author: POSNER-, Circuit Judge.

text:
    Mark JANUS and Brian Trygg, Plaintiffs-Appellants, v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, et al., Defendants-Appellees, and Lisa Madigan, Attorney General of the State of Illinois, Intervening Defendant-Appellee.
    No. 16-3638
    United States Court of Appeals, Seventh Circuit.
    Argued March 1, 2017
    Decided March 21, 2017

      William L. Messenger, Attorney, National Right to Work Legal Defense Foundation, Springfield, VA, Jacob H. Huebert, Jeffrey M. Schwab, Attorney, Liberty Justice Center, Chicago, IL, for Plaintiffs-Appellants.
    John M. West, Attorney, Bredhoff & Kaiser, PLLC, Washington, DC, Melissa J. Auerbach, Attorney, Stephen Anthony Yo-kich, Attorney, Dowd, Bloch, Bennett, Cer-vone, Auerbach & Yokich, Chicago, IL, for Defendant-Appellee American Federation of State, County and Municipal Employees, Council 31, AFL-CIO.
    Carl R. Draper, Attorney, Feldman, Wasser, Draper & Cox, Springfield, IL, for Defendant-Appellee General Teamsters, Professional & Technical Employees Local Union No. 916.
    Frank Henry Bieszczat, Attorney, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appel-lees Michael Hoffman, Director of the Illinois Department of Central Management Services, in his official capacity, Lisa Madi-gan, Attorney General of the State of Illinois.
    Before POSNER, SYKES, and HAMILTON, Circuit Judges.
   POSNER-, Circuit Judge.

In Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), the Supreme Court upheld, against a challenge based on the First Amendment, a Michigan law that allowed a public employer (in that case a municipal board of education), whose employees (public-school teachers) were represented by a union, to require those of its employees who did not join the union nevertheless to pay fees to it because they benefited from the union’s collective bargaining agreement with the employer. The fees could only be great enough to cover the cost of the union’s activities that benefited them; they could not be expanded to enable the union to use a portion of them “for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to [the union’s] duties ás collective-bargaining representative.” 431 U.S. at 235-36, 97 S.Ct. 1782. For were that permitted, the workers who disagreed with the political views embraced by the union would be unwilling contributors to expenditures for promoting political views anathema to them, and the law requiring those contributions would thereby have infringed their constitutional right of free speech.

Illinois has a law, similar to the Michigan law, called the Illinois Public Relations Act, 5 ILCS 315 et seq., under which a union representing public employees collects dues from its members, but only “fair share” fees (a proportionate share of the costs of collective, bargaining and contract administration) from non-member employees on whose behalf the union also negotiates. See 5 ILCS 315/6. But in 2015 the governor of Illinois filed suit in federal district court to halt the unions’ collecting these fees, his ground being that the statute violates the First Amendment by compelling employees who disapprove of the union to contribute money to it.

The district court dismissed the governor’s complaint, however, on the ground that he had no standing to sue because he had nothing to gain from eliminating the compulsory fees, as he is not subject to them. But two public employees — Mark Janus and Brian Trygg — had already moved to intervene in the suit as plaintiffs seeking the overruling of Abood. Of course, only the Supreme Court has the power, if it so chooses, to overrule Abood. Janus and Trygg acknowledge that they therefore cannot prevail either in the district court or in our court — that their case must travel through both lower courts— district court and court of appeals — before they can seek review by the Supreme Court.

While dismissing the governor’s complaint for lack of standing, the district court granted the employees’ motion to intervene and declared that the complaint appended to their motion would be a valid substitute for Governor Rauner’s dismissed complaint. Technically, of course, there was nothing for Janus and Trygg to intervene in, given the dismissal of the governor’s complaint. But to reject intervention by Janus and Trygg on that ground would be a waste of time, for if forbidden to intervene the two of them would simply file their own complaint when Rauner’s was dismissed. As there would be no material difference between intervening in Rauner’s suit and bringing their own suit in the same court, the efficient approach was, as the district court ruled, to deem Rauner’s suit superseded by a motion to intervene that was the equivalent of the filing of a new suit. See Village of Oakwood v. State Bank & Trust Co., 481 F.3d 364, 367 (6th Cir. 2007).

But we need to distinguish between the two plaintiffs, Janus and Trygg, because while Janus has never before challenged the requirement that he pay the union “fair share” fees, Trygg has. First before the Illinois Labor Relations Board and then before the Illinois Appellate Court, Trygg complained that the union bargaining on his behalf (the Teamsters Local No. 916, one of the defendants in this case) was ignoring a provision of the Illinois law that allows a person who has religious objections to paying a fee to a union to instead pay the fee to a charity. 5 ILCS 315 — 6(g). The Illinois court agreed, and on remand to the Board Trygg obtained the relief he sought: instead of paying the fair-share fee to the union, he could pay the same amount to a charity of his choice. The defendants (the unions that bargain on behalf of Janus and Trygg, respectively— AFSCME for Janus, the Teamsters for Trygg — the Director of the Illinois Department of Central Management Services, which is the state agency that has collective bargaining agreements with both unions; and the Attorney General of Illinois intervening on the side of the defendants) argue that Trygg’s claim in the present suit is precluded by his earlier litigation.

Claim preclusion is designed to prevent multiple lawsuits between the same parties where the facts and issues are the same in all of the suits, and 28 U.S.C. § 1738 requires federal courts to give the same preclusive effect to a state court judgment that it would be given by the courts of the state in question. Kremer v. Chemical Construction Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). Trygg’s First Amendment claim and his earlier Illinois statutory claim arise from the same fact: the existence of an Illinois law requiring that he pay fees to the Teamsters, the union required to bargain on his behalf. But the parties disagree as to whether Trygg could have raised his First Amendment claim in the earlier litigation. It’s true that the Illinois Labor Relations Board could not have entertained a constitutional challenge to the statute, but Trygg could have included the claim in his appeal from the Board’s decision to the court, because it presented an issue relevant to the legality of the Board’s action. See Reich v. City of Freeport, 527 F.2d 666, 671-72 (7th Cir. 1975). He did not do so; and because he had a “full and fair opportunity” to do so, he is precluded by Illinois law from litigating the claim in the present suit. See Abner v. Illinois Department of Transportation, 674 F.3d 716, 719 (7th Cir. 2012). He missed his chance.

