Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Administrative Law (page 1 of 2)

In Search of Asylum

By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Lishou Wang, a native and citizen of China, used to farm in a village in the eastern province of Shandong.  In 1988, he and his wife bore a child.  Shortly thereafter, China’s officials ordered an intrauterine device (IUD) implanted in his wife.  Five years later, Wang’s wife got pregnant again because the IUD fell out, and the officials forced an abortion.  In 2000, his wife again gave birth.  Again, government officials showed up at their house and threatened to sterilize either him or his wife.  Outraged, Wang fought against the official’s orders.

Wang recalled being kicked to the floor and hit with batons until he passed out.  He woke up in the hospital and felt excruciating pain from a fractured foot.  Government officials surgically inserted “Norplant” into his wife’s arm while Wang remained hospitalized.

In 2009, Lishou Wang entered the United States on a business visitor’s visa for three months and overstayed.  Wang applied for asylum and withholding of removal over a year after the visa expired.  In his search for asylum, Wang alleged that China’s officials tried to prosecute him for resisting birth control demands.

At the asylum hearing, Wang testified through an interpreter.  The decision hinged on Wang’s inconsistent statements.  He testified that China’s officials forced tubal ligation, a form of sterilization, and implanted Norplant in his wife, a form of contraceptive.  The court interpreter misinterpreted “Norplant” for “tubal ligation.”  The National Institute of Justice (IJ) said that the two procedures were so “markedly different” that it is impossible to confuse the two in any way.  The IJ reasoned that even if Wang had told the truth, he “could not establish past persecution because he had resisted only an implant, not a forced abortion or sterilization.”  The IJ, under 8 U.S.C. § 1227(a)(1)(B), ordered Wang’s removal for overstaying his visa.

The Board of Immigration Appeals (Board) affirmed the IJ’s findings and Wang petitioned for judicial review.  On August 4, 2015, the United States Court of Appeals for the Seventh Circuit heard arguments in Lishou Wang v. Loretta E. Lynch.  The IJ mistook Wang’s innocent confusion between the two birth control procedures to incorrectly conclude that it never occurred.  The IJ did not have enough evidence to reject Wang’s honest mistake to discredit his inconsistent testimony about what procedure was forced on his wife.

The Seventh Circuit rejected the IJ’s holding because the statute protects those who were punished for opposing the population control program.  According to 8 U.S.C. § 1101(a)(42), Wang only had to show that he resisted a coercive population control program to establish relief said the Seventh Circuit because it “is not limited to only forced abortions and sterilizations.”  On October 26, 2015, the three judge panel remanded the case to the Board for further proceedings.

Court interpreters play a key role in the democratic process.  Many non-native English speakers rely on court interpreters to guide them through the legal system.  A court interpreter’s error can result in the law being misapplied.  Many are discouraged to utilize the courts because they do not speak fluent English nor understand the legal process.  Court interpreters are key players in the courts and their assistance is highly valued.  Like attorneys, court interpreters must show great attention to detail because one wrong interpretation can cost a case.

Child Custody Battle From Over the Border

<> on April 1, 2014 in Nogales, Arizona.

By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

We all know child custody gets ugly within the United States, but what happens when it becomes tug-a-war between U.S. jurisdiction and jurisdiction outside of the U.S.? Judge Ripple wrote the opinion for a three- judge panel to better understand this battle in Ortiz v. Martinez.

Mr. Ortiz and Ms. Martinez lived together with their two children, A.O, a seven year old, and L.O, a sixteen-year-old boy. They all lived together in Mexico City. On August, the couple purchased round-trip tickets to Chicago to visit Martinez’s family. Ortiz was scheduled to return to Mexico on the 13th, and the rest of the family on the 20th. Ortiz retuned, but Martinez and the children did not. She informed Ortiz that her and the children would not be returning. Keeping the children in the United States would secure the safety of the children. In particular secure the safety of, A.O., from being sexually molested and emotionally abused by Ortiz.

