7th Circuit Court of Appeals
Published May 18, posted to theindianalawyer.com on May 19
Danielle Albert v. Kilolo Kijakazi, Acting Commissioner of Social Security
7th Circuit affirms denial of disability benefits, urges petitioner to ‘give work a shot’
A northern Indiana woman who applied for Social Security disability benefits shortly after graduating from high school did not convince the 7th Circuit Court of Appeals that an administrative law judge erred in denying her claim.
Danielle Albert, 23, has epilepsy, Asperger’s syndrome, ADHD, migraines and insomnia. She has only ever lived at home, and her parents support her financially, help manage her medications and assist with other daily tasks.
Additionally, Albert has never had a driver’s license, having been told by her neurologist that her seizure disorder counsels against driving. She has also never worked.
Albert graduated from high school in LaGrange in 2017. Although she struggled in math, her academic performance was otherwise “average.” She also participated in theater and the Indiana Academic Spell Bowl.
While still in high school, Albert expressed a desire to attend college and study criminal justice and forensic psychology. She hoped to work part time while going to school.
Albert enrolled in an online college course but stopped attending after suffering a grand mal seizure in September 2017. She then applied for supplemental security income.
In 2019, an administrative law judge concluded Albert had the residual functional capacity for a range of work at all exertional levels, subject to a few restrictions.
The ALJ credited certain opinions supplied by Dr. Stefanie Wade, a state agency consultative psychiatrist who examined Albert in January 2018.
Specifically, the ALJ incorporated Wade’s opinions that Albert “was likely to have difficulty with social interactions,” and that her “daily activities appeared to be simple, daily routines appeared to be somewhat established, understanding appeared limited at times, and she had poor concentration and a low frustration tolerance.”
On one point, however, the ALJ chose not to credit Wade’s opinion. The ALJ found that, “Dr. Wade’s opinion that [Albert] would need some support from others to accomplish appropriate daily tasks is not persuasive and is not established as being necessary to include within the [RFC].”
Instead, the ALJ credited the view of Dr. Donna Unversaw, a state agency physician who reviewed Albert’s files, including Wade’s report, and opined that Albert could “understand, carry out and remember simple instructions” and could “make judgments commensurate with functions of simple, repetitive tasks.”
After relying on testimony from a vocational expert, the ALJ concluded Albert was not disabled.
On appeal, Albert contended the RFC failed to account for each of her many limitations that leave her unable to work.
But the 7th Circuit, while noting it was “sympathetic to the struggles Albert has faced because of her health conditions,” wasn’t convinced that reversal was warranted.
First, the appellate court determined that while the ALJ misunderstood testimony provided by Albert’s mother regarding her daughter’s motor skills, the error was harmless.
The 7th Circuit also found a second instance of harmless error in the testimony, determining the outcome was still the same.
“As Albert rightly points out, her parents did not testify that she was never left alone, only that they would be uncomfortable with her living alone full time,” Scudder wrote. “The ALJ saw inconsistency where none existed. But again, this error did not impact the ultimate RFC determination. Indeed, the error occurred in the step-three assessment of the severity of Albert’s mental and physical impairments, not at step four in determining the RFC. And no aspect of the RFC relied on Albert’s ability to live alone.”
Albert also argued that the ALJ overlooked a January 2017 letter from herprimary care physician, which said she was disabled due to autism.
“Given that substantial evidence supports the ALJ’s conclusion that Albert is not disabled, even accounting for her autism, Dr. Yoder’s letter is not enough to require reversal, Scudder wrote, pointing to Deborah M. v. Saul, 994 F.3d 785, 788 (7th Cir. 2021).
Ultimately, the 7th Circuit determined that the ALJ’s determination effectively “requires Albert to try to get a job and give work a shot.” If she isn’t able to work, the court said, she can again apply for Social Security disability benefits.
The case is Danielle Albert v. Kilolo Kijakazi, Acting Commissioner of Social Security, 21-2592.
Lamone Lauderdale-El v. IndianaParole Board
7th Circuit affirms dismissal of habeas petition, but overturns 2 cases on jurisdiction
The 7th Circuit Court of Appeals has affirmed the dismissal of a parolee’s habeas petition for failure to exhaust state remedies, but not for lack of jurisdiction. In reaching its decision, the appellate court overturned two precedents described as causing “mischief.”
