When a defense attorney's client is being investigated or prosecuted for a crime involving the attorney's own conduct, a conflict of interest exists that creates a presumption of prejudice under case law. The court must conduct a colloquy with the defendant and give them an opportunity to choose another lawyer when it has reason to know of such a conflict. A waiver of conflict cannot relate back to cure the problem because at the time of the guilty plea, if there was an avenue for a better plea that could not be pursued by the lawyer and the judge had reason to know it was a problem, the waiver is ineffective.
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>> Hey Josh, can you hear me? Okay.
Does it sound loud enough?
the honorable judges of the United States Court of Appeals in and for the seventh judicial circuit. Here ye hear ye hear ye all persons having business before this honorable court are admonished to draw near and give their attention at the court's job today. God save the United States in his honorable court.
>> Good morning, ladies and gentlemen. Our first case for argument this morning is United States against Ferguson. Mr. Brinley.
May it please the court.
My name is Bo Brinley and I represent defendant appellant Terry Ferguson.
Following the submission of Mr. Ferguson's section 2255 petition, the district court indicated that it did not know about the conflict of interest issue in the investigation of council prior to the sentencing in the case. However, as we indicated in our brief, at the time that the motion to dismiss was filed before the guilty plea, the district court was explicitly told about the efforts of the agent to obtain cooperation information against the lawyer from Mr. Ferguson.
that created a reason to know for the court that there was in fact a conflict of interest situation.
It is hard to imagine a more clear conflict of interest problem than an attempt to obtain active cooperation against the lawyer by the client. And in the face of an actual conflict of interest where there's a reason for the court to know, prejudice is presumed pursuant to the case law. Under the circumstances here, given that the court was made aware explicitly, not just with the attachment of an exhibit, which happened way earlier in the motion to suppress, but with explicit reference to the attempt to interfere with council and the relationship between council and Ferguson and the effort to obtain incriminating information about the lawyer. That is the textbook situation where the lawyer is in a position where uh it is in this instance truly not plausible for him to provide all of the the possible avenues to the defendant.
Primarily we could not tell Mr. Ferguson about the possibility of cooperation with the government in any meaningful way because it was clear that that cooperation effort although it may have been fruitless it may have been completely ill but whatever the reason Mr. Ferguson through a different lawyer would certainly have asked about cooperation.
That did not happen. And in the absence of that that simple step, when you know that there's a reason to believe that there is a person against whom the defendant can cooperate, a lawyer that is not in the position of a lawyer who is whose cooperation is being sought against is going to pursue that.
That did not happen for Mr. Ferguson.
The district court knew about it before his guilty plea. Prejudice should be presumed.
>> Mr. Brimley, uh, at the time Mr. Ferguson was asked, >> uh, at his initial arrest about you.
Yes.
>> You were not yet representing him in this matter. Of course. Is that right?
>> I was not because no one was, of course.
Uh, >> and then he hired you after that. Is that right?
>> Immediately upon arrest. However, >> Mr. Mr. hired you know of course already that at his arrest in this case law enforcement had asked him about potential cooperation with respect to you.
>> He was aware of it at the time I entered my appearance on the case. Yes.
>> And when did you learn about that October 2018 conversation?
>> Whenever we first I couldn't tell you the date but it's whenever we were first obtained the report in which agent Labno solicited Ferguson to provide information about me. So sometime you know 2019 before you filed it in before you made the filing you were talking about before I take it then.
>> Yes. Before the motion to dismiss where we actively advocated about Labno's conduct and about the efforts to to obtain cooperation against the attorney who they knew to be I mean they ra they write about it in the report and judge Canelli found their claims to not know at the sentencing to be a bit incredible as he found a number of claims made by the agents at sentencing to be incredible. uh and and gave a huge reduction in sentence because of that in large part. But when they they claimed not to know that Ferguson and I had a long-standing attorney client relationship, that rang pretty hollow given that both of them had referred in separate reports to getting information about Ferguson's lawyer. So it was it was a well-known fact to the agents investigating Ferguson and and something that is a fact in general has came out.
could of course still cooperate, but I take it he still doesn't want to.
>> At this point in time, I I couldn't speak to Mr. Ferguson's desires today.
Uh that I don't know in terms of cooperation, um the the problem is of course under the case law, as I read it, under the case law, when the court had reason to know that this was an option, that the the there was an effort to cooperate against council coming from law enforcement and Mr. Ferguson getting with the proper colloquy that we reversal is required and even even if even if we didn't go with the per se reversal that the case law suggests in this instance there's a clear uh adverse impact given that there was an and really all you have to do for adverse impact is show there was an avenue reasonable avenue that was not pursued and in this in instance cooperation was such an avenue and there's no way to cure that after the fact. He wasn't told before he plead guilty that this is a possibility. You could get independent counsel that might want to do this. That was not discussed.
>> He has been told those things now though and he's continued to choose to have you represent him in all these matters. Is that right? He's she chose to have me represent him only in this matter and on the appeal and nothing else where we were dealing with the record and these facts to which we are familiar. Um those were the only things and and the uh effort to cooperate if I remember correctly that particular thing was not raised in the colloquy about waiver of potential conflict for these purposes only. it was only for purposes of the appeal here where we're looking at a cold record and the 2255 where we again are looking at what happened. Um it's not in his 2255 does not introduce additional evidence of any kind. So it's it's just a sign the waiver at that time cannot relate back and cure the problem because at the time he plead guilty any defendant at the time they plead guilty if there's an avenue for a better plea that just cannot be pursued by the lawyer and the judge has reason to know it's a problem he had the motion to dismiss was filed shortly before the guilty plea and the judge had had the opportunity to read that they were trying to get cooperation against me by the client And however angry that might make me, however illfounded I believe that was and and out of I'm not going to comment on that further, but regardless of that, uh, Mr. Ferguson at that point, pursuant to the case law needed an advis. So he could have met with independent counsel and they could say, you know, under cooperation, you could get a third off or whatever. Uh, even if just providing historical information, you can still get time off. That didn't happen. And under the circumstances and under the case law, given the the unique circumstances of this case, I I think that and we would ask that reversal be the only option. And with that, I'll reserve the balance of my time. Thank you. Council M. Bonovich.
>> May I please the court ever bonichi on behalf of the United States defendant in this case engaged in a three-year crime spree involving among other things cocaine distribution and the trafficking and stolen firearms. And after five years of vigorous litigation conducted by the able and experienced attorney, he chose knowing that law enforcement desired to have him cooperate against the attorney. He ple pled guilty on extremely favorable terms and received a sentence of close to one half off the low end of the applicable guidelines range. The district court properly denied defendants's motion to dismiss the indictment and also his 2255 petition which was grounded on a conflict of interest uh between him and his lawyer.
The defendant did not show, as the district court correctly held, that there was an actual conflict at the time of his guilty plea or his sentencing that resulted in an adverse effect on council's performance.
And the district court also correctly held that the defendant had not made him aware and he was not aware of the conflict contrary to the contention of the defendant. The defendant's motion for to dismiss upon which he relies did did refer to questioning by the by the agents at the time of the defendant's arrest, but it made no mention of any potential conflict. And it's interesting that council regards and describes that conflict as being about the most obvious and severe as one could imagine given that he himself represented to the district court that he did not see it that way when he learned of it early in the litigation.
And instead he he did not view that questioning as suggesting the existence of an ongoing investigation but rather as a basically a fishing expedition by a somewhat rogue agent.
So the defendant has not shown in any way that the district court was aware of a conflict. And this was a conflict that the defense council and the defendant were well aware of at the time of council's retention at the time at the inception of the case and throughout the five years of litigation that followed.
the um with respect to the um the waiver relating back we agree that a waiver of this nature would not relate back to the beginning but that doesn't matter because as we just as I've just said the waiver was actually made at the time of the def of defense council's cont uh retention of council and of course the fact that council did not himself appar or council has not said anything about his communications with his client re this is reasonable and appropriate of course regarding the conflict but there's no indication in the record that the idea of a conflict was considered or discussed by the defense um early on which is really further evidence that it there was not an obvious conduct or conflict certainly not obvious enough to require the district court to sue esponte conduct a a colloquy with the defendant and give him another opportunity to choose another lawyer. And judge tableson as you mentioned the fact is that the defendant knowing everything knowing about the conflict has chosen to retain the same attorney um to handle his his appear his appeal and his 2255 motion.
And the district court found that there was no reason to believe that the result would have been any different um had that colloquy been conducted earlier.
And the record of course provides no basis for uh knowing that. Um so unless the court has further questioning of me regarding any of the other issues presented in the briefs, um we will just ask that this court affirm the district court's judgment.
Thank you, council. Anything further, Mr. Brenda?
>> Yes, Sean.
>> As as they did in their brief in the remarks a moment ago, government council seemed to place the onus somehow on Mr. Ferguson to make the determination about whether or not the the complexities and nicities of conflict and whether or not he should proceed with counsel. As this court has noted, uh that is not a defendant is not in a position to do that. A defendant does not know what the legal ramifications of conflict of interest are or the the nicities of cooperation and what that can do. A defendant cannot be tasked with knowing that and figuring that out on his own.
And I don't believe the cooperation piece as I indicated was even addressed in the colloquy regarding this uh the waiver for the appeal as we were only addressing what would happen here which is an appeal based on the record as it was. Uh the the other thing that that government council suggests is it should be on the onus is on the council for the defendant to somehow raise the conflict.
And when this conflict is of this sort, we're talking about cooperation against council. I think the case law has been clear. Defense council is not in a position to do it either. That is why they the court when it has reason to know is required to do the colloquy. And that is why in most instances and it's questionable why it didn't happen here.
the government raises this issue and in fact there was a companion obstruction of justice case where the government raised the conflict of interest issue and I was disqualified by judge Laurel but on this case they did not under these facts and and and so when you take a look at it in its totality there is no question when the the the defendant is asked to cooperate against the lawyer that's a conflict when the defendant isn't told that cooperation plea can be pursued pursued by someone in an objective position to tell them that that's an adverse impact. And regardless of whether it's a potential or an actual conflict, however you characterize it, that adverse impact happened in this case. And if the criticism is failure to raise the conflict, then that criticism is also ineffective.