Ortiz filed action under conditions of the Hague Convention seeking the return of the two children to Mexico. Martinez asserted that Ortiz had acquiesced to her retention of the children in the United States, permitting the district court to deny the return of the children under Article 13(a). Ms. Martinez claimed she had a claim under Article (b) because the children faced “grave risk” of harm if returned. She lastly presumed that the return would contravene with laws of the State of Illinois, the U.S. Constitution, and fundamental principles of human rights. Later, Martinez invoked Article 13, expressing L.O.’s desire to remain in the United States.

Dr. Machabanski, a psychologist, was appointed by the court to evaluate the children. The district court held a three-day hearing. It heard testimony from Martinez, Ortiz, and family members, and a camera interview was conducted for the two children. The court heard substantial evidence supporting the claim that Mr. Ortiz had sexually abused A.O. Martinez, including inappropriate touching of their daughter in the vaginal area. The doctor first told her that the rashes were diaper rashes and a cream was prescribed; however, the rashes reappeared. Martinez first perceived inappropriate contact when A.O. was three years old in the bathroom, where A.O. was naked and against the wall and Ortiz on his knees, naked in front of her.

A.O. corroborated this testimony explaining with gestures, and words. Dr. Machabanski testified that A.O. exhibited behavior consistent with having being sexual abused and she portrayed negative emotional toward her father, Ortiz, during playtime. The court dismissed the best wishes of the child defense, and independently found that L.O. was old enough and mature enough to make his own decision.

The Seventh Circuit reviewed the lower courts factual finding for clear error and its conclusion that those facts established a grave risk of harm de novo. The Court found that Mr. Ortiz’s evidence lacked credibility. Their reasoning was that Martinez wanted to flee to the states because he was having an affair, and brainwashed A.O. to testify. The Court found that the claim that Ortiz sexually abused his daughter meets the clear and convincing standard. The evidence of sexual abuse was substantial and thus met the grave risk exception.

Business Judgment Rule: The New Corporate Mulligan

shareholder-hero

By: Rex Hood
Juris Doctor & M.B.A. Candidate, 2015
Valparaiso University School of Law

The Seventh Circuit recently reviewed Donnawell v. Hamburger  to establish whether a corporation could use the business judgment rule in correcting a contract. The business judgment rule is a presumption that in making a business decision, the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company.

The case is a share-holders’ derivative suit against current and former members of DeVry‘s board of directors. An incentive plan adopted by the company in 2005 authorized the award of stock options to key employees, including the company’s CEO. The plan limited the awards to 150,000 shares per employee per year. Yet the company granted Daniel Hamburger, who became its CEO in 2006, options on 184,100 shares in 2010, 170,200 in 2011, and 255,425 in 2012. After discovering its mistake, Devry reduced each grant under the 2005 plan to 150,000 shares while at the same time it allocated Hamburger 87,910 additional shares available under the company’s 2003 incentive plan. As a result Hamburger received options in 2012 far above the 150,000 that were the most he could receive under the 2005 plan. All these grants were proposed by the company’s Compensation Committee to the company’s independent directors. The independent directors approved the award of the additional shares to Hamburger.

The plaintiff argues that the award is improper because only the company’s Plan Committee, and not the Compensation Committee, was authorized to grant stock options under the 2003 plan. But there was no Plan Committee in 2012. Likewise no harm was done by allowing the Compensation Committee to do over, in effect, the erroneous grant of stock options under the 2005 plan, by invoking the 2003 plan. The court held that drafters of contracts are not omniscient; they are not gifted with exact knowledge of what the future holds and, furthermore, literal interpretation can produce absurdities when applied to unforeseen occurrences. The nonexistence of the Plan Committee created an unforeseen hole in the 2003 incentive plan, and the company plugged the hole by substituting the Compensation Committee a substitution that might well make the shareholders better off, and would be very unlikely to make them worse off, than if there had been a Plan Committee. It makes no sense to allow a harmless error to drive a judicial decision.

This court in their ruling has avoided a company suffering from an unforeseen effect but, has this court decision created a corporate do over or “mulligan” provision? By allowing a company to use the business judgment rule in this manner you can expect we will see companies attempt to utilize this rule in other unforeseen ways in the future.

