Justia U.S. 7th Circuit Court of Appeals Opinion Summaries

A removable alien who has lived in the U.S. for seven years (including five as a permanent resident) is entitled to seek cancellation of removal unless he has committed an “aggravated felony.” 8 U.S.C. 1229b(a)(3). Velasco, a citizen of Mexico who was admitted for permanent residence, became removable after multiple criminal convictions. An immigration judge concluded that one of these convictions was for “sexual abuse of a minor”, which 8 U.S.C.1101(a)(43)(A) classifies as an aggravated felony, and that Velasco was, therefore. ineligible for cancellation of removal. The BIA affirmed, citing the definition of “sexual abuse” in 18 U.S.C. 3509(a)(8) rather than the one in 18 U.S.C. 2243(a). The conviction at issue was under Cal. Penal Code 261.5(c), which makes it a crime to engage in sexual intercourse with a person under the age of 18, if the defendant is at least three years older. Velasco was 18 at the time; the girl was 15. Deferring to the BIA, the Seventh Circuit affirmed.View "Velasco-Giron v. Holder" on Justia Law

Springfield has an ordinance that prohibits panhandling in its “downtown historic district”—less than 2% of the city’s area but containing its principal shopping, entertainment, and governmental areas, including the Statehouse and many state-government buildings. The ordinance defines panhandling as an oral request for an immediate donation of money. Signs requesting money are allowed; as are oral pleas to send money later. Plaintiffs have received citations for violating this ordinance and allege that they will continue panhandling but fear liability. They unsuccessfully sought a preliminary injunction. The parties agreed that panhandling is a form of speech, to which the First Amendment applies, and that if it drew lines on the basis of speech’s content it would be unconstitutional. The Seventh Circuit affirmed, upholding the ordinance, which it called “indifferent to the solicitor’s stated reason for seeking money, or whether the requester states any reason at all…. Springfield has not meddled with the marketplace of ideas.” The prohibition is based on where a person says something rather than what position a person takes.View "Norton v. City of Springfield" on Justia Law

The Superfund Site encompasses the Lower Fox River and Green Bay, into which paper mills discharged PCBs until the 1970s, and is the subject of remedial efforts under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9606. The U.S. Environmental Protection Agency (EPA) and the Wisconsin Department of Natural Resources (WDNR) divided the Site into five “operable units” (OUs). In 2002, EPA and WDNR issued a record of decision (ROD), calling for dredging in OU1, but for monitored natural recovery in OU2, excepting limited dredging as part of the OU3 remedy. In 2003, EPA and WDNR issued another ROD, including dredging in OU3 and OU4. The OU5 remedy was limited to monitored natural recovery, except some dredging near the River's mouth. Potentially responsible parties (PRPs) agreed to perform the work in OU1. NCR and another PRP agreed to perform remedial design work for OU2–OU5. In 2007, the agencies amended the ROD for OU2–OU5, keeping dredging as the default approach but allowing for capping and sand covering. EPA ordered the PRPs to conduct the cleanup required by the amendment. NCR led the remedial efforts in OU2 and OU3 and conducted significant action in OU4. In 2008 NCR sought contribution from the other PRPs and declined further compliance with EPA’s 2007 order. The district court ordered NCR to complete work scheduled for 2012. The Seventh Circuit affirmed. The district court then upheld the agencies’ remedy selection and held that various OU1 PRPs were liable for downstream cleanup costs; the court entered a permanent injunction requiring the nonsettling PRPs to comply with EPA’s 2007 order. The Seventh Circuit reversed in part; the district court erred in its consideration of NCR’s divisibility defense and in its decision to enter a permanent injunction.View "United States v. P.H. Glatfelter Co." on Justia Law

