Weekly Case Digests – September 7, 2020 – September 11, 2020

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Raymond Marling v. Frank Littlejohn, et al., Wabash Valley Correctional Facility

Case No.: 19-3077

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

Focus: Ineffective Assistance of Counsel

After Raymond Marling was arrested, on a warrant, while driving his car, police in Indiana took an inventory of its contents. The trunk held a locked box. An officer opened the box with a screwdriver and found illegal drugs. Together with other evidence (including the fact that Marling was armed, despite felony convictions that made this unlawful), these drugs played a role in his convictions and 38-year sentence, which includes a 20- year enhancement for being a habitual criminal.

Marling’s lawyer asked the trial court to suppress the contents of the box, arguing that opening it was improper. That argument lost in the trial court and lost again on appeal. Marling v. State, 2014 Ind. App. Unpub. LEXIS 1305 (Sept. 30, 2014). He filed a collateral attack, this time arguing that his trial and appellate lawyers had furnished ineffective assistance by not presenting the best reasons for objecting to the box’s opening. He contended that counsel should have argued that opening his box damaged it, violating the police department’s policy. The post-conviction court held a hearing, took evidence, and rejected this contention. The court of appeals affirmed, concluding among other things that counsel’s omission was not prejudicial because the record did not show that the box had been damaged. 2018 Ind. App. Unpub. LEXIS 610 (May 25, 2018). But a federal district court issued a writ of habeas corpus, 2019 U.S. Dist. LEXIS 163777 (S.D. Ind. Sept. 24, 2019), ruling that a photograph in the record shows damage to the box’s lock. This meant, the judge stated, that the state court’s finding had been rebutted by clear and convincing evidence. 28 U.S.C. §2254(e)(1).

A factual mistake by a state court does not support collateral relief, unless a correction shows that the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §2254(a). Ineffective assistance of counsel suffices, because it violates the Sixth Amendment (applied to the states by the Fourteenth). Indiana has assumed that failure of counsel at trial and on appeal to choose the best argument in support of a motion can violate the Sixth Amendment, despite many cases holding that it is essential to evaluate counsel’s overall performance rather than find a single error. See, e.g., Strickland v. Washington, 466 U.S. 668, 691–96 (1984); Williams v. Lemmon, 557 F.3d 534, 538–40 (7th Cir. 2009). Because Indiana has not made this potential argument we do not pursue it. See United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020). Still, it remains necessary to show that counsel’s decision was both substantively deficient and prejudicial. The state’s appellate court applied the Strickland standard, and our review of the outcome under §2254(d) has been called “doubly deferential”. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

The judge included in his opinion a picture showing some damage to the box’s lock. That was enough, he thought, to establish the policy’s violation, even though Marling did not draw this picture to the attention of the state’s appellate court. Let us suppose that the judges should have examined the picture anyway. Still, the policy does not forbid all damage; it forbids unreasonable damage. This box was intact, and the lock could have been fixed or replaced. Why was the damage “unreasonable”? The judge did not say. Then there is the discretionary language in the General Order. The judge apparently understood Wells to forbid the use of discretion, such as evaluating when a potential for damage would be “unreasonable”. Yet the principal holding of Wells is that discretion about inventory searches is compatible with the Fourth Amendment. The Justices wrote: Nothing in South Dakota v. Opperman, 428 U.S. 364 (1976), or Illinois v. Lafayette, 462 U.S. 640 (1983), prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity Wells, 495 U.S. at 3–4 (cleaned up), quoting from Colorado v. Bertine, 479 U.S. 367, 375 (1987). The officer who opened and inventoried the contents of this box acted within the scope of discretion granted by General Order 49. As Wells requires, discretion under the policy is unrelated to beliefs about the container’s contents. If the officer did too much (“unreasonable”) damage, that could have been the basis for a tort claim under state law. It is not a basis for a conclusion that the Fourth Amendment required the suppression of incriminating evidence. It follows that counsel did not violate the Sixth Amendment by omitting this line of argument.

Reversed

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7^th Circuit Court of Appeals

Case Name: Sharon Lynn Brown v. Polk County, Wisconsin, et al.,

Case No.: 19-2698

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

Focus: 4^th Amendment Violation – Cavity Search – Reasonable Suspicion

Sharon Brown was a detainee at the Polk County Jail who underwent a physical search of her body cavities. The institution had a written policy authorizing such a search to be conducted by medical personnel when there was reasonable suspicion to believe an inmate was internally hiding contraband. Fellow inmates had reported that Brown was concealing methamphetamine inside her body, and that prompted jail staff to invoke the policy. Officers took Brown to a hospital, where a doctor and nurse inspected both her vagina and rectum. The search revealed no drugs.

Brown sued Polk County and several jail officials under 42 U.S.C. § 1983 alleging a violation of her Fourth Amendment rights. The defendants moved for summary judgment, and the district court granted the motion, concluding that the defendants had reasonable suspicion that Brown was concealing contraband, their suspicion justified the cavity search, and the ensuing search was reasonable. We agree and affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Airrion S. Blake

Case No.: 19-2508

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

Focus: Sentencing Guidelines

A defendant convicted of tax fraud challenges his sentence, disputing the loss amount which set the applicable range for his case under the Sentencing Guidelines. The district court did not commit reversible error, so we affirm the defendant’s sentence. The defendant also appeals the denial of his claim of ineffective assistance of trial counsel. Because on direct appeal such a claim is limited to the original trial record, it is often better raised on collateral review. The defendant agrees, so we dismiss that claim without prejudice.

Dismissed

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7^th Circuit Court of Appeals

Case Name: J.S.T. Corporation v. Foxconn Interconnect Technology LTD., et al.,

Case No.: 19-2465

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

Focus: Personal Jurisdiction

J.S.T. Corporation, which is based in Illinois, produces a type of electronic equipment called a connector. Bosch, an engineering company, asked J.S.T. to design and manufacture a connector that Bosch could incorporate into a part that it builds for General Motors. For a time, Bosch retained J.S.T. as its sole supplier of those connectors. Then, according to J.S.T., Bosch wrongfully acquired J.S.T.’s proprietary designs and provided them to J.S.T.’s competitors. The competitors used the stolen designs—allegedly with full knowledge of their provenance—to build their own knockoff connectors and eventually to displace J.S.T. from its role as Bosch’s supplier.