Surveillance Cameras At Work: Invasion of Privacy?

By: Haley Holmberg
J.D. Candidate, 2017
Valparaiso University School of Law

A peeping Tom or just a supervisor doing his job? The Seventh Circuit Court of Appeals reviewed Gustafson v. Adkins to establish whether the defendants had a valid reason behind their actions and were protected by qualified immunity or whether they should be held accountable.

Renee Gustafson worked at Jesse Brown Veterans Affairs (“VA”) Medical Center in Chicago as a police lieutenant supervisor. During this time, the VA didn’t have a designated area for female officers to change so they often changed in an active supervisors’ office. In May 2007, Thomas instructed Adkins to install a hidden camera in the office to identify supervisors who slept on duty. Adkins informed Thomas about the illegality, but was instructed to install the camera anyway. The images were sent to Thomas’s office for viewing. The camera was discovered two years later and had caught images of Gustafson and other females changing. Gustafson filed suit against Thomas and Adkins alleging her privacy had been invaded and she had been the victim of an unconstitutional search under the 4th Amendment.

Adkins argues Gustafson’s claim of 4th Amendment violation is precluded by the Civil Service Reform Act (“CSRA”) and the Federal Employees’ Compensation Act (“FECA”). The CSRA establishes a framework for evaluating adverse personnel actions against federal employees and may preempt federal claims that fall within its scope. However, Adkins’s conduct does not fall within the scope and cannot be considered to have been done for “disciplinary or corrective action” as there is little evidence that the camera was being used for this purpose. Further, case law on the matter suggests Adkins’s conduct is “closer to a warrantless search outside the scope of the CSRA.”  “The FECA provides the exclusive remedy against the United States or an instrumentality thereof to compensate a federal employee for a work-related injury defined as injury by accident and disease proximately caused by the employment.” The FECA does not bar a federal employee’s suit against individual co-employees. Given the silence on co-employee suits and the difficulty of defining Adkins actions as accidental, therefore matters of the suit are not determinative based on the FECA.

Adkins also claims his motion on summary judgment should have been granted based on qualified immunity. “The doctrine of qualified immunity protects government officials from liability for civil damages when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  In order to determine if Adkins can invoke qualified immunity the court must inquire whether the constitutional right was clearly established at the time of the alleged violation. According to case law, the essential principle is that an employer’s workplace search must be reasonable. “Reasonableness depends upon the circumstances presented in a given situation and upon balancing the public, governmental, and private interests at stake in that situation.” At the time the camera was installed, the right of employees to be free from unreasonable employer searches was already established. Therefore, Adkins did not meet the requirements of qualified immunity.

For the foregoing reasons, the court affirmed the judgment of the district court. This case is a prime example of why we must never just do as we are told, even in employment. To further demonstrate this, refer to Yale University psychology professor Stanley Milgram’s 1961 study on authoritarian obedience. When others are allowed to make decisions for us, it may not always lead to an outcome in our best interest.

Weighing the Options of Care

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By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Over 23,000 mentally disabled people were on the waiting list to receive housing and medical care from any of the eight state-operated developmental centers (SODC) in Illinois.  Another 600 were in emergency situations awaiting services. The State of Illinois could not provide essential services to those on the waitlist because it already cared for nearly 25,000 people.  In 2012, Illinois planned to close roughly a third of its SODCs to save costs. The state chose to close the Warren G. Murray Development Center, an SODC. Residents of Murray faced relocation due to the planned closure. The state tried to shift the residents of the SODCs to community-based facilities because it is cost effective.

Before the residents are moved, the state must assess their fitness. The assessment determines what kind of facility the disabled person will be placed in. Standing in the state’s way were the guardians of the Murray residents; the guardians wanted to prohibit the state from carrying out the assessment without their consent. The Illinois League of Advocates for the Developmentally Disabled represented the plaintiffs. They sued the Illinois Department of Human Services under 42 U.S.C. § 12132 of Title II of the American with Disabilities Act.  Plaintiffs alleged discrimination by a public entity.

