Weekly Case Digests December 24 December 28, 2018.

Byline: WISCONSIN LAW JOURNAL STAFF

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: W.A. Griffin, M.D. v. TeamCare, et al.

Case No.: 18-2374

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

Focus: ERISA Penalties

W.A. Griffin, M.D., is the assignee of her patient's health plan, TeamCare, which the Board of Trustees of Central States, Southeast and Southwest Areas Health and Welfare Fund (collectively Central States) administers and the Employee Retirement Income Security Act (ERISA), 29 U.S.C. 10011461, governs. Dr. Griffin sued Central States for underpayment and for statutory penalties based on its failure to furnish plan documents upon request. The district court dismissed her complaint. However, because we find that Dr. Griffin adequately alleged that she is eligible for additional benefits and statutory damages, we affirm the judgment only as to Count, vacate the judgment as to Counts 1 and 3, and remand Counts 1 and 3 for further proceedings.

Affirmed in part. Vacated and Remanded in part.

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7th Circuit Court of Appeals

Case Name: William McCann, et al. v. William E. Brady

Case No.: 18-2175

Officials: WOOD, Chief Judge, and SYKES and BARRETT, Circuit Judges.

Focus: 1st Amendment Violation

This case takes us deep into the internal workings of the Illinois State Senate. After Senate Minority Leader William E. Brady (a Republican) decided to oust William ("Sam") McCann from the Illinois Senate Republican Caucus and thereby to deny certain resources to McCann, McCann and one of his constituents, Bruce Mcdaniel, sued Brady under 42 U.S.C. 1983 for alleged deprivations of their rights under the First Amendment and the Equal Protection Clause of the federal Constitution. Brady responded with a motion to dismiss on the basis of legislative immunity. The district court agreed that this doctrine blocks all of McCann and Mcdaniels's theories and dismissed the case. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Nicole Bogart, et al. v. Vermilion County, Illinois, et al.

Case No.: 18-1719

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

Focus: 1st Amendment Violation

Nicole Bogart, a Democrat, worked as the Financial Resources Director of Vermilion County, Illinois, but her tenure ended when Michael Marron, a Republican, assumed control of the County Board and fired her. She responded by bringing claims under the First Amendment and Equal Protection Clause, alleging that Vermilion County and Marron violated her right of political affiliation and engaged in political retaliation. The district court dismissed the equal protection claim as duplicative of the First Amendment claim, and, after finding that the substantial fiscal and budgetary responsibilities of Bogart's position fit within the Elrod-Branti exception to political patronage dismissals, granted summary judgment for the defendants on her First Amendment claim. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Gwendolyn Jackson

Case No.: 17-3350

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

Focus: Sentencing Guidelines

Gwendolyn Jackson was convicted in the United States District Court for the Northern District of Illinois on charges arising out of a scheme to defraud mortgage lenders. Specifically, a jury found her guilty of two counts of wire fraud, in violation of 18 U.S.C. 1343, and one count of mail fraud, in violation of 18 U.S.C. 1341. The district court sentenced Ms. Jackson to 112 months' imprisonment on each of her three counts, to be served concurrently. It also imposed concurrent three-year terms of supervised release, along with a $300 special assessment and restitution in the amount of $8,515,570.

Ms. Jackson appealed her conviction and her sentence. We affirmed the conviction but vacated the sentence. United States v. Jackson, 787 F.3d 1153, 1161 (7th Cir. 2015). With respect to sentencing, we held that the district court erroneously applied the obstruction-of-justice enhancement, given its finding that Ms. Jackson did not commit perjury at trial. Id. at 1160. At resentencing, the district court removed the obstruction-of-justice enhancement and imposed a new sentence of 100 months' imprisonment. It did not change the remaining elements of the sentence: Ms. Jackson also received concurrent three-year terms of supervised release, a $300 special assessment, and restitution in the amount of $8,515,570.

We review allegations of procedural error in a district court's imposition of supervised release conditions de novo. United States v. Moore, 788 F.3d 693, 696 (7th Cir. 2015). Ms. Jackson submits, and the Government agrees, that the district court erred when it imposed a supervised release condition in the written judgment that was not orally announced at sentencing.