After filing various lawsuits against Bosch, J.S.T. filed this suit in Illinois against the competitors, alleging misappropriation of trade secrets and unjust enrichment. The district court dismissed the case for lack of personal jurisdiction. The competitors’ only link to Illinois is that they sell their connectors to Bosch, knowing that the connectors will end up in General Motors cars and parts that are sold in Illinois. For personal jurisdiction to exist, though, there must be a causal relationship between the competitors’ dealings in Illinois and the claims that J.S.T. has asserted against them. Because no such causal relationship exists, we affirm the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Rebecca Gysan v. Steven Francisko, et al.,

Case No.: 19-1471

Officials: EASTERBROOK, WOOD, and BARRETT, Circuit Judges.

Focus: Qualified Immunity

On the first day of deer hunting season in 2013, Officer Steven Francisko was checking hunters’ licenses to prevent poaching. He saw a van parked on the side of a road; immediately across the road, armed hunters had just emerged from the woods. Francisko approached the driver, who turned out to be Shane Cataline. Francisko thought that Cataline was acting strangely and was reluctant to answer questions, though he handed Francisko his driver’s license. While Francisko was in his car doing a license check, Cataline called 911 and said: “I am in a lot of trouble right now. … I think I am going to be disappearing or something.” He hung up without requesting assistance. Francisko found that Cataline’s license was valid and that he was not wanted on a warrant, so he told Cataline that he was free to go—though he thought that Cataline looked tired. By the time Cataline drove away, Francisko had been joined by State Trooper Luke Kuehl in a second car. The 911 operator, worried about the strangeness of Cataline’s statements, called back, but he did not answer. The operator called the dispatcher, who reached Kuehl’s supervisor, who told him to stop Cataline to check whether he was fit to drive. (Everyone calls this a “welfare check,” meaning that it concerned the welfare of both Cataline and other drivers he might endanger.) Meanwhile Francisko had told Kuehl that he suspected that Cataline might be carrying drugs. The two officers followed Cataline’s van onto the eastbound lanes of I-88 and eventually pulled it over, though they took a while to see whether he violated any traffic laws that might support a stop.

Cataline stopped his van on the side of the highway after Kuehl turned on his flashing lights. Kuehl parked his car behind the van, and Francisko parked in front. The officers asked Cataline to put the van in park, turn off the engine, and hand over the keys. He did none of these things and stared straight ahead. Told that the officers wanted to ask about the 911 call, Cataline ignored them and continued to look ahead. Again, and then a third time, they told Cataline to turn off the engine. He did not comply. Instead he put the van into reverse, obtained enough room to turn 180°, and pointed the van west in the eastbound lanes of the Interstate. Francisko, who had to jump out of the way to avoid being hit, started trying to warn approaching traffic. Cataline then made a further 90° turn and plowed the van into the side of Kuehl’s car, bending its open door forward (the wrong way) on the hinge. Kuehl and Francisko say that Kuehl was pinned behind the door. A dashboard camera on Kuehl’s car was pointed straight ahead and recorded the van making the first 180° turn, but that maneuver took it out of the field of view. The audio portion of the recording continued, however, and the sound of the collision is followed by the sound of the van’s engine running and tires spinning after the crash, plus the voice of someone screaming. Francisko jumped onto the hood of Kuehl’s car and shot Cataline, who died at the scene. The video continued, and Kuehl can be seen limping.

Rebecca Gysan, Cataline’s mother and the executor of his estate, filed this suit under 42 U.S.C. §1983. She contended that the police thrice violated the Fourth Amendment (applied to the states by the Fourteenth): first by asking questions while Cataline’s van was stopped, next by directing Cataline to stop driving while his van was moving, and finally by shooting him. The district court granted summary judgment to both defendants—Francisko and Marc Miller, director of the state agency that employed Francisko. 2019 U.S. Dist. LEXIS 23805 (N.D. Ill. Feb. 14, 2019). The judge rejected the first two theories on the merits and the third after concluding that Francisko is entitled to qualified immunity because existing precedent would not have made clear to all reasonable officers that the use of deadly force was forbidden. On appeal Gysan has abandoned any claim based on the initial encounter between Francisko and Cataline, and her brief does not so much as mention Miller. Our discussion is limited to the remaining theories.

Let us suppose that Francisko was looking for a pretext that would enable him to stop the van so that he could check for drugs. That does not matter because analysis under the Fourth Amendment is objective. Whren v. United States, 517 U.S. 806 (1996), holds that as long as a stop is supported by an objectively sufficient cause, a court must ignore the officers’ motivations. So we ask whether it was reasonable to stop Cataline’s van.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Gabriela Escobedo Marquez, et al., v. William P. Barr

Case No.: 19-1025

Officials: SYKES, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.

Focus: Immigration – Asylum

Gabriela Escobedo Marquez and her minor daughter, Diana Julieta Sanchez Escobedo, citizens of Mexico, petition for review of the denial of their application for asylum under the Immigration and Nationality Act. Escobedo Marquez sought relief based on threats of physical violence she had received because of her gay sexual orientation. An immigration judge, and later the Board of Immigration Appeals, concluded that threats to Escobedo Marquez’s life did not rise to the level of past persecution, and that she could not show that she faced a well‐founded fear of future persecution if she returned to Mexico. Because substantial evidence supports the agency’s decision, we deny the petition for review.

Petition Denied

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7^th Circuit Court of Appeals

Case Name: United States of America v. Nehemiah R. Felders

Case No.: 19-2867

Officials: SYKES, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.

Focus: Miranda Warnings – Suppression of Evidence 

A jury convicted Nehemiah Felders of possessing a firearm, despite a felony conviction making this unlawful. 18 U.S.C. §922(g)(1). He was sentenced to 96 months’ imprisonment. His sole argument on appeal is his statements should have been suppressed, because the police did not give him the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966).

