Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

BOGAN v. CITY OF CHICAGO (July 6, 2011)

Nicole Evans's eight-year-old son called 911 at about 2:30 a.m. to report that his mother was being beaten. When officers arrived at her apartment, a male voice swore at them from inside. They then heard a woman scream and eventually found her on the roof. She was partially dressed, mentally distraught, and physically injured. She told the police that she wanted her boyfriend arrested. The police saw the boyfriend through an apartment window and went after him. He ran to the rear of the apartment and they followed, searching every room. Other officers had arrived at the building and advised that an African-American male was on the rear porch. The officers arrived at a door which they assumed was a door to the porch. They tried to kick it in but Sharon Bogan opened the door from the inside. She identified the boyfriend as her son. Chicago police searched the apartment but did not find boyfriend. Bogan brought suit against the City of Chicago and the officers under § 1983. She alleged a Fourth Amendment violation. A jury returned a verdict for the defendants. Judge Kennelly (N.D. Ill.) denied her motion for judgment as a matter of law. Bogan appeals.

In their opinion, Circuit Judges Ripple and Hamilton and District Judge Murphy affirmed. The Court first addressed Bogan's claim that the exigent circumstances instruction was error. The district court instructed the jury that Bogan had to prove that a reasonable officer would not have believed that a crime suspect was in the apartment. The Court noted that it had never addressed that precise question. It had, however, addressed the burden of proof question with respect to consent. In Valance, the Court concluded that a defendant asserting a consent exception to a warrantless search claim has the burden of coming forward with evidence but the plaintiff still has the ultimate burden of persuasion. The Court concluded that its rationale there also applied to the exigent circumstances exception as well. The Court acknowledged that there is a split in the circuits on the question, but countered that the split has existed for some time. The Court next addressed Bogan's argument that it was error to allow one of the officers to testify regarding his subjective beliefs during the search of Evans’s apartment. The Court recognized that the exigent circumstances exception cannot be satisfied with a police officer’s subjective view. Instead, the factfinder views the totality of the circumstances as they would have appeared to a reasonable person in the officer’s position. Here, the officer's testimony simply explained his progress and decisions made during this search. The information could have been helpful to a jury in assessing the reasonableness of his actions. Finally, the Court found no error in the district court's rejection of Bogan's request for judgment as a matter of law. There was sufficient evidence in the record from which a jury could conclude that the officers reasonably believed the boyfriend was in the apartment.

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FELLS v. UNITED STATES (December 23, 2010)

Stephen Fells owned and operated a small convenience store in Milwaukee, Wisconsin. The store participated in the Supplemental Nutrition Assistance Program (formerly known as the Food Stand Program). An automated monitoring program identified a number of questionable transactions at Fells’ store in 2007. The United States Department of Agriculture conducted an investigation, which revealed a significant number of transactions larger than normal for a store of that size and a significant number of unusual, even-dollar transactions. The USDA determined that Fells violated Program regulations and disqualified him from the Program. Fells appealed administratively. The USDA affirmed its determination. Fells sought judicial review. Magistrate Judge Goodstein (E.D. Wis.) upheld the agency's determination, ruling that Fells had the burden of proof to establish the invalidity of the determination and that he failed to sustain his burden. Fells appeals.

In their opinion, Seventh Circuit Judges Ripple, Manion, and Sykes affirmed. The Court first addressed the burden of proof issue. The statute provides for a trial de novo on judicial review of an agency determination. The statute provides no other guidance on the trial procedures or the burden of proof. The Court noted that it had never directly resolved the issue but that it had consistently followed the Fifth Circuit's decision in Redmond, in which that court concluded that the agency action was entitled to a "presumption of validity." The Sixth and Ninth Circuits have also concluded that a store owner challenging agency action has the burden of proof. The Court thus made explicit the rule that its earlier decisions had adopted implicitly -- that the store owner had the burden to prove by a preponderance of evidence that the challenged determination was invalid. Applying a clearly erroneous standard, the Court determined that Fells failed to carry his burden. Although the evidence was largely circumstantial, the district court did review the evidence and Fells' explanations. Its affirmance of the agency's determination was not clearly erroneous.

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RUNYON v. APPLIED EXTRUSION TECHNOLOGIES (August 30, 2010)

Timothy Runyon began working at Applied Extrusion Technologies' (AET) Terre Haute, Indiana plant in 2005 at the age of 45. A few months later, the company hired Troy Corbett, about fifteen years his junior. The two men worked for the same supervisor and had the same job title. Runyon had two fairly serious and heated altercations with coworkers in his first seven months on the job. Then, in February of 2006, Runyon and Corbett got into a heated argument that escalated into a fight. Both men were suspended for three days and instructed to write letters of apology. Runyon's letter focused more on his desire to remain employed and did not address the fight or issue an apology until its fourth and final paragraph. Corbett's letter, on the other hand, opened with an apology and expressed his sincere regret. Because of the earlier two incidents and the content of the letter, AET fired Runyon. It did not fire Corbett. Runyon brought an action against the company based on the Age Discrimination in Employment Act ("ADEA"). Judge McKinney (S.D. Ind.) granted judgment as a matter of law to AET at the close of Runyon's case-in-chief. Runyon appeals.

