author: SYKES, Circuit Judge.

text:
    Joni ZAYA, Plaintiff-Appellant, v. Kul B. SOOD, Defendant-Appellee.
    No. 15-1470
    United States Court of Appeals, Seventh Circuit.
    Argued October 26, 2015
    Decided September 6, 2016

      Hall Adams, III, Attorney, LAW OFFICES OF HALL ADAMS LLC, Chicago, IL, for Plaintiff-Appellant.
    Andrew M. Ramage, Attorney, BROWN, HAY & STEPHENS, LLP, Springfield, IL, for Defendant-Appellee.
    Before WOOD, Chief Judge, BAUER and SYKES, Circuit Judges.
   SYKES, Circuit Judge.

Joni Zaya broke his wrist while he was an inmate at the Henry Hill Correctional Center in Galesburg, Illinois. The prison physician, Dr. Kul B. Sood, sent Zaya to an off-site orthopedic surgeon who took x-rays, fitted Zaya with a cast, and sent him back to the prison with instructions that he return in three weeks for a follow-up exam and additional x-rays. Dr. Sood didn’t follow those instructions. Instead he waited nearly seven weeks to send Zaya back to the orthopedic surgeon. By that time Zaya’s wrist had healed at an improper angle, and two surgeries were required to repair the defect. Zaya then filed, this action under 42 U.S.C. § 1983 claiming that Dr. Sood was deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. The district court granted Dr. Sood’s motion for summary judgment, holding that the doctor’s decision to delay Zaya’s return to the orthopedic surgeon constituted a mere difference of opinion between two medical professionals. Zaya now appeals.

It is well established that a difference of opinion between two doctors is insufficient to survive summary judgment on a deliberate-indifference claim. But when a plaintiff provides evidence from which a reasonable jury could infer that the defendant doctor disregarded rather than disagreed with the course of treatment recommended by another doctor, summary judgment is unwarranted. Because Zaya has provided such evidence, we reverse and remand for further proceedings.

I. Background

On January 14, 2012, Joni Zaya, an inmate at the Henry Hill Correctional Center, injured his left wrist while playing soccer in the prison yard. He was immediately taken to the health-care unit for x-rays and treatment. Two days later Zaya was examined by Dr. Kul B. Sood, a physician and employee of Wexford Health Services, Inc., the private corporation that contracts with the Illinois Department of Corrections to provide medical services to inmates at Henry Hill. After reading Zaya’s x-rays, Dr. Sood diagnosed an un-displaced fracture of the left distal radius — in other words, a broken left wrist. Dr. Sood then arranged for Zaya to be examined by Dr. Kenneth Bussey, an off-site orthopedic surgeon.

Dr. Bussey examined Zaya on January 17 and confirmed Dr. Sood’s diagnosis. He placed Zaya in a cast and sent him back to Henry Hill with instructions that he return for a follow-up exam and additional x-rays in three weeks. In his exam notes, which he forwarded to the prison, Dr. Bussey explained why the timing of the follow-up visit was important:

I will put [Zaya] in a long-arm cast for 6 weeks. I will see him back in 3 weeks and then get a recheck x-ray in the cast to make sure that it is hot displaced. If it does, I could still fix it at 3 weeks rather easily. Right now he doesn’t need surgical intervention so I will see him back in 3 weeks.

Dr. Sood acknowledged receipt of Dr. Bus-sey’s notes on January 30.

Despite Dr. Bussey’s instructions, Dr. Sood waited for nearly seven weeks to send Zaya back for the follow-up exam and x-rays. During that time, Dr. Sood prescribed pain medication when Zaya complained of discomfort and at one point modified Zaya’s cast by cutting the fiberglass. On March 1 Dr. Sood removed the cast and x-rayed Zaya’s wrist. The x-rays revealed that the fracture was healing at an improper angle. At that point Dr. Sood authorized a follow-up appointment with Dr. Bussey, who examined Zaya on March 6 and determined that surgery would be required for the fracture to heal properly. Zaya subsequently underwent two operations: one on March 14 to re-break his wrist and insert a metal plate, and another on August 14 to remove the plate.