Felders testified at a hearing that the police had not given him warnings of any kind. Officer Jonathan Price testified, to the contrary, that he had taken from his credential case a card with warnings and read Felders the advice on that card. The district judge believed Price and disbelieved Felders, which led him to deny the motion to suppress the statements that Felders made to Price and other officers. In this court Felders no longer denies that Price read him warnings from a card. Instead he contends that the record does not show that the statements read from the card satisfy Miranda. Because Felders did not make such an argument to the district court, appellate review is for plain error. See United States v. Olano, 507 U.S. 725 (1993).

Yet the record is silent about what was on the card from which Price read. Felders has the burden of persuasion, id. at 734–35, and on a silent record he cannot show that any error occurred—not when the warnings were read, not in the district court. The judge was available to hear the parties’ evidence. That Felders did not ask Price for details does not show that the judge made a mistake. Someone who invokes plain-error review on a silent record has little chance of success. See, e.g., United States v. Williams, 946 F.3d 968 (7th Cir. 2020); United States v. Ramirez, 606 F.3d 396 (7th Cir. 2010). The district judge could have avoided the argument now presented on appeal by asking Price to read the card aloud, but the absence of this information cuts against Felders given the plain-error burden. To get anywhere, Felders needed to show what was on the card. Asking Price to read it, or produce a copy, would have been one way to do that. Asking the police to produce a copy would have been another. At trial Price testified that the state police issued the card he used, so it was an official document. Felders does not contend that the state distributed some cards that satisfy Miranda and some that do not. Nor does he contend that someone else, such as The Onion, has produced wallet cards purporting to be from the state police but containing doctored warnings. Evidence that the card in Price’s possession could have been defective or satirical might have persuaded us to remand for a hearing. But we are not aware of any reason to believe that Indiana, or any other state, distributes warning cards that fail to satisfy the Supreme Court’s requirements.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Rae McCann v. Badger Mining Corporation

Case No.: 19-2420

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

Focus: ADA Violation

Rae McCann brought this action against her former employer Badger Mining Company (“Badger”) under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112, and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621–634. She alleged that Badger discriminated against her on the basis of her age and disability when it failed to transfer her to a position in a different department and when it eliminated her position as part of a reduction in force. After discovery, Badger moved for summary judgment on all claims. The district court granted the motion.

Before us, Ms. McCann maintains only that the district court erred in granting summary judgment to Badger on her disability claim related to the elimination of her position. Under the ADA, Ms. McCann was required to come forward with evidence that, but for her disability, Badger would not have eliminated her position. She did not meet that burden, and we therefore affirm the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Leif Hinterberger, et al., v. City of Indianapolis

Case No.: 19-3365

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

Focus: Court Error – Abuse of Discretion  

Courts expect parties to know and follow local rules of practice. Failing to do so can prove fatal. Leif Hinterberger’s case shows how and why. The district court rejected his statement of facts for violating the Southern District of Indiana’s rule governing summary judgment practice. The statement misrepresented the evidence, contained inaccurate and misleading citations to the record, and presented improper arguments rather than materially disputed facts. We empathize with the district court’s exasperation and see no abuse of discretion in its striking Hinterberger’s statement. Nor did the district court commit any error in entering summary judgment against Hinterberger on each of his claims. So we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Soo Line Railroad Company d/b/c Canadian Pacific v. Consolidated Rail Corporation, et al.,

Case No.: 19-3100

Officials: SYKES, Chief Judge, and BAUER and ST. EVE, Circuit Judges.

Focus: Failure to State Claim – Diversity Jurisdiction 

Soo Line Railroad Company, which we refer to by its business name, Canadian Pacific, sought to bring state-law claims under the diversity jurisdiction of the district court. Its suit centered on a trackage rights agreement—a contract governing one railroad’s use of another’s track—that the Indiana Harbor Belt Railroad Company had signed with its majority shareholders at a price that Canadian Pacific, the minority shareholder, alleged was detrimental to Indiana Harbor’s profitability.

Canadian Pacific, though, had a problem. The Surface Transportation Board (STB) has exclusive authority to regulate trackage rights agreements, or to exempt such agreements from its approval process, and it had exempted Indiana Harbor’s agreement. The defendants argued that, by effect of this exemption authority, two statutes—49 U.S.C. §§ 10501(b) and 11321(a)—independently preempted Canadian Pacific’s claims. The district court agreed with both arguments, but in this appeal we focus on only one. The court concluded that § 11321(a) preempted the claims and noted that Canadian Pacific had made no argument otherwise. Because we agree that Canadian Pacific failed to contest this basis for dismissal, we affirm the judgment on grounds of waiver.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Zachary Pulera v. Victoria Sarzant, et al.,

Case No.: 19-2291

Officials: FLAUM, BARRETT, and ST. EVE, Circuit Judges.

Focus: Summary Judgment – Issue of Material Fact

Police arrested Zachary Pulera on suspicion of bail jumping and brought him to the Kenosha County Pre-Trial Facility. Just under forty-eight hours later, Pulera attempted to hang himself in his cell. Fortunately, correctional officers noticed, swiftly cut him down, and called for an ambulance that saved his life.

Over his two days at the facility, Pulera never told any official that he was contemplating suicide. This appeal asks whether a long list of officials nevertheless unreasonably responded to other possible signs that Pulera was in distress, so that they may face liability for his injuries under 42 U.S.C. § 1983. The district court concluded there was no genuine dispute that all officials responded reasonably to the information each had, so it granted the defendants’ motions for summary judgment. We affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: James Henderson v. Robert Wilkie

Case No.: 19-1369

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

Focus: Abuse of Discretion – Evidentiary Ruling

James Henderson filed this employment discrimination action against the Secretary of the Department of Veteran Affairs (“VA”). Mr. Henderson, who is African American, alleged race and age discrimination and retaliation claims, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and the Age Discrimination in Employment Act, 29 U.S.C. § 621. The district court granted summary judgment to the VA in December 2016. Mr. Henderson appealed, and, in December 2017, a panel of this court vacated and remanded for further proceedings. The panel held that, on the record before it, there was a genuine issue of material fact as to whether the VA’s explanations for not selecting Mr. Henderson for a criminal investigator position were pretext for racial discrimination. See Henderson v. Shulkin, 720 Fed. App’x 776, 786 (7th Cir. 2017).

