Articles Posted in US Court of Appeals for the Seventh Circuit

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The Victims of Trafficking and Violence Protection Act of 2000, 8 U.S.C. 1101(a)(15)(U) created a new nonimmigrant visa classification that permits immigrants who are victims of serious crimes and who assist law enforcement to apply for and receive a nonimmigrant visa called a U-visa. There is a statutory cap of 10,000 U-visas each fiscal year. Since 2009, the U-Visa backlog has increased from 21,138 to 177,340 pending applications. Calderon-Ramirez, a citizen of Guatemala, entered the U.S. in 2002 and was the victim of an attack in 2014. He filed a petition for U Nonimmigrant Status in February 2015 and is waiting to be evaluated for the waiting list. In 2016, he sought a writ of mandamus, to compel Homeland Security to adjudicate his petition. The Seventh Circuit affirmed the dismissal of his suit. Ramirez did not set forth any facts that differentiate himself from other petitioners waiting ahead of him for adjudication. While there are instances when the government can and will expedite a petition, Ramirez failed to present a situation appropriate to warrant such an action. The court stated that the wait Ramirez faces is not unreasonable. View "Calderon-Ramirez v. McCament" on Justia Law

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Marybeth Lauderdale served as acting superintendent and superintendent for the Illinois School for the Deaf (ISD), 2006-2010. During her last year as superintendent, she was paid a total of $88,048. Reggie Clinton was superintendent for the School for the Visually Impaired (ISVI), 1998-2003 and again, 2008-2010. When Clinton returned to ISVI in 2008, he received a 1.9% salary increase from his most recent salary at the Arcola School District. He was paid, at the end of his tenure at ISVI, $121,116 per year. After Clinton resigned, the Illinois Department of Human Services, which oversees ISD and ISVI, created one combined superintendent role to cover both schools and offered Lauderdale the role. Lauderdale wanted to be paid as much or more than Clinton had been paid but eventually accepted a salary of $106,500. Lauderdale sued, alleging sex discrimination under the Equal Pay Act, Title VII of the Civil Rights Act of 1964, and 42 U.S.C. 1983. The district court concluded no reasonable juror could find the pay discrepancy was a product of sex discrimination and that the discrepancy resulted from budget concerns and from the application of the Illinois Pay Plan. The Seventh Circuit affirmed, agreeing that the record indicated that the pay discrepancy was not based on sex. View "Lauderdale v. Illinois Department of Human Services" on Justia Law

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Thirteen Illinois municipalities claimed that the online travel agencies (OTAs), including Expedia, Priceline, and Travelocity, have withheld money owed to them under their local hotel tax ordinances. The OTAs operate their online travel websites under the “merchant model”; customers pay an OTA directly to reserve rooms at hotels the OTA has contracted with. The participating hotels set a room rental rate. The OTA charges the customer a price that includes that rate, the estimated tax owed to the municipality, and additional charges for the OTA’s services. After the customer’s stay, the hotel invoices the OTA for the room rate and taxes and remits the taxes collected to the municipality. Contracts between hotels and the OTAs confirm that the OTAs do not actually buy, and never acquire the right to enter or grant possession of, hotel rooms. The municipalities claim that OTAs do not remit taxes on the full price that customers pay. The Seventh Circuit affirmed summary judgment in favor of the OTAs. None of the municipal ordinances place a duty on the OTAs to collect or remit the taxes, so the municipalities have no recourse against the OTAs View "Village of Bedford Park v. Expedia, Inc." on Justia Law

