Weekly Case Digests June 10, 2019 June 14, 2019.

Byline: Rick Benedict

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Christopher Jozefyk v. Nancy A. Berryhill

Case No.: 18-1898

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

Focus: ALJ Error Disability Benefits

Christopher Jozefyk applied for Disability Insurance Benefits and Supplemental Security Income, claiming disability based on several physical and mental conditions, including degenerative changes in his cervical spine, lumbar strain, obesity, affective disorder, and anxiety disorder. An Administrative Law Judge denied benefits, and the district court concluded that substantial evidence supported the ALJ's decision. Jozefyk raises two arguments on appeal: (1) the ALJ did not establish a valid waiver of attorney representation before allowing Jozefyk to proceed pro se at the hearing, and (2) the residual functional capacity finding did not account for Jozefyk's moderate limitations in concentration, persistence, or pace. Because the record does not substantiate either argument, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Yelena Levitin, et al. v. Northwest Community Hospital, et al.

Case No.: 16-3774

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

Focus: Title VII Violation Discrimination

For nearly thirteen years, Dr. Yelena Levitin performed surgeries at Northwest Community Hospital in Arlington Heights, Illinois. In January 2013 the hospital terminated her practice privileges. She brought this Title VII suit claiming that Northwest discriminated against her based on her sex, religion (Jewish), and ethnicity (Russian). The hospital responded that Levitin wasn't its employee, precluding her Title VII claim. The district judge agreed and entered summary judgment for Northwest.

We affirm. There is no genuine dispute here. Levitin was an independent physician with practice privileges at the hospital. She was not the hospital's employee.

Affirmed

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7th Circuit Court of Appeals

Case Name: Victor Martin Villa Serrano v. William P. Barr

Case No.: 18-2886

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

Focus: Immigration Jurisdiction

In 2007, Victor Martin Villa Serrano ("Villa") reentered the United States after having been removed in 2005. When he came to the attention of the government in 2018, a deportation officer for U.S. Immigration and Customs Enforcement ("ICE") determined that Villa had illegally reentered the United States and was subject to reinstatement of the prior removal order. Villa raises a few legal challenges to that conclusion, primarily contending that there is no lawful prior order of removal because the original "Notice to Appear" was legally deficient and the immigration judge therefore lacked jurisdiction to enter the order of removal. Because we lack jurisdiction to review the underlying order of removal, we dismiss the petition for review.

Petition dismissed

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7th Circuit Court of Appeals

Case Name: United States of America v. Ronnie Cornell Cosby

Case No.: 18-2053

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

Focus: Court Error Sufficiency of Evidence

A jury found Ronnie Cosby guilty of several sex-related offenses, including transporting T.L., a minor, from Illinois to Indiana with the intent that she engage in prostitution. On appeal, Cosby seeks a new trial based on five claims of error. Specifically, he challenges the district court's denial of his sixth motion for a continuance; denial of his motion for a judgment of acquittal on Count III; denial of his motion for a mistrial based on Agent Landau's false testimony; failure to take appropriate precautions for a government witness's dual-capacity testimony; and denial of his motion to suppress. As we explain below, Cosby's claims of error fail, and we therefore affirm the judgment of the district court.

Affirmed

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7th Circuit Court of Appeals

Case Name: Robert Lowinger, et al. v. Douglas R. Oberhelman, et al.

Case No.: 18-1863

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

Focus: Breach of Fiduciary Duty

In the fall of 2011 Caterpillar Inc. began making serious inquiries about the possible acquisition of a Chinese mining company, ERA Mining Machinery Ltd., and its wholly-owned subsidiary, Zhengzhou Siwei Mechanical & Electrical Equipment Manufacturing Co., Ltd. (We refer to the two companies as "Siwei" for simplicity.) Caterpillar completed that acquisition in June 2012. Only after the closing did Caterpillar gain access to Siwei's physical inventory. What it found was unsettling. An inspection of the inventory revealed that Siwei had overstated its profits and improperly recognized revenue. As a result, Caterpillar took a $580 million goodwill impairment charge just months after the acquisition was completed. Plaintiffs Robert Lowinger and Issek Fuchs, both Caterpillar shareholders, now bring this shareholder derivative suit alleging that several former Caterpillar officers breached their fiduciary duties by failing to conduct an adequate investigation of the Siwei acquisition. (We call them the Lowinger Plaintiffs.) That failure, they contend, caused Caterpillar's loss. The Lowinger Plaintiffs made a demand that the Caterpillar Board bring this litigation; the Board refused; and in this lawsuit, they argue that the Board's refusal was improper.