On remand, the parties consented to proceed before a magistrate judge. Mr. Henderson’s race discrimination claim was tried by a jury in September 2018. The jury returned a verdict for the VA, and the district court entered final judgment. Mr. Henderson then moved for a new trial under Federal Rule of Civil Procedure 59(a), claiming error in two evidentiary rulings. The district court denied the motion. Mr. Henderson timely appealed. We now affirm the judgment of the district court because it did not abuse its discretion in ruling on the evidentiary issues.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Scott McCray v. Robert Wilkie

Case No.: 19-3145

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

Focus: Failure to State Claim – ADA Violation

Scott McCray sued his employer, the Department of Veterans Affairs, for the failure to accommodate his disabilities as required by the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. The district court dismissed his complaint for failure to state a claim. We reverse in part and remand for further proceedings.

Reversed in part. Remanded in part.

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7^th Circuit Court of Appeals

Case Name: Democratic Party of Wisconsin v. Robin Vos, et al.,

Case No.: 19-3138

Officials: WOOD, BARRETT, and SCUDDER, Circuit Judges.

Focus: Subject-matter Jurisdiction – 2017 Wisconsin Act 369 and 2017 Wisconsin Act 370

In 2018, Democrats Tony Evers and Josh Kaul were elected as the governor and attorney general of Wisconsin. Both replaced Republican incumbents. Immediately after the election, while Wisconsin still had a Republican governor, the Republican-controlled legislature enacted two laws, 2017 Wisconsin Act 369 and 2017 Wisconsin Act 370 (“Acts”), which strip the incoming governor and attorney general of various powers and vest legislative committees that remained under Republican control with formerly-executive authority. The changes effected by the Acts include prohibiting the governor from re-nominating potential appointees who have been rejected once by the legislature; giving the legislature authority to suspend an administrative rule multiple times; removing the governor’s ability to appoint the chief executive officer of the Wisconsin Economic Development Corporation; adding legislative appointees to the Economic Development Corporation; requiring that the attorney general obtain legislative approval before withdrawing from a lawsuit filed by the state government or settling a lawsuit for injunctive relief; and granting the legislature the unrestricted right to intervene in litigation to defend the constitutionality or validity of state law.

Dismayed by these measures, the Democratic Party of Wisconsin (“Party”) and several of its individual members brought suit in federal court under 42 U.S.C. § 1983 claiming violations of the First Amendment, the Fourteenth Amendment’s Equal Protection Clause, and the Guarantee Clause of Article IV, Section 4 of the United States Constitution. The defendants are the following: several members of the Wisconsin legislature (“legislative defendants”); the Secretary of the Wisconsin Department of Administration; now-Governor Evers; and now-Attorney General Kaul. (Although he was a nominal defendant, Governor Evers, along with Joel Brennan, the Secretary of the Department of Administration, initially filed a brief supporting the plaintiffs and opposing dismissal. Attorney General Kaul stayed out of the fray. None of those three is participating in this appeal.) The district court granted the legislative defendants’ motion to dismiss for lack of subject-matter jurisdiction, concluding that the plaintiffs “haven’t pointed to any concrete harms they have suffered or will suffer because of Acts 369 and 370” and “are not entitled to any remedy under the United States Constitution. Any judicial remedy for the harms alleged in this case must come from the courts of Wisconsin.” We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Adam Delgado v. United States Department of Justice, Bureau of Alcohol, Tobacco Firearms, and Explosives

Case No.: 19-2239

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

Focus: Whistleblower Protection Act Violation – Protected Disclosure

Petitioner Adam Delgado is a special agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Since 2014, he has sought relief under the federal Whistleblower Protection Act for retaliation he believes he suffered after reporting his suspicions that another ATF agent may have committed perjury during a federal criminal trial. See 5 U.S.C. §§ 1214(a)(1)(A), 2302(b)(8).

This is Delgado’s second trip to this court. Two years ago, we held that the Merit Systems Protection Board had acted arbitrarily and capriciously in dismissing his administrative appeal under the Act. Delgado v. Merit Systems Protection Bd., 880 F.3d 913 (7th Cir. 2018) (“Delgado I”). We held that Delgado had properly alleged “a protected disclosure” and had exhausted his administrative remedies so that the Board had jurisdiction to evaluate the merits of his claim. See id. at 916, 920. We remanded the case to the Board for further proceedings consistent with our opinion.

On remand, the Board denied relief. (The Board acted only through an Administrative Judge; since early 2017 the Board itself has lacked a quorum.) Delgado again seeks judicial review. Again, we must find the Board has acted arbitrarily, capriciously, and contrary to law. The Administrative Judge (or AJ) paid only lip-service to our decision, ignoring critical holdings and reasoning. Delgado proved that he made a disclosure that was in fact protected under the Act. He also proved retaliation for his protected disclosure, which affected decisions to deny him several promotions. “After concluding that an administrative decision is flawed, a court of appeals normally must remand to the agency.” Baez-Sanchez v. Barr, 947 F.3d 1033, 1036 (7th Cir. 2020), citing Negusie v. Holder, 555 U.S. 511 (2009), Gonzales v. Thomas, 547 U.S. 183 (2006), and INS v. Orlando Ventura, 537 U.S. 12 (2002). As in Baez-Sanchez, however, “we have already remanded, only to be met by obduracy.” Id.

We remand once more, but only on the extent of relief for Delgado. The government had the opportunity to offer evidence to support its affirmative defense, that it would have made the same decisions anyway. The government’s showing on its defense fails as a matter of law, at least as to at least one March 2014 promotion denial and another in 2016 that was denied to Delgado even though he was the only candidate on its “best qualified” list. Delgado is entitled at least to pay and benefits as if he had been promoted to GS-14 effective March 4, 2014. Possible further relief will need to be considered on remand.

Vacated in part. Remanded in part.

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7^th Circuit Court of Appeals

Case Name: Carpenters Pension Trust Fund for Northern California, et al., v. Allstate Corporation, et al.,

Case No.: 19-1830

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

Focus: Securities Fraud – Class Certification

The district court certified a plaintiff class in this securities fraud case against Allstate Corporation. We granted leave for defendants to pursue this interlocutory appeal of that order under Federal Rule of Civil Procedure 23(f). The class certification presents several challenging questions about how to apply the “Basic” fraud-on-the-market presumption of reliance in the wake of a series of more recent Supreme Court decisions.