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At 5:33 p.m. on April 18, 2013, a 14‐barge tow pushed by the M/V Dale Heller on the Illinois River was sucked into a powerful cross‐current and broke up. Some of the barges crashed (allided) into the Marseilles Dam; some sank; some were saved. The accident happened during record‐breaking rains and high water. A day later, the nearby town of Marseilles experienced significant flooding. Flood Claimants sued to recover for their flood damage. The district court ruled that the United States, which manages the Dam through its Army Corps of Engineers, was immune from suit for its role in the allision, and that the Corps was solely responsible for the accident. Flood Claimants appealed, arguing that the company that owns and operates the Dale Heller shared some of the blame because of its failure to follow inland navigation rules and its more general negligence. The Seventh Circuit affirmed; the facts found by the district court were not clearly erroneous, and those facts support the court’s assignment of sole responsibility to the Corps. Because of the discretionary function exception to the Federal Tort Claims Act, the Corps cannot be sued for the actions of its lockmaster, however negligent or inexplicable they may have been. View "Alexander v. Ingram Barge Co." on Justia Law

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Taylor, a citizen of Ireland, entered the U.S. in 2000 on a visitor’s visa. In 2008, Taylor was the victim of perjury, a qualifying crime under the Victims Protection Act., 8 U.S.C. 1101(a)(15)(U), which created the non-immigrant U-Visa program. The Act became law in 2000, but no regulations were issued for seven years. The issuance of U-Visas in large numbers began in 2009. The FBI certified that Taylor had provided the necessary assistance with the prosecution of the crime, Taylor applied for a U-visa in 2014. U.S Citizenship and Immigration Services (USCIS) determined that Taylor was eligible, but placed him on a waiting list because the statute prohibits the issuance of more than 10,000 U-visas per year. USCIS granted Taylor discretionary relief that defers removal and confers employment authorization benefits. Taylor filed suit, alleging that USCIS’s delay in promulgating regulations caused the backlog and asked the court to compel USCIS to immediately issue 80,000 U-visas to those on the waiting list. The court determined that Taylor lacked standing and dismissed his complaint. The Seventh Circuit affirmed. The agency lacks the statutory authority to give the relief sought. The U-visa limit was reached in 2016 and 2017. Taylor lacks constitutional standing; a court cannot review his claims at all, nor determine whether there was an unreasonable delay or a non-discretionary duty under the APA to compel USCIS to issue U-visas. View "Taylor v. McCament" on Justia Law

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The Indianapolis Land Bank was created to return tax-delinquent and other troubled properties into productive use. But, in 2011, Walton, the Land Bank’s manager, and Johnson began orchestrating the sale and resale of the city’s properties through a nonprofit loophole and pocketing the profits. The total loss to the city was $282,782.38. Johnson and Walton were convicted of honest services wire fraud, wire fraud, and conspiracy to engage in money laundering. Walton was also convicted of receiving bribes. The Seventh Circuit affirmed. The government provided substantial evidence that the two had specific intent, including evidence of kickbacks and making false statements, and provided to substantial evidence to support the money laundering convictions. Rejecting Walton’s argument that the court’s instruction on 10 U.S.C. 666 permitted the jury to convict him of accepting a gratuity and not a bribe, the court stated that the instruction and evidence made clear that Walton was convicted of accepting bribes, not gratuities. The convictions required proof of their bad intent (specific intent to commit fraud), so a good faith jury instruction was unnecessary. Both were properly subject to sentencing enhancements because their offenses involved a public official in a high-level decision-making position and they victimized vulnerable families. View "United States v. Johnson" on Justia Law

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The Federal National Mortgage Association (Fannie Mae) and Federal Home Loan Mortgage Corporation (Freddie Mac) are federally-chartered, privately-owned corporations, created by Congress to bolster the housing market. In 2008, the Federal Housing Finance Agency (FHFA) was appointed as conservator for both. Both purchase mortgages from third-party lenders, bundle them and sell mortgage-backed securities. When a borrower defaults, Fannie Mae or Freddie Mac forecloses and takes title to the property securing the loan, for sale to a private buyer. In 2013-2014, the buyers purchased Chicago property from Fannie Mae. Chicago imposes a Real Property Transfer Tax on the purchaser. The supplemental “CTA portion” of the transfer tax is paid by the transferor, unless the transferor is legally exempt, in which case the transferee is held responsible. The Illinois Department of Finance ruled that each buyer was liable for the tax. The district court held that the tax was preempted by the federal exemption statutes. The Seventh Circuit reversed. In 2013, the Seventh Circuit held that state and local taxing authorities could not charge Fannie Mae, Freddie Mac, or FHFA with transfer taxes because such taxes are preempted by federal laws exempting these entities from all taxation, but that reasoning does not apply when the tax is imposed on the purchaser. View "Federal National Mortgage Association v. City of Chicago" on Justia Law