Janus’s claim was also properly dismissed, though on a different ground: that he failed to state a valid claim because, as we said earlier, neither the district court nor this court can overrule Abood, and it is Abood that stands in the way of his claim.

The judgment of the district court dismissing the complaint is therefore

Affirmed.


source: Caselaw Access Project

author: ROVNER, Circuit Judge.

license: Public Domain

text:
    MADISON MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. DIAMOND STATE INSURANCE COMPANY, Defendant-Appellee.
    No. 15-3292
    United States Court of Appeals, Seventh Circuit.
    Argued January 10, 2017
    Decided March 21, 2017

      Kevin P. Clark, Attorney, Boggs, Avelli-no, Lach & Boggs, LLC, St. Louis, MO, Dale T. Miller, Attorney, Lindemann Miller LLP, Chicago, IL, for Plaintiff-Appellant.
    Paula M. Carstensen, Robert Sheppard Marshall, Amy P. Klie, Robin Ann Now-icki, Attorneys, Nicolaides Fink Thorpe Michaelides Sullivan LLP, Chicago, IL, for Defendant-Appellee.
    Before WOOD, Chief Judge, and ROVNER and HAMILTON, Circuit Judges.
   ROVNER, Circuit Judge.

Madison Mutual Insurance Company (“Madison Mutual”) brought suit seeking a declaratory judgment obliging Diamond State Insurance Company (“Diamond State”) to defend Geraldine Davidson in a state-court action filed by her former neighbors, Dr. William and Wendy Drib-ben. Diamond State previously provided professional liability errors and omissions coverage to Davidson in her capacity as a real estate broker and supplied a defense to Davidson in a previous suit alleging certain wrongdoing by Davidson as a broker. Because the new suit repeats certain allegations from the prior suit, Madison Mutual asserts that it both relates back to the earlier action and may potentially involve claims within the coverage provided by Diamond State. The district court rejected these assertions and entered summary judgment in favor of Diamond State. We affirm.

I.

In 1999, the Dribbens purchased a home from Todd and Sherry Favre on 42 acres in an exclusive four-parcel development known as Heartland Oaks, in Southern Illinois not far from Saint Louis, Missouri. Davidson represented the Favres in that purchase. Davidson had also conceived of and was one of the developers of Heartland Oaks, and she and her. husband owned one of the four parcels in the development. At the center of the development is a 30-acre artificial lake (sometimes referred to in the pleadings as the “Large Lake,” as a smaller lake was added later), and the dam creating that lake is located on the parcel that the Dribbens purchased. In a 2006 lawsuit filed by the Dribbens against Davidson and the other original owners in the development, the Dribbens alleged that Davidson had failed to disclose that the original owners/developers had never obtained a permit from the Illinois Department of Natural Resources (“IDNR”) authorizing the dam. The 2006 suit alleged, inter alia, that Davidson’s non-disclosure amounted to fraudulent concealment and consumer fraud. Davidson tendered the suit to Diamond State, which had issued a professional liability errors and omissions policy to her effective from October 2005 through October 2006 and extended by endorsement to November 22, 2007. The Diamond State policy applied to claims made and reported during the policy period and provided coverage for “wrongful acts arising out of the performance of professional services for others.” R. 26-1 at 6. The policy defines a “wrongful act” as “any actual or alleged negligent act, error or omission, or ‘personal injury’ ” arising out of the services Davidson provided as a real estate broker. R. 26-1 at 14. Under a reservation of rights, Diamond State agreed to provide Davidson with a defense to the 2006 suit. The two counts asserting claims, against Davidson as a real estate broker were eventually severed from the remainder of the 2006 suit and arbitrated in favor of Davidson. R. 26-9, 26-10.

In 2011, the Dribbens filed a second suit, this one against both Davidson and her husband, alleging a pattern of harassment, intimidation, and interference with the Dribbens’ property rights by the David-sons. The wrongful acts attributed to the Davidsons in the prolix first and second amended complaints range from commercially farming their' own property and the Dribbens’ property (without their consent), in violation of restrictive covenants; polluting the Large Lake with crop runoff; filing lawsuits with the aim of interfering with the Dribbens’ easement rights; spreading rumors that Dr. Dribben was a serial killer; posting offensive signs; and stalking and intimidating the Dribben family and their attorneys. The first amended complaint asserted claims for enforcement of covenants, trespass, malicious prosecution, interference with the Dribbens’ right to sell their property, intentional and negligent infliction of emotional distress, unjust enrichment, a declaration that there had been no adverse possession of the Drib-bens’ property, and for an order of protection. The second amended complaint, dated May 2014, added two more claims of trespass (including criminal trespass), three counts seeking to remove clouds upon and quiet title to the Dribbens’ property, two counts of nuisance, one count of .negligence, and one count seeking to enjoin other neighbors in the development vis-a-vis the disputed easements, for a total of 18 counts.

Davidson tendered the 2011 lawsuit to Madison Mutual, which' had provided homeowner’s insurance coverage to Davidson and her husband (including personal liability coverage up to $500,000 per occurrence) from July 2004 to July 2011. Madison Mutual had also issued umbrella liability coverage to the Davidsons (with a limit of $1 million per occurrence) from December 2005 to December 2011. Madison Mutual agreed to provide the Davidsons with a defense pursuant to their homeowner’s coverage.

Davidson also tendered the first and later the second amended complaints to Diamond State, but on both occasions Diamond State refused to supply her with a defense in the 2011 litigation. Diamond State did not view either complaint as seeking relief for acts arising out of any professional services Mrs. Davidson had provided to others as a real estate broker.

In 2014, Madison Mutual filed this suit in the district court seeking a declaratory judgment to the effect that Diamond State has breached its duty to defend Davidson in the 2011 suit and bears a duty to reimburse Madison Mutual for the costs it has incurred in supplying a defense to her in that litigation. (Davidson herself is not a party to the suit.) Madison Mutual posits that the factual allegations made in the 2011 suit support a potential claim against Davidson in her capacity as a real estate broker for her failure to disclose to the Dribbens that the dam lacked a permit; Madison Mutual views that potential claim as relating back to the 2006 suit against Dribben, which Diamond State was obligated to (and did) defend.