During his imprisonment in Indiana, Lamone Lauderdale-El petitioned for a writ of habeas corpus challenging the loss of good-time credits resulting from his prison disciplinary conviction. Lauderdale-El’s petition asserted that prison officialsviolated his due process rights in applying an Indiana Department of Correction policy rescinding his previously restored good-time credits.
The U.S. District Court for the Southern District of Indiana concluded that he could challenge the restoration policy in state court, so it dismissed the case without prejudice for failure to exhaust state-court remedies.
Lauderdale-El appealed. Meanwhile, he was released from prison.
That put two questions to 7th Circuit: whether a petitioner’s release from prison during appeal makes the case moot, and whether a dismissal of a habeas petition without prejudice for failure to exhaust available state remedies is an appealable final judgment.
First, the 7th Circuit found that Lauderdale-El was still on parole at the time of his release from prison, so the case could not be dismissed as moot.
“Because parole is a form of custody, a case that could shorten a former prisoner’s term of parole is not moot,” Circuit Judge David Hamilton wrote.
Second, it found that the dismissal of Lauderdale-El’s petition for failure to exhaust state-court remedies was final as a practical matter.
As such, it overruled two cases described as “outliers”: Gacho v. Butler, 792 F.3d 732 (7th Cir. 2015), and Moore v. Mote, 368 F.3d 754 (7th Cir. 2004). Gacho and Moore “dismissed for lack of appellate jurisdiction appeals from district court decisions dismissing habeas corpus petitions without prejudice for failure to exhaust state remedies.”
“They are out of step with our practice in other habeas appeals, the practice of other circuits, and more general principles of appellate jurisdiction,” Hamilton wrote. “As Judge (Frank) Easterbrook pointed out in his concurrence in Carter v. Buesgen, 10 F.4th 715, 725 (7th Cir. 2021), Gacho and Moore continue to cause confusion and mischief, wasting the time of lawyers and judges. It’s time to overrule their holdings on appellate jurisdiction.
“… Judge Easterbrook urged that Gacho and Moore be overruled rather than distinguished, noting the awkwardness of having appellate jurisdiction depend on the merits of the underlying appeal, the confusion engendered by Gacho and Moore, and the conflict between their rule and predominant approaches to appellate jurisdiction,” the judge continued.
Additionally, the appellate court noted that the Federal Reporters, Federal Appendix and online databases “are full of hundreds if not thousands of appeals challenging dismissals of habeas petitions for failure to exhaust state-court remedies.”
“If Gacho and Moore were correct,” Hamilton wrote, “virtually all of those appeals should have been dismissed for lack of appellate jurisdiction, and the many erroneous dismissals for failure to exhaust and occasional erroneous conversions of civil rights cases into habeas petitions would have defied appellate review.”
Thus, the 7th Circuit determined it had jurisdiction over Lauderdale-El’s appeal.
But it also noted he could have pursued his good-time credit restoration claim in state court, but did not do so.
As a result, it affirmed the judgment dismissing his petition without prejudice in Lamone Lauderdale-El v. Indiana Parole Board, 21-1242.
Randall Pavlock, et al. v. Eric J. Holcomb, Governor of Indiana, et al.
7th Circuit affirms dismissal of Indiana homeowners’ suit over Lake Michigan beach ownership
Continuing a yearslong legal battle over property rights along Indiana’s Lake Michigan shoreline, the 7th Circuit Court of Appeals upheld the dismissal of a lawsuit brought by property owners who claimed an Indiana Supreme Court decision upholding public rights to the shoreline constituted an unlawful taking of their property.
U.S. District Judge Jon DeGuilio of the Indiana Northern District Court in April 2021 dismissed an attempt by property owners in the northwestern Indiana town of Porter to deny public access to Lake Michigan beaches.
The federal judge said there was no basis for lakefront property owners Raymond Cahnman and Randall and Kimberley Pavlock to seek to undo the landmark 2018 Indiana Supreme Court ruling in Gunderson v. State, 90 N.E.3d 1171 (Ind. 2018), which clarified that the shoreline of Lake Michigan up to its ordinary high-water mark is owned by the state and held in trust for the enjoyment of all Hoosiers.
