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A Summary of Judge Barrett’s Opinions

UPDATES:

Empirical SCOTUS has published a broad examination of Judge Barrett’s decision-making while on the Court of Appeals. SCOTUSBlog has also published a series of articles on her jurisprudence in specific areas. Because this summary is more specific than the former (analysing specific cases) and further-reaching than the latter (specifically including cases that do not appear significant) I will continue to update it.

If you would like a curated list of opinions to read, it is available here.

I believe that confirming Justice Barrett was wrong, for reasons I explain here.

As you are surely aware, President Donald Trump has nominated Judge Amy Coney Barrett to the Supreme Court of the United States. Lists of her judicial opinions have therefore been released by SCOTUSblog and the Congressional Research Service. To the best of my knowledge, these cases have not yet been summarised in a manner that is available to the public. I have therefore endeavoured to do so. The summary is accessible through the links below. I’ve tried to write in a manner that is comprehensible to non-lawyers and, where not obvious, to explain the impact of a decision on the parties. I have not tried to explain the law or analyse whether Judge Barrett’s decision was correct.

This is not a complete summary of Judge Barrett’s cases. Rather, this is a summary of the cases in the above lists. Those lists are far from exhaustive, because they only include judicial opinions for which Judge Barrett is listed as the author. They do not include per curiam opinions to which Judge Barrett contributed, such as Grussgott v. Milwaukee Jewish Day School, which Judge Barrett listed as the sixth most significant decision she wrote. [2020 Questionnaire at 42-43] They do not include decisions that Judge Barrett chose to join but did not write, which may reveal as much of her judicial philosophy as those she did (often on highly contentious issues, such as abortion). While I may include some such cases when they are brought to my attention, I have neither the time nor the money to find all (or even most) of those cases.

Similarly, this is not a thorough examination of the cases on which Judge Barrett ruled. Generally, I have not read the briefs or underlying opinions, so I have had to accept the author’s characterisation of the facts and law. When I have read part of a case document, I have not necessarily read all of it. I describe the facts as they effectively were for the court’s decision, which also may not accurately reflect what happened. I hope that these summaries will enable more knowledgeable lawyers to identify significant cases and research them more thoroughly.

I hope to have summarised all the opinions by the beginning of the confirmation hearings on the 12th of October. In the likely event that I fail, I would like to remind you that these hearings are being held with unusual (I dare say excessive) haste. Of the past four nominations to the Supreme Court, the shortest period from nomination to confirmation hearings was 48 days. (Justice Sotomayor was nominated on 26 May, hearings began on 13 July; Justice Gorsuch was nominated on 31 January, hearings began on 20 March.) The period from Judge Barrett’s nomination (26 September) to the first day of hearings (12 October) is only 16 days.

As you have probably inferred, I am not a native of the United States. I assure you that I am a properly trained and qualified U.S. lawyer. Nevertheless, I will be using my preferred spelling.

Finally, I apologise to any of the case participants. I am not only bringing these events to the attention of a wider audience, I will often be doing so in a way that casts you in an unfairly negative light. Indeed, to avoid the appearance of bias, I will be trying to portray everyone as harshly as I can.

ENTRIES

With a few exceptions, the decisions are grouped by the subject matter of the underlying lawsuit, not based on the legal issue actually addressed by the decision. This classification is at least partially arbitrary and a given decision will only be listed in one category, even if it might belong in others.

CONTRACTS
Insurance and Warranties (updated on 12 October to correct an omission)
Arbitration

CRIMINAL CASES
Decisions applying the First Step Act
Other criminal law decisions:

EMPLOYMENT
First Set (updated on 20 October to correct an omission)
Second Set
Third Set

ENVIRONMENTAL LAW

GUN RIGHTS

GOVERNMENT
Acevedo – Cleven
Doe v. Purdue University
Groves – VHC

IMMIGRATION (updated on 25 October)

LAW ENFORCEMENT MISCONDUCT
Deception, Framing, and Cover-Ups
Other Wrongdoing
Mistreatment of Prisoners and Detainees

TORTS

OTHER STATUTORY CIVIL LAW CLAIMS
First Set
Second Set

REFERENCES (excluding cases)

2020 Questionnaire: Questionnaire for Nominee to the Supreme Court
Becket Fund Brief: The brief of the Becket Fund for Religious Liberty as amicus curiae in Grussgott v. Milwaukee Jewish Day School.
Bruce Order: An order by the Judicial Council of the Seventh Circuit regarding complaints against Judge Colin Bruce (Nos 07-18-90053 and 07-18-90067)
Bruce Report: A report by a Special Committee to the Judicial Council of the Seventh Circuit regarding complaints against Judge Colin Bruce (Nos 07-18-90053 and 07-18-90067)
Carter Complaint: The complaint in Carter v. City of Alton, No. 3:17-cv-00897, in the U.S. District Court for the Southern District of Illinois
Catholic Judges: Catholic Judges in Capital Cases, a law review article written by Justice Barrett shortly after she graduated from law school.
Crowder Complaint: The complaint in Crowder v. City of Alton, No. 3:17-cv-00896, in the U.S. District Court for the Southern District of Illinois (essentially identical to the Carter Complaint)
Conroy Brief: The brief for the appellant, Bill Conroy, in Conroy v. Thompson.
Emmis Brief: The brief for appellee, Emmis Communications Corp., in Emmis Communications Corp. v. National Life Insurance Co.
Emmis Petition: A petition for rehearing, both before the panel and en banc, of the panel’s decision in Emmis Communications Corp. v. National Life Insurance Co.
Emmis Order: An order vacating the panel’s decision in Emmis Communications Corp. v. National Life Insurance Co.
O’Neal Brief: Harry O’Neal’s brief to the Court of Appeals for the 7th Circuit in O’Neal v. Reilly.
POP Brief: The plaintiffs’ brief in Protect Our Parks v. Chicago Park District.
Thompson Brief: the brief for the appellee, Scott Thompson, in Conroy v. Thompson.

My Objection to Confirming Justice Barrett

A more thorough (and therefore longer) version of this argument is available here.

Exactly one week ago, the United States Senate confirmed Justice Amy Coney Barrett’s position on the Supreme Court of the United States. By that point, most Americans had decided that the seat should be filled. Nevertheless, a significant minority believed otherwise, many of us for reasons unrelated to the qualities of then-Judge Barrett. You’ve probably heard the reasons why, in the form of a conclusory sentence or question-begging rant, but I think it would help to re-state the explanation in more detail.

The commonly given short version is “the Republicans stole this seat from Merrick Garland.” That is not illuminating. A more accurate statement would be that, frankly, this was the latest step in a conservative march to seize power through politicising the courts.

“But what about what the Democrats’ attempts to seize power through politicising the courts?” We’ll get to the Democrats, don’t worry, but we need to explore what happened before we can get into whether it was justified.

Let’s start with the assumption that the Supreme Court, like any court, should be staffed by impartial judges who interpret the law to the best of their ability. That might seem simplistic, even unrealistic, given the current state of the federal judiciary in general and the Supreme Court in particular. I doubt I could believe it had I been brought up in the United States. Nevertheless, if it is a fiction, it is a fiction that most Americans pretend to accept. More importantly, if the Supreme Court has become the ultimate political body that many now believe it to be, we need to decide how to change the structure of the Court to reflect that. We persist in treating it as a court, so I will do the same.

Now, some context. First, we have to consider the nature of the Supreme Court itself. The Supreme Court of the United States is able to choose which of the litigation submitted to it to hear. Most political issues are now litigated and most of that litigation is submitted to the Supreme Court. It would be an exaggeration to say that the Supreme Court can involve itself in whichever political issues it pleases but not much of an exaggeration. Much of this litigation is brought by Republican politicians or causes aligned with the Republican Party (as is also true of the Democrats but, I repeat, we need to assess what the Republicans did before we evaluate whether it was justified).

Second, we need to consider Republican Senators’ approach to the federal judiciary in general. When Republicans took control of the Senate, it began to block President Obama’s judicial nominees to an unprecedented extent. Perhaps the refusal to consider any of these nominees was based on legitimate concerns about their judicial philosophies but, so far as I am aware, many (perhaps most) of the candidates were intentionally non-controversial. This is also consistent with comments made by senators at the time. Indeed, at least ten judicial candidates nominated by President Obama were later re-nominated by President Trump and confirmed by a Republican Senate! The Republicans also rejected proposed legislation that would have increased the number of federal judgeships. The severe need to increase the number of federal judges was known at the time.

Now we reach the nomination of Judge Garland. Returning to our assumption about the nature of the Court, it should be clear what was appropriate for the Senate: if the Senate deemed him fit for the Court, it should have confirmed him; if it found him insufficiently qualified, or had insurmountable concerns about his judicial philosophy, it should have rejected him so that the President could propose another candidate. In fact, the Senate never even considered his qualifications. Before President Obama had put forth a nominee, Republican members of the Senate had committed to leaving the seat empty, saying that the candidate should be decided in an election that was then nine months away. According to Ballotpedia, only three Republican Senators unambiguously opposed Judge Garland based on his record. A few others were ambiguous on this point. Some Republican Senators specifically praised Judge Garland, whether or not they thought the confirmation process should move forwards. Most refused to address the merits of the individual nominee, either because of the upcoming election or because they were opposed to any judge nominated by President Obama.

In short, Judge Garland’s nomination was not rejected because he was unsuitable for the Supreme Court. It was rejected to prevent President Obama from appointing another justice – any other justice – to the Court.

The rest is (recent) history. President Trump nominated candidates to fill the large number of judicial vacancies that his Party had created. In doing so he has referred to their opposition to abortion and their commitment to the right to bear arms, “public safety,” “free speech,” “religious liberty,” and even (recently) to the integrity of elections. The Republican controlled Senate did what it could to confirm as many of those candidates as possible, as quickly as possible. Although the latest vacancy on the Supreme Court also opened in an election year, significantly closer to election day than had the seat now occupied by Justice Gorsuch, Republican Senators did not leave the seat to be filled after the election.

Moreover, as I’ve objected before, the process went forward with undue haste. The period between a nomination and confirmation hearings is typically a full month longer than it was in this case. There is a good reason for that delay: it ensures that senators are able to scrutinise the candidate’s record; it also means that ordinary lawyers, most of whom are not able to undertake extensive projects at a moment’s notice, have sufficient time to offer their own insights. It would be very optimistic to think that the rushed nature of the hearings was solely responsible for their low quality. It is entirely possible, however, that the rush contributed in some way.

There may well be valid reasons to shorten that period but I haven’t heard any of them put forward. On the contrary, all the reasons seemed to cut against doing so, from the risk of spreading Covid-19 to the imminent election. Perhaps the Senate wanted Justice Barrett to rule on as many cases as possible. I think this weighs the costs and benefits wrongly. Even if Justice Barrett’s presence on the Court a month earlier would change any decisions from wrong to right, which strikes me as improbable, that change would benefit the country (and the rule of law) far less than reducing the politicisation of the Court. I find it more plausible that, for political reasons, the Republican-controlled Senate rushed the confirmation process to ensure that Judge Barrett became Justice Barrett before the election.

That, if you will, is the case for the prosecution. At best, the Republican Party has impeded the judicial selection process for political purposes. At worst, it has actively undermined the independence of the judiciary by selecting judges who would support its policies and opposing the nomination of those who would not. Now, let’s consider the defence.

First, Republicans are fond of ascribing the politicisation of the judiciary to the Democrats. I am no historian, so I will assume that these claims are correct. Certainly, the Democrats have not been paragons of integrity on this score. They, too, opposed bills to expand the federal judiciary despite the recognised need to do so. They frequently base their judicial selections on desirable policy outcomes. Their response to Trump’s judicial nominations, from unjustified opposition to “Republican” judges to their conduct during Supreme Court confirmation hearings, has been indefensible.

Yet, whatever damage the Democrats have caused, it only justifies Republicans’ actions if those actions are directed towards repairing that damage. That isn’t what happened. They did not oppose specific Democratic-nominated judges because of any qualms about judicial ideology, they simply opposed the Democrats’ ability to appoint judges. Furthermore, President Trump has been quite open about selecting judges who will promote certain ends. These ends might be dressed up in the language of constitutional rights but, properly understood, they are clearly the same ends that conservatives seek to promote through other means. Now, conservatives often have valid arguments that the law supports a given policy position. I even think some of those arguments are correct. The thing is, the U.S. Constitution wasn’t drafted by modern conservatives, any more than it was written by their progressive contemporaries. The legislation that courts interpret was enacted by many sessions of Congress – conservative, progressive, and in between – often in response to a very different world. If one concludes that this mélange of history invariably supports one’s policy goals, the only question is whether one is intentionally lying or simply too biased to realise it.

Second, there is the argument that there was nothing inappropriate about the confirmation of Judge Barrett. It is true that the confirmation, in itself, did not violate any long-running historical norms: there is no tradition of refusing to confirm candidates for the Supreme Court during election years (no nominee had yet been proposed so close to the election but one should not infer too much from that fact). This misses the point, which is the inconsistency between the nominations of Judge Garland and Justice Barrett. One cannot take advantage of a rule and then disregard it when it becomes inconvenient.