The district court entered summary judgment in favor of Diamond State, concluding that it has no duty to defend Davidson. In relevant part, the court reasoned the allegations made against the Davidsons in the 2011 suit (which the district court referred to as the “Underlying Litigation”) did not support a potential claim against Mrs. Davidson as a broker that in turn might relate back to the 2006 suit (referred to as the “Original Litigation”) and trigger a duty to defend on the part of Diamond State.

Although there are factual statements relating to the dam and the IDNR in the Underlying Litigation, those statements pertain to the allegations of [the] David-sons’ harassment of the Dribbens and not the failure to disclose the requirement for a dam permit which was the issue in the Original Litigation.
The question becomes whether any of the allegations contained in the Underlying Litigation could be deemed as “rising out of the wrongful act” contained in the Original Litigation. There was a single wrongful act alleged in the Original Litigation — that of .Geraldine’s failure to disclose that the lake did not have an IDNR permit for the dam.
The fact that Geraldine Davidson was the real estate agent that represented the Favres in the sale of their home to the Dribbens and that she [was] one of the developers of Heartland Oaks — are facts — but the allegations in the Underlying Litigation must arise from the previous wrongful act. It could be argued that all of the allegations — both in the Original and Underlying Litigations— arise from Ms. Davidson’s actions as a real estate agent in the sale of the property from the Favres to the Dribbens (for if she had not sold them the home, none of these allegations could have occurred), but the sale of the home was not the “wrongful act” alleged in the Original [L]itigation. The “wrongful act” was the failure to disclose the lack of the dam permit.
The failure of Geraldine Davidson to disclose the lack of the dam permit does not extend to the inclusion [of] all problems, omissions, harassment, trespassing, and numerous other allegations contained in the Underlying Litigation. Those allegations stand apart from the initial “wrongful act” and as such, Diamond has no duty to defend.

R. 41 at 11 (emphasis in original).

II.

As the district court disposed of this case on summary judgment, we review its decision de novo. E.g., Panfil v. Nautilus Ins. Co., 799 F.3d 716, 718-19 (7th Cir. 2015). This is a diversity action, and the parties agree that we should look to the law of Illinois, the forum state, for the relevant substantive legal principles. See, e.g., Am. Alternative Ins. Corp. v. Metro Paramedic Servs., Inc., 829 F.3d 509, 513 (7th Cir. 2016).

An insurer’s duty to defend its insured in litigation depends on both the terms of the insurance policy at issue and the nature of the underlying action. The duty to defend is logically broader than the duty to indemnify. See Cincinnati Ins. Co. v. H.D. Smith, LLC, 829 F.3d 771, 774 (7th Cir. 2016). Whereas the latter duty requires a claim that actually falls within the scope of coverage, the former duty is triggered by allegations in the underlying litigation that plausibly may fall within the scope of coverage. See Health Care Indus. Liab. Ins. Program v. Momence Meadows Nursing Ctr., Inc., 566 F.3d 689, 693 (7th Cir. 2009) (discussing Crum & Forster v. Resolution Trust Corp., 156 Ill.2d 384, 189 Ill.Dec. 756, 620 N.E.2d 1073, 1081 (1993)). An insurer therefore cannot refuse to defend unless it is clear that the underlying allegations do not bring the case even potentially within the scope of coverage. E.g., Panfil, 799 F.3d at 719 (quoting Lyerla v. AMCO Ins. Co., 536 F.3d 684, 688 (7th Cir. 2008)). In determining whether the insurer has a duty to defend, a court applies what is known as the “eight-corners” rule: we compare the four corners of the underlying complaint with the four corners of the policy, according both the complaint and the policy a liberal construction. Am. Alternative, 829 F.3d at 513-14 (quoting Pekin Ins. Co. v. Precision Dose, Inc., 360 Ill.Dec. 171, 968 N.E.2d 664, 674 (2012)). In applying this rule, our focus is on what has actually been alleged in the underlying action rather than what hypothetically could be alleged. Amerisure Mut. Ins. Co. v. Microplastics, Inc., 622 F.3d 806, 812 (7th Cir. 2010) (quoting Del Monte Fresh Produce N.A., Inc. v. Transport. Ins. Co., 500 F.3d 640, 643 (7th Cir. 2007)). If any portion of the complaint in the underlying litigation potentially falls within the coverage provided by the policy, the insurer must defend the entire suit. Philadelphia Indem. Ins. Co. v. Chicago Title Ins. Co., 771 F.3d 391, 398 (7th Cir. 2014) (collecting cases).

The Diamond State policy is a real estate errors and omissions policy covering claims arising out of the professional services Davidson provided as a real estate broker. So the essential question is whether the allegations in the 2011 litigation potentially implicate Davidson’s conduct as a broker. But more than that, because the policy is a “claims made and reported” policy and Diamond State’s coverage ended in 2007 (with a corresponding notice period ending early in 2008), the claim nominally must be one that was made against Davidson within the policy period and which was reported to Diamond State no later than 60 days after the end of that period. The 2011 suit, of course, was filed years after Diamond State’s coverage terminated, and so at first glance timely reporting of that suit would appear to be out of the question. But Madison Mutual’s theory is that the 2011 litigation relates back to the 2006 suit. There is no dispute that Diamond State had timely notice of the 2Q06 suit (and, in fact, supplied Davidson with a defense in that action). The policy provides that once Diamond State has received timely notice of a “wrongful act” within the policy’s scope, “[a]ny claim that may subsequently be made against [the insured] arising out of that wrongful act will be deemed for the purpose of this insurance to have been made on the date [Diamond State] received such [timely] notice.” This is referred to by the parties as the “awareness clause” of the policy. Madison Mutual asserts that the 2011 suit, like the 2006 suit, rests in part on an assertion that Davidson breached her professional obligations to the Dribbens by failing to disclose that the dam on the property that the Dribbens purchased was never properly permitted. In that respect, Madison Mutual contends, the 2011 suit arises out of the same wrongful act as the 2006 suit (and potentially asserts a professional misconduct claim of the sort that is covered by the Diamond State policy). And because Diamond State had timely notice of the 2006 suit, under the awareness clause, it may be deemed to have had timely notice of the 2011 suit as well, in Madison Mutual’s view.