Established in Basic, Inc. v. Levinson, 485 U.S. 224 (1988), the fraud-on-the-market presumption allows plaintiffs to avoid proving individual reliance upon fraudulent misrepresentations and omissions. Instead, plaintiffs may prove that the given securities traded in efficient markets in which prices reflect all publicly available information, including misrepresentations, and all investors were thus entitled to rely on that public information and pricing. Id. at 246–47. That makes securities fraud cases better suited for class certification.

Evidence supporting or refuting the Basic presumption of reliance is often relevant to three other closely related issues in a securities fraud case—materiality, loss causation, and transaction causation. Recent Supreme Court decisions on those issues pose a difficult challenge at the class certification stage. A district court deciding whether to certify a plaintiff class may not use the evidence to decide loss causation then, Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804 (2011) (Halliburton I), and may not use the same evidence to decide materiality then, Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 568 U.S. 455 (2013). Those questions are left for the merits. Yet to decide class certification using the Basic presumption, a court must consider the same evidence if the defense offers it to show the absence of transaction causation, also known as price impact. Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258 (2014) (Halliburton II).

These precedents require a district court to split some very fine hairs. In this case, the district court granted class certification after admitting, but without engaging with, the evidence that defendants offered to defeat the Basic presumption, an expert opinion that the alleged misrepresentations had no impact on the stock price. The judge concluded that the issue was tied so closely to the merits that he should not decide it on class certification. We understand that view. The Supreme Court has long warned the lower federal courts not to confuse class certification decisions with the merits, e.g., Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974), and the court may not consider materiality and loss causation at the class certification stage.

Under Halliburton II, however, the court’s approach was based on a legal error, so we must vacate for reconsideration. Class certification may well be appropriate here, but the district court must decide at the class stage the price impact issue posed by the defendants’ price impact evidence and plaintiffs’ rebuttal. The court may not defer that question for the merits. We also affirm the district court’s adding a new class representative and, by agreement of the parties, direct a modification of any class certification to limit the class to buyers of the defendant’s common stock rather than any other securities.

In Part I, we summarize the alleged fraud, the defendants’ response, and the district court’s order granting class certification. In Part II, we set out the standard for our review of the class certification order, including the need for factfinding. In Part III, we apply Rule 23(b)(3)’s predominance requirement for certifying plaintiff classes in securities fraud cases, the Basic presumption, and the Halliburton/Amgen trilogy at the heart of this appeal, and then set out guidance for remand. In Part IV, we affirm the district court’s order adding a new proposed class representative, and in Part V we briefly note the parties’ and our agreement that the proposed class definition must be limited to buyers of Allstate’s common stock.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Charnpal Ghuman, et al.,

Case No.: 19-1734; 19-1745

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

Focus: Sentencing – Supervised Release and Restitution

Charnpal “Paul” Ghuman and Aga Khan participated in a multi-million dollar bank fraud scheme in which they helped to create fraudulent loan applications in order to convince a bank to issue mortgages to unqualified individuals who were purchasing gasoline stations from them. Both men pleaded guilty to one count of bank fraud, see 18 U.S.C. § 1344; Ghuman also pleaded guilty to one count of filing a false tax return, see 26 U.S.C. § 7206. Ghuman challenges the district court’s decision to deny him credit for acceptance of responsibility, see U.S.S.G. § 3E1.1, and the imposition of a three-year term of supervised release on his false tax return conviction. Khan challenges the restitution he was ordered to pay. We affirm with one correction to Ghuman’s sentence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Adetokunbo Philip Fayemi v. Emily Ruskin

Case No.: 19-1241

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

Focus: Ineffective Assistance of Counsel

In 2002 Alice Minter became ill and weakened; her hair fell out; while in a hospital she entered a coma and seemed on the brink of death. Medical tests superior to those available in 1961 revealed the cause: her blood and urine contained vastly more thallium than the natural concentration. For a few months her fiancé Adetokunbo Fayemi had been providing some of her food and drink (something that continued while she was in the hospital). Seven of Minter’s friends and relatives who ate occasionally at her home or hospital room also suffered from thallium poisoning, though to a lesser degree. Her dog died of thallium poisoning after it ate scraps from her table.

Evidence at Fayemi’s trial for attempted murder showed that he had purchased 50 grams of thallium sulfate, enough to kill about 50 people. Fayemi falsely told the supplier that he needed the substance for research but asserted in court that he and Minter wanted it to kill rats and mice, a forbidden use. Fayemi’s defense was that Minter had been careless with her share of the poison, but the fact that Fayemi often ate at Minter’s house without showing any traces of thallium poisoning—and that a good deal of thallium was found in a salt shaker (thallium sulfate is a tasteless white powder that looks like salt) in Fayemi’s kitchen—embarrassed that defense. A toxicologist testified that Fayemi’s body contained only the amount of thallium that would be expected in one who handled the substance but did not ingest any. The jury also heard that Fayemi owned many other poisons and had threatened to kill Minter if she left him.

The jury convicted Fayemi of attempting to murder Minter plus seven counts of aggravated battery with respect to the seven other victims. He was sentenced to 27 years in prison. The convictions were affirmed on appeal, and a state court rejected a collateral aback. 2016 IL App (4th) 140480-U (June 23, 2016). A federal judge denied his petition for a writ of habeas corpus under 28 U.S.C. §2254. 2019 U.S. Dist. LEXIS 3814 (C.D. Ill. Jan. 9, 2019).

The only argument that has made it to this court is that Fayemi’s trial lawyer violated the Sixth Amendment (applied to the states through the Fourteenth) by telling the jurors, in his opening statement, that Fayemi would testify. Counsel used this to introduce the theory of defense—that Minter asked Fayemi to get the thallium for her and was careless with it. Fayemi had told his lawyer that he would testify. But after the state judge decided that some of his prior convictions, plus evidence that he owned and had annotated at least one book about how to poison people, could come in on cross-examination, counsel persuaded Fayemi not to testify. Fayemi waived that right in open court. On collateral review his theory is that a lawyer furnishes ineffective assistance by promising that the defendant will testify, when the defendant may change his mind. Every judge who has looked at the case so far has rejected that argument.