>> Thank you. Your honor, >> the case is taken under advisory.
The second case for argument is Famata against labor force.
M bandin.
>> Yes.
>> Good morning, your honors. May I please the court? My name is Laura Bandini. I represent of Helen Angie Cowan Hamada, regional director of region 13 of the National Labor Relations Board. The employees freely chose their union and it has represented them since the 1950s.
In every step of this case, labor force knowingly violated its employees rights and systematically weakened their union.
Labor force engaged in serial unfair labor practices consisting of repeated unlawful withdrawals of recognition, refusals to bargain, and egregious unilateral changes. It is a bedrock principle of labor law dating back to at least the Supreme Court's 1944 Meo Photo Supply decision that granting unilateral wage increases to induce employees to leave their union is just as damaging to their rights as an employer threatening or dominating employees. And so it was here. Let me start with labor forces withdrawal of union recognition as to the parks department.
For over nine months, employee Joe Lman tried to collect disaection petition signatures to ou the union. He testified in the ALJ hearing that during that time, he tried to get employees from both the parts and the service departments to sign the petition, but in the end, none of the 51 service department employees would sign. He ended up with just 23.1% of the unit signing, far short of the 50% plus one needed to demonstrate loss of support.
The employer accepted the petition and immediately announced that it would refuse to recognize the union as to the parts department employees and would make unilateral changes. But the employer knew the petition was legally insufficient.
Two weeks after receiving it, council for the employer went to the NLRB seeking a post hawk blessing for its actions. It filed a unit clarification petition admitting that the current bargain unit consisted of quote all parts and service department employees and asking that the director exclude the service department from the unit. The regional director denied that petition, but 3 weeks later the employer began making unlawful unilateral changes anyway and the board later affirmed the regional director's determination as bolstered by the administrative law judge's decision in this case. finding merit as to all of the director's allegations against labor force. The director is likely to succeed in proving the initial withdrawal was unlawful. The district court explicitly stated that it was refusing to decide whether the first petition was appropriate, but as the ALJ concluded, it was not. In addition to the board's rejection of the UC petition, there's extensive evidence um here such as the party's long bargaining history, the successive bargaining agreements defining bargaining unit in the singular and setting forth wages for both parts and service department employees. Both parts and service department employees voted to ratify the collective bargaining agreement and labor force submitted dues in a single check to the union. It is uncontested that after receiving the petition, labor force disregarded the terms of the collective bargaining agreement, failed to negotiate with the union, and paid the parts department employees higher wages, gave them less expensive health care, and gave them the opportunity to participate in a different 401k plan, not the union plan, with a 3% employer match. These unfair labor practices directly caused the second petition to be tainted. While in this single facility, the service department saw parts department getting these raises and cheaper health insurance for eight months on an ongoing basis while the service department employees with their union representation remain stuck at the same lower wages and benefits. They got the message that they would be better off ousting the union because then labor force would give them more money too.
And that's what happened. It is therefore unsurprising that when Lman tried to collect signatures from the entire unit again, he finally got some service department employees to sign up.
As for the withdrawal uh of recognition as to the second petition for the entire unit, the district court misapplied the board's master slack analysis most significantly because it failed to consider the ongoing nature of the violations that in every paycheck employees experience these unlawful unilateral changes. This is supported by board law and it's not contested that this is the law by labor force. This is what is freshest in the employees minds when they made that decision to sign the second disaection petition.
Moreover, under labor law, labor force's initial illegal unreied refusal to bargain creates a legal presumption that any subsequent showing of disaection is tainted. These conclusions are bolstered by the ALJ's wellusing determination.
Labor Force argues that McKenny's articulation of the >> You aren't addressing the district court's principal ground of decision, which is the lack of irreparable injury.
You you might want to address the ground on which your client lost.
>> Sure. I believe we lost on all four prongs unfortunately, but as to irreparable harm, irreparable harm in this case is shown by actual statistical evidence and an inference of harm. Let me begin by the actual statistical evidence in this case. As I just went through, Lman testified that he tried to get the entire unit both times to sign the petition. The first time it was 23% following the unfair labor practices and the unilateral changes it was 51.4%.
That is unequivocal showing a loss of support.
how the employees are being harmed by being in the same condition they've been in for the last three years while waiting for the decision of the National Labor Relations Board.
>> They are harmed because they are they have lost the ability of their union to represent them in matters. Um, so their grievances are >> that sounds like an argument that the employees are irreparably harmed in every case where the regional director brings a 10J proceeding. And I don't think that's consistent with what the Supreme Court said in Starbucks, which is that the standard approach injunctive relief applies in labor law cases.
Actually, so this court has long applied an inference of harm and McKini doesn't change >> a lot of things before Starbucks, but you need to address Starbucks.
>> Thank you, your honor. I would be happy to. In Starbucks, they said that there there needs to be a clear showing of a reparable harm of of uh the need for injunctive relief. However, that is not a new standard. The clear showing language came from the Supreme Court's decision in winter. And what McKini says is that it rejected the standard that had been applied in other circuits, but it explicitly cited to blow this case's precedent as one that that correctly applied the correct standard the entire time.
>> But what about Miss Mandini? I mean, the Supreme Court has emphasized that this is an extraordinary measure, a preliminary injunction, and it seems to me that the harm you've identified, which is undermining the union's connections with this employees, is simply the mind run harm in any NLRB labor dispute case, right? So, what facts in this case make the irreparable harm sort of extraordinary to the point that a PI is warranted? Well, as this as this uh court has long recognized which is not disturbed by McKini because the clear showing had always been there and in fact after winter harell was decided which implied these inferences of harm from an 885 violation that when an employee is denied their their union representation it causes section 7 rights that's irreparable. They don't and especially here the union needs to rebuild support ahead of new contract bargaining in 2027. So that's coming up.
Without being able to fortify support and get ready for bargaining, it will not it will not be beneficial for the employees. Um and given the significant unilateral changes, the union here, if this keeps going on, is unlikely to be able to come back from it because what the employer is doing is dominating these working conditions to the point where employees will feel like a union is ineffective and cannot represent their interests. and they voted and they've had this union since the 1950s.
And absent these tainted and unlawful acts by the employer, they would still be represented by this union. The first petition, you cannot descertify a union based on 23% of the unit. Coming back to what seems to me the basic problem in your case which is what you're saying about this case could be said in every single case in which the board files a 10J action >> respectfully >> true in every single 10J case then how is it extraordinary in any way?
>> This case is not one unfair labor practice. This case is not the initial petition where the uh the employer ceased recognizing the union as to part of the unit. After that they made a series of intentional unfair labor practices that they went to the board and asked are we in a position to be able to make and the board said no that is not the proper bargaining unit. It disregarded the board's um the board's UC petition ruling did them anyway. That went on for an extended period of time and then it accepted this tainted petition and now the entire plant has lost its union.
I just wanted to go back to McKini again just kind of quickly to make sure that I had stated that um in a way that >> some reason why you're referring to Starbucks as McKini.
>> Oh, I'm sorry. That is how we >> get the name of the regional director.
It's a good idea to refer to cases by the private party. It is. I apologize.
>> Tax cases would be called commissioner.
>> Okay. Starbucks then. Apologies your honor. Um I just wanted to to highlight the point that McKini in the the um the clear showing standard that was not a new standard. I know labor force says we have to disregard all of these decades of precedent that's under 10J including the inference of harm which we've had in this in in this court. And that is actually not consistent with McKini.
McKini is quoting >> It's hard to change habits, isn't it?
>> Well, we there's no need to >> call it Starbucks.
>> Oh, I'm so sorry, your honor.
>> Twice.
>> I'm sorry, your honor. Starbucks. Um, but Starbucks does not change that.
Starbucks used the same phrase, the clear showing came from Winter. and winter as as Starbucks itself in the opinion um acknowledged had been using the winter standard. So therefore it follows that the clear showing standard is not new in this circuit. This is one that this court has been applying including the um the inferences and in fact Herell which five came out five years after winter applied the inferences of harm which would be inappropriate in this case because it is the same type of 85 case which involves egregious unilateral changes and a refusal to recognize um the union. So therefore the seventh circuit's precedents are fully consistent with McKini the Trinity healthc care um case from the sixth circuit is therefore distinguishable the that court um McKenna expressly rejected the sixth circuit standard sixth circuit standard is conflicting with winter that's the opposite of what is happening in this case I also wanted to speak about delay in terms of irreparable harm McKenna recognized that sorry Starbucks recognized that delay is inherent in the administrative process. Apologies again, your honor. Moreover, delay in and of itself is not a litmus test. It only matters if a reparable harm has already occurred and the parties cannot be returned to the status quo. That's not the case here. Here, for example, the second petition only got 51.4%.
Even after all of those unilateral changes, showing that there is still support in the unit for the union. this status quo, it can be restored and in time for bargaining for the next successor contract. Also, the delay in this case was not excessive.
The delay is measured from the date of the complaint and it was less than 7 months from the initial complaint. From the most recent complaint amendment, it's 4.5 months. Um as the second circuit in in um parking systems in poor says uh 5.5 months was not undue delay since as a practical matter delays of this length are not uncommon citing to cases with delays of 7 months one year two cases of 18 months that were not excessive. Indeed in this court's blowdorn decision the court granted 10day relief where quote more than two years have already passed since the employer refused to recognize and bargain with the union. Indeed, as the second circuit acknowledged, it can take several months for the director to get approval from the general counsel and the board to seek 10day relief. And with that, I'd like to reserve the rest of my time. Thank you.