So, were the circumstances of those nominations essentially equivalent? Should the same rule have governed both? The only significant difference between the two is that, at the time of Justice Barrett’s nomination, the Senate was controlled by the President’s party. Republicans have been consistent in treating this as a significant distinction. Is this distinction, then, actually significant? I do not see how it can be. If the American people is entitled to decide who fills a vacancy that arises in an election year, I do not see how it matters whether the Senate majority and the President are of the same party. Additionally, this distinction is not supported by history. It is true that 1888 was the last time the Senate confirmed a judicial nominee from a president of the other party. The reason for this, however, is simply that the opportunity has not arisen since then: 1888 is the last time a president nominated a candidate to the Supreme Court during an election year while the Senate was controlled by the opposing party.

Two further objections can be raised. The first is that the Senate has not politicised the Court because it cannot actually control the decisions of its appointees. That is, so long as individual judges are not dependent upon political favours or openly political in their decisions, the judiciary as a whole remains independent.

The assumption that judges are independent of politics is naïve. Do judges intentionally violate their oath to impartially uphold the law? As a rule, they do not. Are judges’ rulings influenced, even unconsciously, by their biases and ideology? Of course! This view might sound cynical, even ungentlemanly, but it is far from radical: I could fill a paragraph (and a scholar could fill pages) describing how widely accepted it is among lawyers. Justice Barrett herself has acknowledged as much, in both theory (“Of course judges often have to set aside their personal convictions in order to do justice, but this is easier in some cases than in others”) and practice (reversing a criminal sentence because it might have been influenced by the sentencing judge’s personal bias). [Catholic Judges at 333; United States v. Atwood]

Even so, let’s be naïve. Let’s assume that judges, like Vulcans, fully subordinate all other impulses to logic. Does this mean that stacking the court for political reasons respects judicial independence? The answer has to be no. Judicial review is not supposed to be a formality with a foregone conclusion, it is supposed to be a substantial process in which courts disinterestedly assess the legality and constitutionality of various acts by the legislature and the executive. Ideally, this disinterested review would come from choosing judges who do not strongly favour either party; failing that, it must come from both parties respecting the rules, permitting their adversaries to appoint judges even when it is unfavourable to them. Filling the courts with judges who will vote in politically desirable ways, precisely because they will vote in politically desirable ways, is an evasion of the process in everything except form. That is true even if the judges in question would otherwise be qualified for their position. We recognise this when politicians try it in, for example, Hungary. Why is it any less true in the United States?

The second objection is that Republican politicians are not actually appointing judges. Instead, the nominations are made by conservative lawyers, who choose candidates purely on the basis of qualifications and judicial ideology. Arguably, we are entitled to take our elected representatives at their word, but President Trump has given us reasons to doubt him on the subject of judges. Of the three persons the President has nominated to the Supreme Court, only one was on the lists of candidates he released while seeking election. You yourselves must assess the degree to which you believe recent candidates have been appointed based on political ideology rather than judicial competence and whether you regard that degree as acceptable. In making that assessment, I call to your attention: that the ABA Standing Committee on the Federal Judiciary has rated ten of President Trump’s nominees not qualified; that their confirmation hearings have frequently revolved around extreme political statements; and that at least one candidate has been rejected for being on the wrong side of a political issue.

“To adjudicate” in the United States has become an irregular verb: I apply the law to the facts; you let your political ideology dictate your reasoning; he subverts the Constitution by legislating from the bench. It is increasingly common to hear members of either party talk about a President appointing judges as though it were an act of oppression, rather than an essential part of the President’s duties. The nomination of Justice Barrett was an opportunity to counter-act this ever-increasing politicisation of the courts; that opportunity was not taken and, whichever party wins the election, it seems certain the politicisation will continue to increase. If we wish to have a functional judiciary again, we need to decide the type of courts we want – courts of law or the arbiters of political disputes – and re-structure them accordingly.

Judge Barrett’s Most Significant Opinions

The confirmation vote on Judge Barrett will take place on Monday. Every U.S. Senator who wants to read her judicial opinions has probably already done so, and the rest assuredly know how they will vote, but let’s pretend otherwise. Say there actually were an undecided Senator, looking to Judge Barrett’s opinions to make a decision. Say, even less realistically, that the Senator knew about this blog and was reading it for advice. Which opinions would I advise the Senator to look at?

Judge Barrett herself identified the following eleven opinions as the most important she wrote while on the Court of Appeals for the 7th Circuit:

  1. Kanter v. Barr
  2. Yafai v. Pompeo
  3. Cook County v. Wolf
  4. Doe v. Purdue University
  5. Rainsberger v. Benner
  6. Grussgott v. Milwaukee Jewish Day School
  7. Wallace v. GrubHub Holdings, Inc.
  8. A.F. Moore & Associates, Inc. v. Pappas
  9. Casillas v. Madison Avenue Associates, Inc.
  10. EEOC v. Costco Wholesale Corp.
  11. Schmidt v. Foster

[2020 Questionnaire at 30-49]

I am not convinced all those cases are particularly important but I will not dispute her list. That she regards those cases as significant is itself demonstrative of her judicial ideology. Instead, I suggest that you also read the following nine opinions:

  1. Emmis Communications Corp. v. Illinois National Life Insurance Co.
  2. Gadelhak v. AT&T Services, Inc.
  3. McCottrell v. White
  4. Webb v. Financial Industry Regulatory Authority, Inc.
  5. United States v. Uriarte
  6. Beley v. City of Chicago
  7. United States v. Walker
  8. United States v. Moody
  9. United States v. Watson

For the sake of brevity, I have confined myself to nine opinions (so that the total list gives twenty). Judge Barrett has written many other opinions that warrant more attention than they have received. Moreover, I have limited myself to the opinions Jude Barrett herself wrote, and I have surely overlooked the importance of some cases by limiting myself to the opinion itself. I also have not yet read her decisions on immigration law. Nevertheless, the cases on the above list would (I think) be very helpful in forming a view on Judge Barrett.

Justification

These opinions were chosen either to offset the cases Judge Barrett put forward or to illustrate aspects of her jurisprudence that I find significant. In particular, I have tried to highlight cases that cut against appointing her to the Supreme Court.

Sounds uncivil, doesn’t it? I admit, I don’t believe that we should be filling the seat at present, for reasons that are probably already familiar to all readers (although I will expound these reasons here). Nevertheless, I have no (conscious) hostility towards Judge Barrett herself. Yet a seat on the Supreme Court of the United States is the highest judicial office in the land. A candidate should not be presumed fit for that office; she should be presumed unfit for it until she proves otherwise. (Readers should take into account that, after reviewing all her judicial opinions and other writings, the ABA Standing Committee on the Federal Judiciary deemed her well qualified to fill it). This may be nit-picking. Even I’m not sure the concerns I raise below are justified, let alone that they would be disqualifying. Nevertheless, I would be remiss in my duties unless I called them to the notice of our hypothetical senator.

With that in mind, two opinions in particular stand out. The first is Emmis Communications Corp. v. Illinois National Insurance Co. This opinion stands out because the panel voluntarily withdrew its decision and affirmed the district court. This is not necessarily an admission of error but that is one way to interpret it (and, frankly, seems to me the best way). Now, even assuming it were such an admission, it would not be inherently disqualifying. Many appellate judges have withdrawn an opinion. Moreover, all judges make mistakes. As Justice Jackson wrote in Brown v. Allen, the Supreme Court itself is “not final because [it is] infallible, but [it is] infallible only because [it is] final.” That the panel, which presumably included Judge Barrett, recognised this one is to its credit. Nevertheless, a possible mistake is potentially an argument against appointment to the Supreme Court.

More important, however, is why Judge Barrett reached a conclusion that was (in my opinion) mistaken. Both the district court and Emmis Communications alerted Judge Barrett to controlling law that ambiguous insurance policies were to be interpreted as providing coverage. [Emmis Brief at 17-21; Attachment to Emmis Order at 16-17] The contract was surely ambiguous. Nevertheless, Judge Barrett construed the policy as seemed best to her, even though doing so excluded the dispute from coverage. A lawyer is not an English teacher. She interprets terms according to legal doctrine as well as rules of grammar and syntax. Put simply, I think that Judge Barrett attaches too much weight to the strict meaning of words, and other cases below demonstrate this.

The second case that stands out is Gadelhak v. AT&T. For one thing, the subject matter is important: we all receive a lot of automated texts from databases, especially as the election approaches, and it matters whether or not those are lawful. For another, the lengthy discussion of standing – which AT&T itself had not raised – demonstrates Judge Barrett’s fastidious attention to procedural and jurisdictional issues. Judge Barrett found standing here but in other cases, such as Protect Our Parks, the plaintiff was less fortunate. Whether this is laudably thorough or excessively strict is for you to decide. Finally, the case perfectly illustrates the way in which Judge Barrett construes statutes.

It was difficult to pick only seven other cases. The third is McCottrell v. White, in which Judge Barrett would have held that totally unnecessary force in prisons is not “sadistic and malicious” – and, therefore, not actionable – unless it is intended to cause specific harm to others. First, this strikes me as another example of excessive strictness with the use of words. In everyday parlance, we typically use “sadistic” or “malicious” to mean deliberately causing specific harm; even if this is the terms’ exclusive meaning in regular English, which I doubt, it is not necessarily the extent of its meaning as a legal standard. Indeed, the majority cited case law that unjustified use of force was considered inherently sadistic and malicious. [McCottrell at 25, 31] Second, part of her reasoning rested on the lack of any cases addressing a similar argument, even any rejecting it. In other words, the argument had not been made before. That is not a reason to discount the argument.

The latter concern is reinforced by Webb v. FINRA. This decision could also be interpreted as applying jurisdictional limitations too strictly, potentially depriving a party of the benefits of federal court, but I am more concerned with its reasoning. Judge Barrett found arbitration fees would be unrecoverable under Illinois’ third party litigation exception to the American Rule. This analysis strikes me as needlessly restrictive, as it did the dissent. There was no need to apply this doctrine, because the fees may have been recoverable as damages for breach of contract. More importantly, that the Illinois courts had not yet applied the doctrine to comparable facts does not mean it did not extend to them. Again, this strikes me as unwilling to logically extend established law to new facts. Judge Barrett argued that this was not so, that she had not extended the doctrine because doing so would be inconsistent with it. [Webb, note 3 on page 9] You might think that she has the better argument. You might also think that other cases show a proper willingness to extend principles (or, as in Casillas, excessive readiness to distinguish applicable cases). That is for you to decide.

Given the presence on this list of three decisions for criminal defendants, it would be misleading to include no decisions for the prosecution in criminal cases, which constituted the majority of those decisions. Perhaps that is to be expected – every appellate judge endures a large number of meritless appeals – but in several cases Judge Barrett dissented from a holding for the defendant, concurred to suggest rulings that would hinder future defendants, or tightened a rule. Candidates for inclusion were: United States v. Uriarte; Chazen v. Marske; Sims v. Hyatte; United States v. Rutherford; Conroy v. Thompson; and United States v. Perrone.

I ultimately decided on Uriarte for many reasons. First, the First Step Act was a recent, high-profile development. Second, because Judge Barrett was not constrained by binding precedent or higher authority, this case may better indicate how she would rule on the Supreme Court. Third, her reasoning is more widely applicable in this case than in others. Finally, this further demonstrates the concerns I raised above. The majority, not just of a panel but of the entire Court of Appeals, rejected Judge Barrett’s interpretation as based too much on language and not enough on legal background. (Judge Barrett did have counter-arguments to this. [Uriarte at 23-24]) The majority also opined that United States v. Pierson was not apposite to this situation, while Judge Barrett would have applied it. Although this is coming at the problem from the other end of the problem – excessive eagerness to extend a decision rather than a refusal to do so – it is another example of a determination to force new situations into the mould of past decisions, to the detriment of original arguments.

Beley v. Chicago is chosen as a counter-part to Doe v. Purdue University. In Purdue, Judge Barrett applied the protections of the Fourteenth Amendment to a situation in which the 7th Circuit had not yet done so. [Doe at 21] In Beley, by contrast, she recognised no liberty interest where numerous federal judges (albeit no appellate judges) had found one. [Beley, note 3 on page 5]

United States v. Walker is provided in part to reinforce Beley. By demonstrating an outcome favourable to a sex offender of the worst kind, it rebuts the suggestion that Judge Barrett’s decision in Beley was driven by antipathy to sex offenders. Additionally, it demonstrates how Judge Barrett analyses whether a specified criminal offence fits into a disciplinary enhancement. This analysis applies to SORNA in Walker but it could as easily apply to significantly lengthened sentences, as demonstrated by the majority in Chazen v. Marske (with which Judge Barrett concurred) and arguably by Judge Barrett’s decision in United States v. Hagen.

The remaining cases, Moody and Watson, were chosen to demonstrate Judge Barrett’s attitude towards guns in criminal cases. It is possible that her attitude in these cases – towards, respectively, the Fourth Amendment and the high standard of proof in criminal cases – may be more widely applicable. It is also possible that the outcomes in these cases were driven, consciously or otherwise, by a strong support for gun rights. Regardless, in both of these cases, Judge Barrett presumed the best of firearm possession: in Watson, Judge Barrett emphasised that, in states in which it is legal, gun possession (even in a high crime area) does not justify a search; in Moody, Judge Barrett assumed that those who unlawfully purchased guns were permitted to own guns and had no criminal intentions. Finally, in Moody, Judge Barrett suggested that the district court may be able to re-apply its sentence despite its error because Mr. Moody’s conduct was particularly wrongful. Whether this is pragmatic or evasive is, again, up to you.

Judge Barrett on Gun Rights

Judge Barrett wrote only a single opinion directly addressing gun rights. Her opinions in other cases – particularly Biegert v. Molitor, United States v. Watson, United States v. Moody, and United States v. Briggs – might also indicate her views on legal issues relating to gun rights.