We may assume that counsel’s strategy backfired when Fayemi changed his mind, though it is hard to presume that the jury held this against the defense. It was given a standard instruction not to draw an adverse inference. And mention of potential testimony gave counsel a means to introduce the theory of defense before the jury heard the prosecution’s case. Minter testified, for example, that she had never heard of thallium before her illness and did not ask for any from Fayemi; counsel’s opening statement may have helped the jurors keep open minds about that subject pending the defense case. Sometimes lawyers take risks that seem justified but do not pan out; this may have been such a situation.

Because the state court did not render a decision “contrary to” law clearly established by the Supreme Court, we ask whether it applied that established law “unreasonably”. It did not. The state’s appellate judges concluded that, whether or not counsel’s performance was deficient, there was no possibility of prejudice. The decision did not turn on a line between “reasonable probability” and some other standard. Instead the court remarked that the evidence against Fayemi was “overwhelming” (¶49). The evidence we have mentioned deserves that label, and there was more. The trial judge told the jury to disregard Fayemi’s decision not to testify. It is inconceivable that one sentence in the opening statement (counsel’s sole mention that the jurors would hear from Fayemi) could have affected this verdict.

Affirmed

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7^th Circuit Court of Appeals

Case Name:  Janet Kotaska v. Federal Express Corporation

Case No.: 19-2730

Officials: SYKES, Chief Judge, and HAMILTON, and ST. EVE, Circuit Judges.

Focus: ADA Violation – Retaliation Claim

Federal Express Corporation (FedEx) twice fired Janet Kotaska because she could not lift up to 75 pounds. The first time, she was limited to lifting only 60 pounds after a shoulder injury. Eventually, her condition improved so that she could lift 75 pounds to her waist, and a FedEx supervisor rehired her “off the books.” Within three weeks, though, FedEx discovered her capabilities above the waist remained severely limited and dismissed her again.

Kotaska contends that this second dismissal was a violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101–12213. The district court entered summary judgment for FedEx because Kotaska had not shown she was a qualified individual or that the second dismissal was in retaliation for her complaints about the first. Because we agree that Kotaska has not carried her burden, we affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name:  United States of America v. Marcus C. Durham

Case No.: 18-3283

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

Focus: Sentencing Guidelines

Marcus Durham received a 35-year sentence for a federal drug offense that was later reduced to 20 years due to subsequent amendments to the Sentencing Guidelines. Upon regaining his liberty, however, Durham violated the terms of his supervised release, including by committing a domestic battery. The district court sentenced him to 30 months’ imprisonment for these violations—about twice the high end of the guidelines advisory range. In imposing this sentence, the district court emphasized the gravity of Durham’s abuse of his ex-girlfriend. Durham contends that the 30-month sentence is too long and the product of the district court effectively penalizing him for benefiting from the amendments to the guidelines that reduced his original sentence. Having taken our own fresh look at the sentencing transcript, we see no errors and therefore affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Marcus Lorenzo Jew

Case No.: 2019AP157-CR

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

Focus: Court Error – Motion to Suppress Evidence Denied

Marcus Lorenzo Jew appeals the judgment convicting him, upon the jury’s guilty verdicts, of first-degree recklessly endangering safety, as a party to a crime, while using a dangerous weapon; possession of a firearm by a felon; misdemeanor unlawful use of a telephone by threatening harm, as an act of domestic abuse; misdemeanor disorderly conduct, as an act of domestic abuse; and misdemeanor disorderly conduct, while using or threatening to use a dangerous weapon.

Jew argues that the trial court erred by denying his motion to sever counts and to suppress evidence. He also argues that the trial court erred when it: (1) denied his motion to exclude the recordings of three 911 calls; (2) admitted the recording of a call that Jew made from jail stating that he had been convicted of three felonies; and (3) excluded potential impeachment evidence. We are not persuaded and, therefore, we affirm the judgment.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Isabel Ortega, Jr.,

Case No.: 2019AP306

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

Focus: Court Error – Other-acts Evidence 

Isabel Ortega, Jr., appeals a judgment of conviction entered after a jury found him guilty of four sexual offenses against his daughter, Rosa.  He contends that the circuit court erroneously admitted other-acts evidence at his trial. We affirm

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WI Court of Appeals – District III

Case Name: Jim Olson Motors, Inc., v. Michael Cole

Case No.: 2019AP1034

Officials: SEIDL, J.

Focus: Abuse of Discretion – Motion to Amend Counterclaim Denied

Michael Cole appeals from a small claims judgment entered in favor of Jim Olson Motors, Inc. (Olson). Cole argues the circuit court erroneously exercised its discretion by denying his motion to amend his counterclaim brought at the beginning of the second day of trial. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. M.A., et al.,

Case No.: 2019AP1089

Officials: DUGAN, J.

Focus: CHIPS – Jurisdiction

The State of Wisconsin appeals from the trial court’s order granting relief on M.A’s petition alleging that J.A., her son, was a child in need of protection or services (CHIPS). The State argues that the trial court erred by (1) finding that M.A.’s petition was sufficient, (2) denying the State’s motion for summary judgment, (3) finding that it had jurisdiction over the petition, (4) denying the State’s motion to dismiss, and (5) issuing the dispositional order. This court is not persuaded by the State’s arguments and, therefore, we affirm the trial court’s order.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Desmond Myers LaPean

Case No.: 2019AP1448-CR

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

Focus: Plea & Sentencing – Ineffective Assistance of Counsel

Desmond LaPean appeals a judgment convicting him of repeated sexual assault of a child and an order denying his postconviction motion for resentencing. LaPean argues the State materially and substantially breached the plea agreement during his sentencing hearing by twice recommending a sentence that exceeded the recommendation it had agreed to make. LaPean further argues that his trial attorney was constitutionally ineffective by failing to object to the State’s second breach of the plea agreement and by failing to inform LaPean that one of the available remedies for the State’s breaches was resentencing before a different judge.