Zaya filed this suit against Dr. Sood under § 1983, claiming that the more-than-three-week delay in sending him back to Dr. Bussey amounted to deliberate indifference to his serious medical needs in violation of the Eighth Amendment. Dr. Sood moved for summary judgment, arguing that his decision to wait the extra weeks was an exercise of medical judgment. Dr. Sood further maintained that even if his conduct did rise to the level of deliberate indifference, he was entitled to qualified immunity. The district judge accepted that Zaya’s fractured wrist was a serious medical condition. However, he concluded that Zaya had not produced evidence from which a reasonable jury could find that Dr. Sood consciously disregarded a known risk by delaying Zaya’s return to Dr. Bussey. Accordingly, the judge granted Dr. Sood’s motion for summary judgment without reaching the question of qualified immunity. This appeal followed.

II. Discussion

We review the court’s order granting summary judgment de novo, evaluating the record in the light most favorable to Zaya and drawing all reasonable inferences in his favor. Burton v. Downey, 805 F.3d 776, 783 (7th Cir. 2015). Summary judgment is warranted “if the mov-ant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “As to materiality, the substantive law will identify which facts are material.” Id.

The Eighth Amendment provides the substantive law in this case. In Estelle v. Gamble, the Supreme Court held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)) (citation omitted). “To state a cause of action, a plaintiff must show (1) an objectively serious medical condition to which (2) a state official was deliberately, that is subjectively, indifferent.” Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008). The parties do not dispute that a fractured wrist is an objectively serious medical condition, so the only question is whether a reasonable jury could conclude that Dr. Sood was deliberately indifferent to that condition.

A. The Deliberate-Indifference Standard

Deliberate indifference requires that a defendant “knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The standard is a subjective one: The defendant must know of facts from which he could infer that a substantial risk of serious harm exists, and he must actually draw the inference. Id. The requirement of subjective awareness stems from the Eighth Amendment’s prohibition of cruel and unusual punishment, “an inadvertent failure to provide adequate medical care cannot be said to constitute ‘an unnecessary and wanton infliction of pain.’ ” Estelle, 429 U.S. at 105, 97 S.Ct. 285 (emphasis added). Whether a prison official was subjectively aware of a risk “is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842, 114 S.Ct. 1970 (citation omitted).

Any inquiry into a defendant’s mental state is fraught with difficulties, but those difficulties are often amplified when the defendant is a medical professional. We have consistently held that neither a difference of opinion among medical professionals nor even admitted medical malpractice is enough to establish deliberate indifference. See, e.g., Petties v. Carter, No. 14-2674, 836 F.3d 722, 729, 2016 WL 4631679 (7th Cir. Aug. 25, 2016) (en banc); Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006); Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). However, we have also made clear that an inmate need not show that he was “literally ignored” to prevail on a deliberate-indifference claim. Conley v. Birch, 796 F.3d 742, 748 (7th Cir. 2015) (quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000)). A doctor who provides some treatment may still be held liable if he possessed a sufficiently culpable mental state. See Petties, 836 F.3d at 731, 2016 WL 4631679.

It is in this context that we have emphasized the deference owed to the professional judgment of medical personnel. McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013); see also Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir. 2008) (describing the “ ‘professional judgment’ standard”). By definition a treatment decision that’s based on professional judgment cannot evince deliberate indifference because professional judgment implies a choice of what the defendant believed to be the best course of treatment. A doctor who claims to have exercised professional judgment is effectively asserting that he lacked a sufficiently culpable mental state, and if no reasonable jury could discredit that claim, the doctor is entitled to summary judgment.