>> Certainly, council, may please the court. James Ehart for the defendant respondents. With me at council table is Don Vogle, my law partner. Almost two years ago, a majority of the parks and service employees told labor force they don't want the union. Employees have a fundamental right not to be represented by a union. That choice is protected by the National Labor Relations Act. The district court properly rejected the director's request to invalidate that choice through the extraordinary remedy of a section 10J injunction.
First, the district court did not clearly heir in finding the director failed to establish irreparable harm, imminent and irreparable harm. The district court correctly concluded that the director's delay in seeking injunctive relief weighed against any showing of irreparable harm, and the director likewise failed to induce actual evidence of imminent irreparable harm. Second, the district court also properly concluded the director was not likely to succeed on the merits because the director failed to establish that the second disaection petition was tainted by anything labor force did.
There is no allegation, let alone any evidence that labor force participated in the descertification efforts. It is undisputed that Joe Lman, the union steward, spearheaded >> second though because let's be clear about what happened here, right? Um the district court did not actually address the definition of bargaining.
Correct. In her opinion, >> correct?
>> And it's in the singular in the collective bargaining agreement.
Correct.
>> Correct, your honor.
>> Correct. In fact, you filed this petition to clarify um because you wanted the CBA to be to split. Correct.
>> I disagree with that characterization and I'd like to to address a few of those points um if I may. So, the district court, it is true, did not address the first merits dispute about whether there was >> Isn't that where this whole thing starts with the definition of the bargaining unit? From then on, it goes south for the union. Right.
>> So that that is an important issue. But the the critical point about the district court's order is that the district court assumed the director was correct in the director's theory on that issue.
>> Do you agree that the district court I I didn't really see a defense in your brief of the notion that the district court lacked jurisdiction to resolve that bargaining unit issue. Do you agree that that was an error by the district court?
>> We we agree that was a mistake. It was an error, but it's not reversible error because ultimately the district court assumed that there was a single bargaining unit and then it went on to determine whether the second disaection petition was tainted uh given the alleged unfair labor practice uh allegations. And so even though the district court arguably aired in in not reaching that threshold issue, if this court wants to reach it, that's an independent basis to affirm the district court's uh denial of the injunction. But ultimately th this court doesn't need to get into the merits at all because uh the uh district court ultimately uh held that the director failed to establish irreparable harm and that was not a clearly erroneous finding by >> talk about irreparable harm because I understand well I've seen I actually haven't seen any wage rates in the record. Perhaps you can direct me to this. Um, I know in the ALJ decision there's reference to a blank letter, but I've seen it in the briefs that for the parts department wages were increased.
Where is that in the record or is it in the record?
>> So, I think the only thing the record shows and this is the testimony by Josh Wolf before the a the administrative law judge. I'm trying to find the um site for you, but >> I looked at what the ALJ cited for the alleged wage rate increases and it did not help me. Okay.
>> Yeah.
>> Yeah.
>> Um so I think the the administrative law judge cited the testimony of Greg Castanero who testified that his wage rate changed from >> 30 to 48. Quite significant. And that's one person. That's incorrect, your honor. I think he testified mid to high30s to 48, but it's important to understand, I believe that the uh new wage rate of 48 um and 25 cents included the reallocation of the 401k uh payment that had been going to the union 401k.
Once there once the um labor force withdrew recognition, it gave the employees the choice to either >> I'm getting all a little off topic about what I wanted to discuss which is the difference between harm to the unionization process um you know which comes up in the the second circuit decision and parking system versus harm to the employees. Um they're two different things, right? and the NL protects harm. It protects the collective bargaining process. No. So, that's where we should be focusing our attention on.
I I think they're both valid considerations and and we don't think um either consideration should be excluded.
The problem for the director is that they should have moved for a 10J injunction with respect to the >> When do you think they should have moved? because I I think this was yet another error in the district court's order is that she's saying unfair labor practice filed by the union the the board didn't um there was no um injunction sought by the director. So she's tying those two events that the the the charge and the lack of filing an injunction. But that's not correct. The statute talks about that the tying the delay to the complaint filed by the board. Correct. So that was yet another error here.
>> I I disagree that that was an error. In the very first initial charge filed by the union, the union specifically asked the board to seek injunctive relief under section 10J. So that's at ECF number 1-1.
>> You can't make demands of the board. The board has its own processes.
>> Well, well, that puts the board on notice. And then your honor is correct that under the statute the um ability to seek injunctive relief under 10J is tied to when a complaint is filed by the director but the director is in complete control of when a complaint is filed.
And it was not an abuse of discretion or clear air by the district court to to find that the director should have sought injunctive relief sooner than it did. The director in its uh opening brief, I believe, argues that this case was complicated and it needed time to investigate, but there's no detail about what was uh what the director needed to investigate for 18 months before seeking injunctive relief uh or or 11 months before filing the complaint. And that's that's a concern that a private litigant uh would have too. any priv private litigate that seeks injunctive relief needs time to to investigate the claims before going to federal court for an injunction. But the um the district court did not error in concluding that the director waited too long and that at this point so the delay at this point is relevant for two reasons. First, as the district court correctly concluded, it just belies uh an allegation that time is of the essence or that there's an imminent irreparable harm that needs to be inverted via averted via an injunction. But the second point is >> in your in your opinion when should the board have filed for an injunction a 10day injunction on this record in this timeline with multiple charges being filed you know consolidation that takes time investigation amended amended um when when when should the board have filed?
So, so it it should have been before the first withdrawal of recognition was effective on September 30th. But to to make a broader point, we're not asking this court to adopt a bright line uh rule about how quickly the director has to seek injunctive relief. Ultimately, that uh discretion rests with the district court to determine whether delay or under other factors undermine a showing of irreparable harm. But >> so what do you do with the second circuit's cases cited in parking systems talking about five six months not being enough not supporting delay? What do you do with all those all those cases? cuz one of your main cases that you rely on um I think at Southern Bakeries like the union was I think descertified for two years before the the board um file the complaint which that does seem like delay that that's quite not the case here.
>> So ultimately I think there may be circumstances in which the director can explain why it needed 6 months before it sought injunctive relief. It has not sought to do that here. It has not sought to explain why it needed 18 months to seek injunctive relief. And ultimately, this court is reviewing the district court's irreparable harm finding for clear error. And there's just been no showing that the district court clearly aired in its assessment of irreparable harm here.
And I can point this court to uh two cases from the seven >> the 18 months. I want to know how you're counting that. 18.
>> So, >> are you talking about woman's petition and the first dissert uh withdrawal of recognition to the filing of a complaint? Is that your 18 months?
>> 18 months would be from the initial union charge which which explicitly sought section 10J relief and the filing of the 10J petition in the district court. Now back to your question about when the director or how quickly the director should have moved with respect to the initial charge. The director did act quickly. The the um Mr. Lman was taken by a union member to the board agent Helen Gutierrez who asked Lman about the basis for the petition. So I I should say the extent of the uh conversation between the board agent and Mr. Lman is not in the record, but we know that conversation happened in July of 2023. And so that was very quickly within 3 weeks, two or 3 weeks was Mr. Lman's testimony that he circ of of him circulating the initial petition that he was taken to meet with the board agent. And so presumably at that point, the board the director had the information it needed about the circumstances surrounding the initial petition. If the director thought that the initial petition was subject to uh attack or invalidation, then at that point the director could have sought section 10J injunctive relief before labor forces withdrawal was ultimately effective, which it was not set to go into effect until two or three months later at the end of September. Can I ask you a question about the um how we factor in the direct effect on employees? You know, the harm to employees or lack thereof. We've been talking about the effect on the union per se, but when it comes to the harm to employees or lack thereof, what factor in the PI factors, where does that play in and how does that work? And I', you know, I'd be interested in the NLRB's views on that as well.
>> Yeah, it it could be in in several of the factors. I think in irreparable harm or the balance of harms that that could be a relevant consideration in the public interest factor that could also be a potentially relevant consideration because generally uh courts will look to the potential impact on third parties. Um and so I think in any of those factors that's a relevant consideration and um I I don't know if that answers your honor's question.
>> Yeah. I I want to address the um director's arguments that the service employees refused to sign the initial disaection petition because I don't think that is supported by the record evidence. There is testimony from Lman and I admit it is a bit muddled that when he was originally seeking to gather uh signatures for the original petition that there were discussions with both parts and service employees, but he testified in in the portion of the of Lman's testimony that the board relies on, Lman specifically said, and this is at appendix 104 that when he was collect collecting signatures for the original petition, there were members on both sides who wanted it out. That's a quote again, appendex 104. And so even at the time that Mr. Lman was collecting signatures for the original petition, this was not a case in which all of the service employees or really anybody had said that they don't uh want to sign the petition. Mr. Loman man's testimony is that even at that time there were service employees who wanted out of a union. Now ultimately we know the initial petition was limited >> but they didn't sign the petition.
That's undisputed. Correct.
>> Correct. And ultimately the original petition was limited to parks department employees only. But that's entirely consistent with Mr. Lman's testimony that he believed there was uh two there were two different distinct bargaining units. one composed of parts, one composed of service, and that he focused on gathering signatures for the parts side because those are the employees that he represented. And that's at app 32, his testimony that he focused on port on the parts uh department because those were the employees that he represented as parts union steward.
There's additional testimony that supports the fact that even during the original uh disaection petition uh there were service employees who would have voted against the union.
That's at supplemental appendix 45 when Mr. Lman is discussing his uh meeting with the board agent. He says, quote, "Then after the meeting, quote, then I started going to service department employees who I knew wanted out as well and began to collect signatures to remove recognition again."
>> Thank you, Mr. >> Thank you.
>> Miss Bendy, anything further?