There are, to be sure, factual allegations in the 2011 suit regarding the dam and Davidson’s status as a real estate broker. Thus, the Second Amended Complaint filed in that suit alleges that:

• Davidson is both a developer (who spearheaded the creation of Heartland Oaks) and a real estate broker. R. 21-9 ¶¶ 18, 25, 48, 51, 521.
• As a broker, Davidson had represented the Favres in the sale of their property to the Dribbens and received a commission for the sale. R. 21-9 ¶ 18.
• The dam for the Large Lake in the Heartland Oaks development resides on the property sold by the Favres to the Dribbens. R. 21-9 ¶ 67.
• Davidson was advised during the construction of the Large Lake that a permit would be needed (although she denies being told this). R. 21-9 ¶ 72.
• Davidson and the other original owners of the Heartland Oaks properties nonetheless decided to forgo obtaining a permit for the dam, in order to spare expense and to avoid future involvement with the IDNR. R. 21-9 ¶ 73.
• After buying into the Heartland Oaks development, the Dribbens were advised by IDNR that because they owned the property on which the dam was located, they were responsible for obtaining a permit. R. 21-9 ¶ 163.
• When the Dribbens sued Davidson for failing to tell them that the dam was not permitted, Davidson in turned filed suit against Mrs. Dribben, alleging that she had slandered Davidson. The slander complaint was based on the charge in the Dribbens’ suit that Davidson had committed fraud by not disclosing the lack of a permit, an allegation that purportedly injured Davidson’s reputation as a broker. R. 21-9 ¶¶ 247, 248.
• “As the next door neighbors of the Dribbens, as the owner/real estate broker who sold the Favres’ property to the Dribbens, as two of the developers of Heartland Oaks, as two of the signatories to the Restrictions, the Easement Agreement and the Amendment, and because Geraldine Davidson as the realtor for at least the Favres had convinced the Dribbens that Heartland Oaks was a first class development, the Defendants owed the Dribbens a duty of care to act reasonably and to hold themselves to the same standard of care that they have demanded of their neighbors, and to not negligently engage in acts that the Drib-bens would perceive as stalking, harassment or intimidation.” R. 21-9 ¶ 525.
• “Accordingly, under the above facts, the Defendants owed the Dribbens a duty of care, and they breached that duty of care by engaging in the conduct alleged in this amended complaint. R. 21-9 ¶ 528.

Focusing on these last two allegations regarding a duty of care, Madison Mutual alleges that it is reasonable to infer that said duty includes Mrs. Davidson’s duty of care as a realtor and that the alleged breach of that duty includes her failure, in connection with the sale of the Favres’ property to the Dribbens, to disclose that no permit had been obtained for the dam.

To make the obvious point first, nowhere in either the first or second amended complaints filed in the 2011 litigation is the allegation made that Davidson breached her professional obligations as a real estate broker by failing to disclose to the Dribbens that the dam lacked a permit. Her status as a real estate broker is noted; the lack of a permit for the dam is also noted; and for that matter, the Dribbens’ 2006 suit against Davidson over her failure to disclose the lack of a permit is noted. But there is no allegation, express or implied, that Davidson wronged the Dribbens in her capacity as a realtor by not disclosing that the dam was un-permitted.

The complaint overall is one about Mr. and Mrs. Davidson’s pattern of alleged acts — as neighboring landowners — that have interfered with the Dribbens’ ability to use, enjoy, and sell their own property. The allegations on which Madison Mutual has focused are but a few of the many hundreds of allegations set forth in an effort to establish why and how the David-sons made living in the Heartland .Oaks development a misery for the Dribbens.

To be sure, there are references in the final two paragraphs of the list set out above to a duty of care that the David-sons owed to the Dribbens stemming in part from Mrs. Davidson’s role as the realtor who brokered the sale of the Favre property to the Dribbens. These are the references that Madison Mutual principally relies on to support The notion that the litigation plausibly might assert a claim against Mrs. Davidson based on her failure to make full disclosure with respect to the dam. But the relevant language of the second amended complaint, which we have quoted verbatim, makes clear that the duty at issue is not a professional duty that Mrs. Davidson bears as a realtor, but a duty of care that both Mr. and Mrs. Davidson share “to act reasonably and to hold themselves to the same standard of care that they have demanded of their neighbors, and to not negligently engage in acts that the Drib-bens would perceive as stalking, harassment or intimidation.” R. 21-9 ¶ 525. Read in this context, the reference to Mrs. Davidson’s status as a realtor appears aimed at suggesting that she, better than anyone, should have understood how her actions as the Dribbens’ neighbor would interfere with the quiet enjoyment of their rights as property owners. Beyond this, there is no allegation that Mrs. Davidson was providing professional services to the Dribbens and breached any duty that she may have owed them in that regard.

What we are left with, then, is a small subset of factual allegations that overlap with the factual underpinnings of the 2006 suit regarding the dam permit, but. no allegation of injury resulting from Mrs. Davidson’s failure to disclose the lack of the permit to the Dribbens and no theory of recovery predicated on that failure. Madison Mutual nonetheless asserts that because this subset of alle'ged facts could support a claim related to her alleged failure to disclose, we should construe the 2011 litigation as potentially asserting such a claim against Davidson in her capacity as a realtor and hold that Diamond State has a duty to defend Davidson in the later suit.

Our decision in Health Care Indus. Liability Ins. Program v. Momence Meadows Nursing Ctr., Inc., supra, 566 F.3d 689, makes clear why Madison Mutual’s reasoning is faulty in this respect. Momence Meadows was a duty-to-defend case in which the underlying suit was one brought by former employees of a nursing home seeking recompense for exposing fraudulent charges that the nursing home had submitted to Medicare and Medicaid — i.e., claims for services that did not meet professionally recognized standards for health care. Each of the claims asserted in their complaint was premised either on the submission of claims falsely certifying that the services provided by the nursing home complied with the requisite standard of care (and the employees’ role in exposing the fraud) or the nursing home’s alleged retaliation against the employees for blowing the whistle on the fraud. None of the claims, as framed, fell within the scope of coverage provided by the nursing home’s liability carrier. But the nursing home pointed to factual allegations in the underlying complaint describing the physical harms the home’s residents had suffered as a result of the substandard care they had received. Those injuries, the nursing home argued, would support potential claims for bodily injury and malpractice under the home’s liability coverage, even though no such claims had been asserted thus far. In rejecting this argument, we emphasized first that the factual allegations, although they “put a human touch on the otherwise administrative act of false billing,” were not necessary to the types of statutory claims the plaintiffs in the underlying litigation were actually pursuing. Id. at 695. And in response to the nursing home’s contention that the factual allegations of the underlying complaint, rather than particular legal theory alleged, control, we stated:

Momence is correct that the factual allegations in the complaint, and not the legal labels a plaintiff uses, control. But factual allegations are only important insofar as they point to a theory of recovery. And it is impossible to construe the underlying complaint as raising any theory of recovery based on bodily injury....