The guardians claimed treatment of residents at community-based facilities are worse than at SODCs.  In addition, the guardians claimed the state left them with no other choice but to accept the relocation of the wards. Plaintiffs filed for a preliminary injunction against the assessment and transfer of the wards.  The case went before the district court of Northern Illinois.  The district court denied the plaintiff’s request.  Plaintiffs appealed to the Seventh Circuit Court of Appeals.

Judge Posner, Manion, and Hamilton presided over Illinois League of Advocates for the Developmentally Disabled, et al. v. Illinois Department of Human Services, et al. and affirmed the district court’s holding.  Plaintiffs failed to prove mistreatment of their wards at community-based facilities. The judges relied on factors such as emotional benefits of community-based facilities, the likelihood of residents having his or her own room, and the lack of irreparable harm on the plaintiffs in affirming the decision.

First, the judges reasoned that community-based facilities are emotionally beneficial for the residents. Being near stores, parks, restaurants, or movie theaters bring emotional benefits that allows them to feel free. Second, the chances of residents having his or her own room is better than at SODCs where less than 29 percent have their own room. Community-based facilities are less crowded than SODCs.  Finally, the judges thought that granting the preliminary injunction would impose irreparable harm on the state because of the financial distress.

SODCs are isolated medical centers cut off from society. Although the mentally disabled are severely hindered in life, it does not mean that they cannot experience the joy of being a part of the community. Academic studies show that severely disabled persons feel less isolated at community-based facilities.  Yes, parents or guardians should have the ultimate say in the care of their wards, but at times the state is in a better position to know what’s best in weighing the options of care.

The Unlawful Inquisition

By: Jonathan Joseph,  MBA, CPA
J.D. Candidate, 2016
Valparaiso University School of Law

How much information may a judge solicit from a telephonic interview? When does an oral interview become an unlawful interrogation? A recent case decided by the Seventh Circuit attempts to answer these very questions.

After serving a term in an Illinois state prison for a sex crime, the plaintiff was committed to a Treatment and Detention Facility, pursuant to the civil Sexually Violent Persons Commitment Act. He had a job in the facility’s dietary services department, but was fired. He filed suit against four dietary department staff members under 42 U.S.C. 1983. The plaintiff alleged that he was fired in retaliation for previous lawsuits he had brought against staff members. As required by 28 U.S.C. § 1915(e)(2), the district judge screened the complaint at the outset of the case to determine whether it “fail[ed] to state a claim upon which relief may be granted.” The judge found that the lawsuit “contained only conclusory allegations [in which] the plaintiff simply stated he had filed previous lawsuits and assumed people knew about it.” He ruled that the complaint did, indeed, fail to state a claim, and dismissed the suit with prejudice.

The judge had interviewed the plaintiff by telephone. During the interview, which the judge characterized as a “merit review,” no transcript or audio recording was kept. One could characterize the interview as inquisitional in its nature. The term “inquisition” has ominous overtones to those familiar with European medieval religious history, but today, an inquisitorial hearing is defined as “a hearing in open court in which the judge examines the parties to the suit rather than leaving examination to the lawyers, which is adversarial rather than inquisitorial.” In this case, the district judge went beyond the inquisitorial in its modern sense, because he examined the plaintiff in “secrecy being secured by the absence of a transcript, or even a judge’s or reporter’s notes.”

The Seventh Circuit reversed the district judge’s decision, noting that it previously rejected ex parte telephonic interrogation as a method of screening complaints to determine whether they state a claim. The court recognized that there are circumstances that merit telephonic interviews. These  can involve parties who are incarcerated and are done in order to save the time and expense of transporting a prisoner to court. However, these circumstances do not allow for questioning regarding the validity of the case. It is permissible for the judge to interview a pro se detainee plaintiff to determine what the facts of the case are, but not whether the plaintiff’s case is meritorious.