But deference does not mean that a defendant automatically escapes liability any time he invokes professional judgment as the basis for a treatment decision. When the plaintiff provides evidence from which a reasonable jury could conclude that the defendant didn’t honestly believe his proffered medical explanation, summary judgment is unwarranted. See Petties, 836 F.3d at 731, 2016 WL 4631679. (“When a doctor says he did not realize his treatment decisions (or lack thereof) could cause serious harm to a plaintiff, a jury is entitled to weigh that explanation against certain clues that the doctor did know.”). That evidence may consist of “clues” drawn from the context surrounding a treatment decision. Id. And if the defendant’s chosen “course of treatment” departs radically from “accepted professional practice,” a jury may infer from the treatment decision itself that no exercise of professional judgment actually occurred. Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014).

B. Dr. Sood’s Decision to Delay Zaya’s Return to Dr. Bussey

With these standards in mind, we turn to whether Zaya has put forward enough evidence to survive summary judgment. As we’ve noted, the parties agree that a broken wrist is a serious medical condition. Our only concern is Dr. Sood’s failure to comply with Dr. Bussey’s instructions that Zaya return in three weeks for a follow-up exam and additional x-rays. Zaya argues that Dr. Sood understood the risks associated with delaying treatment and disregarded those risks by waiting nearly seven weeks to authorize a followup appointment. In support of this claim, Zaya points to Dr. Bussey’s instructions themselves.

A jury can infer conscious disregard of a risk from a defendant’s decision to ignore instructions from a specialist. See Petties, 836 F.3d at 729, 2016 WL 4631679; Gil v. Reed, 381 F.3d 649, 663-64 (7th Cir. 2004); Jones v. Simek, 193 F.3d 485, 490-91 (7th Cir. 1999). The validity of the inference rests primarily on the contemporaneity of the communication and the defendant’s decision. Instructions from a specialist are evidence that the defendant knew a particular course of treatment was recommended by at least one other medical professional at the time the defendant chose not to provide that treatment.

Dr. Bussey went a step further than simply recommending that Zaya return within three weeks; he actually described the risks of further delay. Dr. Bussey’s instructions explained that any displacement of Zaya’s wrist could still be fixed “rather easily” at the three-week mark'— the clear' implication being that it would become more difficult to correct as more time passed. Dr. Sood expressly acknowledged receipt of these instructions by countersigning the copy that was sent to Henry Hill. Given these facts, a jury could conclude that Dr. Sood consciously disregarded the risks associated with delaying Zaya’s return to Dr. Bussey. See Gil, 381 F.3d at 664 (“On summary judgment, we find that prescribing on three occasions the very medication the specialist warned against ... while simultaneously canceling ... two of the three prescribed [medications] gives rise to a genuine issue of material fact about [the defendant’s] state of mind.”).

But Dr. Sood has offered an explanation for his decision to wait nearly seven weeks to send Zaya back to Dr. Bussey: He claims that he disagreed with Dr. Bussey’s treatment plan. In his deposition Dr. Sood explained that he has treated over 500 fractures in his 22-year career and that he believes three weeks is too early to assess if a bone is healing properly. According to Dr. Sood, “[y]ou need up to six to eight weeks to find out the exact nature of the fracture.” That explanation distinguishes this case from those in which the defendant either gives no explanation whatsoever for his failure to follow a specialist’s instructions, see, e.g., Jones, 193 F.3d at 490-91, or provides an explanation that’s internally inconsistent or otherwise implausible on its face, see, e.g., Petties, 836 F.3d at 732-33, 2016 WL 4631679; Gil, 381 F.3d at 663-64. Because Dr. Sood has provided a cogent, medical explanation for his decision to delay follow-up treatment, Zaya must point to some evidence that would permit a reasonable jury to reject his explanation as a post hoc rationalization. Cf. Sain, 512 F.3d at 895 (granting summary judgment to the defendant doctor because the plaintiff provided “no evidence to show that [the doctor’s medical explanation] was a sham or otherwise impermissible”).