We have held that when "an inconsistency exists between an oral and the later written sentence, the sentence pronounced from the bench controls." United States v. Alburay, 415 F.3d 782, 788 (7th Cir. 2005) (quoting United States v. Bonanno, 146 F.3d 502, 511 (7th Cir. 1998)). This rule includes conditions of supervised release. See United States v. Kappes, 782 F.3d 828, 86263 (7th Cir. 2015); United States v. Johnson, 765 F.3d 702, 711 (7th Cir. 2014). Because the notification condition here was not pronounced from the bench, it must be vacated.

Therefore, Ms. Jackson's sentence is VACATED, and we REMAND to the district court so that it may enter a corrected judgment without the supervised release condition that Ms. Jackson notify a probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer.

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Robert W. Huber, Jr., v. Gloria Anderson, et al.

Case No.: 17-1302

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

Focus: Sentencing Probation

In 1988, Robert W. Huber, Jr., pleaded guilty to making fraudulent credit card charges in the amount of $800. He spent the next 25 years either on probation or in prison for violating the terms of his probation. Yet Wisconsin had no lawful basis for extending his sentence beyond November 3, 1995. It took the state until 2014 to recognize this problem and to vacate his ongoing sentence.

After his release, Huber filed this action. He sued several state officials for his prolonged sentence and related wrongs. The district court granted the defendants' motion for summary judgment, ruling that Huber had failed to bring most claims within six years of their accrual, as was then required under Wisconsin's statute of limitations. The court ruled that some of Huber's claims were timely, but it granted the defendants summary judgment on the merits of those claims. We conclude that Huber's claims were timely and that summary judgment was premature on those that the district court reached. We therefore reverse in part, vacate in part, and remand for further proceedings.

Reversed in part. Vacated and remanded in part.

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7th Circuit Court of Appeals

Case Name: Lebamoff Enterprises, Inc., et al v. Bruce V. Rauner, et al.

Case No.: 17-2495

Officials: WOOD, Chief Judge, and KANNE and ROVNER, Circuit Judges.

Focus: 21st Amendment Violation

The Twenty-first Amendment to the U.S. Constitution brought Prohibition to an end with a compromise: section 1 repeals the Eighteenth Amendment, but section 2 hands some power back to the states insofar as it forbids the "transportation or importation" of liquor into a state in violation of that state's law. This post-Prohibition compromise gives the states greater leeway to regulate alcoholic beverages than they enjoy with respect to any other product. But the Supreme Court has decided that this leeway is not boundless. Drawing lines that are sometimes difficult to follow, it has decreed that states may not infringe upon other provisions of the Constitution under the guise of exercising their Twenty-first Amendment powers.

It is quite possible that the Court's disposition of Tennessee Wine will affect the issue now before us. But the question in that case differs from the one now before us, and these differences often matter to the analysis. Our case involves the ability of companies to ship alcoholic beverages to consumers in Illinois; it does not directly address licensure for retail or wholesale establishments. Illinois allows retailers with an instate physical presence to ship alcoholic beverages to consumers anywhere within Illinois. The state refuses, however, to give out-of-state businesses the opportunity even to apply for a similar shipping license. The plaintiffs argue that this difference in treatment violates the Commerce Clause and Privileges and Immunities Clause of the Constitution. Illinois responds that these restrictions fall within its reserved powers under the Twenty-first Amendment and in any event are necessary to protect its legitimate interests in the health and wellbeing of Illinois residents. The district court accepted Illinois's reasoning and dismissed the case with prejudice. We conclude that it was too quick to do so in the face of material contested issues about the necessity for and justifications behind the Illinois statute. We therefore reverse, but with the caveat that there are other aspects of the Illinois lawnot before us at presentthat will be difficult for plaintiffs to surmount if Tennessee Wine does not come out in their favor.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Jerry L. Lewis v. Robert Wilkie

Case No.: 18-1702

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

Focus: EEOC Claim Retaliation

Jerry Lewis is an employee of the United States Department of Veterans Affairs (the "Agency"). Lewis worked as a cook in the Nutrition and Food Service Department from December 2008 until September 2009 and then again from December...