566 F.3d at 696 (citations omitted). Likewise here, the factual allegations concerning the dam, the lack of a permit, and Davidson’s role in selling the property to the Dribbens, while they may provide explanatory background for the Davidsons’ alleged acts of harassment (including the slander suit), do not point to any theory of recovery against Davidson for breach of her professional obligations as a realtor.

Still, Madison Mutual contends that a catch-all request in the Dribbens’ prayer for relief for “[a]ny other further relief that the Court feels is necessary, proper or just” (R. 21-9, Request for Relief ¶ S) leaves the door open to theories their complaint does not otherwise assert. But this type of boilerplate request does not operate as an independent request for relief, let alone an independent theory of recovery not otherwise factually supported in the body of the complaint. See Employers Ins. Co. of Wausau v. Bodi-Wachs Aviation Ins. Agency, Inc., 846 F.Supp. 677, 686 (N.D. Ill 1994); Penn. Cnty. Risk Pool v. Northland Ins., No. 1:07-cv-00898, 2009 WL 506369, at *9 (M.D. Pa. Feb. 27, 2009); XXL of Ohio, Inc. v. City of Broadview Hts., 341 F.Supp.2d 825, 841 (N.D. Oh. 2004).

Madison Mutual alternatively suggests that because the Dribbens, by their own account, would never have purchased property in the Heartland Oaks development and become the Davidsons’ neighbors had Davidson disclosed that the dam lacked a permit, her failure to disclose as alleged in the 2006 suit was a but-for cause of the claims raised in the 2011 suit. Granted, had the Dribbens never purchased the property, they would have no reason to complain about the Davidsons’ actions as neighbors. In the very broadest factual sense, then, the wrongs alleged in the 2011 litigation might be said to arise from the wrongs alleged in the 2006 suit. But that does not transform what is otherwise a suit about the Davidsons’ actions as the Dribbens’ neighbors into a suit about Mrs. Davidson’s prior actions as the broker who sold them the property. See James River Ins. Co. v. Kemper Cas. Ins. Co., 585 F.3d 382, 386 (7th Cir. 2009) (noting the logical limits as to what may be said to arise from a particular event in assessing an insurer’s duty to defend).

For all of these reasons, the 2011 suit does not assert, or potentially assert, a claim that is plausibly within the professional liability coverage that- Diamond State provided to Davidson. Diamond State has no duty to defend her in the 2011 litigation.

In view of this conclusion, we have no need to reach the policy exclusions set forth in the Diamond State policy and whether they might independently operate to relieve Diamond State of any duty to defend Davidson.

III.

For the reasons discussed, wé AFFIRM the district court’s judgment.

      . Each of the Seventh Circuit precedents that we cite in this opinion applies Illinois law.

      . Even the Dribbens' 2006 suit for failure to disclose the lack of a dam permit is referenced only as the triggering event for the slander suit that Davidson filed against Mrs. Dribben, and the slander suit in turn is noted as one component of the general pattern of harassment alleged by the Dribbens.


author: WOOD, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Brian DUTCHER, Defendant-Appellant.
    No. 16-1767
    United States Court of Appeals, Seventh Circuit.
    Argued September 29, 2016
    Decided March 22, 2017

      Peter M. Jarosz, Julie Suzanne Pfluger, Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Madison, WI, for Plaintiff-Appellee.
    Stephen J. Meyer, Attorney, MEYER LAW OFFICE, Madison, WI, for Defendant-Appellant.
    Before WOOD, Chief Judge, and RIPPLE and WILLIAMS, Circuit Judges.
   WOOD, Chief Judge.

On June 30, 2015, Brian Dutcher announced on Facebook that he planned to assassinate President Obama. He then drove to La Crosse, Wisconsin, where the President was scheduled to speak on July 2. Once in La Crosse, Dutcher repeated his plan to several people: a security guard, the police, the Secret Service, a nurse, a doctor, and (again) the police and Secret Service together. No one was amused: Dutcher was charged with and convicted of two counts of threatening the President in violation of 18 U.S.C. § 871(a). On appeal, Dutcher complains about the sufficiency of the evidence and certain instructions the district court gave to the jury. We find no error, and so we affirm.

I

We evaluate a challenge to the sufficiency of the evidence de novo, construing the evidence “in the light most favorable to the government and ask[ing] whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Love, 706 F.3d 832, 837 (7th Cir. 2013). We also take a fresh look at the question whether a disputed jury instruction fairly and accurately states the law; we will “reverse only if the instructions, taken as a whole, misled the jury.” United States v. Lawrence, 788 F.3d 234, 245 (7th Cir. 2015).

President Obama was scheduled to give a speech at the University of Wisconsin-La Crosse on Thursday, July 2, 2015. On Tuesday, Dutcher posted this on his Face-book page: “thats [sic] it! Thursday I will be in La Crosse, hopefully I will get a clear shot at the pretend president, killing him is our CONSTITUTIONAL DUTY!” Later posts reprised the theme. In one, Dutcher added that “I have been praying on [sic] going to D.C. for 3 months and now the usurper is coming HERE.... pray for me to succeed in my mission.” The next morning (Wednesday) Dutcher carried out the first part of his plan — he drove the 45 miles from Tomah, where he lived, to La Crosse.