In their opinion, Judges Posner, Flaum, and Wood affirmed. The Court stated that Runyon was wrong in approaching the appeal as if it were a McDonnell Douglas indirect proof analysis. That burden-shifting approach is only appropriate at summary judgment, not after a plaintiff has had an opportunity to present his entire case at trial. The question at that time is whether he presented enough evidence to allow a rational factfinder to rule in his favor. On that question, Runyon must fail. He presented insufficient evidence to carry his burden that his age rather than his behavior was the real reason for his discharge.

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WHITTINGTON v. INDIANAPOLIS MOTOR SPEEDWAY FOUNDATION (April 13, 2010)

DonWhittington and his brother Bill used to race cars. In fact, they (with a third driver) won the famous Le Mans 24-hour endurance race in 1979 driving a Porsche 935 K3 (finishing just ahead of Paul Newman). A few years later, the K3 was transferred to the Indianapolis Motor Speedway Foundation and has since been on display in the Foundation's Hall of Fame Museum. In 2004, after Whittington requested the car’s return, the Foundation sent a letter claiming ownership of the car. Whittington filed a complaint for tortious conversion and replevin. He alleged that he has always owned the Porsche and only loaned it to the Foundation. Neither party had any documentary evidence in support of its position and at least one principal witness has since died. After a one-day bench trial, the court found in favor of the Foundation. Whittington appeals.

In their opinion, Judges Bauer, Ripple, and Kanne affirmed. The Court noted that Indiana law requires a replevin plaintiff to establish a prima facie case of personal possession before any burden shifts to the defendant. Similarly, under Indiana law, a conversion plaintiff must establish a property right. The Court noted the lack of documentation and the conflicting evidence and inferences in the court below. Each party presented evidence in support of its respective position. The Court concluded that the district court did not clearly err in its conclusion that Whittington failed to establish a prima facie right of possession.

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MADDEN v. ROLLS ROYCE CORP. (April 29, 2009)

Rick Madden, a member of the U.S. Air Force Reserve, was hired as a temporary employee at Rolls-Royce Corporation. He represented, falsely, that he was a graduate of Purdue's engineering program. He did not impress his supervisor with his skills. At the end of the temporary period for which she had been hired, Rolls-Royce let him go. He then applied for a job with Data Systems and Solutions (DS&S), without success. Madden brought suit against Rolls-Royce and DS&S, alleging that both violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) by discriminating against him on the basis of his military service. The district court granted summary judgment to the defendants. Madden appeals.

In their opinion, Judges Bauer, Posner and Rovner affirmed. Even if a plaintiff under USERRA establishes that his military service was a motivating factor in his discharge or failure to be hired, the defendant is given the opportunity, and the burden, to show that its actions would have been taken even in the absence of military obligations. Here, the defendants’ evidence is compelling and barely contested. Madden’s performance at Rolls-Royce was unsatisfactory. The company was not going to retain him when it had to lay off someone and his co-worker was a better performer. With respect to DS&S, the Court concluded that the company surely would have checked his record and his resume before offering him a job. His poor performance at Rolls-Royce and his resume fraud would justify its refusal to hire.

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UNITED STATES v. APPROXIMATELY 81,454 CANS OF BABY FORMULA (March 25, 2009)

Federal agents seized thousands of cans of powdered baby formula from a warehouse. They suspected that the cans had been stolen from retail stores. Many of the cans had altered labels - some of the cans were even past their "use by" date. The government filed a civil forfeiture suit, which is still pending in the district court. The owner of the cans asked the court for permission to sell those cans that were not yet beyond their “use by” date. The court denied the motion. The owner appeals.

In their opinion, Judges Posner, Sykes and Dow affirmed. The court first addressed the jurisdictional issue. Because the ruling on the motion was not a final appealable decision, the appellant relied on the "collateral order" doctrine. Under that doctrine, the Court noted, a party may take an immediate appeal from an order if it involves issues separate from those of the underlying litigation and there is a risk of irreparable harm. The Court found both criteria present in this case. The issues were clearly separate and, although unclear, the possibility of a monetary remedy from the government was unlikely.

On the merits, the Court noted that the procedural rules governing asset forfeiture actions were quite vague and provided no particular criteria for deciding a motion like the one presented to the court below. They do not, for example, as appellant argues, provide that the government has the burden of proof. The Court concluded that the lower court had considerable discretion in ruling on the motion. The judge below conducted an evidentiary hearing, where there was conflicting evidence concerning the threat posed by the formula. The Court could not conclude that the lower court abused its discretion in denying the motion.

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