We agree with LaPean that the State materially and substantially breached the plea agreement. As such, LaPean’s trial attorney performed deficiently by failing to object to the State’s second breach and by failing to inform LaPean that resentencing was an available remedy. We further conclude LaPean has demonstrated that he was prejudiced by his trial attorney’s deficient performance in failing to inform him that he could seek resentencing by a different judge as a remedy for the State’s material and substantial breaches of the plea agreement. Accordingly, we reverse LaPean’s judgment of conviction and the order denying postconviction relief, and we remand for LaPean to be resentenced by a different judge.

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WI Court of Appeals – District II

Case Name: Racine County Human Services Department v. S.MF.

Case No.: 2019AP2346; 2019AP2347

Officials: GUNDRUM, J.

Focus: Termination of Parental Rights

S.M.F. appeals from orders of the circuit court terminating her parental rights to M.J.S. and N.D.S. She claims her trial counsel was ineffective because at the trial to determine whether grounds for termination existed, counsel stipulated to the use of the post-2018 WIS JI—CIVIL 324, Involuntary Termination Of Parental Rights: Continuing Need Of Protection Or Services jury instruction and failed to call certain witnesses to defend S.M.F. against the petition. She also contends the court’s denial of her request for a mistrial following certain questioning of a witness by the State deprived her of a full and fair jury trial and “it is entirely probable that the accumulation of error suggest that the real controversy has not been tried here.” We affirm.

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WI Court of Appeals – District II

Case Name: Fond Du Lac County v. S.N.W.

Case No.: 2020AP274-FT

Officials: REILLY, P.J.

Focus: Prisoner – Involuntary Commitment

S.N.W. appeals from an order of the circuit court extending his involuntary commitment and from an order for involuntary medication and treatment. S.N.W. argues that Fond du Lac County (the County) failed to establish that he is dangerous pursuant to WIS. STAT. § 51.20(1)(a), (am). We conclude that the evidence supports the circuit court’s conclusion that S.N.W. is mentally ill, is a proper subject for treatment, and would be a proper subject for commitment if treatment were withdrawn. See § 51.20(1)(a)1.-2., (am). Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Donnie Gene Richards

Case No.: 2017AP43-CR

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

Focus: OWI – Warrantless Search – Blood Test

Donnie Gene Richards was found by a sheriff’s deputy behind the wheel of a motor vehicle, severely injured, at the scene of an accident. The deputy determined that there was probable cause to believe that Richards had been operating the vehicle while under the influence of an intoxicant (OWI). See WIS. STAT. § 346.63(1)(a) (2011-12).  Because Richards, then unconscious, would shortly be taken by helicopter to a hospital approximately fifty miles away, the deputy decided that there would not be sufficient time to obtain a search warrant for a blood draw. Blood was drawn from Richards, at the deputy’s request, before Richards was placed in the helicopter.

Richards was charged in the Waushara County Circuit Court with OWI, 12th offense. Richards requested in the circuit court that the results of the blood test be suppressed on the ground that his constitutional rights were violated in that the blood draw was done without a search warrant. The circuit court denied Richards’ motion after an evidentiary hearing. The court determined that, because there were exigent circumstances, a search warrant was not required for the blood draw. Richards pleaded guilty to OWI 12th offense and was sentenced. On appeal, Richards challenges the circuit court’s denial of his suppression motion. Applying the factors set forth in Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), we affirm.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Yancy Kevin Dieter

Case No.: 2018AP2269-CR

Officials: Blanchard, Graham, and Nashold, JJ.

Focus: OWI – Warrantless Search – Blood Test

Yancy Dieter faces criminal charges that include homicide by intoxicated use of a vehicle. The circuit court granted Dieter’s motion to suppress evidence of his blood alcohol concentration, which was obtained through a warrantless blood draw, and the State appeals. Based on the totality of the circumstances, we conclude that exigent circumstances justified the warrantless blood draw, and accordingly we reverse the suppression order.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Justin D. Blanchard

Case No.: 2019AP708-CR

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

Focus: Abuse of Discretion – Exclusion of Evidence

Justin D. Blanchard appeals the judgment of conviction entered after a jury found him guilty of battery and disorderly conduct as acts of domestic abuse perpetrated against E.U., with whom he lived and had a child. Blanchard argues that the circuit court erroneously exercised its discretion, and denied him his constitutional right to present a defense, when it excluded evidence relating to certain photographs that E.U. took of herself and sent to Blanchard days after the incident that formed the basis of the charges of which Blanchard was convicted. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Samuel L. Nichols, Jr.,

Case No.: 2019AP802-CR

Officials: Kloppenburg, Graham, and Nashold, JJ.

Focus: Court Error – Admittance of Evidence

Samuel Nichols appeals a judgment of conviction for sexual assault and for capturing images of nudity without consent. He argues that the circuit court erroneously denied his motion to suppress incriminating photographs found on his cellphone, and also that the court erroneously admitted evidence of a prior sexual assault he committed. We reject both arguments and affirm.

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WI Court of Appeals – District IV

Case Name: The Bank of New York Mellon, et al., v. Elizabeth M. Brozek, et al.,

Case No.: 2019AP1736

Officials: Kloppenburg, Graham, and Nashold, JJ.

Focus: Foreclosure – RESPA Violation

This case arises from a foreclosure action filed by The Bank of New York Mellon against Elizabeth and Michael Brozek. At issue on appeal are a counterclaim and an affirmative defense asserted by the Brozeks against the Bank, and a claim asserted by the Brozeks in a third-party complaint against Bayview Loan Servicing, the servicer of the loan that is the subject of the foreclosure action. The counterclaim, affirmative defense, and third-party claim all involve Bayview’s handling of the Brozeks’ multiple applications for a loan modification prior to the commencement of the foreclosure action. The Brozeks argue that on the parties’ cross-motions for summary judgment: (1) the circuit court erroneously granted summary judgment in favor of the Bank (a) dismissing the Brozeks’ counterclaim of breach of the implied duty of good faith and fair dealing, and (b) rejecting the Brozeks’ affirmative defense to the Bank’s foreclosure action of failure to mitigate damages; and (2) the circuit court erroneously granted summary judgment in favor of Bayview, dismissing the Brozeks’ claim that Bayview violated the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601-17 (2018).