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The Department of Housing and Urban Development (HUD), which implements the Fair Housing Act, offers insurance to mortgage lenders to decrease the risk borne by private industry and encourage lending. HUD maintains the viability of this scheme by prohibiting individuals with criminal records from owning or being employed by, a mortgage company. The government sued Luce under the False Claims Act (FCA), 31 U.S.C. 3729, and the Financial Institutions Reform, Recovery, and Enforcement Act, 12 U.S.C. 1833a, alleging that Luce falsely asserted that he had no criminal history so that his company could participate in the FHA’s insurance program. The district court granted the government summary judgment. The Seventh Circuit reversed. While rejecting arguments that the certifications were not material and that lingering issues of material fact precluded summary judgment, the court concluded that the Supreme Court’s 2016 “Escobar” decision required reconsideration of the traditional “but-for” FCA causation standard. Proximate cause is the appropriate test. Whether, under the proximate cause standard, the government can establish that Luce’s falsehood was the proximate cause of its harm, was not adequately addressed. View "United States v. Luce" on Justia Law

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In 2011, Cosenza sought disability benefits on behalf of her minor son. An ALJ determined that J.M.F. was not disabled. The Appeals Council denied her request for review. Cosenza argued that the ALJ improperly found that her son’s autism and Asperger’s syndrome were not “medically determinable” impairments. The district judge granted Cosenza summary judgment and remanded under 42 U.S.C. 405(g); 5), terminating the case in the district court. On remand, another ALJ conducted a hearing in March 2016. In June Cosenza filed a motion in the closed federal case to hold the Commissioner in contempt “for not following court-ordered remand.” In July the ALJ ruled against Cosenza. Cosenza did not wait for the decision to become final but moved for summary judgment in the closed federal case and filed a letter with the Appeals Council requesting review. The district court granted the agency’s motion to strike, reasoning that it had relinquished jurisdiction over Cosenza’s first case; as to most recent decision, the administrative appeals process had not finished so no final decision existed for judicial review. Cosenza had not shown that the Commissioner violated the court’s remand order. The Seventh Circuit affirmed. A district court lacks jurisdiction under the Social Security Act to review an ALJ’s unfavorable decision until the agency’s decision is final; the Appeals Council has not yet decided whether to review the ALJ’s decision. View "Cosenza v. Berryhill" on Justia Law

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In 2014, the Seventh Circuit held that the Attorney General has authority under 8 U.S.C. 1182(d)(3)(A)(ii) to waive an alien’s inadmissibility and to halt removal temporarily while the alien requests a U visa. In Sanchez’s case, the Board of Immigration Appeals held that IJs lack authority to grant such requests. The Seventh Circuit vacated and remanded. Delegation from the Attorney General to immigration judges is a matter of regulation; 8 C.F.R. 1003.10(a) states that “[i]mmigration judges shall act as the Attorney General’s delegates in the cases that come before them.” Disagreeing with the Third Circuit and the Attorney General, the Seventh Circuit held that IJs may exercise the Attorney General’s powers over immigration. On remand, the Board may consider whether 6 U.S.C. 271(b) and 557 transfer to the Secretary of Homeland Security all of the Attorney General’s discretionary powers under the immigration laws and may also address whether the power to grant a waiver of inadmissibility may be exercised only in favor of an alien who has yet to enter the United States. The Board must address and resolve those essential issues before the court can consider whether the disposition lies within the scope of the agency’s discretion. View "Baez-Sanchez v. Sessions" on Justia Law