Kanter v. Barr (2019)

Judge Barrett placed this case first on her list of the most important opinions she wrote as a judge of the Court of Appeals for the 7th Circuit. She described the opinion as follows:

Rickey Kanter challenged the application of federal and state felon dispossession laws to prevent him—a nonviolent offender—from owning a firearm, arguing that these laws violated his Second Amendment rights. He had previously been convicted of mail fraud for selling therapeutic shoe inserts while misrepresenting them as Medicare-approved. A panel of the Seventh Circuit held that the application of the statutes was substantially related to the important governmental objective of preventing gun violence. I dissented. Looking to the Founding-era history, l explained that legislatures have the power to prohibit dangerous people from possessing guns, but that power extends only to people who are dangerous, not to nonviolent felons like Mr. Kanter.

[2020 Questionnaire at 30-33]

Rickey Kanter had once run a company that manufactured special shoe inserts for those with specific medical needs. Most of his products were paid for by Medicare. Many of those were not up to Medicare’s standards and Medicare had previously refused to buy them. Nevertheless, Mr. Kanter continued to sell them to Medicare patients, falsely representing them as Medicare approved. When he was found out, Mr. Kanter had pleaded guilty to a count of mail fraud and been sentenced to a year and a day in prison (as well as to two years of supervised release and to pay a lot of money). [4-5] He had committed no crimes before that and, several years later, had not been convicted of any further crimes. [5, 23] Yet because he had been convicted of mail fraud, which is a felony, he was not legally permitted to own a gun.

Kanter sued to change that. 18 U.S.C. § 922(g) prohibited anybody who had been imprisoned for more than a year from possessing or receiving a firearm. Although there were exceptions, none applied to Kanter. Likewise, Wisconsin law (Wis. Stat. § 941.29(1m)) rendered it unlawful for a convicted felon to own a gun. [2-4] Kanter sued, arguing that these laws violated the Second Amendment as they applied to him. Judge William Griesbach granted summary judgment for the federal government, holding that the felon dispossession laws were justified by the government’s interest in preventing gun violence. [5-6]

The question before the Court of Appeals for the 7th Circuit was simple: did the Second Amendment permit the government to prohibit Mr. Kanter from owning any firearms? No court of appeals had ever found the felon dispossession law facially unconstitutional. [8] Many circuits had held that the law was constitutional under all circumstances. [9] Three other circuits had permitted challenges to particular applications of the law but never actually found it to be unconstitutional. [10-11] In just one case, Binderup v. Attorney General, had a court of appeals found the statute to be unconstitutional as applied. [11-14] The 7th Circuit itself had never upheld such a challenge [11] but it had developed a framework for evaluating them. First, the Court analysed whether an activity was protected by the Second Amendment. If it possibly was, the Court required the government to justify the burden on Second Amendment rights, with a rigorousness that depended on how strongly protected the activity was. [6-8]

Both the majority of this panel and the dissent applied the same framework. Judge Flaum, writing for the majority, held that this statute was constitutional as applied to Mr. Kanter. Judge Barrett dissented, arguing that it was not. Rather than describing the opinions sequentially, it would be better to compare the two.

The first question was whether the activity in question, firearm possession by a non-violent felon, was protected by the Second Amendment. More simply, were felons categorically precluded from the exercise of Second Amendment rights? Neither the majority nor Judge Barrett placed too much weight on the Supreme Court’s statements in District of Columbia v. Heller implying that they were. [14-15, 32] The 7th Circuit itself had not decided the question. [15] The majority found that previous statements by the 7th Circuit and considerable legal scholarship suggested that the Second Amendment protected only “virtuous” citizens, which did not include those who had been convicted of a felony. [15-16 and note 6 on page 16] (Judge Barrett countered that some of these scholars meant that only violent felons were beyond the Second Amendment. [Note 14 on page 58]) If so, then – as other courts of appeals had concluded – felons were excluded from the Second Amendment. [16-18] The majority recognised that the historical analysis was conflicted, however, and that there was evidence and scholarship supporting the view that the Second Amendment applied to non-violent felons. [18-19 and note 8 on page 18] The majority concluded, as it usually did, that it could resolve the controversy at the next step so did not need to reach a conclusion. [19 and note 9 on page 19]

Judge Barrett, by contrast, argued that the theoretical question was not whether nonviolent felons were excluded from the Second Amendment – they were not – but whether the Second Amendment permitted the government to strip them of their right to bear arms. [27-31] Judge Barrett argued that the virtue exclusion contemplated by the majority was incompatible with Heller, which held that gun ownership was an individual rather than a civic right, and that historical records would explicitly disclose such an exclusion had it existed. [49-54, note 10 on pages 51-52, and note 12 on pages 53-54] Judge Barrett also argued that history did not indicate that felons were beyond the reach of the Second Amendment. Restrictions on gun ownership before the Constitution was drafted had been directed towards groups perceived as violent or rebellious, not towards criminals. [38-41] No founding-era legislature prohibited felons from carrying guns and no state constitution expressly excluded felons from the right to bear arms. [33-35] Although some conventions had proposed that the Second Amendment exclude certain groups, all of these proposals had been rejected, and Judge Barrett argued that none of them would have prohibited gun ownership by all non-violent felons. [35-38]

Judge Barrett then attempted to refute the argument that felons were implicitly deprived of the right to bear arms because, whether through actual death or through the process known as civil death, it was assumed that felons would be deprived of all rights. Judge Barrett did not seem to accept the premise of this argument, observing that we would not deprive felons of (for example) the right to freedom of speech if the founders had executed all felons. [49] Regardless, Judge Barrett extensively surveyed court decisions and legal commentary on criminal law in the early American colonies. Judge Barrett concluded that, unlike at English common law, felonies were not invariably punished with execution or civil death. [41-48]

The majority then applied the intermediate scrutiny framework, which required the government to prove that the restriction on firearm possession was substantially – not perfectly – related to an important governmental objective. [19-20] The majority suggested that a less rigorous analysis might be appropriate, given that firearm possession by felons was close to the edge of the right protected by the Second Amendment. [Note 10 on page 20] Judge Barrett rejected this argument, finding that permanent disqualification from all gun ownership – including possession at home for lawful self-defence (the “core” of the Second Amendment right) – called for “a very strong public-interest justification and a close means-ends fit”. [56-57 and note 13 on page 56]

The government argued that preventing non-violent felons like Kanter from possessing guns was justified by its interest in preventing violence. Of course, both the majority and Judge Barrett considered this a sufficiently important state interest. [20-21, 57-58] The majority found that prohibiting all felons from owning guns was substantially related to that interest, because judicial statements and statistical studies indicated that even non-violent felons were more likely to commit violent crimes in future than were the general population. [21-22 and note 11 on page 22] The majority argued that the Second Amendment did not require the government to prove that Kanter himself was disposed towards violence, because the fit between means and end only had to be reasonable, not perfect. [23] Additionally, evaluating the dangerousness of every felon (or even every non-violent felon) would impose a huge burden on either the courts or the executive branch. [24-26] The majority did not rule out the possibility that it would be unconstitutional to prohibit some felons from owning weapons but held that Kanter was not one of those felons, because his misconduct had been serious and would have been widely recognised as wrongful. [23-24 and note 12 on page 24]

Judge Barrett opined that a ban on all felons was far too broad to be supported by the Second Amendment. Judge Barrett thought that the Second Amendment allowed the government to criminalise possession of firearms by a class of persons that were dangerous but it had to prove that the class actually was dangerous. [54-56, 57-58] Judge Barrett found that the ban on all felons was “wildly overinclusive” because it reached many criminals whose offences gave no reason to suggest violent proclivities. [58-61] That those crimes might have been generally understood as unlawful and immoral was simply a repetition of the virtue argument. [Note 16 on page 60] Although the government had presented evidence that non-violent felons were more likely to commit violent crimes in future, Judge Barrett considered this evidence still too broad, because it failed to distinguish between non-violent felons: a drug-dealer or drug-abuser might be more inclined towards violence than a fraudster like Kanter. [61] Judge Barrett also found that the more specific studies, purportedly showing a likelihood of violent crime by those convicted of mail fraud, were not sufficient: one linked them to subsequent arrest but not to conviction or to specifically violent crime; the other did link white-collar and violent crimes but only for repeat offenders. [61-62 and note 17 on page 62] Judge Barrett stated that the government could theoretically prove Kanter himself to be dangerous but it had not tried to do so. [62-63]

Therefore, the majority held that the Second Amendment permits the government to withhold guns from non-violent felons. Judge Barrett opined that, in so doing, the majority did not treat the Second Amendment with the respect due a constitutional right. [63-64]

Judge Barrett on Immigration

Because of Judge Barrett’s imminent confirmation hearing, I have only summarised the two opinions that Judge Barrett designated as among her most significant. The remaining cases are listed here for the convenience of those who wish to read them.

Yafai v. Pompeo (2019)

Judge Barrett listed this as number two of her ten (actually eleven) most significant decisions on the Court of Appeals for the 7th Circuit. She summarised the case as follows:

A consular officer twice denied the visa application of Zahoor Ahmed, a citizen of Yemen, on the ground that she had sought to smuggle two children into the United States. Ahmed and her husband Moshin Yafai—a United States citizen—filed suit challenging the officer’s decision. Writing for the majority, I explained that the consular officer’s decision to reject the visa application was facially legitimate and bona fide, and the plaintiff had made no affirmative showing that the officer acted in bad faith. The doctrine of consular nonreviewability set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972), accordingly barred judicial review of these claims. The Seventh Circuit denied a petition for rehearing en banc, and I wrote a statement explaining that the panel decision was required by Supreme Court precedent.

[2020 Questionnaire at 33-34]

The judicial panel issued its decision on 4 January, 2019. Judge Barrett wrote the panel’s opinion.

Mohsin Yafai was born and brought up in Yemen, where he married Zahoor Ahmed. The couple had several children. Mr. Yafai eventually moved to the United States and became a naturalised citizen. He then obtained permission for his wife and children to apply for visas to the United States. [2] They did so but, while their applications were pending, two of their children accidentally drowned. [22] Ms. Ahmed’s visa application was rejected on the grounds that she had tried to smuggle two children into the United States “using the identities” of the drowned children. Ahmed informed the responsible official that the named children were dead. The official requested more information, which Ahmed provided, but eventually denied the visa on the same grounds. [2-4] The record before the Court of Appeals did not establish the official’s name or what the official thought Ms. Ahmed had actually done. [Note 1 on page 2, note 2 on page 4]

Yafai and Ahmed challenged the visa denial in court under the Administrative Procedure Act. Judge Sara Ellis dismissed the claims because courts did not have the authority to review the consular official’s decision. [4]

The Court of Appeals for the 7th Circuit did not decide whether Yafai, as an American citizen, had a constitutional right to live in the United States with his spouse. [5] Judge Barrett, writing for the Court, concluded that there was no need to do so. To review a consular official’s visa determination, a court required both violation of a citizen’s constitutional right and a decision that was not facially legitimate. The latter was absent. The official had rejected the application on a statutory basis and, by concluding that the Ms. Ahmed had tried to smuggle children into the United States, factually justified that basis. That was sufficient to render the decision facially legitimate and bona fide. [6] To require proof that the official adequately considered Ahmed’s evidence, at least in the ordinary course of review, would violate the Supreme Court’s decision in Kleindienst v. Mandel. [Note 3 on page 6]

Judge Barrett then considered whether a court could inquire further if it had reason to suspect bad faith. Judge Barrett concluded that the answer was not clear. [7] Regardless, Judge Barrett held that the plaintiffs had failed to prove bad faith, because their only evidence was that the official had reached an unfavourable decision. [8] Judge Barrett also observed that the official’s request for more evidence indicated a good faith attempt to evaluate and consider Ahmed’s position. [8-9]

Judge Barrett therefore affirmed the dismissal of the plaintiffs’ lawsuit.

Judge Ripple dissented. Unable to avoid deciding the question, Judge Ripple concluded that American citizens did have a constitutional liberty interest in a spouse’s visa application. The Supreme Court had implied as much in Mandel and, although the plurality in Kerry v. Din had found no such interest, Judge Ripple found that the (larger) dissent in Din offered an analysis more consistent with the constitutional rights and values previously recognised by the Supreme Court. [10-14] Judge Ripple therefore concluded that American citizens had a cognisable interest in cohabiting with their spouses in America, permitting courts to ensure that those spouses’ immigration applications were treated fairly.

Judge Ripple then addressed whether a bad-faith decision was entitled to consular non-reviewability. He began with the premise that in the 7th Circuit, because no position in Din was supported by a majority of the Supreme Court, Mandel controlled. [18-19 and note 2 on the same pages] Reviewing 7th Circuit precedent applying Mandel, Judge Ripple observed that the Court of Appeals had never evaluated the merits of a government decision, but that previous decisions had all been supported by some evidence and had not given any reason to suspect bad faith. [19-21] Given the scant record before the Court of Appeals, Judge Ripple found it possible that the official had not considered the evidence before denying Ahmed’s visa application, in which case the government would have acted in bad faith. [21-23 and note 11 on pages 23-24] While he did not think that the Court of Appeals could assess whether the government’s decision had been correct, he thought the Court did have the authority to require the government to identify the facts supporting its decision. [23-25]

The Court of Appeals rejected a petition for re-hearing en banc on 23 May, 2019.

