Weekly Case Digests March 14, 2022 - March 18, 2022.

• Author: Hawkins, Derek
• Position: Brian Lax v. Alejandro Mayorkas, Secretary of U.S. Department of Homeland Security, Curtis Lovelace v. Adam Gibson and State of Wisconsin v. Mark S. Miller

Byline: Derek Hawkins

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Brian Lax v. Alejandro Mayorkas, Secretary of U.S. Department of Homeland Security

Case No.: 20-3288

Officials: SYKES, Chief Judge, and FLAUM and JACKSONAKIWUMI, Circuit Judges.

Focus: ADA and Rehabilitation Act Violation Equitable Tolling

Plaintiff-appellant Brian Lax brought suit against defendant-appellee Secretary of the Department of Homeland Security, alleging that the agency, his employer, had discriminated against him in violation of the Rehabilitation Act of 1973, 29 U.S.C. 701 et. seq. (the "Act"). The Act requires that suits be brought within ninety days of receiving the final agency decision and notice of the right to sue. Because Lax filed his suit on the ninety-first day after receiving this notice, we affirm the district court's dismissal on timeliness grounds.

Affirmed

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7th Circuit Court of Appeals

Case Name: Latrina Cothron v. White Castle System, Inc.,

Case No.: 20-3202

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

Focus: Illinois Biometric Information Privacy Act Violation Statute of Limitations

Latrina Cothron works as a manager at an Illinois White Castle hamburger restaurant where she must scan her fingerprint to access the restaurant's computer system. With each scan her fingerprint is collected and transmitted to a third-party vendor for authentication. Cothron alleges that White Castle did not obtain her written consent before implementing the fingerprint-scanning system, violating the Illinois Biometric Information Privacy Act. She brought this proposed class-action lawsuit on behalf of all Illinois White Castle employees.

White Castle moved for judgment on the pleadings based on the statute of limitations. The restaurant argued that a claim accrued under the Act the first time Cothron scanned her fingerprint into the system after the law took effect in 2008. That was more than a decade before she sued, making her suit untimely under the longest possible limitations period. Cothron responded that every unauthorized fingerprint scan amounted to a separate violation of the statute, so a new claim accrued with each scan. That would make her suit timely for the scans within the limitations period.

The district judge rejected White Castle's "one time only" theory of claim accrual and denied the motion. But he found the question close enough to warrant an interlocutory appeal under 28 U.S.C. 1292(b). Cothron now asks us to certify the question to the Illinois Supreme Court.

We agree that this issue is best decided by the Illinois Supreme Court. Whether a claim accrues only once or repeatedly is an important and recurring question of Illinois law implicating state accrual principles as applied to this novel state statute. It requires authoritative guidance that only the state's highest court can provide.

Decision

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7th Circuit Court of Appeals

Case Name: United States of America v. John Buncich

Case No.: 20-2569

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

Focus: Sentencing Guidelines

Defendant John Buncich served as Sheriff of Lake County, Indiana. As sheriff, he received thousands of dollars from local towing companies. In return, those companies received lucrative towing contracts within the county. A jury convicted Buncich of wire fraud and bribery in 2017, and he was sentenced to 188 months in prison. Following an earlier appeal that vacated three of the six counts of conviction, he was resentenced to 151 months.

Buncich now challenges that decision on three grounds. He argues that the district court erred in its Sentencing Guideline calculation, that the court failed to explain its guideline findings sufficiently and made other procedural errors, and that his sentence was substantively unreasonable. We reject all three arguments and affirm his sentence.

Affirmed

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7th Circuit Court of Appeals

Case Name: St. Augustine School, et al., v. Jill Underly, et al.,

Case No.: 17-2333

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

Focus: Statutory Interpretation School District Transportation

The State of Wisconsin provides transportation benefits to most of its school-aged children. See Wis. Stat. 121.51, 121.54. For private-school students, however, it limits those benefits to only one school "affiliated or operated by a single sponsoring group" within any given attendance area. That may seem like a straightforward criterion, but the fact that this case is now on its second trip to the Seventh Circuit, after intermediate stops at the Supreme Court of the United States and the Wisconsin Supreme Court, demonstrates that complexities abound when a private school's affiliation is religious in nature. The particular question before us is whether the state Superintendent of Public Instruction, then Tony Evers (the present Governor of the state), correctly decided that St. Augustine School, a freestanding entity that describes itself as Catholic but independent of the church's hierarchy, is "affiliated with or operated by" the same sponsoring group as St. Gabriel High School, which is run by the Archdiocese of Milwaukee and therefore indisputably Catholic. (Governor Evers's successor in the post of Superintendent is now Jill Underly, whom we have substituted as the appellee.)

We conclude that the Superintendent's decision in the case before us was not justified by neutral and secular considerations, but instead necessarily and exclusively rested on a doctrinal determination that both St. Augustine and St. Gabriel's were part of a single sponsoring groupthe Roman Catholic churchbecause their religious beliefs, practices, or teachings were similar enough. The fact that the Superintendent reached this result largely just by looking at St. Augustine's description of itself on its website does not matterthe doctrinal conclusion was an inescapable part of the decision. We therefore reverse the judgment of the district court and remand for further proceedings.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Xavier Elizondo, et al.,

Case No.: 20-2167; 20-2366

Officials: SYKES, Chief Judge, and FLAUM and BRENNAN, Circuit Judges.

Focus: Sufficiency of Evidence

Chicago Police Officers Xavier Elizondo and David Salgado used their positions to embezzle drugs and cash, some of which they distributed to informants. As part of their scheme, they encouraged informants to present false information to state judges to obtain search warrants, which in turn yielded more drugs and cash. The FBI caught on and initiated sting operations. The first sting failed because officers discovered security cameras the FBI had set up at a vacant apartment, leading the defendants to inventory the full amount of money they recovered there. After seeking and obtaining court authorization to wiretap Elizondo's phone, the FBI conducted another sting operation. In the second sting agents recorded Elizondo and Salgado stealing cash they recovered from an FBI-controlled rental vehicle. Salgado saw law enforcement towing the rental vehicle the next day, and he told Elizondo, who in turn instructed Salgado to "relocate" items from Salgado's home.

A grand jury indicted Elizondo and Salgado on conspiracy and theft charges related to their scheme. Elizondo was also charged with obstruction of justice for instructing Salgado to destroy or conceal evidence. They went to trial and a jury found them guilty on all counts. Elizondo and Salgado appeal: (1) the use of the evidence obtained from the government's wiretap application; (2) the district court's Batson inquiry during jury selection; (3) the sufficiency of evidence on the obstruction charge; and (4) the district court's calculation of the intended loss under the Sentencing Guidelines.

We find no reversible error. The wiretap application was not an improper subterfuge search because the government was forthright about the scope of its investigation. Likewise, we can trace the logic of the district court's Batson inquiry, and that court followed the applicable steps. The evidence presented at trial on the obstruction charge was sufficient for the jury to infer that Elizondo acted with the intent to prevent the use of evidence in an official proceeding. Finally, there was no clear error in the district court's loss calculation at sentencing. We therefore affirm Elizondo and Salgado's convictions and sentences.

Affirmed

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7th Circuit Court of Appeals

Case Name: Brooke Persinger v. Southwest Credit Systems, L.P.,

Case No.: 21-1037

Officials: MANION, WOOD, and BRENNAN, Circuit...