Things went downhill from there. Dutch-er stopped by the La Crosse Public Library, where his acquaintance Travis Good worked as a security guard. Dutcher greeted Good and told him “I’m here to kill the President, the usurper, tomorrow at his speech.” When Good replied that such statements were illegal, Dutcher simply said “[w]atch me” and walked off. Good alerted his supervisor, who passed the word along to the police, who dispatched two investigators. The investigators found Dutcher nearby in his van and, after he confirmed his threat, they asked him to come to the station for Secret Service questioning. Dutcher agreed, exhibiting a demeanor one of the investigators would later recall as “mellow.”

The description was apt. During his two-hour interview with the Secret Service, a remarkably candid Dutcher claimed that it was his biblical and constitutional duty to assassinate the President, boasted that he could kill a person with a slingshot (one was later found in his van, though Dutcher had no other weapons), informed the agents that he had also made threats on Facebook, and consented to a search of his account. After the interview Dutcher was detained overnight at a hospital for a mental health evaluation. See Wis. Stat. § 51.15. There he reiterated his violent intentions to both a nurse and a doctor. And he was not done yet. Dutcher was arrested the next day and repeated his threats during the ensuing interview. Despite all this, he was found competent for pretrial release — a finding he does not challenge on appeal.

Based on the initial Facebook post and the statement to Good, a grand jury indicted Dutcher on two counts of knowingly and willfully threatening the President in violation of 18 U.S.C. § 871(a). After a two-day trial, the district court instructed the jury, in relevant part, that it could find willfulness if the government proved Dutcher “either actually intended his statement to be a true threat, or that he knew that other people reasonably would view his statement as a true threat but he made the statement anyway.” The jury found Dutcher guilty of both counts, and the district judge sentenced him to 36 months’ imprisonment and three years of supervised release.

II

Section 871(a) criminalizes “knowingly and willfully” making “any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States.” The charged statement must be a “true threat,” which has been defined for First Amendment purposes as “a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). In United States v. Fuller, 387 F.3d 643, 646 (7th Cir. 2004), we held that a “true threat” for purposes of section 871(a) is defined objectively. A communication, we wrote, “is a ‘true threat’ if a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or to take the life of the President.” Id. (internal quotation marks omitted). Addressing a different statute, 18 U.S.C. § 875(c), which criminalized the transmission of any threat to kidnap or injure another, the Supreme Court held that the speaker must know that his communication contains a threat. Elonis v. United States, — U.S. -, 135 S.Ct. 2001, 2009-11, 192 L.Ed.2d 1 (2015).

A true threat does not require that the speaker intend to carry it out, or even that she have the capacity to do so. Black, 538 U.S. at 360, 123 S.Ct. 1536 (First Amendment); United States v. Parr, 545 F.3d 491, 498 (7th Cir. 2008) (18 U.S.C. § 2332a, prohibiting a threat to use a weapon of mass destruction against a federal government building). The prohibition against threats protects against the fear they engender as well as the risk that they may be carried out. Black, 538 U.S. at 360, 123 S.Ct. 1536. Still, the scope of a true threat is ultimately quite circumscribed. Section 871(a) does not criminalize offensive jokes or political hyperbole — bad taste, in other words, is not a crime. Watts v. United States, 394 U.S. 705, 707-08, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969); Fuller, 387 F.3d at 647.

A

Dutcher insists that he was obviously unable to carry out his threats, and so they could have been nothing more than overheated rhetoric. He was certainly not trying to hide anything, and it is also undisputed that he had no ticket to the President’s speech and was armed only with a slingshot (albeit a high-powered Wrist Rocket). But the significance of these facts was for the jury, not appellate review. More broadly, Dutcher is missing the point. He was charged with threatening the President under § 871(a), not with the separate crime of attempting to assassinate him under 18 U.S.C. § 1751. His lack of capacity is relevant only insofar as it suggests that his threats were not genuine. Dutcher’s emphasis on his chance of success also overlooks the fact that § 871(a) permits conviction for threats to “inflict bodily harm upon’ the President.” Dutcher told investigators that he used his slingshot to hunt small animals, and (actually comparing himself to David) that he could kill a man with it. The jury was entitled, based on this evidence, to find that Dutcher was capable of injuring the President with his slingshot, and it could have convicted him on that basis.

Dutcher also suggests that no one took his statements seriously, and that this indicates that he did not intend them to be true threats. Security camera footage of Good’s unruffled response to Dutcher’s remarks supports this view — Good remains calm throughout the interaction and even wraps up a bit of computer work before heading off to report the incident. Yet the operative word in that sentence is “report.” Calm or otherwise, Good took Dutcher seriously enough that he reported him around 30 seconds after their interaction. Moreover, his description was evidently alarming enough to cause his supervisor to contact the police. A reasonable juror could conclude Dutcher knowingly and willfully made a true threat.

Dutcher’s contention that his Facebook post was not taken seriously since nobody who saw it informed the police (in fact, he got two “likes”) also falls short of undermining the jury’s conclusion. Granted, his case is a bit different from Elonis, the Supreme Court’s most recent word on true threats. Elonis’s Facebook posts frightened their targets enough to prompt them to contact the authorities. Elonis, 135 S.Ct. at 2005-06. Nothing in Elonis, however, excludes the possibility of an unreported true threat. Other evidence indicates that some of Dutcher’s readers took him seriously. Gregory Remen, for one, responded to the charged post by encouraging Dutch-er to “[t]ry voting” and asked “how will killing the pres change anything then??” The apprehensive response to Dutcher’s follow-up posts underscores the point — one reader urged him to “Stay calm my Mend. Please!” The jury was entitled to rely on these responses, along with Dutcher’s later behavior, to find that the threats were genuine.

B

The jury instructions said that Dutcher acted “willfully” if he “either actually intended his statement to be a true threat, or that he knew that other people reasonably would view his statement as a true threat but he made the statement anyway.” Dutcher reads the latter clause to allow the jury to find willfulness so long as he made a statement “that other people reasonably would view ... as a true threat” — that is, if it found only objective willfulness, without the subjective willfulness required by the statute under consideration in Elonis. But this argument overlooks the fact that the language he highlights was prefaced with the words “that he knew.” The instructions did not permit the jury to find willful behavior simply because a listener “reasonably would view” Dutcher’s statement as a threat. Instead, it had to find that he made the statement despite knowing, subjectively, that the listener, would see it that way. This is consistent with Elonis.

