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Tuesday, May 11, 2004

Indiana Decisions - 7th Circuit Rulings Posted Today

USA v. WHITE, ANDREW S. (from the SD Ind., Judge Tinder):

KANNE, Circuit Judge. Based upon an allegation of evidentiary error, Defendant Andrew S. White appeals his judgment of conviction for possession of firearms as a convicted felon, 18 U.S.C. § 922(g)(1) (2003), entered pursuant to a jury’s verdict. He also appeals his sentence, claiming that the district court erred when it increased his offense level under U.S.S.G. § 3C1.1 (2003) for attempting to suborn perjury. We affirm both White’s conviction and sentence.
BARRETT, LINDA P. v. BARNHART, JO ANNE, on petition for rehearing, where, in a Per Curiam ruling, the panel of Posner, Ripple and Williams write:
The government, distressed by one sentence in our opinion in Barrett v. Barnhart, 355 F.3d 1065 (7th Cir. 2004), asks us to change it (the government does not ask us to reconsider our decision, which was adverse to it). The sentence is: “The test [of the plaintiff’s entitlement to disability benefits] is whether she is so disabled that there are no jobs in reasonable proximity to where she lives that she is physically able to do.” 355 F.3d at 1067 (emphasis added). It is the phrase that we have italicized that bothers the government, which points out that the law does not require, to defeat a finding of disability, that jobs exist in the immediate area in which the claimant lives. * * *

Yet in our experience, and, it seems, in that of the other circuits as well, the vocational experts who testify in social security disability cases concerning the availability of jobs that the applicant has the physical ability to perform almost always confine their testimony to indicating the number of such jobs that exist in the applicant’s state, or an even smaller area. * * *

In practice, the principal significance of the “other regions” language in the statute is to prevent the Social Security Administration from denying benefits on the basis of “isolated jobs that exist only in very limited numbers in relatively few locations outside of the region where [the applicant] live[s].” 20 C.F.R. § 404.1566(b). Our formulation that the government doesn’t like was thus descriptively accurate; it was not intended to alter the statutory standard.

Also: HOFFMAN, SHIRLEY v. CATERPILLAR INC (ADA); OLOWO, ESTHER v. ASHCROFT, JOHN D. (Immigration); SMITH, DIANE v. DUNN, STEPHANIE (§ 1983); and UNITED AIRLINES INC v. NAT'L PROCESSING CO (Bankruptcy): "Like the eleventh circuit, we hold that a trustee in bankruptcy, or a debtor in possession, may assume a credit-card-processing agreement."

Posted by Marcia Oddi on May 11, 2004 03:44 PM
Posted to Indiana Decisions