Like the Gunderson plaintiffs, the Porter homeowners alleged their property deeds covered land that extends down to Lake Michigan’s low-water mark. Thus, they argued, when the high court determined the state has always held title to the land all the way up to the ordinary high-water mark, the justices “took” a portion of their property without just compensation in violation of the Fifth Amendment.
However, DeGuilio ruled that the issue wasn’t subject to review in federal court because states have sovereign immunity under the U.S. Constitution.
A 7th Circuit panel upheld the lower court ruling, finding the homeowners lacked Article III standing because none of the named officials in the suit caused the asserted injury or are capable of redressing it.
“We are satisfied that the Owners have alleged injury in fact, insofar as they assert that their property was taken without just compensation. They fall short, however, when it comes to causation and redressability,” Circuit Judge Diane Wood wrote.
First, the 7th Circuit found that none of the defendants have the power to grant title to the homeowners in the face of the Gunderson decision and the subsequent House Enrolled Act 1385 that codified it.
“Even if we were to agree with the Owners, therefore, a judgment in their favor would be toothless,” Wood wrote. “… But the straightforward point is that none of the state defendants the Owners have named — not the Governor, not the Attorney General, not the Indiana Department of Natural Resources, and not the State Land Office — has the power to confer title on the Owners to land that Indiana’s highest court says belong to the state. No injunction we enter can fix that problem.”
The 7th Circuit also said the instant case is materially different from Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021), where the asserted injury was not the loss of a dispute about who held title but instead the uncompensated taking of property that they indisputably owned.
“Here, by contrast, ordering any of the named state defendants not to enforce a state property law cannot redress the Owners’ injuries, because non-enforcement will not change the content of the underlying law itself,” Wood wrote.
The appellate court also found the Porter homeowners failed to establish the related causation requirement for Article III standing, noting their injury is not traceable to the state defendants but to the independent action of the Indiana Supreme Court in settling the Gunderson dispute.
Additionally, it noted that if the owners never had title to the shoreline property under Indiana law, it could not have been “taken” by the state.
“The Owners contend that the Indiana Supreme Court’s decision in Gunderson v. Indiana unconstitutionally took their property without compensation. Because they have sued the Indiana Governor and several state executive officials who neither caused the asserted injury nor can redress it, they lack standing to sue under Article III of the Constitution,” Wood concluded. “We therefore AFFIRM the district court’s dismissal of the complaint for lack of subject-matter jurisdiction, although we modify it to a dismissal without prejudice.”
The case is Randall Pavlock, et al. v. Eric J. Holcomb, Governor of Indiana, et al., 21-1599.
Court of Appeals of Indiana
Yergy’s State Road BBQ, LLC v. Wells County Health Department; Eric Holcomb, in his official capacity of Governor of the State of Indiana; and State of Indiana
BBQ joint challenging COVID face-covering requirement loses mootness appeal
A Bluffton barbecue joint seeking to set aside a health department order requiring the restaurant’s employees to comply with a face-covering requirement during the height of COVID did not convince the Court of Appeals of Indiana that its case wasn’t moot.
In August 2020, Yergy’s State Road BBQ got heated when its Bluffton restaurant was ordered to “immediately close and terminate violative operations.” The restaurant was accused of failing to comply with face-covering requirements for employees or with the required in-person dining limits imposed through various state public health and safety orders stemming from the coronavirus pandemic.
Specifically, Executive Order 20-32, issued by Gov. Eric Holcomb on June 6, 2020, provided that “all [restaurant] employees and staff sh[ould] wear face coverings” and that the capacity limit for a restaurant’s in-person dining was limited to 75% of a restaurant’s maximum capacity.
The order against Yergy’s, issued by the Wells County Health Department, also informed Yergy’s that it was required to close down for 24 hours. The restaurant would “be allowed to re-open after an inspection” by the county health department and a “signed statement by [Yergy] of [its] intent to comply” with the face-covering and capacity requirements.
Yergy’s petitioned for review of the order, and a county health department hearing panel upheld it. But the order was modified to remove the allegation that Yergy’s had violated the in-person dining capacity limit.
Yergy’s then filed suit in December 2020, seeking to vacate the health department’s order against it. It also sought declaratory and injunctive relief challenging the constitutionality of the state’s Emergency Management and Disaster Law as applied, and declaratory and injunctive relief challenging the governor’s executive orders as violating the EMDL.