>> Thank you. Just a couple of quick points. First, um, about Joe Lman's testimony, it's page appendix 104.
clearly says that he tried to get um signatures from both. However, you just testified that while collecting signatures, you attempted to get parts and service to sign the July 23rd descert descertification petition. Is that correct? Yes. Yes, there were members on both sides who wanted out, so I'm not going to skip. He believed there were members on both sides who wanted out, but they didn't sign. So, he tried, but it didn't work because they didn't want to sign the petition. Um that's just the facts of the case. Also, um, your honors had asked about harm.
Wouldn't this be the same kind of harm in every 10J case? But labor force is saying that we should have rushed to seek a 10J petition from the outset, from the first charge. The problem in this case is it's a series of unfair labor practices. Each one building on the last, each one denigrating the union to the point where it no longer represented any employees in the plant.
So for that reason the board felt like we had to go in and seek a 10J injunction here. Also as to delay part of the process um is to gather evidence when a charge is filed. We collect position statements sometimes affidavit.
We speak with witnesses. This is part of due process and and the parties are fully um available to take advantage of that as labor force did before we decide whether there's merit in a case. we are not the um general counsel is not uh the director is not empowered to seek an injunction until a complaint is issued.
So only at that point can a decision be made and at that point both the general counsel and the the board need to sign off on it and as the parking systems case as the second circuit realized that process can quote take several months.
That's all your honor. Thank you very much.
>> Before you leave, what is the current status of this proceeding before the board? Um the the a the administrative law judge had issued >> the has released a decision. What's the current status before the board?
>> It is now briefed before the board and awaiting a decision.
>> Okay. There no argument is contemplated.
>> No.
>> All right. Okay. Thank you. Thank you.
The >> case is taken under revisement.
We'll hear argument now in the case of Hayes against National Fire and Marine Insurance Company.
Mr. Pil, may I please this honorable court? My name is Charles Filbrick and I represent Frank Hayes who served as the administrator of his mom's his mother's estate, Sarah Quinn. With me today is co-consel and uh uh Mr. Craig Manic who also represented Mr. Hayes in the underlying Illinois nursing home care act claim that gave rise to the judgment.
I'd like to start with Estoppel and then move to damages.
You might want to start with a jurisdiction.
>> Excellent question. We had some judgment in which certain issues were resolved and other issues.
>> Let me me ask starting with a technical question. Did the district judge ever enter a proper rule 58 judgment in this case?
Ever.
There's certainly not one in the appendix to your brief.
He entered what he believed to be a final judgment. He mischaracterized it uh in terms of the rule but it is functionally a rule.
>> So I take it the answer is no. There is no proper rule 58 judgment. Rule 58 judgment has to provide the relief to which the prevailing party has been valuable.
The document entered by the district court says that party A prevails on issue B which is well quite some distance from a proper rule 58 judgment.
Next question. Did the district court certify anything for appeal under rule 54B?
>> It did not.
>> It did not.
Third question. If he had, could the district court have certified an issue for appeal under rule 54b?
>> It could not.
>> It could not. Rule 54b doesn't allow that.
>> That's true.
>> So, what is it we have for appeal?
>> We have >> It's not a rule 54 judgment and it couldn't be even if it tried to be. It's not a rule 58 judgment.
What we have is a summary judgment that was partial at the time that later became final with the voluntary dismissal of the remaining claims. At that point in time, there were no other claims to be heard and the summary judgement ruling that had been previously entered became final and appeal against bankers trust all over again.
You You're you're better than I am for sure on that jurisdictional question.
>> It's a decision of the Supreme Court holding that if the case is really really over and we're absolutely sure of that, then an appeal is possible despite the absence of a judgment.
The problem is looking at the documents the district court entered, you can't be really really sure the case is over, can you? I that to that I disagree because we can be really really sure that the remaining claims that were headed toward trial were voluntarily dismissed and gone there dismissed.
>> Is there some document reflecting this?
>> Yes, your honor. There is a I think it's rule 54 voluntary dismissal where the parties entered and dismissed those claims albeit without prejudice. that it was in conjunction with a settlement.
>> Further problem as soon as you say without prejudice, right? We have said that you can't dismiss a claim without prejudice in order to set up an appeal on other issues, but that still leaves the lack of a final decision. But we have also said that if when this is discovered on appeal the party dismisses everything with prejudice that can retroactively make a judgment final. But if it's dismissed without prejudice, you have a serious problem.
But I believe the problem is cured by the order entered by the court dismissing the case, albeit under the name of the wrong rule. There is no order from the court dismissing the case.
The judgment that's in the appendix purports to resolve a particular issue.
It does not purport to dismiss the case.
I hope you see the problem.
>> I I do see the problem, your honor. And I was of the view that by virtue of the combination of the voluntary voluntary dismissal of the remaining claims plus the court's order regarding uh rule 52 uh that there was no longer any claim pending before the court and this some previously entered summary judgement ruling became final and appealable. That was certainly all the parties and the court's intent.
>> Well, Mr. Felbrick, let me ask you a specific question about an example of where this gets really confusing, right?
So, the district court in its summary judgement ruling denied summary judgement on equitable estoppel finding that material factual issues remained in dispute.
>> That's true.
>> It is totally unclear to me whether the parties then settled that question. uh your briefs say one thing about that and NFM's briefs say the opposite. So at this point I think given the confusion that Judge Easterbrook has been describing I have no idea whether equitable estoppel has been finally resolved by anyone whether there's a final judgment on it whether it's before us and then I also have no idea what claims what specific legal claims the issue of equitable estapple pertains to right because all this time everyone the parties and the district judge are speaking in the language of issues not claims. So that is an example of you know one of the ways in which it is now totally unclear what we have what we should or can be deciding.
Part of a a big piece of the lack of clarity is because the settlement agreement between the parties that concerned what I call the remaining claims, those that survived summary judgement is not before the court but settlement process happened over with the uh under the opaces of the magistrate judge. The parties reached an agreement. The remaining claims were settled. They were dismissed and it was the understanding and intent of all involved.
>> I I think you're missing part of the point of Judge Tableson's question. You are using the word claim to mean issue, but that's not the way it is used in the rules of civil procedure. A claim is a grievance. There may be many issues in a claim. One doesn't settle issues. One settles all claims.
One dismisses an editor's judgment on claims, not issues.
>> Well, but in the insurance coverage context, I I agree with you. Absolutely.
But in the insurance coverage context, we have rather amorphous claims such as declaratory judgment in which there is a series of >> judgment is a remedy. It is not a claim.
as as well as breach of contract in which we will have a series of issues that would address whether there has been a breach or not, but it's still one claim. In our my particular case, I'm representing Mr. Hayes in a postjudgment proceeding in which we're trying to enforce the judgment against an insurance policy. it gets removed to federal court and then combined with a declaratory judgment action. So I agree with you that there is a lack of clarity as between claims and issues. But I would submit to you that for example as to equitable estoppel the the court very specifically found that there were issues of fact that prevented the district court from resolving on summary judgement the my client's equitable estoppel theory.
However, the court also ruled that with as to my client's theory that National Fire Marine is a stopped from denying indemnification with respect to the attorney's fees award because it didn't reserve rights to which is a separate issue, a separate legal issue, a different form of a stoppple that the district court actually granted summary judgement in favor of National Fire Marine on that particular issue. Not a claim. It was a defense that my client raised in response to the uh complaint for declaratory judgment in one case and in support of its effort to enforce the judgment against the policy in his own postjudgment collection proceeding.
I I don't Yes, I agree with your description of the district judge's summary judgement ruling. I don't see how that helps us understand what's before us right now at all. I mean, >> well, >> is the doesn't the equitable estaple argument also go to the attorney's fee claim?
>> Wasn't your argument that equitable estoppel also required NFM to pay attorneys fees?
It would have if it had gone to trial and my client had prep prevailed, but it didn't go to trial. It was resolved by the parties and dismissed.
So all the >> prejudice, >> pardon me, >> without prejudice.
>> Well, that's a really interesting question because the prejudice that needs >> It's not an interesting question. It is an absolute obstacle to appellet jurisdiction under this circuit's law.
Well, the the has to be done, right? Buried or cremated >> in the district court against me ash >> because if you've got a dismissal without prejudice, it has not been dead and buried.
Well, okay.
>> The ashes of the equitable estoppel issue were dismissed. They were not dismissed with prejudice.
>> Well, >> the goal of the district court as well as the parties was to simply make the final decisions of the summary judgement ruling appealable. And that is what we have pursued >> which was a total flop. We all agree, >> right?
>> As I stand before you, >> when these judgments when these things purporting to be judgments were entered, did you go to the district judge and say you can't make an issue in a case appealable without using section 1292B?
Did anybody remind the district judge of that?
It was the district judge's idea of using the certified question rule to bring this case to a close.
>> 1292B requires a petition filed with the court of appeals and an express finding by the district court which was never made nor was a petition filed asking us to accept the appeal in our discretion. My question was, did anybody go to the district judge and say the documents you have entered are legally defective? You can enter a final judgment or you can you can certify a question under 1292B.
Anybody go to the judge and say that?
>> No one went to the judge and said that >> and now we have this problem. It's a total mess.
These are things that should be fixed before they become appellet messes.
I agree.
And uh I recently had a different appeal in which there were there was a lack of clarity and this court asked that it be fixed.
Could we not do that now?
>> Well, we will ask for supplemental jurisdictional memos from the parties.
And one of the things you can do is go back to the district court, correct your settlement so that it's with prejudice and ask the district court to enter a proper judgment or if the judge does not want to wrap up the case to certify a question under 1292b and explain why it meets the criteria for certification under 1292b which so far as I can see it does not.
I I would concur on that last point, your honor, and uh which is why that was that path was never pursued certainly by my client.
And so I will uh reserve my remaining 60 seconds.
>> Thank you, Mr. Felick.
>> Thank you.
