How Amy Coney Barrett Describes Her Biggest 7th Circ. Cases

Law360 (October 1, 2020, 10:33 PM EDT) -- In the first step of her U.S. Supreme Court confirmation process, Judge Amy Coney Barrett has submitted a 65-page Senate questionnaire that includes a first-person account of the 10 most significant cases she handled since joining the Seventh Circuit three years ago.

The Judiciary Committee released Judge Barrett's updated questionnaire late Tuesday ahead of hearings set to start Oct. 12 as Republicans seek the fastest high court confirmation in four decades.

She identified her most significant case as Kanter v. Barr , a gun-rights challenge in which she dissented:

"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."

Next, she cited an immigration case, Yafai v. Pompeo , in which she wrote the majority opinion and a statement supporting the vote not to have the case reheard by the full Seventh Circuit:

"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."

The third case also dealt with immigration and was just decided in June. She dissented in Cook County v. Wolf as the panel majority blocked the Trump administration's "public charge" rule:

"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. In 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."

The fourth case, Doe v. Purdue University , covered how universities handle sexual assault complaints:

"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, I 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."

Next, she pointed to Rainsberger v. Benner , a case that dealt with qualified immunity, the Supreme Court principle that protects police officers and other public officials from many lawsuits alleging civil rights violations. She wrote the opinion for a unanimous panel:

"William Rainsberger was charged with murdering his elderly mother and imprisoned for two months before the charges against him were dropped. He sued the detective who had built the case, alleging that the detective had knowingly or recklessly made false statements in the probable cause affidavit. Because it is clearly established that it violates the Fourth Amendment to use deliberately falsified allegations to demonstrate probable cause, I concluded on behalf of a unanimous panel that the detective was not entitled to qualified immunity."

Religious liberty featured in the sixth case, Grussgott v. Milwaukee Jewish Day School , which centered on the ministerial exception to employment discrimination laws. The panel gave an unsigned 13-page per curiam opinion:

"Miriam Grussgot, a Hebrew teacher, sued the Jewish Day School at which she once worked for allegedly violating the Americans with Disabilities Act. We concluded that the suit was barred by the ministerial exception protected by the First Amendment. Applying the Supreme Court's decision in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012), we explained that Ms. Grussgot's integral role in teaching her students about Judaism and the school's motivation in hiring her demonstrated that her role furthered the school's religious mission. We declined to treat the factors identified in Hosanna-Tabor as a rigid formula, looking instead to the totality of the circumstances. The Supreme Court later vindicated our approach in Our Lady of Guadeloupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020)."

The seventh case involved hotly contested employment issues. She wrote the panel's unanimous opinion in Wallace v. Grubhub Holdings Inc. :

"This appeal required us to decide whether food delivery drivers for Grubhub are exempt from the Federal Arbitration Act as 'any other class of workers engaged in foreign or interstate commerce.' Drivers who worked for Grubhub in cities including Chicago, Portland, and New York had sued, alleging, among other things, that Grubhub violated the Fair Labor Standards Act by failing to pay them overtime. But these drivers had each signed an agreement to submit to arbitration any and all claims arising out of their relationship to Grubhub. The Federal Arbitration Act required enforcement of those agreements unless they fell within the exemption for 'contracts of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.' Writing for a unanimous panel, I explained that the residual clause of that exemption applies only to transportation workers who are actually engaged in the movement of goods in interstate commerce. Plaintiffs had not even tried to demonstrate that the interstate movement of goods was a central part of the job description of the class of workers to which they belong, and accordingly their contracts with Grubhub were not exempt from the Federal Arbitration Act."

The eighth spot went to a tax case, A.F. Moore & Associates Inc. v. Pappas :

"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."

Last year, she wrote the majority opinion for a split panel in a Fair Debt Collection Practices Act dispute, Casillas v. Madison Ave. Associates Inc. :

"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."

The 10th case was another employment matter focused on hostile work environment claims, EEOC v. Costco Wholesale Corp. :

"Dawn Suppo, an employee of Costco Wholesale Corporation, was stalked by Thad Thomspon, a customer of Costco, for over a year. Traumatized by the experience, she took an unpaid medical leave, and when she did not return to work, Costco terminated her employment. The Equal Employment Opportunity Commission sued Costco on Suppo's behalf, alleging that Costco had subjected her to a hostile work environment by tolerating Thompson's harassment. Writing for the unanimous panel, we held that a reasonable jury could conclude that Thompson's conduct was severe or pervasive enough to render Suppo's work environment hostile. And although we agreed with the district court that Suppo could not recover backpay for the period of time after Costco fired her, we instructed the district court to consider whether she was entitled to backpay for some or all of her time on unpaid medical leave."

In response to another question, Judge Barrett also highlighted her opinion in a habeas corpus review for a man convicted of killing his wife. She had dissented from a split panel decision in the man's favor. When the full Seventh Circuit agreed to rehear the case, she wrote the majority opinion for the en banc court:

"A Wisconsin jury convicted Scott Schmidt of first-degree intentional homicide for the murder of his wife. Before his trial, the judge conducted an ex parte, in camera hearing during which he questioned Schmidt directly, rather than through his counsel, and ruled that Schmidt could not present his intended defense of 'adequate provocation' at trial. The Wisconsin Court of Appeals affirmed his conviction and concluded that this bearing did not violate Schmidt's Sixth Amendment rights. Schmidt collaterally attacked his conviction in federal court, and the panel majority granted the writ of habeas corpus. I dissented because the statute governing collateral review of state criminal convictions prevents courts from granting a writ of habeas corpus unless the state court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as defined by the Supreme Court. No Supreme Court precedent addressed the question whether a defendant has the right to counsel when testifying before a judge in a nonadversarial proceeding, and the majority gave too little deference to the decision of the Wisconsin Court of Appeals. The Seventh Circuit agreed to hear the case en banc and concluded, as I had, that Schmidt was not entitled to a writ of habeas corpus."

In addition to decisions at the Seventh Circuit, the questionnaire covered Judge Barrett's career before taking the bench: two appellate clerkships, two years in private practice and more than 15 years as a law professor.

--Editing by Haylee Pearl.

For a reprint of this article, please contact reprints@law360.com.

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