The worst we can say about the instruction is that the court might have given Dutcher an unwarranted break when it used the term “reasonably.” As worded, the instruction indicated that Dutcher not only had to know that his listener would take his statement as a true threat, but also that the listener’s understanding was reasonable: Consequently, if Dutcher knew that a hypersensitive listener would unreasonably see his statement as a threat, there could be no willfulness. In any event, we review jury instructions as a whole; so long as “the instructions treat the issues fairly and accurately, they will not be disturbed upon appeal.” United States v. Coté, 504 F.3d 682, 687 (7th Cir. 2007) (citation omitted). Dutcher’s defense at trial was that his statements were political hyperbole, not credible threats. The instructions fully conveyed that point to the jury. Elsewhere, in language Dutcher does not challenge, they defined a “true threat” as “a serious expression of an intent to commit an act of unlawful violence,” and they distinguished such statements from “[ijdle or careless talk, political' hyperbole or something said in a careless or joking manner.... ” This was more than enough to present Dutcher’s theory of defense to the jury.

Dutcher urges in the alternate that § 871(a)’s mens rea of “knowingly and willfully” requires a defendant to know that her conduct is illegal. There is force to the argument that when a statute uses both terms, it is asking for something more than either term would require on its own. Thus, in United States v. Bates, 96 F.3d 964, 970 (7th Cir. 1996), aff'd on other grounds, 522 U.S. 23, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997), we read the same phrase in a student loan fraud statute to require proof of a defendant’s knowledge that her intentional conduct was unlawful. See also United States v. Wheeler, 540 F.3d 683, 690 (7th Cir. 2008) (expressing sympathy for the argument in dicta).

This type of heightened proof requirement, however, is typically limited to a narrow group of “highly technical [criminal] statutes that presentf ] the danger of ensnaring individuals engaged in apparently innocent conduct.” Bryan v. United States, 524 U.S. 184, 194, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) (citing taxes and financial transactions as examples). Bates, which concerned the arcana of federal student loans, falls in that category. A statute prohibiting serious threats to the President does not. Elonis itself highlights the distinction. It expressly rejected the notion that the threat statute there, 18 U.S.C. § 875(c), required the government to show that the defendant knew that his conduct was illegal. Elonis, 135 S.Ct. at 2009. Instead, the Court followed “[t]he familiar maxim ‘ignorance of the law is no excuse’ ....” Id. The same approach is proper here. The President’s safety does not turn on a defendant’s familiarity with the United States Code.

Ill

The evidence before the jury was suffi-. cient to support both of Dutcher’s convictions, and the jury instructions fairly presented the relevant issues. We therefore AFFIRM the judgment of the district court.


text:
    Petar B. YUSEV and Katerina G. Yuseva, Petitioners, v. Jeff SESSIONS, Attorney General of the United States, Respondent.
    Nos. 16-1338 & 16-2242
    United States Court of Appeals, Seventh Circuit.
    Argued February 21, 2017
    Decided March 23, 2017

      Daniel W. Thomann, Attorney, Daniel Thompson, P.C., Chicago, IL, for Petitioners.
    OIL, Tim Ramnitz, Attorneys, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
    Before WOOD, Chief Judge, and FLAUM and ROVNER, Circuit Judges.
   WOOD, Chief Judge.

Petar Yusev and his wife, Katerina Yu-seva, have lived in the United States since 2005. They managed this by overstaying their initial one-year non-immigrant visas. On August 16, 2007, some 18 months after their initial entry, they applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). They are citizens of Bulgaria, since 2007 a Member State of the European Union, but they belong to its Macedonian minority and assert that they have been persecuted on that basis. First an immigration judge, and later the Board of Immigration Appeals (BIA or Board), turned down their requests. The petitions for review now before us challenge the Board’s refusal to reopen their case based on their attorney’s alleged ineffectiveness, and its refusal to reconsider the ruling on the motion to reopen. Finding no abuse of discretion in either of the Board’s decisions, we deny the petitions for review.

I

In their original petitions for asylum and related relief, the Yusevs asserted that they had been members of the United Macedonian Organization Ilinden (UMOI), a party devoted to the rights of ethnic Macedonians (though characterized by the Bulgarian Constitutional Court as a separatist party that could be, and was, banned). They testified about two occasions on which the police assaulted them. In addition, they asserted, the police came looking for them at their home in 2006 and were still looking as of 2007. They also submitted reports detailing Bulgaria’s poor treatment of Macedonians. An immigration judge (IJ) denied all relief in a 2013 decision. The judge found that they had missed the one-year deadline for filing an asylum application, 8 U.S.C. § 1158(a)(2)(B), and that their tardiness was not excused by changed circumstances in Bulgaria or other extraordinary circumstances, id. § 1158(a)(2)(D). The judge denied their request for withholding and CAT protection on the merits, finding that their experiences did not meet the test for past persecution, nor did they, support a finding of likely persecution in the future. The BIA affirmed and denied their motion for reconsideration. See Yusev v. Lynch, 648 Fed.Appx. 603 (7th Cir. 2016) (Yusev I).

While the Yusevs were pursuing their petition for review from the denial of their motion for reconsideration in Yusev I, they also were proceeding along a second track. Represented by their current counsel, Daniel Thomann, they filed a motion with the Board to reopen the proceedings based on their first lawyer’s ineffectiveness. The Board found the motion to reopen untimely, and it rejected the argument that counsel’s ineffectiveness excused the delay. Once again, the Yusevs filed a motion to reconsider, and once again, that motion was denied. They have now filed two petitions for review, one from the denial of reopening and one from the refusal to reconsider. Our review of both these decisions is deferential; we may grant relief only if the Board abused its discretion. Reyes-Cornejo v. Holder, 734 F.3d 636, 647 (7th Cir. 2013); El-Gazawy v. Holder, 690 F.3d 852, 857 (7th Cir. 2012).

II

A

We turn first to the Board’s denial of the motion to reopen filed by Attorney Thomann on September 1, 2015. This motion was based on the alleged ineffectiveness of the Yusevs’ prior counsel, Alexander Vrbanoff. Non-citizens facing removal are allowed to file one motion to reopen within 90 days of a final order of removal. 8 U.S.C. § 1229a(c)(7)(A), (C)(i). In the Yusevs’ case, the Board affirmed the original IJ’s decision ordering removal through an order dated April 7, 2015. Muddying the waters slightly is the fact that this was not the Board’s last word on their original appeal. Instead, on June 17, 2015, the Board partially reopened their case to reinstate the privilege of voluntary departure. It did so because Vrbanoff had forgotten to submit proof of their payment of a voluntary departure bond; they actually had paid, and so the Board corrected its earlier decision in this minor respect.