>> Thank you, >> Mr. Borsia. You see the problem? I trust.
>> Yes, sir.
>> Why are we here?
>> Morning. Jim Borcher for National Fire.
The judge, I I think um I kind of saw this coming. Um we filed a motion before the judge, you know, the stipulation was filed by the parties and just so we give a little background. The settlement, I think we have a difference of opinion on what we settled, but there were four claims in the judgment. There was a damages claim. There was >> damages are a remedy. They are not a claim.
>> Both sides are horribly misusing the word claim.
>> There was a damages remedy. There was a cost remedy. There was a fees remedy and there was an expense remedy.
We settled the the damages remedy and the cost remedy.
We did not settle the fees and the expenses remedy. And the I think the idea was with the magistrate judge when we settled was we were going to seek certification of the fees and expenses remedies.
We and so there was a stipulation filed >> and nobody did. There was no 1292b petition.
>> Correct. We filed a motion to enforce the settlement agreement because we had a difference of opinion back and forth on what we settled. It's it's our view that on on the fees and the expenses remedy, we did not agree to give up any of our defenses.
Um, one of those being the cooperation clause, one of them being the SIR amount. And >> so your view is there are other open issues in this case >> survive this appeal.
Yes, possibly >> making it transparently a non-final order.
>> If if you were to, I think, affirm the district court's ruling, I think the case is over. But our view is if you were if you don't do that, we still have defenses that are not part of the appeal and that's why it was dismissed without prejudice.
So we had and I certainly was very clear. You cannot do that >> in order to put a particular issue before the court of appeals >> and reserving the right to litigate others back in the district court >> without a 129.
>> It just cannot be done.
>> Right. So I I tried to front this because I filed the motion with the district court before the order judge order was entered to enforce the settlement agreement and the judge bypassed that and entered the order uh dismissing the case.
So here we are. I understand the conundrum and I try again I tried to get this cleared up before the final judgement was entered and the district court I think had just wanted to get um the case over with uh and enter the order but it's it's our view that we we do have a settlement. the settlement is on the limit limited issues of the remedies of the damages and the costs and then the fees and expenses.
Obviously, if if you were to affirm the district court's ruling, litigation's over between the parties.
But we did, you know, we did not agree to give any defenses that we have on the remedies of the fees and expenses.
So I understand the problem and again I'm not the appellent here but I obviously we were part of the settlement conference and you know again I tried to I tried to get at this issue before the case was dismissed by the motion to enforce the settlement to say we have to know what was settled here and obviously there should have been a 1292B to have the issue certified and >> but for reasons we've already expressed 1292b would not be appropriate in this case 1292b is to is to be done early in the case in order to advance the disposition of the case. It's not for a trailing issue that the parties have tried to partly reserve in a settlement.
If you know of any 1292b certification in circumstances of this case, by all means, let us know. But nobody filed the 1292b petition. The district court didn't make the 1292b findings.
President, >> I don't see much use in proceeding. We will give the parties 14 days to file supplemental jurisdictional statements.
If you want to use that time to actually settle the case as opposed to trying to reserve issues for future decision, be our guest. Uh if the appellant wants to dismiss the notice of appeal as a bad job, be our guest.
But there are pretty serious problems here.
>> Understand? Thank you, honor.
>> Thank you, your honor. I >> Okay, >> understand you will. We will we will look forward to receiving those memos within 14 days.
>> Thank you.
>> When they're received, the case will be taken under advisement unless the appeal has been dismissed.
>> Case number four is United States against Quail.
>> Thank you, your honor.
Mr. Roy.
>> Thank you, Judge. Uh, good morning. May it please the court. Wilson Council attorney Michael Roy on behalf of Daniel Quiggle. Uh, 27 and a half years is a long time to spend in prison, especially for a first-time offender, especially with someone with the same mitigating circumstances as in this case. And it's undisputed, I believe, that similarly situated defendants typically receive lower sentences, guidelines notwithstanding. It's undisputed that Quigle presented evidence of similarly situated defendants to the district court. Our argument is not about how the judge weighed the factors. It's simply the judge's failure to address that argument and consider unwarranted disparities.
Um, I think this case is a pretty simple elevator pitch. This is a unique set of circumstances. Um, going back to Gaul and Kimbro, Gaul talks about how the guidelines typically consider the need for unwarranted disparities because the sentencing commission considered the goal of avoiding disparities when creating the guidelines. 2G 2.2, the guideline at issue here, is unique because it was not created by the sentencing commission with the purpose of avoiding disparities. the sentencing commission was over wrote by Congress.
>> It's pretty backwards, isn't it, to suggest that a sentence recommended by Congress should carry less weight than a sentence recommended by the sentencing commission?
>> Well, Congress also said has to consider unwarranted disparities. Um, and Congress also sets, you know, a maximum and minimum statutory range in every case, but there's not a presumption that one end of that bracket is more reasonable than the other. Um and it's also our argument again is not about substantive reasonleness. I mean I understand the in Dorvy um you know they a different court found that within guideline sentence center 2G2.2 can be substantively unreasonable but this court has already rejected that. So we're not arguing substantive reasonleness. We're just arguing the procedial issue of whether the court adequately considered the uh mitigating argument about disparities. And on that front, the traditional sentencing information platform is relatively new. It's as this court was discussing in Oregon or Oregon, I'm not sure the pronunciation, what kind of statistics would be possibly used to compelling data to show disparities notwithstanding the guidelines. It's hard to imagine what would be a better form of data or a better form of statistics than what the sentencing commission has put out. Um just like 3553 A6 itself the JSON data or judicial sensing information platform data it considers similar backgrounds considers similar aggravating circumstances. Um it sort of you know cuts the balance between you can always find individual facts that are going to be different between any two defendants.
That's true in every single case but Congress didn't say that A6 is only concerned with exactly identical defendants. It said similarly situated defendants.
>> Didn't Oregon wasn't Oregon about Jason data specifically though? And didn't it hold >> not judge? I don't believe so.
>> Are you Have you checked the brief on that? I might double check those if I were you. I think Oregon held that the court need not look at that data for the disparity point as long as it considers the correctly calculated guidelines.
>> If if the briefs in Oregon talked about Jason data, it did not make it into the final opinion.
>> The opinion talks about data, correct?
doesn't name Jason, but I would check the briefs before you categorically tell us that it did not involve Jason.
>> Okay. I could be mistaken on that if it was in the briefs, but if it did make it into the opinion, I would, my argument would be that what's actually in the opinion is what matters. Um, and that another difference would be, of course, that this is a extremely unique guideline, 2G2.2, and that there is a national norm of most judges sentencing well below the guideline. Um I don't think there's a real dispute on that.
And going back to G and Kimbro, Kimbro does say that when there is a practice in other courts two sentence below the guidelines, courts should be considering that practice. Um even if this doesn't fall within a failure to consider A6, there is still the issue of having to consider principal arguments mitigation.
I understand the government's position that he didn't raise it at the hearing, but it is one of the main arguments in the sentencing brief. Um, I mean, today I didn't come prepared to repeat all the arguments that I made in writing um at moral argument. I came prepared to answer questions, but I expect of course that the panel read and carefully considered the written briefs. And I think it's fair for a trial attorney to have the same assumption about a district judge. Um, if there's a categorical rule that only arguments raised at the hearing are principal arguments, that's going to create a sort of weird arms race for preservation.
You're going to end up with almost like cargo cult law advocacy where you're just throwing out every objection at the sentencing hearing orally in the hopes of, you know, not waving something.
Um, I would be happy to answer any further questions the panel has.
Otherwise, I would reserve for rebuttal and respond to whatever the government argues.
>> Mhm.
>> Certainly, council.
>> Mwig, >> may please the court. Hannah Hwig on behalf of the United States. The district court did not procedurally error when it gave a below guidelines sentence. At the sentencing hearing, the district court explicitly addressed the defendant's principal mitigation arguments and considered the section 3553A factors just as it was required to do.
As this court has held repeatedly, when a district judge correctly calculates a guidelines sentence, explicitly considers that guidelines range and then sentence a defendant below or within that guidelines range that necessarily considers the need to avoid unwanted sentencing disparities as required by section 3553A6.
That is because the sentencing guidelines under this court's precedent are themselves an anti-disparity formula. Very they are designed to treat similarly situated defendants similarly.
Here the district court did exactly that. She correctly calculated the guidelines range, carefully considered that range and then sentenced the defendant below the guidelines range.
Therefore, according to this court's precedent, the district court was not required to explicitly discuss section 3553A6.
The defendant argues that the child pornography cases are somehow different.
But nothing suggests that this court's precedent does not apply to child pornography cases.
To the contrary, this court has explicitly relied on this precedent in child a child pornography case recently.
The guidelines must be a sentencing judge's starting point as this court has repeatedly held here. The defendant, the district court, excuse me, carefully considered that guidelines range and sentenced the defendant below that guidelines range. She thus was not required to explicitly discuss section 3553A6.
And with respect to the defendant's disparity argument specifically, as the defendant already raised, the defendant did not raise that argument at all at the sentencing hearing.
This court has also repeatedly held that a district judge does not need to explicitly discuss every single one of a defendant's mitigation arguments.
Instead, a district court's only required to address the defendant's principal mitigation arguments. Here, the defendant made four arguments in his sentencing brief. The two that he devoted the most time and substance to were the only two that he then raised at the sentencing hearing. This disparity argument and the data that the defendant now relies on was not mentioned once at the sentencing hearing. A district court should not be faulted for not choosing to focus on an argument that the defendant himself did not focus on.
Particularly considering this court's precedent that when a district court correctly calculates a guidelines range and considers a guideline sentence and then imposes a sentence either below or within that range, she necessarily considers the unwarrant the need to avoid unwarranted disparities between defendants.
If the court has no further question, >> I have one question.
>> Yes.