When a judge conducts any questioning of a witness, plaintiff, or defendant, that interview must be recorded and entered into the record. The judge must ensure that a transcript or recording of the interview be made to allow appellate review and prevent a reversal of a case that even the Seventh Circuit felt was weak: “barebones—maybe so thin that it could have been dismissed without further ado.” The court was obligated to take the judge’s error as grounds for reversal.

Citing Williams v. Wahner, the Court did not “mince words” when declaring that the use of ex parte telephonic interrogation as a method of screening complaints to determine whether they state a claim is unlawful. The court said that 28 U.S.C. § 1915A(a), a screening provision similar to § 1915(e)(2), does not contemplate an oral examination of a party by the judge designed to elicit answers that will enable the judge to resolve contestable factual issues. “If the validity of a claim depends on the accuracy of the plaintiff’s factual allegations, and their accuracy can’t be resolved without an oral hearing, it is a matter to be resolved at trial, in conformity with the procedures that govern trials. . . We expect that when this court declares a procedure employed by a district judge, or district judges, of this circuit unlawful, the procedure will be abandoned. Regrettably, not all the district judges have abandoned it.”

If a judge needs additional information from a detainee to determine the merits of a lawsuit going forward, the judge can make a limited appointment of counsel specifically for the purpose of fact-finding and release the attorney after sufficient information has been gathered. That may only involve a single interview or even a telephone call, which would satisfy the judge’s need for information and uphold the lawfulness of the manner in which it was obtained. Inquisitions, however, are unlawful and viewed with prejudice by the Seventh Circuit.

Practicality of Actual Injury in Data Breach

Backlit keyboard

By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Imagine being one of four million members under the care of Advocate Health and Hospitals Corporation (Advocate) and waking up to news that thieves have stolen your confidential information.  This is exactly what happened the morning after July 15, 2013, when burglars stole four password-protected computers from Advocate.   The computers contained patient’s confidential information: social security numbers, Medicare and Medicaid data, medical record numbers, health insurance data, and medical diagnoses along with names, addresses, and date of birth.  Advocate, whom patients entrusted with the duty of protecting their data, did not notify them of the breach until August 23, 2013.  Despite these facts, no proof of improper access or improper use of the confidential information actually occurred.

Matias Maglio and other affected patients brought a class action suit against Advocate in the circuit court of Lake County and Kane County.  Both lawsuits alleged claims of negligence, invasion of privacy, and violations of the Consumer and Deceptive Business Protection Act and the Illinois Personal Information Act.  Yet, plaintiffs failed to allege any unauthorized uses of their private information.  Despite the fact plaintiffs did not suffer any actual injury, they moved forward with their lawsuits anyhow.

Advocate moved to dismiss the complaints under the Rules of Civil Procedure for failure to state a claim and for lack of standing.  The plaintiffs did not suffer an injury-in-fact and only speculated that their stolen confidential information may lead to increased risk of identity fraud.  The doctrine of standing requires a plaintiff to raise issues of a real injury to which the law can recognize so to provide a remedy.  The complaints only alleged future, uncertain risk of identity fraud. The district courts of Lake County and Kane County dismissed the complaints in May and July of 2014, respectively.

However, the plaintiffs appealed to the Appellate Court of Illinois on grounds that the lower courts erred in its decisions.  The appellate panel consolidated the cases from the two counties and affirmed the district court’s decisions in Maglio v. Advocate Health and Hospitals Corporation on August 6, 2015.

The appellate panel reiterated that plaintiff’s failure to establish any specific injury makes the lawsuits insufficient.  To date, only two of the 4 million members suffered actual identity theft and they are not parties in the lawsuits.  The court held that this fact alone does not prove that plaintiffs face certain imminent risk of substantial harm.  Speculating about a future injury or harm is not grounds for a claim in the court of law.  To move forward, plaintiffs must show that their medical records were in fact disclosed to third parties.

Although the breach did not result in unauthorized use of information, speculation is not a cause for action.  To help lessen the burden on the courts, plaintiffs have to make sure their claims contain actual injuries otherwise it is a waste of resources for parties involved.  It may seem minor to determine actual injury, but the practicality is priceless.  As society increasingly depend on technology to store confidential information, employers (especially healthcare providers) should make data security one of the top priorities.  Employers should consider safeguards such as encryption and periodic audits to lessen the likelihood of a data breach. Proper training about HIPAA, security regulations and data privacy laws will further guard against a breach.