Judge Barrett wrote a statement arguing that en banc review was not warranted. She opined that Supreme Court precedent had unambiguously foreclosed the argument that consular officials were required to explain their decision in more detail than by citing to a statutory provision justifying denial of a visa. She elaborated that the Supreme Court’s decision in Mandel prohibited a court from requiring a consular official to provide those facts, that Justice Kennedy’s controlling concurrence in Din specifically limited the government’s requirements to citing to a statutory provision, and that the Supreme Court had recently reiterated its support for that position in Trump v. Hawaii. [5-8, 10-11] Judge Barrett also rejected the argument that the record had been clearer in those cases than it was here. [8-9 and note 1 on pages 9-10] The dissent’s arguments to the contrary were drawn from prisoner discipline cases and, as a result, were inapposite. [11-12] Perhaps there would be an exception for cases of bad faith but, Judge Barrett reiterated, the plaintiffs had failed to plausibly allege bad faith. [12-13]

Chief Judge Wood, joined by Judges Rovner and Hamilton, dissented from the denial of rehearing en banc. Like Judge Ripple in his dissent from the panel’s decision, the Chief Judge would have held that the Due Process Clause of the Fifth Amendment protects an American citizen’s right to live in the United States with a non-citizen spouse. [15-17] The Chief Judge also thought that the requirements of due process were not satisfied, because at no point had the plaintiffs understood why Ms. Ahmed’s visa application was rejected. [18-21] Without knowing that, it was impossible for the plaintiffs to plausibly allege bad faith. [21]

The Chief Judge was careful to explain that she was not advocating for a searching review of the official’s reasoning, simply that the government be required to point to some evidence – any evidence – that justified that decision. [21-23] Chief Judge Wood argued that this position was not foreclosed by Supreme Court precedent: on the contrary, the Supreme Court had expressly refused to hold that the government was required to provide absolutely no information, and previous Supreme Court and 7th Circuit decisions addressing the issue had all addressed situations in which the government provided more information than it had here. [23-26, 28-30, and note 1 on page 25] If the government were not required to provide any proof whatsoever for the basis of its decision besides citing to a statute, it would be protected against any form of investigation by a court, rendering it impossible to ascertain whether an official’s facially legitimate reason truly was supported by a bona fide factual basis or whether the official was violating the law. [26-28, 30-31]

Cook County v. Wolf (2020)

Judge Barrett identified this opinion as number three on the list of her ten (actually eleven) most important opinions on the Court of Appeals for the 7th Circuit. She described the opinion thus:

A county and non-profit organization challenged a rule issued by the Department of Homeland Security to enforce the statutory bar on green cards for those who are likely to become a “public charge.” The rule defined a “public charge” as any noncitizen (with some exceptions) who receives certain cash and noncash government benefits for more than 12 months in a 36 month period. The majority thought that this interpretation was unreasonable, and it affirmed a preliminary injunction of the rule, even though the Supreme Court had previously stayed that injunction. I dissented. ln my view, the plaintiffs could not show that the term “public charge” refers narrowly to someone who is primarily and permanently dependent on government assistance. Instead, the term “public charge” is a capacious term, and the rule is a reasonable interpretation of the leeway that Congress gave the agency.

[2020 Questionnaire at 34-40]

This case is not amenable to summarisation. It reviews several centuries of legislation and does so “at a level of detail that is, unfortunately, excruciating.” [59] I will therefore describe it at a very high level of generality.

The Department of Homeland Security propounded a rule that would define recipients of most forms of public benefits as “public charges,” preventing immigrants likely to receive such benefits from entering the country or adjusting their immigration status. [2-6] This was one of many lawsuits filed across the country to prevent DHS from implementing that rule. The plaintiffs were a local government and a non-profit. The district court granted a preliminary injunction. [6-8] The majority of the panel, for which Chief Judge Wood wrote, affirmed the preliminary injunction. Judge Barrett dissented.

The majority found that Cook County had standing to challenge the Rule because the Rule would discourage immigrants from seeking many forms of preventive health-care, which would cause them to make increased use of medical emergency rooms (paid for by the County) and to risk developing and spreading communicable diseases. [8-10] Judge Barrett agreed that Cook County had standing, because “noncitizens who give up government-funded healthcare are likely to rely on the county-funded emergency room.” [43] The majority held that the non-profit, the Illinois Coalition for Immigrant and Refugee Rights, had standing because it would have to devote resources to educating immigrants about the Rule. [10-11] The majority also held that Cook County’s financial interests in challenging the Rule placed it within the zone of interests protected by the Administrative Procedure Act. [11-13] The majority found it harder to say that ICIRR was within the zone of interests but reached no conclusion on the point, because only one party needed to be. [13-14]

Before reaching the merits, Judge Barrett argued that the majority of the harm imposed on Cook County was caused by public misunderstanding of the Rule, not by the Rule itself. As she understood the Rule, it would have very little effect on most actual or aspiring immigrants to the United States, the exception being lawful immigrants present in the United States applying for a green card. [43-49 and accompanying footnotes] Setting aside her broader concerns, the majority agreed with Judge Barrett that the Rule must be analysed from the perspective of those it did affect. [Note 1 on page 5]

Because the Court of Appeals was ruling on a preliminary injunction, it focused on the likelihood that Cook County would ultimately succeed on the merits. [14-15] It addressed this question by applying the APA, first through the two step Chevron framework and then through analysing whether the rule was arbitrary and capricious. [15-16]

The majority first concluded that Congress had not unambiguously addressed the question at issue. The authorising statute did not define “public charge”. [17] The historical record at the time of enactment, including dictionaries, did not clarify whether a public charge had to be totally dependent on public assistance or merely to receive any of it. [18] A “quick and admittedly incomplete” look at the history of the law in question supported the proposition that to be a public charge was to be primarily and permanently dependent upon government support. It did not, however, demonstrate this was the unambiguously correct interpretation. It also showed a history of delegating extensive discretion to the Executive Branch. [18-25] Judge Barrett agreed that the statute was ambiguous but disagreed with the majority’s interpretation of history. [49-69]

The Court of Appeals therefore progressed to step two of the Chevron analysis. The majority concluded that the Rule was not a permissible construction of the authorising legislation. It rejected the argument that the Rule considered SNAP benefits a form of income, in violation of federal law. [26] It found that the Rule violated the Rehabilitation Act by heavily penalising immigrants with a disability, both because of the disability itself and because of the public health benefits that these immigrants would require to satisfy at least some of their medical needs. [26-28] The Court reconciled the Rehabilitation Act with the “health” provisions of the public charge section by interpreting the latter as referring to communicable disease or conditions requiring long-term institutionalisation. [28-29] The Court was also concerned that the Rule would punish immigrants for receiving benefits to which they were legally entitled. [29-30] Finally, the Court observed that DHS had expressed the belief that it could go even further than it had and stated that there were limits on what constituted a public charge, which the Rule exceeded. [30-31]

Based on her analysis of history, which indicated the term never had a clear meaning and that recent legislative action had shifted towards minimising immigrants’ receipt of benefits, Judge Barrett read the term “public charge” more broadly. [69-70] Judge Barrett found the term “public charge” could reasonably be understood as referring to anyone with too few financial resources to provide for herself, that the DHS had so understood it, and that the benefits it had chosen to consider were all reasonable under this understanding. [70-76] That was enough to satisfy Chevron step two. Judge Barrett found it more disputable that receiving any benefits for a year, or benefits from multiple programs for even a few months, rendered somebody a public charge. Nevertheless, she ultimately concluded that the DHS’ decision fell within the reasonable limits of the term “public charge.” [77-80]

The majority then considered whether the Rule was arbitrary and capricious. Judge Barrett would not have reached this issue, which the district court hadn’t addressed and the parties had barely briefed. [80-81] The majority nevertheless concluded that it was, because it was predictable that immigrants would endeavour to avoid receiving any public benefits and DHS had not properly addressed the consequences of this disenrollment. [31-35] DHS had also failed to address the impact on the structure of state and local governments, which would have to reorganise their own benefit schemes. [35] The majority then found that requiring total self-sufficiency all times, as the Rule effectively did, was beyond what the term “public charge” could bear. [35-37] Additionally, the majority held that asking immigration officials to decide whether a given immigrant would ever require such benefits was inherently arbitrary, because it required excessive speculation that could not be fully grounded in facts. [37-38] Finally, the majority suggested it was arbitrary not to consider permitting immigrants to repay the benefits they had enjoyed. [38]

The majority then considered the remaining requirements for a preliminary injunction. It concluded that Cook County would suffer irreparable harm without one, because health risks would rise (and had already risen) among its residents. [39] It concluded that Cook County had no remedy at law, because the United States had not waived sovereign immunity. [39-40] It also concluded that, despite the Supreme Court’s decision to stay the preliminary injunction while the appeal pended, the balance of equities favoured Cook County. [40-41]

The Court of Appeals therefore affirmed entry of the preliminary injunction.

Alvarenga-Flores v. Sessions (2018)

Judge Barrett wrote the opinion for the Court of Appeals for the 7th Circuit.

Beltran-Aguilar v. Whitaker (2019)

Judge Barrett wrote the opinion for the Court of Appeals for the 7th Circuit.

Herrera-Garcia v. Barr (2019)

Judge Barrett wrote the opinion for the Court of Appeals for the 7th Circuit.

Morales v. Barr (2020)

On 26 June, 2020, Judge Barrett wrote the opinion for the Court of Appeals for the 7th Circuit. On 3 September, 2020, her opinion was amended.

Ruderman v. Whitaker (2019)

Judge Barrett wrote the opinion for the Court of Appeals for the 7th Circuit.

Judge Barrett on the Environment

Orchard Hill Building Co. v. U.S. Army Corps of Engineers (2018)

Although Judge Barrett did not write this opinion, she did join it. It has been (rightly or wrongly) considered a significant indicator of her views on environmental issues, so I have included it.

Warmke is a 100-acre parcel of former farmland in Illinois. It is eleven miles away from the Little Calumet River, which is (factually) navigable. Orchard Hill began building houses on this land and, in so doing, altered its drainage so that thirteen acres became wetland. These thirteen acres drained into the Midlothian Creek, a tributary of the Little Calumnet River (but not itself navigable). As a result, when Orchard Hill asked the Army Corps of Engineers to confirm that Warmke was subject to the Clean Water Act, the Corps held that it was. [4-5]

The review process was “lengthy, contentious and complex.” [5] Suffice it to say that there were many hearings, appeals, and remands, during which the Corps identified numerous reasons why it considered the Warmke wetlands to fall within the scope of the Clean Water Act. [7-9] These reasons will be stated below. Orchard Hill then sought review from federal court, where Judge John Robert Blakey deferred to the Corps on its factual findings and conclusions and held that it had properly applied a legal exclusion. Judge Blakey therefore granted summary judgment to the Corps. [9-10]

Under the law that applied to the 7th Circuit at the time, the Corps had jurisdiction over wetlands if a significant nexus existed between those wetlands and navigable (in the traditional sense) waters of the United States, which was not necessarily satisfied by proximity to non-navigable tributaries of navigable waters. [5-6 and note 4 on page 6] The Court of Appeals was to reverse the Corps’ decision if that decision was unsupported by adequate evidence or was simply too implausible to be considered anything other than arbitrary or capricious. [10-11]

Judge St. Eve, writing for the Court of Appeals for the 7th Circuit, held that the Corps’ decision was unsupported by the record. Judge St. Eve found the Corps’ conclusion that construction at Warmke might pass pollution to the Midlothian Creek too speculative. [12] Judge St. Eve then opined that, although the Corps had concluded that the loss of the Midlothian Creek watershed would lead to flooding or would pollute the Little Calumet River, the Corps did not explain why the impact of losing only the Warmke wetlands would be substantial. [12-13] The Corps also ascertained that construction at the Warmke wetlands would cost wildlife its habitat but Judge St. Eve held that it had not explained why this had a significant nexus to the Little Calumet River. [13]

Judge St. Eve then held that the Corps had failed to introduce evidence that neighbouring wetlands were similarly situated to the Warmke wetlands, finding that none of the maps in the record showed the Corps’ claimed 165 wetlands adjacent to the Midlothian Creek or that other wetlands in the same watershed were adjacent to the same tributary. Judge St. Eve held that the Corps had waived its waiver argument by failing to present it to the district court (although, unlike Judge Barrett, Judge St. Eve did not worry about the distinction between waiver and forfeiture). [15] Judge St. Eve held that the Corps was indeed required to identify how each “similarly situated” wetland was indeed similarly situated, i.e., adjacent to the same creek. [15-16] Judge St. Eve then held that, because the Corps’ opinion was supported by inadequate reasoning and evidence, it was due no deference. [16-17]

Therefore, the Court of Appeals vacated the judgment and ordered the district court to remand to the Corps, so that it could reconsider its decision.