>> Um, condition 13, which you've agreed should be remanded for. Why is that condition still being proposed by probation in PSRs in your district, can you, can your office not convey that message?
>> Understood, your honor. It is, this is not in the record, but based on my experience, I can say that that condition is no longer being proposed by probation.
>> Thank you.
If the court has no further questions, the government would ask this court to issue a limited remand to address for the district court to either modify or clarify supervise release condition 13, but otherwise affirm the defendant's sentence.
>> Thank you.
>> Anything further, Mr. Roy?
Uh, I want to reiterate again, we're not arguing that judges need to do a checklist fashion announcement of what they think on every single individual factor. We're not arguing substantive reasonleness or that a, you know, sentence within the guidelines is not appropriate in some cases. And if this was a different case where there was more clearly aggravating factors from the record, uh I would spot the government that it would be assumed that the court um considered that with the disparity um >> in the sentencing transcript um sort of connecting the dots.
>> Sure.
>> Stepping into the shoes of Judge Coleman, >> you know, there was discussion of a passive user versus someone who reached out to a minor. Sure.
>> Right. And the Jason data doesn't necessarily account for that difference, which puttings in the shoes of Judge Coleman, although she didn't say explicitly, um, this is why I'm not going to go down more. I mean, she did go down quite a bit, but she distinguished your your client from sort of the the I think she called it passive user. Um, I I don't have the exact language. Um, but why isn't that?
>> So, I have a I have a couple responses to that, Judge. Uh, first I would say the Jason data does actually consider that because uh for a couple reasons.
One is the the guideline range that was driving the bus here was not the enticement, right? It was the possession count. And he received a separate enhancement for the possession guidelines specifically for the enticement. It was a five-point enhancement that he received for the communications. So that that sort of active um however you want to you know passive versus active possession uh he that was baked into the guidelines already. It means it was also baked into the Jason data. Essentially every aggravating factor in this case was baked into the guidelines.
>> But everyone's 55 is going to be different, right? We don't know in terms of looking at similarly situated defendants. Some of those might include folks who had enticement charges and some may not. And the judge seemed to make a distinction between those two sets of defendants.
>> Well, I mean, if that was the judge's intention, the enticement itself, the guideline recommendation for that is about like half of what the guideline recommendation was for the possession.
Um, so Congress and the sentencing commission both already seem to think that that is less aggravating. And in terms of comparing, you know, whether they got the the B5 for enticement or what, going, you know, looking at the mine run of enticement cases, he would not be on the aggravating end. He solicited a picture of breast from a high school student. That's not like other cases this court has seen where they're, you know, in a sting operation involving prepubescent kids or um I think it was Price where it was the the father who took illicit photos of his teenage daughter like throughout her entire teenage years. Um, this is this is like one of the more minor enticement cases, which is why I think the government made sure to keep as stipulated offenses the other charges because those are the ones that actually resulted in the bigger sentence. I I just don't read from the record that he was really being punished for the enticement. He was being punished for the possession. And on that front, he is on the more mitigating side. I mean, the the government really can't identify anything about the possession that's more aggravating than the Mind Run case.
All they site is the the sheer size of the library, but he's actually about a quarter of what's the median size according to sentencing commission statistics. Um, I'm not trying to argue to reweigh the factors on appeal, that's obviously not appropriate. But if it was all very clearly aggravating, I would be happy to assume that the judge had considered all that and of course there wouldn't be a disparity issue. Um, and I think that's why even if the court sided with us, this is this is so fact specific in this case because we're involving a unique guideline where the sentencing commission has actively disagreed with Congress were have unique statistics. This isn't going to work for many guidelines. It's really only special circumstances like child pornography, crack cocaine versus powder, especially before they amended the disparity. Um, and even then, if Judge Coleman had said more about why she did not find it compelling, that would be the end of the case. We recognize that substantive unreasonleness, this court has, I don't believe, ever found a below guideline sentence to be substantively unreasonable. Um, but it has said in Johnson that even below guidelines, courts are required to consider mitigating arguments. Um, and that that's really all we're saying here is it's a procedural issue about the failure to consider the mitigation.
If the court doesn't have any other questions, thank you.
>> Case is taken under adisement.
>> Our fifth case for argument this morning is Magna against Muse.
May it please the court. My name is Maya Henches and I represent appellants Captain John Musiel and Officer Alexia Zach.
This is a oneisssue case. That one issue was whether there was reasonable suspicion to stop the vehicle Walter Magna was a passenger in. And there was the basis understand how that issue is presented.
>> The >> the question on a qualified immunity appeal is whether particular rules of law are clearly established, not what the facts would show. If the appeal ends up being about what the facts show, then it has to be dismissed.
That's the holding of Johnson against Jones. So what is the legal dispute about whether a legal rule is clearly established?
>> Correct, your honor. This this dispute this appeal is not on the facts of this case.
As as you stated, this court has jurisdiction to hear this appeal when there's a denial of qualified immunity to the extent it turns on a legal question. The legal question in this case is whether there was reasonable suspicion for the stop. That's not a legal question in a qualified immunity appeal.
I was precise. I asked you what is the dispute about whether a given legal rule is clearly established.
That's the thing that's open on a qualified immunity appeal. Not under all the facts was there reasonable suspicion.
That's the thing that under Johnson against Jones cannot be before us. So I ask my question again.
>> This this appeal is on whether this it was clearly established whether the vehicle that Walter Magna was a passenger in could be stopped based on reasonable suspicion.
>> No.
>> Clearly established that the vehicle in which Jones was a passenger. No, that's talking about the facts of this case.
Qualified immunity appeal needs to focus on what the law is, and I'm trying to figure out what the dispute is about the governing law, about what principles of law are clearly established or not.
>> And and your honor, this it stems from the violation of Wisconsin statute, which is two-pronged. There is the >> Go ahead, MP. cannot take up questions about state law. I don't think you're getting the prong.
>> The prong is whe my understanding is that the prong was whether there was clearly established law and there was a violation of that law here. The the dispute is whether there was reasonable suspicion to stop the vehicle, which there was.
>> This particular case on these facts about whether the license plate was illuminated and if not illuminated, whether it was dirty.
Have you actually reviewed Johnson against Jones recently? I >> I have I have, your honor.
My understanding of Johnson versus Joan is that it the uh appeal in Johnson versus Jones was whether there was evidence sufficiency to sufficient evidence to um >> is whether the evidence was sufficient.
>> Correct.
>> That appears to be the question here >> whether the evidence is sufficient.
>> No, your honor. The the question here is we are taking Magnus's assertion that the light was working as correct. The the >> that is a question about the evidence in this particular case.
>> The in in Johnson versus Jones, there was a question about what the facts were able to prove, what the parties were able to prove rather than if the given facts as the district court held them is a violation of the clearly established law. We are following the rule in Johnson versus Jones and taking the district court's version of events as true. Even the contention that me Walter Magna says that the rear license plate lamp was visible. The the re the reasonable >> the district court concluded is that this record does not show whether the license plate was illuminated or if it was whether it was dirty.
>> Right.
>> Correct, your honor. And we cannot question that finding of fact.
>> Correct. And I'm not questioning that because the statute that the >> But then I don't understand what the legal dispute is about what rules are clearly established given that we don't know what the facts are.
>> Correct, your honor. But we're taking the the district court's facts as true, but the statute that this stop was based on is a two-prong statute. And the other portion of it is whether it was clearly legible from 50 feet away. And there is no dispute anywhere in the record that the license plate was not not uh >> the plaintiff says it was and the district court said that a jury could believe it.
>> He said it that it was properly illuminated. But what he does not dispute is >> not obscure >> that it was not clearly visible from 50 ft away.
>> We just prohibited from trying to resolve a factual fight.
>> We're not trying >> it just doesn't work. We're not trying to dispute a factual finding. We're what the basis is. If there was clearly established that there was a reason, >> we cannot it's at the summary judgment stage. There are no factual findings.
The question is what could a reasonable jury find. We can't resolve a factual fight is what I just said.
>> I understand that. But it is undisputed that the license plate was not clearly visible from 50 ft away. Whether that was from an obstruction of the light, debris, ice, whatever it was, Officer Zach's report explicitly states that the reason for the stop was a violation of a Wisconsin statute.
>> And which >> you're slicing those facts really thin, right? So, the plaintiff says the light was on. The plaintiff says the plate was visible. All right. And then your officers say, "Well, I personally couldn't see it from 50 ft away." That's a quintessential factual dispute. The plaintiff, of course, can't put himself in your officer's eyeballs, right, and directly sort of dispute the subjective vision point. The only way he can make that dispute is the way he has by saying the light was on and it wasn't dirty, right? So, that's just a classic factual dispute. And you can't slice it so thin that, you know, like anything the officer says becomes undisputed because it's what was in the officer's eyeballs alone. Your honor, he does not say that it was not visible. He just disputes whether the license plate light was working, which we are accepting as true.
But even that, a reasonable officer in the al appellant's position would not know what was causing the obstruction of the light until they conducted the stop.
>> Why couldn't a jury conclude that the officer is lying?
>> The the officers and it is undisputed that the the license plate was not clearly visible from 50 ft, which is the second It is. It is undisputed.
>> Repeating something won't make it true.
>> This appeal should never have been filed. This is a waste of everyone's time, including yours.
>> The appeal is the the denial of the qualified immunity, which requires that there be a clearly a violation of a clearly established law. We're not saying that there was there. We're saying that there was no violation of clearly established law because there was a reasonable suspicion for the stop based on a two-pronged Wisconsin statute. One that a light was working which we are accepting appellent or Magna's assertion as two true and two that the license it was not clearly visible from the 50 ft which it is undisputed in the record that it was not visible from that 50 ft which created reasonable suspicion for the stop.
If the court has no other questions, I reserve my remaining my remaining time for rebuttal.
>> Certainly, council.