The Wells Circuit Court ultimately declared the issue was moot, citing Executive Orders 21-09 and 21-12, which eliminated the mandate for face coverings for restaurant employees.
Affirming that decision, the COA noted that it is “undisputed” that there is no longer an executive order requiring restaurant employees to wear face coverings in Indiana.
“Thus, the basis of the issuance of the challenged Health Department Order no longer exists,” Judge Rudolph Pyle wrote. “Because there is ‘no effective relief [that] can be rendered’ to Yergy on its complaint, the trial court properly determined that the case was moot.”
Yergy’s also argued its case fell within the public interest exception to mootness because the governor could issue a future executive order that imposes further mandates on restaurants as part of the current pandemic, or could do so in response to a future pandemic.
“While the restrictions imposed in response to the Covid-19 pandemic certainly present extraordinary issues involving the limits of executive powerduring a health emergency, they are not issues, at least as applied to Yergy, that currently need to be resolved,” Pyle wrote. “The legal framework governing the review and issuance of emergency orders has changed.”
It therefore declined to apply the public interest exception or to issue an advisory opinion.
“Accordingly, we affirm the trial court’s determination that Yergy’s request for relief was moot and affirm the trial court’s order dismissing Yergy’s complaint,” the judge concluded.
The case is Yergy’s State Road BBQ, LLC v. Wells County Health Department; Eric Holcomb, in his official capacity of Governor of the State of Indiana; and State of Indiana, 21A-PL-2593.
Ruby Barcenas Medina v. State of Indiana
Despite sticker shock, COA affirms $150K bail for teen charged in deadly crash
Noting several times its limited role in reviewing the denial of a request to reduce bail, the Court of Appeals of Indiana has affirmed a trial court’s ruling that set bail at $150,000 for an Elkhart County teenager charged in a deadly auto accident.
Ruby Barcenas Medina, then 17, was driving a black Chevrolet when she allegedly caused the vehicle to crash, killing the passenger, who was her boyfriend. A sample of her blood taken after the accident indicated she had been using marijuana.
Subsequently, Medina was charged with causing death when operating a motor vehicle while intoxicated and causing death when operating a vehicle with a Schedule I or II controlled substance, or its metabolite, in her blood, both as Level 4 felonies. The Elkhart Circuit Court set bail at $150,000, which is 15 times higher than the local advisory bail amount of $10,000.
After a hearing, the trial court denied Medina’s motion for a reduction in her bail. She then filed a motion to reconsider and a motion to correct error. The trial court denied both.
The Court of Appeals affirmed in Ruby Barcenas Medina v. State of Indiana, 22A-CR-167.
Citing DeWees v. State, 180 N.E.3d 261 (Ind. 2022), the appellate panel explained its narrow role in appeals claiming abuse of discretion in setting bail.
“We read DeWees as emphasizing the deference appellate courts must give to trial court determinations regarding bail,” Judge Elizabeth Tavitas wrote for the COA. “So long as the trial court follows the proper procedure, and the trial court’s decision is based on the facts and circumstances in the record, we must affirm its decision, even if we believe the court made the wrong call.”
The appellate court noted the trial court echoed DeWees in pointing out that Medina could potentially be sentenced to 24 years, and that defendants facing lengthy incarcerations usually fail to appear for trial. Also, the COA did not find the trial court erred by determining Medina posed a danger to others based on her continued drug use and her score under the Indiana Risk Assessment System’s PreTrial Assessment Tool, or IRAS-PAT, which determined she was at a “moderate” risk to reoffend.
Although it agreed the amount was high, the appellate panel said it could not ignore that Medina would only have to raise 10% of that amount to post a bail bond.
“Given the trial court’s findings regarding Medina’s flight risk and the danger she posed to others if released,” Tavitas wrote, “we cannot say that the trial court abused its discretion by setting Medina’s bail at $150,000 with a bail bond of approximately $15,000.”
Alan Jones v. State of Indiana
Man charged with 41 felonies loses bond reduction appeal
A man facing 41 felony charges will not have his bail reduced after the Court of Appeals of Indiana determined the consequences of his case could prove “severe.”
Alan Jones was arrested in October 2020 for Level 6 felony auto theft.