The Superfund Site encompasses the Lower Fox River and Green Bay, into which paper mills discharged PCBs until the 1970s, and is the subject of remedial efforts under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9606. The U.S. Environmental Protection Agency and the Wisconsin Department of Natural Resources divided the Site into five “operable units” (OUs) and issued records of decision (RODs), calling for dredging in OU1, for monitored natural recovery in OU2; dredging in OU3 and OU4; and monitored natural recovery in OU5. Several potentially responsible parties (PRPs) agreed to perform the work in OU1. NCR and another PRP agreed to perform remedial design work for OU2–OU5. The agencies amended the ROD for OU2–OU5, keeping dredging as the default approach but allowing for capping and sand covering. EPA ordered the PRPs to conduct cleanup required by the amendment. NCR led the remedial efforts in OU2 and OU3 and conducted significant action in OU4. NCR sought contribution from the other PRPs and declined further compliance with EPA’s 2007 order. The district court ordered NCR to complete work scheduled for 2012. The Seventh Circuit affirmed. The district court then held that NCR was not entitled to contribution from paper mills that recycled its scraps and that those mills had meritorious counterclaims for recovery from NCR. The Seventh Circuit vacated the decision to hold NCR responsible for all of the response costs at OU2- 5 in contribution, but affirmed that NCR may proceed only under CERCLA section 113(f); that NCR is not liable as an arranger; that another PRP’s insurance settlement may not be offset against NCR’s contribution share; that NCR can be required to contribute for natural resource damages; and that state-law counterclaims are preempted. View "NCR Corp. v. WTM I Co." on Justia Law

DHS initiated removal proceedings, charging Antia with removability under 8 U.S.C. 1182(a)(6)(A)(i) as an alien present without being admitted or paroled and alleging that Antia had been convicted of “indecent liberties with a child,” a crime of moral turpitude, 8 U.S.C. 1182(a)(2)(A)(i)(I). The Form I‐213, a “Record of Deportable/Inadmissible Alien” prepared by DHS “typically a record of an immigration inspector’s conversation with an alien who will probably be subject to removal,” stated that Antia “voluntarily admitted” that he was not a citizen or U.S. national and was a citizen of Columbia. Chicago Police Department rap sheets indicated that Antia was born in Puerto Rico. Antia retained counsel and, before an IJ, declined to admit or deny the allegations against him or to designate Colombia as the country of removal. The IJ scheduled a contested hearing, but denied Antia’s request for subpoenas for the makers of “all Government documents that are coming in.” As the only witness, Antia refused to answer questions. Antia’s counsel reiterated his request to subpoena the preparers of the documents. The IJ again denied the request as overly broad; denied a request to cross‐examine the preparer of the I‐213; and rejected Antia’s challenge to the government’s failure to produce any other witnesses. The BIA affirmed. The Seventh Circuit denied a petition for review, finding none of the challenged rulings erroneous. View "Antia-Perea v. Holder" on Justia Law

Diggs pleaded guilty to possession with intent to distribute 50+ grams of crack cocaine and 500+ grams of powder cocaine; he admitted that he supplied wholesale quantities to co-defendants. The district court accepted recommendation that Diggs be held accountable for 5.7 kilos of crack cocaine and 2 kilos of powder cocaine and applied two two-level enhancements for using a dangerous weapon and having a leadership role. Neither was challenged. The government opposed cooperation credit for assistance in apprehending co-conspirators because he allegedly tipped off his co-conspirators. The court determined that Diggs’ cooperation did not merit an adjustment, but did consider co-operation as a mitigating factor when setting the sentence. Under advisory guidelines, Diggs’ sentence was 360 months to life. Impressed by the change Diggs had shown while incarcerated and moved by Diggs’ testimony, the court sentenced Diggs to 282 months. After sentencing, Amendment 750 took effect, retroactively lowering the base offense level for possession with intent to distribute crack cocaine, so that his guideline was 292–365 months. Diggs argued that the original 78 month downward variance should apply to the retroactive guidelines, for a new sentence of 214 months. The court rejected the motion, holding that USSG 1B1.10 prohibits a court from reducing a sentence to a term less than the minimum of the amended guideline range unless the original sentence had been reduced in response to a government motion for substantial assistance. The Seventh Circuit affirmed. The district court properly applied section 1B1.10, which does not offend the ex post facto clause. The commission did not exceed its authority in its attempt to revise this policy.View "United States v. Diggs" on Justia Law

A federal district judge issued an injunction that blocks the State of Wisconsin from conducting a judicially supervised criminal investigation into whether certain persons have violated the state’s campaign-finance laws. The court acted despite 28 U.S.C. 2283, the Anti-Injunction Act, which provides: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” In 1972 the Supreme Court (Mitchum v. Foster) held that 42 U.S.C.1983 authorizes anti-suit injunctions if appropriate under principles of “equity, comity, and federalism.” The Seventh Circuit held that this case does not present a situation in which state proceedings may be displaced. The Anti-Injunction Act embodies a fundamental principle of federalism: state courts are free to conduct their own litigation, without ongoing supervision by federal judges, let alone threats by federal judges to hold state judges in contempt. The scope given to state litigation is especially great in the realm of criminal investigations and prosecutions. The court remanded the case with instructions to dismiss, leaving all further proceedings to the courts of Wisconsin.View "O'Keefe v. Chisholm" on Justia Law