Protect Our Parks, Inc. v. Chicago Park District (2020)

The Barack Obama Foundation sought to build the Obama Presidential Centre – a “presidential library” with a museum, auditorium, athletics centre, garden, and (of course) public library – on 19.3 acres of land in Chicago’s Jackson Park. [2-3, 21] Construction would have a significant impact on the park and surrounding lands and would impose financial and other burdens on Chicago residents. [3]

Protect Our Parks (and individual Chicagoans) sued to prevent the City from constructing the Centre. Judge John Robert Blakey granted summary judgment to the defendants on all claims. After the decision but before the appeal was completed, the government issued a report about the project’s environmental and other effects, which Protect Our Parks argued was new evidence that justified relief from the previous judgment. Judge Blakey denied that motion as well. The Court of Appeals for the 7th Circuit considered appeals from both decisions. [4]

Protect Our Parks argued that selling the land violated Illinois’ public trust doctrine, because the sale was tainted by favoritism and self-interest. [5-7] It also argued that the City had acted beyond its authority in entering an agreement that violated many provisions of state law. [3] On its own initiative, the Court of Appeals for the 7th Circuit ordered the parties to brief whether Protect Our Parks had standing to bring those claims. Although even the defendants argued that it did, the Court of Appeals disagreed. [4-5] Because Protect Our Parks lacked standing to bring these claims, the district court also could not re-consider its decisions on them, whatever the contents of the federal government’s report. [22-23]

Protect Our Parks (which was represented by, among others, Richard Epstein) argued that federal courts in Illinois, applying federal standing doctrine to Illinois decisions interpreting the public trust, had found standing. [POP Brief at 1-4] Judge Barrett opined that whether the plaintiffs would have standing in state court was not relevant, because standing in federal courts was an issue of federal law. [7-10] Protect Our Parks further argued that it had standing because the construction would damage the Park, which would harm the plaintiffs’ fraction of the public’s ownership of the Park. [POP Brief at 4-7] Protect Our Parks therefore argued that it had standing under principles of equity, as when share-holders have standing to sue a corporation. [POP Brief at 10-11] Judge Barrett held that, under federal law, Protect Our Parks did not have standing because it was not harmed. She interpreted POP as arguing that it had standing because the Park would be damaged, which was not harm to the plaintiffs themselves. [10-11] Although harm to the Park could have given rise to standing, by interfering with the plaintiffs’ use of the Park and reducing their enjoyment of it, Judge Barrett found they had not made this argument. [Note 1 on page 9]

Finally, the defendants argued that the plaintiffs had standing because among them were Chicago tax-payers, an argument that the plaintiffs had successfully made in district court. [11-12 ] Individual plaintiff Maria Valencia was a tax-payer, although this was not proved to be true of Protect Our Parks. [Note 2 on page 11] Judge Barrett opined that municipal tax-payer standing was out-dated and that the Supreme Court should overturn it but was bound to apply the doctrine in this case. [12-15 and note 3 on pages 13-14] Judge Barrett held that the elements of municipal tax-payer standing were not met. The Obama Foundation would pay for the construction of the Centre; the City, for preparatory work and construction of athletic facilities. [16] The plaintiffs had only argued that the construction itself was illegal, which meant that the City would not be paying for the allegedly illegal activity. [15-17] Additionally, Chicago had substantial revenue from sources other than taxation, and the plaintiffs had not demonstrated that the City would use tax revenues to pay for those aspects of the project. [17]

Protect Our Parks did have standing to assert its claims under the U.S. Constitution. [18-20 and not 4 on page 19] It claimed that the City had taken its property in violation of the Takings Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment. Protect Our Parks claimed that, under Illinois’ public trust doctrine, it had a beneficial interest in the use of the Park that was a property interest. [18] Even if this argument held up, that property interest would not necessarily be one protected by the Constitution. [Note 5 on pages 20-21] Judge Barrett quickly concluded, however, that Illinois case-law clearly established the lack of any such property right. [20] Judge Barrett also held that, under Kelo v. New London, a city’s transfer of property to a private party for a public purpose was a permissible “public use” and was entitled to deference. [21] Judge Barrett also held that Due Process was satisfied, because approving the Centre had required multiple legislative decisions that had all taken place after public hearings. [21-22]

Judge Barrett on Torts

This section does not include torts committed by law enforcement or government officials, or torts created entirely by statute. As always, please read the overview for context.

Boogaard v. National Hockey League (2018)

Derek Boogaard played professional hockey for the NHL. During his time playing for the Minnesota Wild, Mr. Boogaard sustained many injuries, for which the team’s doctors prescribed pain-killers. Boogaard developed an addiction to these drugs and to sleeping-pills. Although the NHL’s agreement with its players obliged it to treat Boogaard, its efforts to do so were inadequate and frequently undermined by its own medical staff. Boogaard ultimately suffered a fatal overdose while in rehab. [2-4]

The litigation that followed was complex. In short: Boogaard’s parents sued in state court; the NHL removed to federal court on grounds of complete pre-emption; many rounds of motion practice occurred; the Boogaards twice amended their complaint; the NHL argued that the Boogaards’ claims were all prohibited and that they had failed to state a claim anyway; the Boogaards only responded to the former; and Judge Gary Feinerman dismissed the complaint on both grounds. [4-7]

Judge Barrett, writing for the Court of Appeals for the 7th Circuit, first addressed jurisdiction. After evading the issue in their first brief, drawing the ire of Judge Barrett, the Boogaards argued that federal courts lacked jurisdiction because federal law did not completely pre-empt their state law claims. Judge Barrett disagreed. At least some of the Boogaards’ claims arose from the NHL’s obligations under an agreement with its players’ union, which was integrated into the collective bargaining agreement between the two. These claims were therefore wholly pre-empted by section 301 of the Labor Management Relations Act. Judge Barrett held that this created federal-question jurisdiction over those claims and the district court could (as it did) exercise supplemental jurisdiction over the remaining claims. [8-11]

The Boogaards argued many issues of civil procedure and the law of many different states. [2] These arguments chiefly addressed dismissal for failing to comply with the requirements of a wrongful death action under Minnesota law. [5-6, note 2 on the same pages, and 11] The district court had also dismissed their complaint for failure to state a claim, however, because the Boogaards had forfeited any argument to the contrary by not raising them in response to the NHL’s motion to dismiss. Judge Barrett held that this alternative holding, if within the court’s discretion, would support the judgment. [11] Judge Barrett also held that this alternative holding had been within the court’s discretion: the district court had not previously addressed whether the Boogaards had stated a claim under applicable state law (whichever that was), so the Boogaards were wrong to think that the NHL was relitigating claims that had already failed, but even if the issue had already been decided they should have clarified the issue in their response. [12-13] Judge Barrett therefore affirmed dismissal on these grounds and did not permit the Boogaards to amend their complaint, because amendment would not cure forfeiture and they had not adequately explained the amendments they would make.

Dalton v. Teva North America (2018)

Cheryl Dalton asked her doctor to remove her IUD, which had been manufactured by Teva. The IUD was broken before the procedure or broke during the procedure. Either way, part of it stuck in her uterus. A hysterectomy was the only way to remove it. [2]

Ms. Dalton sued Teva under various theories of products liability. Dalton did not intend to introduce any expert testimony on the subject of causation, arguing that it was so straightforward as to be unnecessary. Judge Richard Young disagreed and granted summary judgment to Teva. [2-3]

After chastising the parties at length for their failure to properly address the issue, Judge Barrett wrote for the Court of Appeals that the requirements of diversity jurisdiction were satisfied, so federal courts did have jurisdiction over the suit. [3-5] Judge Barrett then addressed the merits. Under the Indiana Products Liability Act, Dalton had to prove that the alleged defect was the proximate cause of her injuries, which typically required expert testimony. Dalton argued that whether Teva’s error had caused the IUD to break was within the knowledge of a lay juror, removing the need for expert testimony. Judge Barrett opined that there were many other reasons the IUD might have broken and that preventing such speculation was the reason that expert testimony was required. Judge Barrett therefore held that, by failing to introduce expert testimony on causation, Dalton had presented legally insufficient proof under all of her theories. [5-8]

J.S.T. Corp. v. Foxconn Interconnect Technology Ltd. (2020)

J.S.T. Corp. was a company based in Illinois. At the request of Bosch, it designed and built an electrical device called a 183-pin connector, which Bosch used in car parts that it sold to General Motors. For years, J.S.T. alone manufactured the component and sold it to Bosch. Bosch then gulled J.S.T. into giving it the schematics for the component, which it passed on to J.S.T.’s competitors. Those competitors accepted the blue-prints, knowing that they had been illicitly acquired, and manufactured the component themselves. They then sold it to Bosch at a lower price than J.S.T. had (although J.S.T. had, understandably, stopped building the component for Bosch). [2-3]

When J.S.T. learned of Bosch’s underhandedness, it brought many lawsuits. This one was filed in Illinois against some of the competitors, TEC and Foxconn, alleging theft of trade secrets and unjust enrichment. Judge Virginia Kendall dismissed the case for lack of personal jurisdiction. [3-4]

The question before the Court of Appeals for the 7th Circuit was a simple one: did a federal court have specific personal jurisdiction over the dispute? None of the defendants were located in Illinois (except that two of the Foxconn companies had satellite offices there, which performed business unrelated to the lawsuit). They did not manufacture the component or sell it to Bosch in Illinois. General Motors sold cars containing the component across the United States, however, and that included Illinois. [4] Judge Barrett wrote for the Court that this was not enough. In the 7th Circuit, the stream-of-commerce theory remained a valid theory of liability for personal jurisdiction in products liability cases. [5-6] In products liability, however, the sale of the product was inherently connected to the lawsuit. This was not true of trade secret misappropriation. The defendants had received the schematics, designed and built their knock-offs, and sold their product to Bosch elsewhere. Judge Barrett held that GM selling its cars in Illinois was too attenuated a connection to the lawsuit (although she hinted that this might have been different if GM had known of the trade secret misappropriation). [6-9 and note 2 on page 9]

J.S.T. argued that harm to the plaintiff was an element of trade secret misappropriation and that the harm to J.S.T. was caused in part by the down-stream sales in Illinois. Therefore, it argued, an element of the tort had been committed in Illinois. Judge Barrett stressed, citing Walden v. Fiore, that the focus of the specific jurisdiction analysis is on the defendants’ conduct. Their conduct that had harmed J.S.T. was their interactions with Bosch, none of which took place in Illinois. Again, GM’s sales were too attenuated. [9-11]

J.S.T. had also asserted unjust enrichment. Judge Barrett doubted that this cause of action was valid, given the Illinois Trade Secrets Act, but did not address this issue because the district court had not. [Note 3 on page 11] Judge Barrett instead opined that the sales which had enriched the defendants were their sales to Bosch, which took place outside of Illinois, rather than GM’s sales to its customers. [11] Therefore, Judge Barrett affirmed the decision that Illinois courts lacked personal jurisdiction over the case.

Ruckelshaus v. Cowan (2020)

Conrad Ruckelshaus established a trust for his children, Thomas and Elizabeth, under which either child would receive the remainder if the other died without children. After their father died, Thomas asked Elizabeth for permission to modify the trust, so that he could leave his share to his wife Polly if he died before she did. Specifically, he wished to leave Polly a life estate, with Elizabeth to take the remainder if he died childless. Elizabeth Ruckelshaus agreed. [2]

Elizabeth, who was the plaintiff of this lawsuit, engaged Gerald Cowan and his firm to modify and then terminate the trust. Elizabeth signed Mr. Cowan’s letter of retention, which only referred to termination of the trust. [2] Elizabeth also read the settlement agreement that Cowan drafted, which did not mention Polly’s life estate or restrict the Ruckelshaus family’s use of the funds after the trust was terminated. Moreover, the settlement agreement contained an integration clause. Elizabeth signed the settlement agreement and the petition to terminate the trust. [2-3]

Nine years later, Thomas died. He did not have children but Polly did. His will, which Elizabeth did not read, left all his assets to Polly. Polly herself died six years later, leaving all her assets to her children. Because the trust had been dissolved without creating a future life estate, Polly’s children were able to inherit the assets that Elizabeth thought would pass on to her. [3]

Elizabeth sued Cowan for legal malpractice, alleging that he had failed to follow her instructions in dissolving the trust. Judge James Hanlon granted summary judgment for the defendants, holding that the two-year statute of limitation had begun running at least seventeen years earlier. [3]

Under Indiana law, a cause of action for legal malpractice accrued when a plaintiff discovered, or could have discovered with ordinary diligence, that some harm had occurred. The full extent of that harm did not need to be apparent at the time. The plaintiff then had two years to commence a lawsuit. [4] Ruckelshaus had read and signed the retention letter and trust dissolution documents. Under Indiana law, she was therefore presumed to have understood them. Both sets of documents indicated that the trust assets would be disbursed with no restrictions on subsequent use. [5] Additionally, actually receiving the trust funds should have alerted Elizabeth (as it had alerted her brother) that the trust was gone. [6] Either of these should have alerted Elizabeth that Cowan had failed to do as she had intended. She did not have to wait until Polly died and she inherited nothing.

Therefore, Judge Barrett affirmed the summary judgment, because the statute of limitations had passed at least fifteen years earlier.

Williams v. Norfolk Southern Corporation (2019)

Ja’Lin Williams was a teenager playing with his friends on a beach. A police officer told them that they were trespassing and, if they did not leave, they would be arrested. The officer left but returned in his squad car and the young men fled. [2] They reached a set of train tracks with warning gates and flashing lights on either side. [2, 4-5] A train approached, showing its lights and sounding its bells and whistles. [3] Two of Master Williams’ friends saw the train. One sped up, the other stopped, and both were safe. Williams himself neither looked up nor changed his course and was hit by the train. [2]

Williams sued Norfolk Southern Corporation and the Norfolk Southern Railway Corporation, which owned and operated the railway. Magistrate Judge John Martin granted summary judgment to the Norfolk companies, holding that Williams could not recover under Indiana law because he was more than 50% responsible for his injuries. [2-3]

Williams and his friends testified that they had neither seen nor heard any signs of danger. The video of the incident, on the other hand, showed a plethora of sights and sounds that would have alarmed any reasonable person. Because Williams and his witnesses were biased, Judge Barrett cited Scott v. Harris to hold that a reasonable jury could not believe their testimony over the video. [3-4] Citing Reales v. Consolidated Rail Corp., Judge Barrett held that the gates, lights, and noise were ample warning that Williams had failed to heed. [4] Under Indiana law, the train driver was entitled to assume that Williams would evade danger unless he had reason to believe that Williams was unaware of the danger or unable to avoid it. By the time it became clear that Williams wouldn’t move, it was too late to stop the train. [4] Therefore, Judge Barrett held that Williams was primarily responsible for being hit by the train, which prevented him from recovering damages under the Indiana Comparative Fault Act [2].