We think that Zaya has met this requirement — though just barely — by offering the report and deposition testimony of Dr. Nathaniel R. Evans, his expert. Dr. Evans opined that it was unreasonable for Dr. Sood, a general practitioner, to disagree with instructions from Dr. Bussey, an orthopedic surgeon who had examined and treated Zaya:

A reasonable physician, when faced with the circumstance of a patient having been treated by an orthopedist and having received written request from that orthopedist to return the patient to the orthopedist in ... three weeks, would have directed that the patient be returned to the orthopedist in the three week timeframe as specified by the orthopedist. In failing to do so, Dr. Sood deviated from the standard of care.

From that testimony a reasonable jury could draw the following conclusions: Most general practitioners wouldn’t disagree with Dr. Bussey’s instructions. Dr. Sood is a general practitioner; therefore, Dr. Sood didn’t actually disagree with Dr. Bussey’s instructions.

Of course doctors do sometimes act unreasonably, so the expert’s opinion is only weakly probative of Dr. Sood’s mental state. By itself an expert’s assessment that a treatment decision was unreasonable is not enough to establish conscious disregard of a known risk. See Duckworth, 532 F.3d at 681. But Zaya has offered more than that; he has provided evidence that Dr. Sood was fully apprised of the risks associated with delaying treatment at the time he made the decision to do so. Given that affirmative evidence of Dr. Sood’s mental state, the expert’s opinion is enough to create a genuine factual dispute about whether Dr. Sood actually disagreed with Dr. Bussey’s instructions or instead simply ignored them, notwithstanding the attendant risks.

C. Qualified Immunity

Dr. Sood contends that even if a jury could find that he consciously disregarded the risks of delaying Zaya’s return to Dr. Bussey, he is nonetheless entitled to summary judgment on - qualified-immunity grounds. The Supreme Court has held that employees of privately operated prisons may not assert a qualified-immunity defense. See Richardson v. McKnight, 521 U.S. 399, 412, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997). We have construed that holding to extend to employees of private corporations that contract with the state to provide medical care for prison inmates. See Currie v. Chhabra, 728 F.3d 626, 631-32 (7th Cir. 2013); see also Shields v. Ill. Dep’t of Corrs., 746 F.3d 782, 794 n.3 (7th Cir. 2014). As an employee of Wexford, a private corporation that contracts with the Illinois Department of Corrections, Dr. Sood asks us to reconsider our earlier decisions.

We need not do so because even if a qualified-immunity defense were available to Dr. Sood, he would not be entitled to summary judgment on that basis. “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Zaya’s deliberate-indifference claim turns on Dr. Sood’s mental state, and it is well established what the law requires in that regard. See Farmer, 511 U.S. at 837, 114 S.Ct. 1970. If Dr. Sood consciously disregarded the risks of delaying Zaya’s return to Dr. Bussey, then his conduct violates clearly'established law under the Eighth Amendment. See Petties, 836 F.3d at 733-34, 2016 WL 4631679. As we’ve explained, that’s a question of fact that needs to be resolved by a jury.

REVERSED AND REMANDED.

      . This is not to suggest that courts should , make credibility determinations or weigh evidence on a motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 764 (7th Cir. 2002). But summary judgment does require courts to decide what inferences can justifiably be drawn from the nonmovant’s evidence. See Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 ("If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.") (citations omitted). If a defendant provides a facially plausible medical explanation for his decision and that explanation remains un-rebutted, the jury would have no reason to discredit it.


source: Caselaw Access Project

author: ROVNER, CIRCUIT JUDGE.

license: Public Domain

text:
    Erick MARQUEZ, et al., Plaintiffs-Appellants, v. WEINSTEIN, PINSON & RILEY, P.S., et al., Defendants-Appellees.
    No. 15-3273
    United States Court of Appeals, Seventh Circuit.
    Argued May 19, 2016
    Decided September 7, 2016