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Wendy Alison Nora

Case No.: 2020 WI 70

Focus: Attorney Disciplinary Hearing

Attorney Wendy Alison Nora appeals from various interlocutory orders and a final report issued by the referee, Attorney James Winiarski. Attorney Nora challenges the conduct of the proceeding by the Office of Lawyer Regulation (OLR) and Referee Winiarski, as well as the referee’s findings of fact and his legal conclusions that she engaged in professional misconduct as alleged in Counts 2, 3, and 5 of the OLR’s second amended complaint. She also challenges his recommendation that this court should suspend her license to practice law in Wisconsin for a period of two years.

The OLR has filed a cross-appeal from the referee’s legal conclusions that Counts 1 and 4 of its second amended complaint should be dismissed on due process grounds because those counts failed to specify which subsections of Supreme Court Rule (SCR) 20:3.1(a) Attorney Nora’s conduct had violated. We reject Attorney Nora’s arguments on appeal and conclude that the OLR proved violations of the Rules of Professional Conduct for Attorneys on all five counts of the second amended complaint. We do not agree with the referee’s conclusion that Counts 1 and 4 should be dismissed on due process grounds because we determine that Attorney Nora forfeited any due process notice challenge by not raising it before the referee. Had she raised the issue in a timely manner before the referee, the OLR could have amended its complaint to more fully specify the subsections at issue. Moreover, the OLR’s complaints did specify the particular actions by her that constituted violations of the rule. Attorney Nora had notice of the allegations against her.

We further conclude that the appropriate level of discipline to impose upon Attorney Nora for her professional misconduct is a further two-year suspension of her license to practice law in this state. Given the nature of her misconduct at issue in this proceeding, we do not require her to pay any restitution. We do, however, require that if Attorney Nora seeks the reinstatement of her license, her reinstatement petition must allege that she has made a good faith effort to pay all outstanding amounts that she personally owes as a result of sanction orders imposed by any court, and she must prove that good faith effort as one of the conditions of reinstatement.

Because the OLR has requested that we not impose the costs of this proceeding on Attorney Nora, we do not impose any costs.

Attorney’s license suspended

Concur:

Dissent:

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Supreme Court Digests

United States Supreme Court

Case Name: William P. Barr, et al., v. Daniel Lewis Lee, et al.,

Case No.: 20A8

Focus: Preliminary Injunction – Application for Stay

The application for stay or vacatur presented to THE CHIEF JUSTICE and by him referred to the Court is granted. The District Court’s July 13, 2020 order granting a preliminary injunction is vacated. The plaintiffs in this case are all federal prisoners who have been sentenced to death for murdering children. The plaintiffs committed their crimes decades ago and have long exhausted all avenues for direct and collateral review. The first of their executions was scheduled to take place this afternoon, with others to follow this week and next month. To carry out these sentences, the Federal Government plans to use a single drug—pentobarbital sodium—that “is widely conceded to be able to render a person fully insensate” and “does not carry the risks” of pain that some have associated with other lethal injection protocols. Zagorski v. Parker, 586 U. S. ___, ___ (2018) (Sotomayor, J., dissenting from denial of application for stay and denial of certiorari) (slip op., at 2).

Hours before the first execution was set to take place, the District Court preliminarily enjoined all four executions on the ground that the use of pentobarbital likely constitutes cruel and unusual punishment prohibited by the Eighth Amendment. Vacatur of that injunction is appropriate because, among other reasons, the plaintiffs have not established that they are likely to succeed on the merits of their Eighth Amendment claim. That claim faces an exceedingly high bar. “This Court has yet to hold that a State’s method of execution qualifies as cruel and unusual.” Bucklew v. Precythe, 587 U. S. ___, ___ (2019) (slip op., at 12). For good reason—“[f]ar from seeking to superadd terror, pain, or disgrace to their executions, the States have often sought more nearly the opposite,” developing new methods, such as lethal injection, thought to be less painful and more humane than traditional methods, like hanging, that have been uniformly regarded as constitutional for centuries. Ibid. The Federal Government followed this trend by selecting a lethal injection protocol—single-dose pentobarbital—that has become a mainstay of state executions. Pentobarbital: Has been adopted by five of the small number of States that currently implement the death penalty. Has been used to carry out over 100 executions, without incident. Has been repeatedly invoked by prisoners as a less painful and risky alternative to the lethal injection protocols of other jurisdictions. Was upheld by this Court last year, as applied to a prisoner with a unique medical condition that could only have increased any baseline risk of pain associated with pentobarbital as a general matter. See Bucklew, 587 U. S. ___. Has been upheld by numerous Courts of Appeals against Eighth Amendment challenges similar to the one presented here. See, e.g., Whitaker v. Collier, 862 F. 3d 490 (CA5 2017); Zink v. Lombardi, 783 F. 3d 1089 (CA8 2015); Gissendaner v. Commissioner, 779 F. 3d 1275 (CA11 2015).

Against this backdrop, the plaintiffs cite new expert declarations suggesting that pentobarbital causes prisoners to experience “flash pulmonary edema,” a form of respiratory distress that temporarily produces the sensation of drowning or asphyxiation. But the Government has produced competing expert testimony of its own, indicating that any pulmonary edema occurs only after the prisoner has died or been rendered fully insensate. The plaintiffs in this case have not made the showing required to justify last-minute intervention by a Federal Court. “Last-minute stays” like that issued this morning “should be the extreme exception, not the norm.” Bucklew, 587 U. S., at ___ (slip op., at 30). It is our responsibility “to ensure that method-of-execution challenges to lawfully issued sentences are resolved fairly and expeditiously,” so that “the question of capital punishment” can remain with “the people and their representatives, not the courts, to resolve.” Id., at ___–___ (slip op., at 29–30). In keeping with that responsibility, we vacate the District Court’s preliminary injunction so that the plaintiffs’ executions may proceed as planned.

Granted in part. Vacated in part.

Dissenting: JUSTICE BREYER, with whom JUSTICE GINSBURG joins, dissenting. Sotomayor, J., dissenting from denial of application for stay and denial of certiorari.

Concurring:

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