In June 2021, the state charged Jones with 38 counts under a new cause number, including one count of corrupt business influence as a Level 5 felony and 37 counts of theft as Level 6 felonies. The Level 6 felonies were all related to the theft of motor vehicles or property valued between $750 and $50,000 that allegedly occurred between November 2016 and April 2021.
At an initial hearing, the Shelby Circuit Court found that Jones “present[ed] a substantial risk of flight or danger” to himself or others. His bond was set at $200,000 surety or 10% cash.
The following month, Jones filed a motion to reduce bond, which the trial court denied.
The state was then permitted to amend the information to add counts 39 through 41, all three of which charged Jones with theft as Level 6 felonies.
In September 2021, Jones filed another motion to reduce his bail bond, which was again denied. Jones then filed a motion to correct error, which was also denied, with the trial court noting, “With at least 20distinct victims and crimes in the present case, Defendant faces a substantial penalty.”
Upon review, the Court of Appeals of Indiana upheld that decision.
Additionally, court wrote the potential consequences of Jones’ offenses are “severe.” Also, his bond was set within the bond guidelines established in Shelby County.
The case is Alan Jones v. State of Indiana, 21A-CR-2809.
B.A. v. D.D. and C.D.
Adoption case remanded to determine if man is child’s ‘legal’ father
An Indiana man who claims he is the “legal,” but not biological, father of a child has successfully challenged a lower court ruling that his consent to the child’sadoption was not required. The adoption case will now return to the trial court, where a judge must determine if the man actually is the child’s “legal” father.
In B.A. v. D.D. and C.D., 22A-AD-147, the Court of Appeals of Indiana determined the adoptive couple, D.D. and C.D., did not meet their burden of proving that father B.A.’s consent wasn’t required for the adoption of child P.A.
T.M., who is not a party in the appeal, gave birth to P.A. in February 2018. According to B.A., he executed a paternity affidavit in which he identified himself as the child’s father two weeks after the child’s birth.
Thereafter, the Indiana Department of Child Services filed a petition alleging the child was a child in need of services and placed P.A. with adoptive parents D.D. and C.D. The adoptive parents have had physical custody of the child since April 2019.
In July 2021, the adoptive parents filed an amended petition to adopt P.A., acknowledging B.A. is the child’s “legal father” but alleging his consent to the adoption was not required because he is not P.A.’s “biological father.”
After B.A. filed his objection and motion to dismiss the petition, which was denied by the Hamilton Superior Court, D.D. and C.D. moved for an order for B.A. to submit to DNA testing. The court granted that motion, and the results of the DNA test concluded B.A. is not P.A.’s biological father.
As a result, the adoptive parents filed a motion for summary judgment in which they asserted that because B.A. is not P.A.’s biological father, his consent to the adoption was “not required.”
B.A. responded that he was P.A’s “legal father” because he had executed a paternity affidavit. He also requested that the court set aside its prior order that he submit to DNA testing because “[o]nly a man who purports that he is the biological father of the minor child may seek to establish paternity, not prospective adoptive parents since Father’s paternity is already established per the Paternity Affidavit.”
B.A. contended that even if the court did not set aside the order, the DNA test results “do not negate or set aside the parentage that was established in [Father] when he executed the paternity affidavit.” But he did not designate any evidence in support of his response.
The trial court ultimately granted the adoptive parents’ motion for summary judgment. The court also denied B.A.’s motion to set aside the order for DNA testing.
On appeal, the COA reversed the summary judgment order and remanded to the trial court to determine if B.A. is, in fact, the legal father of P.A.
The COA concluded that just because B.A. isn’t the biological father of P.A., it doesn’t mean his consent wasn’t required.
“Adoptive Parents are correct that a ‘parent’ for purposes of the adoption statute is defined as ‘a biological or an adoptive parent,’” Judge Edward Najam wrote. “However, while the legislature used the word ‘parent’ in other parts of Indiana Code Section 31-19-9-1, it did not use that word in the relevant subsection.”
The COA also determined the order for DNA testing wasn’t erroneous and the case was remanded for further proceedings.
IN RE Paternity of A.M.: Bianca Teamer v. Theophilus Muhammad
COA splits over custody modification, rules against mom who proceeded pro se after attorney quit
A split Court of Appeals of Indiana has affirmed a child custody switch from mother to father, finding that although the mother had to proceed pro so at the custody hearing, she was not prejudiced by the denial of her motions to continue after her counsel quit.