>> Thank you, >> Mr. Oinsky. I understand this is part of your legal education.
>> It is indeed.
>> One important part of education is that when there's no appallet jurisdiction, you needn't give a law argument.
>> I'll take the hint, your honor.
May it please the court. My name is Mark Alinsky and I'm a student at Northwestern Law School under the supervision of Professor Daniel Hamilton. I represent plifi Walter Mena who's with us here today. The court should dismiss this appeal for lack of jurisdiction because the appellants never actually take Mr. Magna's facts as true as required. The officers have offered shifting justifications for the stop while Mr. Magnus facts have remained the same. There was nothing illegal about the license plate. None of the appellants arguments accept that as true as required for jurisdiction over this interlocatory appeal. If the court has jurisdiction, it should affirm for two reasons. First, disputed facts about the legibility of the license plate preclude summary judgement. Second, the district court properly denied qualified immunity.
Simply put, it's clearly established that officers cannot conduct a traffic stop without reasonable suspicion of a traffic violation.
We heard a lot about jurisdiction on the appellent's opening argument. So, I'll start there.
The issue with the way that the appellants are raising these arguments is that they never accept Mr. Magna's version of the facts. And there are two key pieces of evidence that show that the legibility of the license plate from 50 ft away is a disputed fact. The first is the appellant's own evidence. In their motion for reconsideration at summary judgement, they included a still shot from a body camera from which a reasonable jury could find that the light was illuminated, that the plate was clean, and that it was visible from 50 ft away. In fact, the district court agrees with all those characterizations in footnote two of its ruling on the motion for reconsideration and page eight of its originally original summary judgement ruling.
Second, Mr. Mr. Magna's sworn declaration at summary judgement includes a statement in paragraph 7 quote dispute. Magna noticed while pulled over speaking with officers outside the vehicle in question that all lights were properly working.
The appellants now offer a shifting justification.
Maybe the plate was dirty instead of the light being out. The court should reject that as a post talk justification which is impermissible under Carmichael. But even if that is a potential justification, Mr. Magna disputes that too. In paragraph 27 of that same sworn declaration, he disputes a statement from the officers, other officers than the appellants in this case, that the plate was dirty and was not visible from 50 ft.
This very briefly, your honors beyond the jurisdictional argument, I'd like to also talk about why what Mr. Magna did at Smy judgment was enough to meet his burden to rebut qualified immunity. In his smy judgment filing, Mr. Magna cited and quoted two Supreme Court cases, Brendan and Royer, which was enough to open the door for the district court to conduct its own qualified immunity analysis.
In Brendan, the facts of Brendan are quite similar to this case. In that case, officers pulled over a vehicle to verify its temporary operating permit, but there was nothing wrong with the temporary operating permit. As a result, the officers violated the Fourth Amendment rights of both the driver and the passenger in that vehicle. The same is true here. And the relevant point of comparison between Brendland and Mr. Magna's case are that there was objectively nothing wrong with the vehicle that was being pulled over.
whether the officers claimed it was something about a license plate or a temporary operating permit.
To the extent that there's any question that Mr. Magna did enough at Smy Judgement to dispute qualified immunity, it's important to remember that he was uh writing his Smy judgment filings prosay and therefore they should be construed liberally.
Lastly, your honors, I'd like to distinguish sin versus lemon and other cases that the appellants point to about an appellant not doing or a plaintiff not doing enough to rebut qualifying immunity. Those cases are all readily distinguishable. In those cases, like sin versus lemon, the plaintiff simply did nothing in the district court to rebut qualified immunity. Here, Mr. Magna did the opposite. He cited and quoted two Supreme Court cases including Brendland which as I just explained is quite factually analogous.
If there are no questions from the court I will yield my time.
>> Thank you Mr. Rinsky.
>> Thank you your honors.
Mes further >> just for your honor.
I just want to go back to the point on the jurisdiction. No facts does not equal disputed facts. Meghna, despite what Appelles just stated, never disputes that it was not visible from 50 ft. He only discusses the lights functionality.
The basis for the stop was at the beginning of the stop and has always been a violation of Wisconsin statute 347.13 subsection 3 which is two-pronged. The first prong we accept Magna's contention. The second prong is undisputed that it was not visible from 50 ft. Thus giving reasonable suspicion for the stop to investigate the cause of the allegility under the statute. Thank you.
Thank you, councel. The case is taken under advisement and Mr. Alinsky, we appreciate your assistance and that of the Northwestern Minister.
>> Thank you.
Our final case of the morning is high ball against Exeline.
>> Mr. Rollins.
>> Greetings, your honors. May I please support? My name is Steven Rollins and I represent pliff appellent Richard Hibball, an African-American man in his 60s. Would the court like a brief recitation of the facts?
>> You can use your time as you think best.
>> Yes, your honor. So, I will skip the brief recitation of thanks. This case made it before this court on the district court's ruling granted the filling appelles excelite incorporated motion for summary judgement dismissing all of Mr. Highball's claims. I would like to reserve 5 minutes for rebuttal.
The district court committed four reversible errors for this court to review. First, the district court aired in concluding Mr. Highball did not present sufficient evidence of pretext, specifically the shifting and inconsistent reasons as well as rebuting direct g providing direct record evidence rebuting exits alleged honest belief. The second error was the district court aired in making credibility determinations that are exclusively within the province of the jury.
Third, the district court aired in concluding that no reasonable juror could find Mr. Highball's qualifications superior, clearly superior to Mr. Miller's. Lastly, the district court aired in disregarding Mr. Highball's affidavit under the sham affidavit doctrine where the affidavit predated the deposition testimony. We request this court to reverse the judiciary court's ruling and remand for trial.
First your honors, I would like to discuss the shifting and inconsistent reasons that were provided by Exile.
Exile provided four shifting and inconsistent reasons that cannot be resolved in the way that the district court provided them. First, in November of 2022, Mr. Mendes told Mr. Highball he was not selected for the position because he lacked experience managing multiple multiple buildings. That's it.
Secondly, after Mr. Hibball filed a charge of discrimination with the EEOC.
Then at that point, Mr. Mr. Mendes stated that Mr. Hibball did not possess the qualifications. He lacked he had a vague interest in the position. He lacked largecale warehouse expense experience and he had an issue with how Mr. Highball expressed his opinions.
Third, in July July of 2024, Mr. Exal asserted that Mr. Highball lacked interest in the position. his communication methods and scope of Highball's management experience. Then lastly, at Mr. Menddees's testimony deposition, he stated, "Experience and exposure to larger scale manufacturing demonstrated leadership with a team around the same size as when the job was posted." The district court's handling of these reasons was improper. First, the district court said that these were mere elaborations of the initial reasoning. That is improper. First, not having experiencing managing multiple buildings does not include a vague interest in the position. Not having experience managing multiple buildings does not address how the manner in which Mr. Highball applied for the position.
It also does not include within it the um communication methods that Mr. Highball had. The district court aired on this matter saying that these issues were the same.
The second point is honest belief.
Mr. Hibball has presented sufficient evidence showing that Mr. Mendes did not honestly believe these things at the time he made these decisions. First, if Mr. Mendes truly wanted experience with someone managing multiple buildings, it would have been in the job posting where it listed the requirements of what the individual needed in order to have the position.
Secondly, if Mr. Mendes Mr. Mendes did not honestly believe Mr. Highball lacked ind interest in the position. He did not say this when Mr. Highball asked for permission to apply for the position. He did not state this when Mr. Highball applied for the position. He did not state this when he told Mr. Highball specifically when Mr. Highball asked why was I not interviewed or selected for the position.
Third, Mr. Mendes could not have honestly believed Mr. Hibball was not fit for the role. Specifically in his deposition, he testified, "I will not fill out an I will not approve an internal application form for a candidate if I do not believe they are fit or qualified for the role." That is his specific testimony. Yet, he approved Mr. Highball applying for the role and he accepted his application.
Fourth, Mr. Mendes did not honestly believe Mr. Highball did not apply for the position appropriately. He testified specifically at his deposition. Mr. Highball applied in the manner in which was accorded to internal employees.
If that was the case, he would have told Mr. Highball then you're not applying for this position correctly.
For these reasons, your honor, we do not believe Mr. M, excuse me. For these reasons, your honor, Mr. Mendes did not honestly believe a number of the reasons that he asserts that are shifting and inconsistent.
Third, your honor, as it pertains to the credibility determinations, Mr. Menddees's credibility has undermined, Mr. Mendes did not honestly believe did not honestly believe Mr. Hypoall was not qualified for the position as I stated previously because he testified specifically, I would not have given him this position, given him the application to apply for the role if he was not qualified and fit for the role. In terms of lacking interest, Mr. Hibball applied for the position. He sought approval to apply for the position. He applied for the position.
He followed up the very next day with Mr. Mendes. The day after that, he followed up with human resources asking about his application. He even went so far as to file a discriminatory practice complaint, promotions and practices complaint with the company after which they informed Mr. Mendes, you need to go and close the loop with Mr. Highball regarding this. And then Mr. Highball called Mr. Mendes yet again and asked him what was his status regarding his application. It is impossible for Mr. Mendes to have believed Mr. Highball lacked interest in this position.
Lastly, your honor, the district court aired in disregarding Mr. Highball's affidavit under the sham affidavit doctrine. The district court relied on Mallister and there's stark differences between the Mallister case and this case, your honors. First, under Mallister, there was a difference. There was a lay opinion trying to contest expert testimony opinions. That was not present here.