Judge Barrett on Statutory Claims II

These civil law claims arise out of statutes and do not fit within any other category. As always, please read the overview for context.

PMT Machinery Sales, Inc. v. Yama Seiki USA, Inc. (2019)

PMT Machinery Sales aspired to become Yama Seiki’s exclusive dealer in eastern Wisconsin. It rejected Yama Seiki’s formal offer of exclusive dealer status, however, because it did not think it would be able to meet the requirements. Negotiations continued, during which Yama Seiki’s representative referred to exclusivity. Ultimately, they reached an agreement in which PMT would solicit customers and negotiate prices, then refer them to Yama Seiki. Yama Seiki never refused an order from PMT. PMT used the Yama Seiki logo on its website and spent $3803.14 on advertising, at least $1200 of it on advertising Yama Seiki products. Eventually, PMT learned that other distributors in eastern Wisconsin were selling Yama Seiki products. [2-4]

PMT sued Yama Seiki under the Wisconsin Fair Dealership Law, Wis. Stat. § 135.03, which prohibits alteration or cancellation of exclusive dealerships without good cause. Judge J.P. Stadtmueller granted summary judgment for Yama Seiki, holding that PMT had failed to provide evidence that it was a dealer under the law. [4]

Under the statute, a dealership required the right to either sell goods or services or to use a commercially recognisable symbol of the supplier. [4-5] The district court had held that PMT had done neither. [5] Judge Barrett observed that making sales typically meant the right to transfer the product itself (either physically or legally) or to commit the manufacturer to a sale. Judge Barrett held that Yama Seiki’s lack of refusals was not sufficient. Rather, PMT had to show that it exercised significant influence or control over sales. Citing Wisconsin and 7th Circuit case law, Judge Barrett held that it had failed to do so. Yama Seiki had agreed on sales terms, collected payment, and delivered the product. PMT had merely found customers and directed them to Yama Seiki, which was not sufficient to qualify as selling the product. [6-8]

Likewise, PMT’s use of Yama Seiki’s commercial symbols was not sufficient. Under 7th Circuit case law, a dealership had to associate the symbol with itself, which it did by investing substantially in the symbol and thereby putting itself at risk should the manufacturer leave. Use of the Yama Seiki logo on PMT’s website was not enough and neither was the $1200 that PMT could prove it spent advertising Yama Seiki. [9-10]

Therefore, summary judgment for Yama Seiki was affirmed.

Walton v. EOS CCA (2018)

Deborah Walton was a former customer of AT&T, which sent her a letter informing her that she owed it $268.47. A few months later, EOS sent Ms. Walton a letter asserting that she owed money to AT&T, identifying the correct amount of debt but using the wrong account number. In reply, Walton wrote to EOS that she did not owe AT&T any money under that account number. [2] EOS checked its records, which contained the wrong number (erroneously sent by AT&T), and sent Walton a response that it had verified the debt. [2-3] EOS also reported the debt, and that Walton had disputed it, to two credit reporting agencies. In April, Walton wrote to the agencies that the debt did not belong to her; they notified EOS of her complaint and it checked its records again. In May, she complained again; this time, the agencies notified EOS of the error in her account number. EOS then asked the credit agencies to delete the record of Walton’s debt. [3]

Walton sued EOS. She alleged that its failure to verify her debt with AT&T violated the Fair Debt Collection Practices Act and that its failure to reasonably investigate disputed claims violated the Fair Credit Reporting Act. A magistrate judge recommended that the district court enter summary judgment for EOS and Judge Tanya Walton Pratt agreed. [3-4]

The first question before the Court of Appeals for the 7th Circuit was the meaning of “obtain[] verification of the debt” under the FDCPA. Judge Barrett wrote for the Court that the statute did not define the term and a dictionary offered little assistance. She then reasoned that to require a debt collector to investigate the validity of the debt would not only impose a burden on the debt collector; it would extend well beyond the purpose of the FDCPA, which was to limit abusive practices by debt collectors, not by creditors. Judge Barrett accordingly held, as had the 4th and 9th Circuits, that “obtain[ing] verification of the debt” meant no more than ensuring that a debt collector’s letters to a supposed debtor matched the information received from the creditor. [4-5] Therefore, Judge Barrett held that EOS had satisfied its obligations: it had checked its records, to be sure it had contacted the right person; it had informed her of the details of the alleged debt, including the identity and address of her creditor; and, in doing so, it had enabled her to dispute the debt and ultimately eliminate the record with credit agencies. [5-6]

The second question was whether EOS’ investigation was reasonable under the FCRA. Judge Barrett held that it unquestionably was, satisfying the standard for summary judgment. Walton’s first complaint to the credit agencies denied that the debt was hers, so it was reasonable for EOS to check its files and verify that (so far as EOS knew) it was. The second complaint to the credit agencies was more specific, so EOS fulfilled its obligations by asking the credit agencies to delete the record of her debt. [6]

Walton further argued that EOS had violated the FDCPA and FCRA by failing to report that the debt was disputed. Judge Barrett held that, even if Walton had not waived this argument, it would fail because there was evidence that EOS had reported the debt as disputed and no evidence that it had not (and because the FCRA did not provide a private cause of action for this). [6-7] Walton argued that the district court had erred in ordering consolidated briefing but Judge Barrett held that this was within the magistrate judge’s discretion. [7] Finally, Judge Barrett held that the district court had properly reviewed Walton’s objections to the magistrate’s report, despite a statement that Walton took out of context. [7-8]

Washington Central Limited v. TiEnergy, LLC (2018)

Allied Track Services had a plan to dispose of some used railroad ties. Wisconsin Central would deliver them to TiEnergy by rail. TiEnergy would then grind up the ties and sell the remains to generate power.  [2-3] Allied’s contract with Wisconsin Central (or, more accurately, its parent company) incorporated CN Tariff 9000, under which demurrage fees would begin to accrue if the trains remained on the track for more than two days. [2] Allied formed no written contract with TiEnergy. [12] Without the knowledge or consent of TiEnergy, Allied listed TiEnergy as the consignee of the ties on the bills of lading. [3] Because the cars remained on the train tracks for longer than two days, Washington Central was required to charge demurrage fees to TiEnergy. TiEnergy objected to these fees but did not move the trains, so the fees mounted to roughly $100,000. [3]

Washington Central sued TiEnergy for the demurrage fees. TiEnergy argued that it wasn’t responsible for these fees but also sued Allied for indemnification or contribution. All of the parties moved for summary judgment. TiEnergy lost twice over: Judge Amy St. Eve granted summary judgment to both Washington Central and Allied. [3-4]

The Court of Appeals for the 7th Circuit first considered whether it had jurisdiction. Judge Barrett, writing for the Court, held that the federal courts had subject matter jurisdiction because the claim arose out of federal law. 49 U.S.C. § 10743 charged “rates for transportation,” which at the time had included demurrage fees, to the consignee and created a cause of action under federal law. [6-7 and note 3 on pages 8-9] TiEnergy argued that the Court was prevented from exercising jurisdiction by 28 U.S.C. § 1337(a), which required that each bill of lading be worth at least $10,000, but Judge Barrett held that this limitation applied only to two statutes under which Washington Central was not suing (and which addressed suits against, not by, rail carriers). [7] Had Washington Central simply brought a contract claim, the unusual circumstances might have given rise to federal-question jurisdiction under Grable & Sons Metal Products v. Darue Engineering & Manufacturing, but the Court did not need to consider that argument (which Washington Central hadn’t made). [5-6 and note 2 on page 6] Judge Barrett also held that the Court of Appeals had jurisdiction to consider TiEnergy’s appeal from summary judgment on the third-party claim against Allied, even though the district court had not docketed an order of judgment, because the district court had clearly indicated its intent to fully dispose of that case. [4-5]

Reaching the merits, Judge Barrett explained that, while a consignee was typically liable for demurrage, being identified as consignee on the bills of lading was not itself enough to render a party the consignee. [8 and note 3 on pages 8-9] Likewise, handling the goods was not sufficient to become the consignee. Rather, the consignee was the party with an interest in, or control of, the transported goods. [9] TiEnergy fit that bill for multiple reasons: it was in the business of disposing of, not transporting, used railroad ties; it demonstrated control of the ties by grinding them; it reaped the benefit of the ties by selling the grounds; and it kept the full payments of that sale. [10] If TiEnergy really believed that it was Allied’s agent, as it claimed, it could have informed Western Central that it lacked beneficial title to the ties and it informed it of who possessed such title. Because TiEnergy was the consignee, it was liable for demurrage fees. [11] Judge Barrett summarily found no abuse of discretion in the district court’s consideration of facts that allegedly violated a local rule of the district court. [Note 1 on page 4] Judge Barrett also quickly disposed of all TiEnergy’s theories for indemnity or contribution. TiEnergy could prove neither a written nor oral contract of indemnification. [12] TiEnergy was not Allied’s agent, because Allied did not control how TiEnergy disposed of the ties or play any part of the sales. [10, 12, and note 4 on page 10] Illinois’ Joint Tortfeasor Act was inapplicable, because accruing demurrage fees was not a tort and, even if it were, Allied was not liable to Western Central so was not a joint tortfeasor. [12-13]

Judge Barrett on Statutory Claims I

These civil law claims arise out of statutes and do not fit within any other category. As always, please read the overview for context.

Carello v. Aurora Policemen Credit Union (2019)

The Aurora Policemen Credit Union, as the name suggests, offers membership only to specified municipal and county employees. Matthew Carello was not one of those employees. Rather, Mr. Carello visited the Credit Union’s web-site to see if it complied with the Americans with Disabilities Act. Carello, who is blind, found that the web-site did not support the screen-reading device he needs to fully engage with online materials. [2] Carello sued the Credit Union, seeking injunctive relief as well as costs and attorneys’ fees. Judge Thomas Durkin dismissed the case for lack of standing, holding that Carello had failed to allege injury-in-fact. [2-3]

Judge Barrett recognised that “tester” status did not preclude standing but also did not necessarily confer it. A tester was still required to allege, among other things, an injury-in-fact. [4] Judge Barrett held that Carello had failed to do so because, as specifically authorised by Illinois law, the Credit Union had categorically limited its membership to a group that excluded Carello. Effectively, Carello was legally barred from obtaining the Credit Union’s services. Therefore, any dignitary harm caused to those unable to use the web-site could not be directed at Carello; he couldn’t join the Credit Union regardless, so he was no more affected by the Credit Union’s discrimination than a sighted person who was equally outraged by its failure to comply with the ADA. [4-6] Judge Barrett held that Carello had also suffered no informational harm, because no information had been withheld. The information was on the web-site and Carello could, for example, have asked somebody to read it to him. That doing so was more difficult than use of the screen reader constituted a dignitary harm that, as previously described, did not give rise to standing. [7-8] The future injury alleged in his request for injunctive relief was that same rejected theory of dignitary harm. [8-9]

Judge Barrett therefore affirmed the dismissal of the complaint.

Casillas v. Madison Ave. Associates, Inc. (2019)

Judge Barrett listed this as number nine on the list of her ten (actually eleven) most important cases on the Court of Appeals for the 7th Circuit. She summarised the case as follows:

Paula Casillas filed a class action against a debt collection company because they sent her a debt-collection letter that described the process that the Fair Debt Collection Practices Act provides for verifying a debt but did not, as required by the Act, specify that she had to communicate in writing to trigger that process. The only harm that Casillas claimed to have suffered, however, was the receipt of an incomplete letter. I explained that this claim of a bare procedural violation, divorced from any concrete harm, was not sufficient to satisfy Article Ill’s standing requirements.