Bianca Teamer and Theophilus Muhammad had a child together, A.M., in 2012. The parents never pursued a formal custody or support order, and the child lived with Teamer while Muhammad exercised parenting time on the weekends “once [Child] started . . . first or second grade[.]”
In 2021, Teamer informed Muhammad that she intended to relocate to Dallas with her husband and A.M., prompting Muhammad to file an “Emergency Verified Petition to Establish Paternity, Custody, Support and Parenting Time and Verified Request for Temporary Restraining Order Preventing Relocation of the Child from Indiana Pending Hearing.”
Muhammad claimed he was “gravely concerned,” alleging a history of domestic abuse by Teamer’s husband against Teamer in the presence of A.M., including an incident when her leg was broken. He also noted that the Indiana Department of Child Services had previously opened a child in need of services case as a result of the abuse against Teamer and had ordered Teamer to dissolve her marriage, which she never did.
Teamer and A.M. moved to Texas as scheduled, and the parties agreed to allow A.M. to remain in Teamer’s custody until a final hearing in the case, which was scheduled for Sept. 8, 2021.
But on Aug. 31, Teamer filed a motion to continue, alleging she had just learned that her attorney had resigned, “was not notified nor included when this decision was made” and needed “additional time to hire new representation.” The attorney, however, claimed a notice was sent to Teamer on Aug. 16 stating “there has been a breakdown of the attorney client relationship” and “there has been a misrepresentation of the material facts related to your matter[.]”
The Marion Superior Court allowed the attorney to withdraw and denied the continuance, as well as Teamer’s oral motion to continue at trial. She thus proceeded pro se, and Muhammad was ultimately granted primary physical custody of the child. The trial court also denied Teamer’s subsequent motion to correct error alleging the initial resignation letter was sent to her old Indianapolis address and not her new Dallas address.
A split Court of Appeals affirmed the custody ruling in IN RE Paternity of A.M.: Bianca Teamer v. Theophilus Muhammad, 21A-JP-2261, finding that Teamer did not demonstrate prejudice and that the trial court did not abuse its discretion when it denied her motions to continue.
The COA found that although Teamer claimed she did not know what she “misrepresented” to her former attorney, “a client’s maintenance of her relationship with her attorney and her representation of facts to her attorney is at least partially in her control, unlike the conflict of interest in” Koors v. Great Southwest Fire Ins. Co., 530 N.E.2d 780 (Ind. Ct. App. 1988), on which Teamer had relied.
Also, although Teamer claimed she was prejudiced by the denial of her motions to continue, she didn’t explain what that prejudice was or how a continuance would have cured it.
“During the hearing, Mother was able to cross-examine witnesses, sometimes with the assistance of the judge; raise objections to exhibits, some of which the trial court sustained; and make closing arguments. The trial court also gave Mother substantial leeway in terms of inserting narrative into her cross-examination of witnesses,” Judge Melissa May wrote. “Based thereon, we conclude the trial court did not abuse its discretion when it denied Mother’s motion to continue because even if Mother was not at fault for her lack of counsel at the final hearing, she has not demonstrated that she was prejudiced by the denial.”
Judge Rudolph Pyle concurred.
But Judge Elaine Brown dissented, arguing that the trial court abused its discretion by denying Teamer’s motions for a continuance.
The dissenting judge noted the difficulty Teamer faced in trying to find new counsel over a holiday weekend and said the trial court never appeared to question Teamer or her attorney regarding the alleged reason for the withdrawal.
Brown further argued that the Sept. 2, 2021, grant of the attorney’s request to withdraw was premature under the Marion County Local Rules, and the Sept. 1, 2021, motion to withdraw was premature under Indiana Trial Rule 3.1(H).
The dissent concluded that Teamer demonstrated good cause for a continuance, that the case involved at least some complexity as well as a fundamental right, that she was prejudiced by the denial of her motion for a continuance, and that a delay would not have prejudiced Muhammad to an extent to justify denial of the continuance.
“In light of the fundamental parent-child relationship involved and the record, I would hold that the trial court abused its discretion in denying Mother’s motion to continue,” Brown wrote.•