brought a citizens’ Clean Water Act suit, alleging that Maui was “discharg[ing]” a “pollutant” to “navigable waters” without the required permit. The District Court found that the discharge from Maui’s wells into the nearby groundwater was “functionally one into navigable water,” 24 F. Supp. 3d 980, 998, and granted summary judgment to the environmental groups. The Ninth Circuit affirmed, stating that a permit is required when “pollutants are fairly traceable from the point source to a navigable water.” 886 F. 3d 737, 749.

In sum, we recognize that a more absolute position, such as the means-of-delivery test or that of the Government or that of the Ninth Circuit, may be easier to administer. But, as we have said, those positions have consequences that are inconsistent with major congressional objectives, as revealed by the statute’s language, structure, and purposes. We consequently understand the permitting requirement, §301, as applicable to a discharge (from a point source) of pollutants that reach navigable waters after traveling through groundwater if that discharge is the functional equivalent of a direct discharge from the point source into navigable waters.

Because the Ninth Circuit applied a different standard, we vacate its judgment and remand the case for further proceedings consistent with this opinion.

Vacated and remanded

Dissenting: THOMAS, J., filed a dissenting opinion, in which GORSUCH, J., joined. ALITO, J., filed a dissenting opinion.

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

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United States Supreme Court

Case Name: Romag Fasteners, Inc., v. Fossil. Inc., et al.

Case No.: 18-1233

Focus: Trademark Infringement – Damages

When it comes to remedies for trademark infringement, the Lanham Act authorizes many. A district court may award a winning plaintiff injunctive relief, damages, or the defendant’s ill-gotten profits. Without question, a defendant’s state of mind may have a bearing on what relief a plaintiff should receive. An innocent trademark violator often stands in very different shoes than an intentional one. But some circuits have gone further. These courts hold a plaintiff can win a profits remedy, in particular, only after showing the defendant willfully infringed its trademark. The question before us is whether that categorical rule can be reconciled with the statute’s plain language.

The question comes to us in a case involving handbag fasteners. Romag sells magnetic snap fasteners for use in leather goods. Fossil designs, markets, and distributes a wide range of fashion accessories. Years ago, the pair signed an agreement allowing Fossil to use Romag’s fasteners in Fossil’s handbags and other products. Initially, both sides seemed content with the arrangement. But in time Romag discovered that the factories Fossil hired in China to make its products were using counterfeit Romag fasteners—and that Fossil was doing little to guard against the practice. Unable to resolve its concerns amicably, Romag sued. The company alleged that Fossil had infringed its trademark and falsely represented that its fasteners came from Romag. After trial, a jury agreed with Romag, and found that Fossil had acted “in callous disregard” of Romag’s rights. At the same time, however, the jury rejected Romag’s accusation that Fossil had acted willfully, as that term was defined by the district court.

At the end of it all, the most we can say with certainty is this. Mens rea figured as an important consideration in awarding profits in pre-Lanham Act cases. This reflects the ordinary, transsubstantive principle that a defendant’s mental state is relevant to assigning an appropriate remedy. That principle arises not only in equity, but across many legal contexts. See, e.g., Smith v. Wade, 461 U. S. 30, 38–51 (1983) (42 U. S. C. §1983); Morissette v. United States, 342 U. S. 246, 250–263 (1952) (criminal law); Wooden-Ware Co. v. United States, 106 U. S. 432, 434–435 (1882) (common law trespass). It’s a principle reflected in the Lanham Act’s text, too, which permits greater statutory damages for certain willful violations than for other violations. 15 U. S. C. §1117(c). And it is a principle long reflected in equity practice where district courts have often considered a defendant’s mental state, among other factors, when exercising their discretion in choosing a fitting remedy. See, e.g., L. P. Larson, Jr., Co. v. Wm. Wrigley, Jr., Co., 277 U. S. 97, 99–100 (1928); Lander v. Lujan, 888 F. 2d 153, 155–156 (CADC 1989); United States v. Klimek, 952 F. Supp. 1100, 1117 (ED Pa. 1997). Given these traditional principles, we do not doubt that a trademark defendant’s mental state is a highly important consideration in determining whether an award of profits is appropriate. But acknowledging that much is a far cry from insisting on the inflexible precondition to recovery Fossil advances.