The Yusevs argue that their 90-day period for the motion to reopen did not begin running until June 17. If that were true, then their motion would have been timely, as it was filed on September 2, 2015. But that is not the way things work. In Sarmiento v. Holder, 680 F.3d 799 (7th Cir. 2012), we joined the Fifth and Ninth Circuits in holding that motions to reopen must be “filed within 90 days of the specific proceeding being challenged,” which here is the Board’s April 7, 2015 order affirming the IJ’s decision to require removal. Id. at 802 (emphasis added). That is the order to which the Yusevs object; they have no quarrel with the Board’s decision to reinstate voluntary departure on June 17. See also El-Gazawy, 690 F.3d at 859. If the Yusevs’ proposed rule were to be adopted, we might as well write the time limits out of the statute. Any petitioner wanting some extra time could just 'file a new motion to reconsider and have the clock reset. This is a position we cannot accept. As we noted in Almutairi v. Holder, 722 F.3d 996 (7th Cir. 2013), “an order from the BIA resolving everything except an issue relating to voluntary departure” qualifies as a final decision. Id. at 1001. The Board thus committed no error when it concluded that the September 2, 2015 motion to reopen was untimely.

That brings us to the question whether the Board abused its discretion in concluding that nothing excused the late filing. In principle, equitable tolling can excuse this Mnd of failure. Yuan Gao v. Mukasey, 519 F.3d 376, 377 (7th Cir. 2008). One reason that might support equitable tolling is ineffective assistance of counsel. El-Gazawy, 690 F.3d at 859. But this is not easy to demonstrate in an immigration proceeding: whatever right to effective counsel exists is present only because of the immigration statutes, and ultimately the Due Process Clause of the Fifth Amendment to the U.S. Constitution; the more familiar Sixth Amendment right is inapplicable because it is limited to criminal proceedings.

Equitable tolling based on counsel’s performance requires, at a minimum, that the petitioner show that he exercised due diligence in seeking relief and that he suffered prejudice as a result of the lawyer’s deficient performance. Id. The due diligence requirement is satisfied if the petitioner can show that “he could not reasonably have been expected to file earlier.” Id. Prejudice is established if “the error likely affected the result of the proceedings.” Alimi v. Gonzales, 489 F.3d 829, 834 (7th Cir. 2007).

The Yusevs’ showing falls short on both these points. Through Attorney Thomann, they filed-a motion to reconsider on May 8, 2015, 31 days after the Board’s April 7 decision. That motion briefly mentions that the Yusevs intended to pursue an ineffectiveness claim against Vrbanoff and that they were investigating the issue. This was too tentative to be of any help. Moreover, the only actions they eventually took toward this end were to send Vrbanoff a rather general letter expressing displeasure with his performance and to submit a complaint to the Illinois bar after the deadline for the motion to reopen had expired. The Board was not required to view this as the diligence it has a right to expect.

Their showing of prejudice was no better. The crux of their complaint against Vrbanoff was that he had failed to introduce additional evidence that they believe would have tipped the balance in their favor. Here is what they contend Vrbanoff should have added:

• State Department country reports for Bulgaria for 2005, 2006, and 2007
• Reports from the Bulgarian Helsinki Committee (a local human rights group) from 2007, 2013, and 2014
• A United Nations report from 2011
• A case from the European Court of Human Rights from 2005

These documents do no more than repeat the message that was already before the Board in the evidence that Vrbanoff did introduce. That message was that Macedonians are not a state-recognized ethnicity; that they are barred from forming ethnic pressure groups; and that they face discrimination as well as occasional police harassment. The Board’s April 7 decision reflects its awareness of these arguments and thus reinforces the fact that the absence of the “new” evidence did not prejudice the Yusevs.

Oddly, the Yusevs also argue that Vrba-noff was ineffective because he failed to argue that Bulgaria’s accession to the European Union ■ in 2007 constituted a changed circumstance for the worse and thus supported their tardy claims. We have trouble taking this seriously, given the fact that citizens of every Member State of the European Union, including now Bulgaria, are free to move to any other State, see Romania and Bulgaria EU Migration Restrictions Lifted, BBC NEWS (Jan. 1, 2014), http://www.bbc.com/ news/world-europe-25565302. They also enjoy the full panoply of rights under both the treaties underlying the EU and the European Human Rights Convention. In any event, there is no evidence that the situation in Bulgaria changed for the worse after its accession to the EU. The UMOI was banned' in 2000, remained banned while Bulgaria was moving through the accession process, and is still outlawed today. The police have harassed Macedonians throughout the relevant period. The Board was well within its rights to reject this argument.

B

We have little to add with respect to the Yusevs’ motion to reconsider the Board’s denial of their untimely motion to reopen. As we noted earlier, we review this decision only for abuse of discretion. A motion to reconsider must alert the Board to additional legal arguments, a change in law, or something that was overlooked in its earlier decision. See In re O-S-G-, 24 I. & N. Dec. 56 (BIA 2006); Khan v. Holder, 766 F.3d 689, 696 (7th Cir. 2014). The Yusevs’ motion did none of these things; it merely reiterated the points they had made in their earlier submissions. Nothing the Yusevs presented with the motion to reconsider the motion to reopen cured the defects to which the Board had pointed.

We end with a word about the Yu-sevs’ effort to attack the Board’s decision not to use a three-member panel in their case. We addressed and rejected this argument in Yusev I, where we noted that the relevant regulations “give Board members discretion to refer an appeal to a three-member panel in six different circumstances, but referral is not required.” 643 Fed.Appx. at 603, (citing 8 C.F.R. § 1003.1(e)(6)); Ward v. Holder, 632 F.3d 395, 398-99 (7th Cir. 2011). The contention has not improved with time or reiteration. The Board did not abuse its discretion when it chose in this case to proceed with a single judge.

We have considered the other arguments the Yusevs have presented and find no merit in them. The petitions for review are therefore Denied.