The Seventh Circuit consolidated class action appeals filed under the Fair and Accurate Credit Transactions Act (FACTA), 15 U.S.C. 1681c(g), which provides that “no person that accepts credit cards or debit cards ... shall print [electronically] more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale.” Willful violation entitles a consumer who sustains no harm to statutory damages, but a consumer harmed by the violation can obtain actual damages by showing that the violation was the result of negligence. Consumers who bought products at RadioShack stores paid with credit or debit cards, and received electronically printed receipts that contained the card’s expiration date. The parties settled; each class member who responded positively was to receive a $10 coupon that could be used at any RadioShack store. The face value of all the coupons was $830,000. RadioShack was to pay class counsel $1 million. The Seventh Circuit reevaluated the value of the settlement to class members and the benefits of costs incurred and, noting Radio Shack’s fragile financial condition, stated ”A renegotiated settlement will simply shift some fraction of the exorbitant attorneys’ fee awarded class counsel in the existing settlement that we are disapproving to the class members. While Radio Shack’s violation was willful, given earlier litigation, Shoe Carnival had no previous violation to alert the company. Instead of omitting the entire expiration date from credit‐card receipts, Shoe Carnival omitted just the year The Seventh Circuit concluded that there was sufficient ambiguity in the statute to justify the district court’s determination that Shoe Carnival had not willfully violated FACTA. View "Aliano v. RadioShack Corp." on Justia Law

The Patient Protection and Affordable Care Act requires almost everyone to have health insurance and is enforced by a tax that most businesses must pay if they fail to provide insurance as a benefit, or that anyone not covered by an employer’s plan must pay in lieu of purchasing insurance, 26 U.S.C.4980H, 5000A. The Internal Revenue Service has stated that it will collect the tax in 2014 from uninsured persons, but not from certain businesses. Plaintiffs, a physician and an association of physicians, claimed violation of the separation of powers and the Tenth Amendment. Because they did not complain about their own taxes, the district court dismissed for lack of standing. The Seventh Circuit affirmed. Rejecting an argument that the challenged policies change demand for plaintiffs’ services, the court noted that plaintiffs “appear to believe” that insurance is free to workers--that wages do not adjust to reflect pensions, insurance, and other benefits. By the same logic, they could litigate any tax policy. In a market economy everything is connected to everything else through the price system. To allow a long, intermediated chain of effects to establish standing is to abolish the standing requirement. The Constitution’s structural features are not open to litigation by persons who do not suffer particularized injuries. Plaintiffs, who do not accept insured patients, want to reduce, not increase the number of persons who carry health insurance. Someone else would be more appropriate to argue that the IRS has not done what it should to accomplish the statute’s goal of universal coverage.View "Ass'n of Am. Physicians & Surgeons, Inc. v. Koskinen" on Justia Law

United Airlines contracts for regional air services under the “United Express” brand. One such supplier owns Trans States and GoJet Airlines. Cuff was on the payroll of Trans States, working at O’Hare Airport. He was fired after he took leave despite denial of his request under the Family and Medical Leave Act. The FMLA applies only if the employer has at least 50 employees within 75 miles of a worker’s station, 29 U.S.C. 2611(2)(B)(ii). Trans States had 33 employees at or within 75 miles of O’Hare, while GoJet had 343. Cuff argued that he worked for Trans States and GoJet jointly. The district court agreed and a jury awarded Cuff $28,800 in compensatory damages. The judge added $14,400 front pay in lieu of reinstatement and awarded Cuff about $325,000 in attorneys’ fees and $6,000 in costs and interest. The Seventh Circuit affirmed, citing Department of Labor regulations providing that workers are covered by the FMLA when they are jointly employed by multiple firms that collectively have 50 or more workers, 29 C.F.R. 825.106(a) and that firms may be treated as a single employer when they operate a joint business, 29 C.F.R. 825.104(c), and noting several indicators that Cuff worked for both operations. The court stated that “the defense had not done its homework; it was content to leave the labor to Cuff’s team and the judge … for issue after issue.”View "Cuff v. Trans State Holdings, Inc." on Justia Law