A Miscarriage of Justice

By: Haley Holmberg
J.D. Candidate, 2017
Valparaiso University School of Law

Nobody is perfect. Mistakes happen to the very best of us, including judges. This is precisely why our justice system has a procedure of checks and balances set in place to prevent injustice to the best of its ability. Recently, the Seventh Circuit Court of Appeals dealt with a mistake made by both the defense counsel and trial judge in Reyes v. Dart.

A Cook County Jail pre-trial detainee was attacked and stabbed as a guard stood ten to fifteen feet away and ignored his cries for help. The detainee eventually lost consciousness which was not regained until three days later in the hospital. The attack caused severe nerve damage and a fractured eye socket which may eventually lead to blindness.

The victim-detainee filed suit against the Cook County Sheriff, Thomas Dart, and two of the jail officials claiming they failed to protect him from the attack. He contends that the defendants have culpably failed to create or enforce policies necessary to protect such attacks from occurring.  After filing an answer to the complaint, the next six months entailed the defense lawyer sending a total of five letters to the plaintiff. Each letter demanded the plaintiff sign a release giving the defense counsel access to protected health information maintained by a variety of hospitals. The release was not limited to medical records surrounding the attack that occurred, but rather all medical records would have been accessible from birth forward. Further, the release did not impose limitations on to whom the information could be disclosed.

The letters advised that it was entirely the plaintiff’s decision to sign the release or not, however, failure to sign would be grounds for dismissal of the case because the claim was for physical injuries. Naturally, the plaintiff did not sign the release for medical records. After the fifth letter of release was not replied to, defense counsel moved for dismissal under Federal Rules of Civil Procedure 41(b). The district court dismissed the suit with prejudice.

The Seventh Circuit ruled that the district judge erred in dismissing under 41(b) because there was no failure to comply with any rule or any court order. Nor was the plaintiff’s refusal to sign the release a failure to prosecute the suit. The defense counsel’s dispute with the plaintiff over the medical records was merely a discovery dispute and should have been dealt with as such by filing a motion to compel under Fed. R. Civ. P. 37. As the claim involved physical injuries, an order requiring the plaintiff to submit to a medical examination could have been filed under Fed. R. Civ. P. 35.

Another reason the case should not have been dismissed was because the release specifically stated that the signer may revoke authorization to release of his medical records at any time, which would have empower the plaintiff to refuse to sign in the first place without being punished. For the aforementioned reasons, the Court vacated and remanded the case. Judge Posner instructed the lower court to rule on the plaintiff’s prior motion for recruitment of counsel and inform the defendants’ counsel that the civil rule applicable to his demand for medical records is rule 37, not rule 41(b).

The defense counsel may have been quick to get the case dismissed, however, the counsel’s lack of knowledge concerning the Federal Rules of Civil Procedure only led to the case coming back to haunt him after Judge Posner issued the Seventh Circuit Court of Appeals opinion.

Equalizing Administrative Remedies for Prisoners

By: Haley Holmberg
J.D. Candidate, 2017

Valparaiso University School of Law

Under 42 U.S.C. § 1997e(a), “no action shall be brought with respect to prison conditions until administrative remedies as are available are exhausted.” Recently, the 7th Circuit Court of Appeals reviewed White v. Bukowski to determine the outcome when a detainee does not follow protocol for reporting an abuse of a fundamental right–or at the very least, a right protected under statute regarding prison regulations.

When Wenona White arrive at jail for pre-trial detention on alleged conspiracy to commit bank fraud, she was almost eight months pregnant. Eleven days later, she experienced labor pains and was taken by ambulance to the hospital, where she delivered a daughter with severe birth defects. She was returned to the jail several days after giving birth, and was transferred to another jail four days later while she awaited trial. Two years later, she filed suit alleging that her child’s birth defects were caused by failure to take a proper medical history when she arrived at the jail (which would have revealed the complications in birth); failure to respond to her repeated medical requests; and failure to react quickly when she was in labor. The trial court dismissed White’s claim based on her failure to seek administrative remedies prior to filing suit.