Secondly, the lay opinion in Mallister directly um said that she had no basis to give that testimony. She removed her own testimony she gave properly. Here, Mr. Highball has done none of that. Lastly, as it pertains to superior qualifications of Mr. Highball over Mr. Miller. It is objectively clear that Mr. Highball's qualifications were superior to those of Mr. Miller. He had more than 18 years of experience or 20 years of experience regarding multiple position multiple requirements of the job posting for and Mr. Mr. Miller Mr. Mendes had testified that Mr. Miller did not he could not tell whether or not Mr. Miller had these position had these qualifications based off his resume and application. The discrimination here is multi-layered. The interview selection process the actual interview and then trying to bootstrap the the interview information as the justification for why Mr. Hibball was not selected.
At this time I will entertain questions from the court if nec if you have any.
>> Certainly council. Yes, you can. I reserve the rest of my time.
>> Mr. Connor, >> good morning. May it please the court.
My name is Emily Connor and I am council for exile lead. Uh we would ask that the court affirm the district court's grant of summary judgement in Exile's favor on Mr. Hibba's race discrimination, age discrimination, and retaliation claims.
Contrary to his allegations, Mr. Hibball has not an iota of evidence to support his contention that anyone made any decision relative to his non- selection for the materials manager position because of his age or race. Even if we assume Mr. Hibball can't establish his primmaacia case of race and age discrimination, his pretext evidence is insufficient.
Contrary to Mr. Hibball's arguments, Exelite has been consistent in its explanation of the reasons for Mr. Hibba's non- selection and Mr. Mendes was well within his discretion to choose Mr. Miller for the materials manager position based on his particular qualifications.
First, Mr. Mendes has been consistent in his explanation of the reasons for Mr. Hibball's termination.
According to Mr. Hibball, Mr. Mendes told him on or around November 12th of 2022 that Mr. Mendes did not select Mr. Hibball for the role because he wanted someone with experience managing multiple buildings. Notably, Mr. Mendes told Mr. Mr. Highball this after he had already offered the position to Mr. Miller who had that experience and explicitly in response to Mr. Highball's call to him asking him about the status for uh of his application and uh he called Mr. Mendes allegedly on November 10th. Mr. Mr. Mendes met with him on November 11th, told him, um, I don't think you're right for this role because you don't have this experience, but I want to offer you the supervisor role because I think it will provide you an opportunity to gain some of this experience so that the next time this job opens, you might have more experience. And indeed, that position had been opened a number of times in in several years. So, it was entirely feasible that it could open up in the future. Thereafter, in its position statement and its discovery responses, and at Mr. as his deposition. And in all of the briefing, Exle added that it had other concerns with Mr. Hibba's performance, including his uh lack of attention to detail in his email communications, his communication style with others, his interpersonal style, and his uh skill with various platforms.
Mr. Mendes also offered, as council point out, that he didn't believe Mr. Hibball was uh interested in the job.
That was because Mr. uh Hibba didn't express any interest in the job in the 6 months it had been open. He didn't apply for it until two months after it had been posted. And when he did apply for it, he walked up to Mr. Mendes, handed him his resume and the transfer form, which M Mr. Mendes didn't testify that he filled out or completed or authorized in any way. Um and said, according to Mr. Hibball, you'll have to train somebody else for my job uh if I get this job. Based on this, it was reasonable for Mr. Mendes to conclude that Mr. Mr. Hibball wasn't interested in the job. And in fact, um, uh, contrary to Mr. Hibball's, uh, allegations, he did not follow up with Mr. Menddees about the position the next day via email. He emailed Mr. Mr. Mendes and said, "I would like to talk to you about positions between a supervisor and a manager. He didn't ask about the material manager's position." Then when he emailed HR to ask about his application, there's no evidence that information went to Mr. Menddees. So, Mr. Mendes had no reason to know Mr. Hibball uh followed up with HR and indeed when Mr. Hibball did contact Mr. Mendes on November 10th to ask about the position the very next day Mr. Mendes met with him and offered him the uh supervisor position. Um the uh Exelite and Mr. Mendes have been consistent.
This addition of explanation is consistent with the decision in Shuster versus Lucent Technologies. there the employer terminated an employee um as part of a riff initially stating that it was based on the relative skill set of the plaintiff and the uh employee who was selected to stay and later adding that they also had performance concerns with plaintiff's uh job performance. So this is entirely consistent with that decision as well. Uh this case does not present evidence of shifting explanation. Mr. Hibbo's pretext argument on that front is unveiling.
Second, there's simply no record evidence uh or support for Mr. Highball's argument that he was discriminated against because he was more qualified than Mr. Miller.
Initially, it's well established by this court and many courts that a plaintiff's opinion of his own performance is irrelevant and unpersuasive. Thus, Mr. Highball's opinion of his communication style, his ability to use Excel and other programs, his attention to detail or even his interest in the position is not relevant for per pro for purposes of proving his discrimination claim. That's in Shaner versus Gleno Park District.
Likewise, the opinion of Mr. Mr. Hibball's co-workers who did not manage him, weren't involved in the promotion decision, and in many cases weren't even employed at the time of the promotion decision is irrelevant for purposes of supporting Mr. Hibba's arguments about his qualifications.
Ultimately, it is only the opinion of the decision maker in this case, Mr. Mendes, that matters, and it does not matter whether he was wrong or incorrect or mistaken. The pretext analysis, as the court is aware, asks only whether the decision maker lied as a pretext for discrimination.
Here, Mr. Mendes made a reasonable decision that Mr. Miller was the better candidate. This court's precedent is clear that where the pretext analysis comes down to the relative qualifications of the candidate, the court will defer to the decision maker unless the disparity between the candidates's qualifications, Milbrook uses the language, slaps you in the face. It must be so um above reproach, incontrovertible that one uh candidate is more qualified than the other. We see this again in Milbrook, in Shuster, in Chaner.
Here, Mr. Mr. Hibball offers nothing more than his assessment of Mr. Menddees's decision to pick Mr. Miller for the role as evidence of discriminatory animus.
Mr. Mendes selected Mr. Miller, as he's said multiple times, because he had warehouse management experience in two highly regulated industries, including the pharmaceutical industry. He also had experience managing multiple buildings and multiple shifts. And Mr. Miller also demonstrated an excitement for the role and excellent problem solving skills during his interview. In comparison, Mr. Mendes determined Mr. Hibball was not the right candidate for the job because he didn't have management experience.
And this also relates to Mr. Rollins's argument about the uh sham affidavit.
There is no dispute that Mr. Hibball never held a management position at Exal. He has offered affidavit testimony which contradicts his deposition testimony. In one affidavit, he has 18 years of management experience. In another affidavit, he has 14 years of management experience. Still elsewhere in that same affidavit, he says he filled in for a manager when he was on vacation. At his deposition, he admits he never held a management tile title, but he would fill in for the manager while he's on vacation. At most, all Mr. Highball did was fill in for a manager when he was on vacation. Um, and his own testimony is so convolutedly inconsistent, it cannot create a genuine issue of material fact. Um, Mr. Mendes also recognized Mr. Mr. Hibball had poor communication skills, did not work well with others. And this is all during the year that Mr. Mendes actually actively supervised Mr. Hibball and worked with him. Mr. Hibball often had typos in his email communication and was not proficient in Excel and other programs.
And finally, as we've discussed, Mr. Mendes did not believe that Mr. Hibball was actually interested in the role giving his manner of applying for SAN.
Uh, in addition to all of this, Mr. Hibball's age discrimination further fails because Mr. Mendes previously offered the job before Mr. Mr. Hibball ever applied to it to Mr. Cunningham, who Mr. Mendes believed to be in the same age range as Mr. Hibball.
Based on the foregoing facts in this court's own precedent, Mr. uh Hibball has not and cannot prove his claims of race or age discrimination and exile respectfully requests the court affirm the decision of the district court.
Finally, I would like to briefly touch on the fact that it's not it does not appear, but I wanted to address the fact uh that Mr. Hibball doesn't appear to be pursuing his retaliation claim. He appealed all of those claims at the district court level. Um mentioned it in passing in his uh appellence brief but then didn't make a sub substantive argument about it. We raised that issue in our appeal brief and he didn't address it in the reply. Therefore uh Mr. Hibball to the extent he is attempting to pursue such a claim such claim is waved. Uh if court doesn't have any questions I'm happy to reserve the rest of my time or give out the rest of my time.
>> Thank you Mr. Connor. Anything further, Mr. Rollins?
>> Yes, your honors.
>> Thank you, your honor. As it pertains to the sufficient evidence of pretext, the court failed to consider evidence or made credibility determin and or it made the credibility determinations.
Secondly, um the point on Secondly, the court e failed, excuse me, your honors.
So let's walk through some of this your honest as it pertains to the qualifications for the roles the court failed disparity slaps the court in the face on the first requirement that's posted in the job posting Mr. Hibball has 18 years more experience than Mr. Miller as it pertains to warehouse experience and there's a 21-year difference for departmental management experience. Mr. Mil Mendes testified Mr. Mr. Miller didn't even have the bare minimum of 5 years of mayor um warehouse management experience of department management experience. The second one four years or more of SAP or equivalent system experience. Your honor, Mr. Hypoall had 20 more years than Mr. Miller as it pertains to um the assisted in or managed the implementation of an electronic warehouse management experience. 20-year difference once again. Must have proven exper extensive experience in cgmp compliance. 20-year difference again. Must be resultsoriented, meet deadlines, and accept accountability. Mr. Hibbball had 24 years of experience. Miller had no corroborating evidence of his ability to do this.
The court failed to consider this evidence or as I stated previously, it made a credibility determination. Mendes could not believe that Miller was more qualified when he testified himself at his deposition. He could not ascertain whether or not Mr. Miller had these qualifications based on his resume and application alone. If you cannot ascertain from the resume and application that Mr. Miller had this experience including the experience managing multiple buildings which is not even included on the job posting. Why then was he selected for an interview and promoted to this position yet the candidate internal candidate you approved to apply for the position and testified was qualified for the position did not even select was not even selected for an interview.
>> Thank you C.
>> Thank you.
>> Case is taken under advisement and the court will be in recess.
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