[2020 Questionnaire at 47]

Paula Casillas owed money to Harvester Financial Credit Union. Harvester Financial Credit Union presumably asked Madison Avenue Associates to collect that money. Under the Fair Debt Collection Act, a debt collector is required to inform a debtor of certain information, including how to dispute the validity of the debt (which had a time limit of thirty days) or to request more information about the debt. Both processes could only be done in writing, which the debt collector also had to tell the debtor. When Madison sent Ms. Casillas her letter, it did not explain that she had to act in writing. [2-3]

Casillas did not try unsuccessfully, or even intend to try, to take advantage of these procedures. Instead, she filed a class action against Madison. She sought statutory damages and attorneys’ fees, which were potentially extensive, so Madison agreed to settle. [3] Before the district court confirmed the settlement (as required for class actions) the Court of Appeals for the 7th Circuit decided Groshek v. Time Warner Cable, Inc. Judge William Lawrence held that Groshek required him to dismiss the case because Casillas did not have standing. [4] Casillas sought leave to amend her complaint but Judge Lawrence denied her request. [17]

The question before the Court of Appeals for the 7th Circuit was whether Casillas had standing to bring her lawsuit. Judge Barrett, writing for the Court, quickly concluded that Casillas did not. Since Casillas had not intended to use these procedures, she had not been harmed by not being informed of how to do so. Citing Spokeo, Inc. v. Robbins, Judge Barrett held that Casillas had suffered no more than a “bare procedural violation.” [6] The Court of Appeals for the 6th Circuit had disagreed in Macy v. GC Services Limited Partnership, reasoning that the lack of information could prevent consumers from exercising their rights, but Judge Barrett held that this was not enough to confer standing if it did not harm Casillas herself. [9-11] It is possible that, in fact, Casillas had intended or tried to use these procedures but did not allege this in her complaint; if so, she did not explain this to Judge Barrett’s satisfaction, because Judge Barrett held that the district court had been right to prohibit Casillas from amending her complaint. [17]

The rest of the opinion was spent distinguishing cases. In Robertson v. Allied Solutions, the 7th Circuit found standing where a prospective employer did not provide the plaintiff a copy of her background check before retracting its job offer, as required by the Fair Credit Reporting Act. Judge Barrett held that this case was inapplicable, because the plaintiff had alleged violations of not just the statute but the interest protected by the statute, in that the plaintiff had been denied the opportunity to contest the background report. This was the denial of substantive injury, not of mere statutory rights. [6-9] Judge Barrett found it closer to Groshek, in which the defendant had provided all the required information but had not (as required) presented it on a separate page. [8-9] Judge Barrett also found the Second Circuit decision Strubel v. Comenity Bank inapposite, even assuming it was rightly decided, because there had been at least a chance that the plaintiff would have used the withheld information and that information the plaintiff would not have used would be harmless (although it would be more accurate to say that the plaintiff could not have used that information). [11-12 and note 5 on page 12] Citing Williams v. OSI Education Services, Judge Barett held that the “unsophisticated consumer” standard was a rule of interpretation, not of standing. [Note 3 on page 10]

Casillas argued that she had standing because she had been denied information, citing Supreme Court authority. Judge Barrett found that these cases did not apply, both because Casillas had not sought yet been denied government information subject to public disclosure and because the plaintiffs in those case had alleged that the denial would impair their ability to use the information for the purpose protected by the statute. [12-15] Finally, Judge Barrett held that Havens Realty Corp. v. Coleman was not relevant. In Havens, a Black woman investigated an apartment complex that she suspected of racial discrimination, requesting information on vacancies although she had no intention of living there; when it lied to her, claiming there were no vacancies, she sued it under the Fair Housing Act. Judge Barrett held that “freedom from racial discrimination in the pursuit of housing” was the harm to be prevented by the Fair Housing Act, which included the right not to be lied to because of one’s race. [15-16] Although the Eleventh Circuit had held that Havens Realty did create standing to challenge violations of the Fair Credit Reporting Act, Judge Barrett observed that the decision (Church v. Accretive Health) was not precedential and applied to a broader denial of information. If Church still conflicted with her decision, Judge Barrett rejected it. [Note 7 on page 16]

Finally, Judge Barrett held that Casillas had not challenged the dismissal of her complaint that omitting the omission was an unfair or unconscionable debt collection practice, so she had forfeited that argument. [17]

Because this decision differed from the 6th Circuit’s, creating a circuit split, it was circulated among the judges of the Court of Appeals. The Court decided against re-hearing the case en banc. [Note 4 on page 11] Chief Judge Wood, joined by Judges Rovner and Hamilton, dissented from the decision. [18] The Chief Judge would have considered the issue en banc, both because the decision would make it more difficult to enforce the Act against abusive debt collectors and because 7th Circuit case-law was insufficiently clear about which procedural violations sufficed to establish standing. [18-19] After reciting the pleading standards, Chief Judge Wood wrote that Madison’s failure to inform Casillas of the need to communicate in writing put Casillas at risk of losing the important protections granted by the Act, which was enough to confer standing on Casillas under the Supreme Court’s jurisprudence. [19-22] Judge Wood pointed out that if Casillas’ lack of standing flowed from omitting specific details of the way she would be harmed by deprivation of this information, amending the complaint would be an adequate solution. [22-23] Chief Judge Wood then wrote that some – perhaps many – procedural rules existed for substantially important reasons, that withholding required information may be one of them, and that the Court should have heard the case en banc to clarify what constitutes a “bare” procedural violation. [32-25]

Therefore, Casillas’ case was dismissed. As a practical matter, this will render such claims much harder to bring in future. If only plaintiffs who intended (or even attempted) to use one of the procedures have standing to sue, it seems likely that the class of plaintiffs would be much smaller. A smaller class leads to lower damages, which means that fewer lawyers would be willing to take on the case. Additionally, lower damages reduces the incentive for debt collectors to comply with the law, particularly if they are able to collect debts more efficiently (and so make more money) by failing to do so. Of course, an undesirable outcome does not necessarily mean that a decision is wrong.

Gadelhak v. AT&T Services, Inc. (2020)

Ali Gadelhak’s mobile phone number is in the national Do Not Call Registry. Somehow, it also wound up in AT&T’s customer database, although Mr. Gadelhak is not a customer of AT&T. From this database, AT&T sent text messages to its customers. It sent a series of texts asking survey questions to Gadelhak (in Spanish, which he doesn’t speak). Gadelhak sued AT&T under the Telephone Customer Protection Act. [2-3] Judge Edmond Chang rejected Gadelhak’s claim, finding that AT&T’s system did not fit into the statutory definition, although the exact procedural posture is not clear from Judge Barrett’s opinion. [19]

The main question before the Court of Appeals for the 7th Circuit was the interpretation of the statutory phrase “automatic telephone dialing system.” The Telephone Customer Protection Act, which became law in 1991, prohibits the use of such a system to text mobile phones without the user’s permission. 47 U.S.C. § 227(b)(1). Equipment is an “automatic telephone dialing system” under the Act if it has the capacity: “(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C § 227 (a)(1). [2-3] The Court of Appeals therefore had to interpret this definition.

Before reaching the merits, the Court of Appeals addressed standing, although AT&T itself had not argued that Gadelhak lacked standing. The Eleventh Circuit had held that receipt of an unwanted text message was insufficient to confer standing, whereas the Second and Ninth Circuits had held that it was sufficient. [4 and note 2 on page 7] Judge Barrett reasoned that the common law had treated violation of privacy as harmful and that Congress had identified a modern version of this harm. In other words, Congress had created a cause of action that did not exist under common law but that remedied a kind of harm courts had recognised. Judge Barrett held on behalf of the Court of Appeals that Gadelhak, having suffered precisely the legally-cognisable harm that Congress had legislated against, had standing to sue. [5-8]

Judge Barrett then considered four interpretations of the statutory definition in question. First, she considered the definition she found most natural: “to store or produce telephone numbers to be called, using a random or sequential number generator.” That is, the Act prohibits only use of a system able to use a random number generator to either store or produce numbers. Although this interpretation was supported by typical grammar rules, it had two problems. First, a system that generates and immediately calls phone numbers does not ‘store’ numbers except in the most forced sense; at the time of enactment, however, some systems did generate numbers and store them for later use. Second, the word “store” was effectively redundant under this interpretation, because the number would necessarily be produced using a random number generator; Judge Barrett found that this surplusage was undesirable but acceptable. [10-12] This was also how two other courts of appeal had interpreted the statute. [9 and note 3 on the same page]

Second, Judge Barrett considered the interpretation that the modifying clause referred to “phone numbers”: “to store or produce telephone numbers to be called, [generated] using a random or sequential number generator.” [12] This was how the district court had interpreted the statute. [13] Nevertheless, Judge Barrett held that this was an adverbial phrase, which became grammatically acceptable only through the insertion of a word that Congress had not written. Judge Barrett therefore rejected this interpretation. [13]

Gadelhak preferred to argue that the final clause modified only produce, not store: “to store or produce telephone numbers to be called, using a random or sequential number generator.” [13-14] This was the only interpretation under which he could definitely win. It was also how the 9th Circuit had interpreted the statute. [14] Judge Barrett found this impossible to square with the statutory text, which did not separate storing from producing. [14-15] Gadelhak argued that this interpretation was necessitated by the defence that a party had consented to be contacted, which would be effectively impossible if the numbers called were randomly generated, but Judge Barrett thought a system could dial random numbers with pre-programmed exceptions. [15] Judge Barrett also rejected the argument that Congress had approved this interpretation by amending the Act while the FCC espoused it. [15-16] Finally, Judge Barrett pointed out that this would include every text from a smart-phone, because smart-phones have the capacity to store telephone numbers and send automated messages (such as “do not disturb” texts). [16-17]

Finally, Judge Barrett considered the interpretation in which the comma was effectively removed, resulting in the interpretation that “using a random or sequential number generator” modified the immediately proceeding “to be called”. [17] This was very difficult to reconcile with the presence of the comma, although punctuation was not the entirety of legal interpretation and that comma seemed to be wrongly located under any interpretation. [17-18] Documents roughly contemporaneous with the Act suggested that “telephone numbers to be called” was a single unit, which negated the possibility that only “to be called” was modified by the “using” clause. [18-19]

Judge Barrett found the first proposed interpretation the least bad and therefore construed the definition as meeting it. Therefore, an automatic telephone dialing system required the capacity to randomly or sequentially generate numbers, which AT&T’s database lacked. The automated messages sent by AT&T were not prohibited by statute. [19-20]

Judge Barrett on Government III

This series consists of cases brought by or against the government. They do not include criminal cases, lawsuits against law enforcement, lawsuits based on the management of jails and prisons, immigration, or lawsuits against the government in its capacity as an employer. Those lawsuits are (or will be) summarised elsewhere. For further context, please read the overview.

Groves v. United States (2019)

Philip Groves promoted and sold tax shelters. A decade later, the IRS tried to assess a tax penalty against him for this behaviour. Mr. Groves disputed the validity of this penalty, arguing (among other things) that the statute of limitations was five years. Judge Gary Feinerman struck that argument, accordingly rejecting Groves’ motion for judgment on the pleadings, but certified the order for interlocutory review under 28 U.S.C. § 1292(b). [2] § 1292(b) also required Groves to apply to the Court of Appeals within ten days, however, which he failed to do because a paralegal submitted the application to the wrong e-mail address. Three days later, at Groves’ request, the district court re-certified its order. Groves applied to the Court of Appeals the next day.  [2-3]

Both parties argued that the Court of Appeals had jurisdiction to hear the appeal, although they put forth different rationales. Judge Barrett, writing for that Court of Appeals, disagreed. Citing Hamer v. Neighborhood Housing Services, Judge Barrett held that this time limit governed the transfer of adjudicatory authority from one Article III court to another, which was presumed to be jurisdictional. Judge Barrett rejected all Groves’ cases as not addressing a court’s adjudicatory authority. [4-5 and note 1 on page 5] Groves then argued that § 1292 did not really “transfer” jurisdiction because it did not stay proceedings and the district court retained jurisdiction. Judge Barrett dismissed this argument as “meritless,” clarifying that the question was not whether authority was strictly transferred but whether it addressed the power of the courts rather than the rights or duties of the litigants. § 1292 unquestionably did so, which was why no court of appeals had ever doubted that it was jurisdictional. [5-8] Therefore, the Court would not be able to consider the appeal even with the parties’ consent, unless re-certifying the appeal extended the jurisdictional deadline.

In Nuclear Engineering Co. v. Scott, the 7th Circuit had held that a court could re-start the countdown by re-certifying the order for interlocutory appeal. Other circuits had reached similar conclusions. Arguably, the Supreme Court had even approved the practice but Judge Barrett held that, if so, the decision lacked precedential effect. [Note 3 on page 9] Yet the Supreme Court had subsequently emphasized the importance of filing deadlines and courts’ lack of equitable authority to extend them. [8-12] Courts of appeals had no authority to extend the time limit for seeking permission to appeal. [12] Similarly, unlike notices of appeal, district courts did not have explicit statutory authority to extend the time limit for a petition for permission to appeal. [12-13] Re-starting the clock when the district court re-certified the appeal would effectively have allowed district courts to circumvent those deadlines. Therefore, the Court of Appeals held that the unextendable time limit for applying for an interlocutory appeal was ten days after the order was first certified, over-ruling Nuclear Engineering Co. [13-15] The Court did not address the effect of orders that were substantially re-considered and then re-certified. [Note 6 on page 14]

Therefore, the Court of Appeals dismissed Groves’ appeal, which it did not have jurisdiction to consider. Let’s not speculate about the consequences for Groves’ representatives.

A.F. Moore & Associates, Inc. v. Pappas (2020)

Judge Barrett listed this case as number eight on the list of her ten (actually eleven) most significant decisions on the Court of Appeals for the 7th Circuit. She summarised the case as follows:

The Equal Protection Clause entitles owners of similarly situated property to roughly equal tax treatment. A group of taxpayers asserted that the tax assessor for Cook County violated that guarantee by offering a break to owners of similarly situated property, but not to them. The taxpayers had pursued a refund in Illinois court for more than a decade before they eventually came to federal court seeking to vindicate their federal constitutional claims. Writing for the unanimous panel, I explained that the Tax Injunction Act did not bar the suit because the taxpayers had no remedy at all for their claims in state court-let alone, a “plain, speedy and efficient” one.