With little to work with in the statute’s language, structure, and history, Fossil ultimately rests on an appeal to policy. The company tells us that stouter restraints on profits awards are needed to deter “baseless” trademark suits. Meanwhile, Romag insists that its reading of the statute will promote greater respect for trademarks in the “modern global economy.” As these things go, amici amplify both sides’ policy arguments. Maybe, too, each side has a point. But the place for reconciling competing and incommensurable policy goals like these is before policymakers. This Court’s limited role is to read and apply the law those policymakers have ordained, and here our task is clear. The judgment of the court of appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

Vacated and remanded

Dissenting:

Concurring: ALITO, J., filed a concurring opinion, in which BREYER and KAGAN, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in the judgment.

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United States Supreme Court

Case Name: Andre Martello Barton v. William P. Barr

Case No.: 18-725

Focus: Immigration – Removal Order

Under the immigration laws, a noncitizen who is authorized to live permanently in the United States is a lawful permanent resident—also commonly known as a green-card holder. But unlike a U. S. citizen, a lawful permanent resident who commits a serious crime may be removed from the United States.

Andre Barton is a Jamaican national and a longtime lawful permanent resident of the United States. During his time in the United States, Barton has been convicted of state crimes on three separate occasions spanning 12 years. The crimes include a firearms offense, drug offenses, and aggravated assault offenses. By law, the firearms offense and the drug offenses each independently rendered Barton eligible for removal from the United States. In September 2016, the U. S. Government sought to remove Barton, and a U. S. Immigration Judge determined that Barton was removable.

Barton applied for cancellation of removal, a form of relief that allows a noncitizen to remain in the United States despite being found removable. The immigration laws authorize an immigration judge to cancel removal, but Congress has established strict eligibility requirements. See 8 U. S. C. §§1229b(a), (d)(1)(B). For a lawful permanent resident such as Barton, the applicant for cancellation of removal (1) must have been a lawful permanent resident for at least five years; (2) must have continuously resided in the United States for at least seven years after lawful admission; (3) must not have been convicted of an aggravated felony as defined in the immigration laws; and (4) during the initial seven years of continuous residence, must not have committed certain other offenses listed in 8 U. S. C. §1182(a)(2). If a lawful permanent resident meets those eligibility requirements, the immigration judge has discretion to (but is not required to) cancel removal and allow the lawful permanent resident to remain in the United States. Under the cancellation-of-removal statute, the immigration judge examines the applicant’s prior crimes, as well as the offense that triggered his removal. If a lawful permanent resident has ever been convicted of an aggravated felony, or has committed an offense listed in §1182(a)(2) during the initial seven years of residence, that criminal record will preclude cancellation of removal. In that way, the statute operates like traditional criminal recidivist laws, which ordinarily authorize or impose greater sanctions on offenders who have committed prior crimes.

In this case, after finding Barton removable based on his state firearms and drug offenses, the Immigration Judge and the Board of Immigration Appeals (BIA) concluded that Barton was not eligible for cancellation of removal. Barton had committed offenses listed in §1182(a)(2) during his initial seven years of residence—namely, his state aggravated assault offenses in 1996. Barton’s 1996 aggravated assault offenses were not the offenses that triggered his removal. But according to the BIA, and contrary to Barton’s argument, the offense that precludes cancellation of removal need not be one of the offenses of removal. In re Jurado Delgado, 24 I. & N. Dec. 29, 31 (BIA 2006). The U. S. Court of Appeals for the Eleventh Circuit agreed with the BIA’s reading of the statute and concluded that Barton was not eligible for cancellation of removal. The Second, Third, and Fifth Circuits have similarly construed the statute; only the Ninth Circuit has disagreed.

Barton argues that the BIA and the Eleventh Circuit misinterpreted the statute. He contends that the §1182(a)(2) offense that precludes cancellation of removal must be one of the offenses of removal. We disagree with Barton, and we affirm the judgment of the U. S. Court of Appeals for the Eleventh Circuit.

Affirmed

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

Concurring:

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