The district court granted the Officers' motion to dismiss the complaint for failure adequately to allege that the Board wrongfully refused to pursue the Lowinger Plaintiffs' claim, FED. R. CIV. P. 23.1(b)(3); it then denied plaintiffs' motion for leave to amend. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Spectrum Brands, Inc.

Case No.: 18-1785

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

Focus: Time-barred

The district court found that Spectrum Brands, Inc. ("Spectrum") violated section 15(b) of the Consumer Product Safety Act ("CPSA" or the "Act"), 15 U.S.C. 2064(b)(3), when its subsidiary failed to timely report to the government a potentially hazardous defect in its Black & Decker SpaceMaker coffeemaker despite years' worth of consumer complaints about the product. Following an evidentiary hearing as to the appropriate remedy for the reporting violation, the court entered a permanent injunction which, in its final form, requires Spectrum to adhere to its newly implemented CPSA compliance practices and to retain an independent consultant to recommend additional modifications to those practices. Spectrum appeals, contending both that the government's late-reporting claim is barred by the statute of limitations, that the district court had no authority to enter a forward-looking injunction, and that the court otherwise abused its discretion in awarding permanent injunctive relief, including the requirement that it engage the expert. Finding no merit in any of these challenges, we affirm the judgment.

Affirmed

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7th Circuit Court of Appeals

Case Name: Antonio Lopez-Aguilar v. Marion County Sheriff's Department

Case No.: 18-1050

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

Focus: Injunctive Relief

Antonio Lopez-Aguilar brought this action against the Marion County Sheriff's Department ("the Sheriff's Department"), Sheriff John R. Layton, in both his official capacity and his individual capacity, and a sergeant of the Sheriff's Department, in his individual capacity (together, "the defendants"). His complaint set forth one claim under 42 U.S.C. 1983. He alleged that when the defendants detained him for transfer into the custody of Immigration and Customs Enforcement ("ICE"), they violated his Fourth Amendment rights. Mr. Lopez-Aguilar also brought supplemental claims, based on Indiana law, for false arrest and false imprisonment. His complaint sought damages and a declaration that the defendants had violated his rights by detaining him. He did not seek injunctive relief.

The parties later proposed, and the district court subsequently entered, a Stipulated Final Judgment and Order for Permanent Injunction ("the Stipulated Judgment"), which granted declaratory and prospective injunctive relief but dismissed with prejudice Mr. Lopez-Aguilar's damages claims. Following the entry of final judgment, but within the time for appeal, the State of Indiana ("the State" or "Indiana") moved to intervene for the purpose of appealing the district court's order entering the Stipulated Judgment. The district court denied Indiana's motion to intervene. The State now appeals that denial.

Indiana has standing for the purpose of bringing this appeal. The State's motion to intervene was timely, and it also fulfilled the necessary conditions for intervention of right. Finally, the State has demonstrated that the district court was without jurisdiction to enter prospective injunctive relief. Therefore, for the reasons set forth more fully below, we reverse the judgment of the district court and remand the case for proceedings consistent with this opinion.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: John E. Sparre v. United States Department of Labor, Administrative Review Board, et al.

Case No.: 18-1105; 18-2348

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

Focus: ALJ Error Equitable Tolling

John Sparre, a locomotive engineer who previously worked for Norfolk Southern Railway Company, challenges the final orders and judgments entered in his lawsuit asserting violations of the Federal Railroad Safety Act, 49 U.S.C. 20109. This case involves two appeals: one from the entry of summary judgment by an administrative law judge (No. 18-1105), and one from the dismissal of Sparre's case by the Administrative Review Board (No. 18-2348). Because Sparre failed to timely exhaust his administrative remedies before appealing to this court, we deny his petition for review of No. 18-1105...