[2020 Questionnaire at 45-47]

Chicago being what it is, Cook County’s property taxes in the early 21st-Century were not models of clarity and probity. Most property was assessed at rates significantly lower than was prescribed by the County ordinance. Some, however, was assessed at the lawful rates. Some was even assessed above those rates. The ordinance was changed in 2008. [2-3]

Taxpayers who had been assessed at lawful (or higher) rates before 2008 considered themselves overcharged. They argued that they had paid higher rates than similarly situated taxpayers, potentially a violation of the Equal Protection Clause, first before the Cook County Review Board and then before the Circuit Court of Cook County. [2-3] Yet an Illinois statute, 35 ILCS 200/23-15, severely limited their options in this forum. They could not challenge the County Assessor’s methods of valuation and could not sue anybody other than the County tax collector. Therefore, they could not seek evidence from the Assessor and probably wouldn’t be able to use it if they could. As a result, their suit was tied up in discovery for over a decade. [4-6]

The taxpayers eventually sued Cook County and the Assessor in federal court. Judge Charles Kocoras held that the lawsuit was barred by the Tax Injunction Act, which prohibited federal courts from judging tax suits if “a plain, speedy and efficient remedy may be had in the courts of such State.” The district court therefore dismissed the lawsuit for lack of jurisdiction. Alternatively, Judge Kocoras did not exercise jurisdiction out of comity to the state courts. [4-5]

Judge Barrett wrote for the Court of Appeals for the 7th Circuit that the Tax Injunction Act required only a hearing and judicial determination on all of a taxpayer’s claims. Judge Barrett then reviewed past decisions applying the Act to Illinois, concluding that none of them had addressed the statutory restrictions at issue. [6-10] Judge Barrett acknowledged that whether state courts offered an adequate forum for all the plaintiffs’ claims was a “potentially complex issue” but, in this case, Cook County admitted that the plaintiffs would not be able to bring their claims in the Circuit Court. [10-12] They also did not identify any other way plaintiffs could raise their claim in state courts. [11 and note 2 on pages 11-12] Therefore, Judge Barrett held that the Tax Injunction Act did not apply.

Judge Barrett also held that principles of comity did not bar the exercise of jurisdiction, assuming they even applied when the plaintiffs did not formally seek damages, because the Supreme Court held in Fair Assessment in Real Estate Association v. McNary that the principle of comity applied in tax suits under the same standard as the Tax Injunction Act. [12-13]

The taxpayers were accordingly permitted to continue their suit in federal court.

Shakman v. Clerk of the Circuit Court of Cook County (2020)

A class of plaintiffs sued the Clerk of the Circuit Court of Cook County, alleging that it favoured or disfavoured employees for political reasons. The result called to mind Jarndyce & Jarndyce. Comparatively early in the lawsuit – in 1972 and 1983, respectively – the Clerk entered a consent decree to stop such discrimination against current employees and a judgment imposed similar limitations on hiring practices. [1-2]

In 2018, with litigation still ongoing, Magistrate Judge Sidney Schenkier appointed a special master to ensure the Clerk complied with those obligations. As part of her investigation, the special master intended to watch how the Clerk’s office responded to employee grievances. The employees’ union did not want her at these meetings and sent her a cease-and-desist letter telling her to stay away. The plaintiffs then moved for a declaratory judgment that the special master could observe the meetings. The union did not seek to become a party to the suit. Rather, it filed a memorandum in opposition to the plaintiffs’ motion. When Magistrate Judge Schenkier granted the plaintiffs’ motion, the union appealed. [2]

One of the plaintiffs’ arguments was that the Court of Appeals lacked jurisdiction because the union was not a party to the lawsuit. Judge Barrett, writing for the 7th Circuit, agreed and didn’t need to address their remaining arguments. [2-3] Judge Barrett cited extensive authority that only parties can appeal a lawsuit, which was well-settled by 1850. [3] The relevant statute limited appeals to the parties, 28 U.S.C. § 636(c)(3), as did Federal Rule of Appellate Procedure 3. [3-4] Judge Barrett stated that this jurisdictional deficiency was unrelated to whether or not the non-party had standing. [Note 1 on pages 3-4]

The union argued that it was effectively a party to the appeal, citing Devlin v. Scardeletti. Judge Barrett held that the union was not similar to an un-named class member in a mandatory class action, because the union had other means of protecting its rights. In particular, it could have moved to intervene in the suit, which would have enabled it to appeal the decision. [5-6] Judge Barrett also held that none of the other “narrow” circumstances in which a party could appeal were present. [Note 2 on page 5]

Therefore, the Court of Appeals dismissed the union’s appeal for lack of jurisdiction.

VHC, Inc. v. Commissioner of Internal Revenue (2020)

Ron Van Den Heuvel and his four brothers worked for VHC, a company founded by their father owned by their family. Mr. Van Den Heuvel came to occupy positions of control in several companies related to VHC and also launched separate companies of his own. Over a period of sixteen years, VHC paid $111 million to Van Den Heuvel and his companies, some of which was used for business purposes but some of which paid personal expenses (including taxes). Counting interest, Van Den Heuvel’s formal debt to VHC grew to $132 million. He only repaid $39 million. [1-2]

Van Den Heuvel also owed roughly $27 million to Associated Bank. Associated Bank was a creditor of VHC, as well as of Van Den Heuvel and his companies. Associated Bank threatened to cut off VHC’s credit if VHC did not guarantee Van Den Heuvel’s loans. VHC agreed to guarantee Van Den Heuvel’s loans to Associated Bank and, later, to two other banks. [2]

In 2004, VHC began to write off its payments to Van Den Heuvel and his companies. By 2013, it had written off $95 million as bad debts. It deducted these from its taxes. Turns out, you can’t just give money to relatives and claim it’s a business expense, even when those relatives work for you. The IRS audited VHC and rejected $92 million of the $95 million that VHC. [2] VHC appealed in tax-court, where Judge Kathleen Kerrigan held that VHC was not a bona-fide creditor of Van Den Heuvel and that the payments were not an ordinary and necessary business expense. Judge Kerrigan did slightly reduce the amount owed by VHC, because if the debts were not legitimate then VHC should not be taxed on the accrued interest. [3]

Judge Barrett, writing for the Court of Appeals for the 7th Circuit, wrote that VHC had to prove that it was entitled to the claimed deductions and that the Court would only reverse the tax court’s judgment if it was firmly convinced of the tax court’s mistake. [3-4] First, VHC argued that the tax court had erred in finding that its debts to Van Den Heuvel and his companies were not bona fide debts. Yet only bona fide debts could be written off and IRS regulations specifically excluded both gifts and investments from bona fide debt. [4] VHC argued that any debt was bona fide if the parties intended to function as debtor and creditor. Without addressing the correctness of this theory, Judge Barrett held that even if it were correct VHC still failed to meet its burden, because VHC had effectively behaved as an investor in Van Den Heuvel’s company rather than demanding repayment. VHC failed to present evidence to convince Judge Barrett that the tax court had made a mistake. [4-6]

VHC then argued that its payments to Van Den Heuvel were ordinary and necessary business expenses because they were the only way to secure their credit with three banks. [6-7] Judge Barrett first opined that VHC had failed to adequately prove the existence of the claimed expenses, because it had produced only its own summary records, rather than itemised receipts or other proofs of payments. [8] Moreover, even if VHC had proved its debts, Judge Barrett questioned whether such debts would be considered necessary and held that VHC had failed to prove that its (rather unusual) debts were ordinary in its industry. [8-9]

Finally, VHC argued that if its debts were not legitimate, it should be able to deduct accrued interest on those debts from its tax burdens. VHC had successfully argued in tax court that it should be able to deduct unpaid interest. Now, on appeal, it was arguing that it should also be able to deduct the interest that Van Den Heuvel had paid on his non bona-fide debts. Because the tax court had done precisely what VHC requested, Judge Barrett would not now find it had committed error in not doing more. [9-10]

Judge Barrett on Government II

This series consists of cases brought by or against the government. They do not include criminal cases, lawsuits against law enforcement, lawsuits based on the management of jails and prisons, immigration, or lawsuits against the government in its capacity as an employer. Those lawsuits are (or will be) summarised elsewhere. For further context, please read the overview.

Doe v. Purdue University (2019)

Although Purdue University is technically a private institution, the role of government looms so large in this case that it could only be included here.

Judge Barrett listed this as number four on her list of the ten (actually eleven) most significant cases she ruled on during her time as judge for the Court of Appeals for the 7th Circuit. She summarised the case as follows:

John Doe sued his former university, alleging violations of due process and Title IX in its treatment of a complaint of sexual violence against him. According to John Doe, the University refused to provide him with any of the evidence against him and to allow him to introduce any evidence of his own; denied him the opportunity to cross-examine his accuser; found his accuser credible without talking to her in person; and was blatantly biased against him. The University’s findings led to his suspension from the University and his expulsion from the Navy ROTC program. Writing for the panel, l concluded that John Doe had a protected liberty interest in his freedom to pursue naval service, had adequately alleged that the University used fundamentally unfair procedures in determining his guilt, and had adequately alleged sex bias in his particular case.

[2020 Questionnaire at 40-41]

The facts of this case are too long to properly summarise. Suffice it to say that the plaintiff was a student at Purdue, whose mentally-troubled ex-girlfriend reported to their university that he had sexually-assaulted her. The University initiated charges against him, although his ex had not formally complained. While the complaint was processed, “John Doe” was suspended from the Navy ROTC and barred from many buildings on campus. The investigation itself was a total stitch-up. Mr. Doe was suspended from university for an academic year and kicked out of the Navy ROTC. [2-7] This cost Doe his Navy ROTC scholarship and confounded his plan to serve in the Navy. [12]

Doe sued Purdue University and many of its staff, claiming that they had deprived him of liberty in violation of the Fourteenth Amendment and discriminated against him on the basis of sex in violation of Title IX. Magistrate Judge Paul Cherry dismissed all of his claims with prejudice, on the grounds that: the disciplinary proceedings had deprived Doe of neither liberty nor property; 42 U.S.C. § 1983 did not permit him to bring some of the specific actions he had attempted; he had no standing to seek injunctive relief, because he had not alleged any future harm; and he had not alleged facts that would support a claim of sex discrimination. [7-8 and note 1 on page 7]

Citing 7th Circuit authority, Judge Barrett wrote for the 7th Circuit that university students had a property interest in their education only if they could identify a specific contractual right of which they had been deprived. [9-10] Judge Barrett found that Doe failed to do so. [10-11] Judge Barrett nevertheless opined, citing 7th Circuit authority and Paul v. Davis, that Doe could allege harm to a liberty interest if he alleged stigma and an accompanying change in legal status. [11-12] Purdue argued that Doe had authorised it to release its investigation to the Navy but Doe alleged that he had been obligated to do so. Citing Dupuy v. Samuels, Judge Barrett held that this sufficed to allege stigma. [12-14] Judge Barrett then held that the results of the official adjudication of wrongdoing caused a change in Doe’s legal status, changing him from a reputable student to a suspended one. [14-15] Judge Barrett held that this was sufficient to satisfy the stigma-plus test.

Judge Barrett observed that the process due was higher for violation of behavioural than of academic standards, for university students than for high-school pupils, and for a longer suspension than for a shorter one. Doe was a student who had been suspended for a year as punishment for violation of its code of conduct. Judge Barrett held that this entitled him to strong procedural process. [16-17] Judge Barrett then held that Purdue had failed to satisfy this entitlement in many ways: it had not informed him of the evidence against him; its adjudicators had not properly informed themselves of the facts before reaching a conclusion; they had likewise failed to take the slightest measures to assess the accuser’s credibility; and it had refused to accept Doe’s exculpatory evidence. [17-19] Judge Barrett did not address whether Doe had a right to cross-examine his accuser. [Note 4 on page 18]

 Judge Barrett dismissed his Due Process claims against the individual defendants, however. The claims against the president of Purdue were based solely on the theory that he was liable as supervisor, which was not a valid theory of liability under 42 U.S.C. § 1983. [19] Doe’s remaining claims all failed because of qualified immunity. No relevant case had previously applied the stigma-plus test in the context of university discipline. Judge Barrett held that this meant that the legal rule was not clearly established, which justified judgment on the pleadings in favour of qualified immunity. [19-21]

Judge Barrett also held that Doe did not have standing to seek injunctive relief against the defendants in their official capacities, because he had not alleged a desire to return to Purdue (let alone a fear of repeated investigation) and he could not assert the Fourteenth Amendment rights of other students. Because his complaint had been dismissed without prejudice, he could allege a desire to return to Purdue if he truly held it. [22-23] The exception, which Doe did have standing to request, was that the court enjoin Purdue to expunge the unfavourable finding from Doe’s record. Although Doe had not specifically requested this relief in his complaint, Judge Barrett held that he might be entitled to it and ordered the district court to address the subject on remand. [23-24]

Judge Barrett specifically decided not to delineate the standards under which an education institution discriminated on the basis of sex. [24-25] Judge Barrett found that Doe had alleged sufficient facts to support this claim. Doe had alleged that the Department of Education had threatened to reduce the funding of universities that did not properly investigate sexual assault. Judge Barrett held that this fact gave Purdue an incentive to discriminate against men accused of sexual assault and the adjudicators’ unexplained acceptance of the accusation over Doe’s evidence adequately alleged bias in Doe’s specific case. [26-30] Judge Barrett observed that the inference was strengthened because an involved department of the university’s Facebook posts included a Washington Post article titled “Alcohol isn’t the cause of campus sexual assault. Men are.” [29-30]

Therefore, the case was returned to district court. Doe could seek monetary damages under his theory of sexual discrimination. It remained to be seen what injunctions he would be able to pursue.