However, White claimed there were no administrative remedies available to her in this case. Grievances are filed to obtain a change of some sort within the jail and to allow the jail time to address the issues. Even in cases where the harm has already occurred, a grievance must be filed or the detainee loses the right to sue. However, there is no administrative remedy to exhaust where the relevant administrative procedure provides no remedy. White was not aware while being held in the first jail that she was receiving inadequate health care, which contributed to her child’s birth defects. Therefore, it was not possible for her to file a grievance before the harm occurred. Further, according to the jail’s inmate handbook, there was no deadline for filing a grievance. Moreover, White was not aware that she would be transferred from the first jail at which she was being detained shortly after returning from the hospital.

The 7th Circuit Court of Appeals agreed with White that she could not be faulted for having not filed a grievance when no deadline existed, and when she had no knowledge that she was to be transferred from the jail. After she was transferred, it was too late to file her grievance, as the jail would not entertain a grievance by an individual no longer being detained in that jail. The Court held for these reasons that the judgment must be vacated and remanded.

Although a detainee’s rights and freedoms are extremely limited compared to other citizens, it is unethical to deny an individual a granted right based on circumstances beyond her control. This ruling will help ensure that all prisoners are given equal opportunity to be heard in court despite administrative procedures of the jail limiting such right and failing to offer relief to address the issue under such conditions.

Motion to Dismiss? Seventh Circuit Says “Not So Fast.”

By: Jeremy M. Schmidt
J.D. Candidate, 2017
Valparaiso University School of Law

Recently the Seventh Circuit  decided that the Federal District Court for the Southern District of Illinois erred when it dismissed Dr. Robert L. Meinders, D.C., Ltd., v. UnitedHealthcare, Inc., et al. because the district court denied Dr. Meinders (Meinders) due process when it dismissed the case without allowing Meinders reasonable time to respond. Meinders filed a complaint against UnitedHealthcare (United) in Illinois State court in 2014. Meinders claimed that United violated the Telephone Consumer Protection Act (TCPA) and the Illinois Consumer Fraud and Deceptive Practices Act when they sent him unsolicited junk faxadvertisements. United had the case removed to the Federal District court because it involved a federal question since the TCPA is a federal Statute.

In 2013, Meinders and ACN Group, Inc., a subsidiary of United, entered a provider agreement. After Meinders entered this agreement, he started to receive junk faxfrom United. Under the provider agreement, any dispute arising from the agreement were subject to arbitration. United claimed that they were protected by this agreement because ACN Group was one of their subsidiaries. Therefore, United argued that this dispute needed to go through arbitration as was priorly agreed to. However, the Seventh Circuit said United is not protected by the agreement because they, themselves, were not a party to the agreement. The seventh circuit continued by explaining that a parent company cannot enforce an arbitration agreement of a subsidiary when only the subsidiary was a party to the agreement.

Meinders heavily relied on the contract theory of “If your are not a party to the agreement you cannot make a claim under that agreement.” In response, United introduced new evidence stating that they were a party to the agreement. Colleen Van Ham, President and CEO of UnitedHealthcare of Illinois, stated that ACN Group was a wholly owned subsidiary, thus making United a party to the agreement. United also argued that it assumed important obligations under the provider agreement such as  ACN Groups obligation to coordinate and transmit payments to providers.

Meinders asked the federal district court to strike the new evidence from the brief, or to allow them to file a reply brief to counter the new evidence. The federal district court denied Meinders request, and allowed Uniteds motion to dismiss so that the case could move to arbitration, as according to the providers’ agreement. Meinders then filed for appeal. The seventh circuit concluded that Meinders did not have a fair and reasonable opportunity to respond to Uniteds reply brief that introduced new evidence. So the court reversed the federal districts court decision to dismiss, and remanded the case for further proceedings.

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