      Daniel A. Edelman, Edelman Combs Latturner & Goodwin, LLC, Chicago, IL, for Plaintiffs-Appellants.
    Joel D. Bertocchi, David M. Schultz, Stephen R. Swofford, Hinshaw & Culbertson LLP, Chicago, IL, for Defendant-Appellant Weinstein, Pinson & Riley, P.S.
    Joel D. Bertocchi, Hinshaw & Culbertson LLP, Chicago, IL, for Defendant-Appellant Evan L. Moscov.
    Michael D. Slodov, Sessions, Fishman, Nathan & Israel LLC, Chagrin Falls, OH, for Defendant-Appellant NCO Financial Systems, Incorporated.
    Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.
   ROVNER, CIRCUIT JUDGE.

Plaintiffs-appellants Erick Marquez, Iraida Garriga, and Doris Russel brought an action, individually and on behalf of a class, against defendants-appellees Evan L. Moscov, his law firm Weinstein, Pinson & Riley, P.S. (“Weinstein”), and debt collection agency NCO Financial Systems, Inc. (NCO), alleging violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. -§ 1692 et seq., arising out of the defendants’ attempt to collect on student loan debts allegedly owed by the plaintiffs. The gravamen of the complaint was that the defendants included a misleading and deceptive statement in a paragraph of the debt-collection complaint they filed against the plaintiffs in state court. The district court granted the initial motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), and after the plaintiffs filed their second amended complaint, granted a subsequent motion to dismiss as well, this time with prejudice. The plaintiffs now appeal that dismissal.

This case arose from complaints filed in state court by the defendant Weinstein, on behalf of NCO and signed by Moscov as their attorney, (the “debt collectors”) seeking repayment of student loans from the plaintiffs (the “consumers”). Those complaints contained typical language for such cases, reciting the loan agreement and the outstanding principal amount, and alleging the breach of that loan agreement and the corresponding damages. However, following those allegations, and immediately preceding the prayer for relief, the debt collectors included Paragraph 12 in the complaints, which stated:

12. Pursuant to 11 U.S.C. § 1692g(a), Defendants are informed that the undersigned law firm is acting on behalf of Plaintiff to collect the debt and that the debt referenced in this suit will be assumed to be valid and correct if not disputed in whole or in part within thirty (30) days from the date hereof.

The plaintiffs in the FDCPA action before us assert that Paragraph 12 violated the FDCPA in that it was misleading and deceptive as to both the manner and timing of their response to the state lawsuit. The central issue in this appeal is whether the district court erred in determining that paragraph 12 of the state law complaint was not misleading or deceptive as a matter of law, and therefore granting the motion to dismiss the FDCPA claim. We review de novo a district court’s decision to grant a motion to dismiss under Rule 12(b)(6), accepting as true all well-pleaded factual allegations and drawing all reasonable inferences in favor of the plaintiff. McMillan v. Collection Professionals, Inc., 455 F.3d 754, 758 (7th Cir. 2006).

Before considering whether the district court properly held that Paragraph 12 was not misleading or deceptive as a matter of law, we must address a preliminary matter. NCO argues that we need not address the FDCPA challenge at all because 15 U.S.C. § 1692e does not regulate the content of state court pleadings. That issue was properly preserved because it was presented, and rejected, in the district court.

In Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480 F.3d 470, 473 (7th Cir. 2007) and O’Rourke v. Palisades Acquisition XVI, LLC, 635 F.3d 938, 941 n.1 (7th Cir. 2011), we postponed for a future case the question of whether § 1692e of the FDCPA covers the process of litigation. This is that future case, as the issue is squarely presented to us and the answer is necessary to resolution of this appeal. Numerous circuits already have addressed this issue, and often in nearly identical reasoning, have concluded that pleadings or filings in court can fall within the FDCPA. See, e.g., Kaymark v. Bank of Am., N.A., 783 F.3d 168, 176-77 (3d Cir. 2015); Goldman v. Cohen, 445 F.3d 152, 155-56 (2nd Cir. 2006); Sayyed v. Wolpoff & Abramson, 485 F.3d 226, 231 (4th Cir. 2007); Stratton v. Portfolio Recovery Associates, LLC, 770 F.3d 443, 449-50 (6th Cir. 2014), as amended (Dec. 11, 2014); Powers v. Credit Mgmt. Servs., Inc., 776 F.3d 567, 573-74 (8th Cir. 2015); Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1031-32 (9th Cir. 2010); James v. Wadas, 724 F.3d 1312, 1316 (10th Cir. 2013); Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291, 1297-1300 (11th Cir. 2015). Those circuits almost uniformly base their conclusion on the Supreme Court’s analysis in Heintz v. Jenkins, 514 U.S. 291, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995), as well as on the amendment to the FDCPA following that decision. We agree with the reasoning of those circuits and for those same reasons conclude that § 1692e of the FDCPA applies to the statement in Paragraph 12 of the state court complaint at issue here.

In Heintz, Darlene Jenkins had borrowed money from Geiner Bank to purchase an automobile. Id. at 293, 115 S.Ct. 1489. She defaulted on that loan, and the bank’s law firm sued her in state court to recover the balance owed. In an effort to settle the case, an attorney for the bank’s law firm, George Heintz, sent a letter to Jenkins’ lawyer listing the amount that she owed. Jenkins filed suit alleging that the letter violated the FDCPA in that it contained a false statement of the amount that she owed the bank. The district court dismissed ' the lawsuit holding that the FDCPA was inapplicable to lawyers, but we reversed and the Supreme Court agreed with us, holding that the FDCPA applies to “the litigating activities of lawyers.” Id. at 294, 115 S.Ct. 1489. Heintz had argued that the Court should construe the statute as containing “an implied exemption for those debt-collecting activities of lawyers that consist of litigating,” but the Court rejected that interpretation. Id. at 295, 115 S.Ct. 1489. The Court held that the FDCPA applies to attorneys who “ ‘regularly’ engage in consumer-debt-collection activity, even when that activity consists of litigation.” Id. at 299, 115 S.Ct. 1489.

Although the communication at issue in Heintz was a letter rather than a legal pleading, the Court recognized the applicability of the FDCPA even to attorneys whose debt-collection activity consisted of litigation, and nothing in that analysis commands a differentiation between the two. Nothing in the broad language in Heintz would support an interpretation that would apply the FDCPA to attorneys whose debt collection activity consisted of litigation, but limit it to only those representations made by those attorneys outside of that litigation. The conclusion that the FDCPA applies .to legal pleadings is supported by a post-Heintz amendment enacted by Congress. In the post -Heintz amendment, Congress exempted legal pleadings from a specific provision in the FDCPA, but did not exempt it from the FDCPA as a whole. Specifically, 15 U.S.C. § 1692e prohibits a debt collector from using any false, deceptive or misleading representation in connection with the collection of any debt. The statute itemizes sixteen communications that constitute violations of that provision, including at § 1692e(11), the failure to disclose in the initial written communication to the consumer that the debt collector is attempting to collect a debt and that any information will be used for that purpose. After Heintz was decided in 1995, however, Congress amended § 1692e(11) to exclude formal legal pleadings from that requirement, with the amended version now stating .that “this paragraph shall not apply to a formal pleading made in connection with a legal action.” By providing that sub-section 1692e(11) did not apply to a formal pleading made in connection with a legal action, the implication is that § 1692e as a whole other than § 1692e(11) applies to formal legal pleadings. Otherwise, the amendment would be merely superfluous, exempting formal legal pleadings from one specific requirement in the act even though legal pleadings were not subject to any provisions of the act already. It is “a cardinal principle of statutory construction” that “a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001); United States v. Michalek, 54 F.3d 325, 335-36 (7th Cir. 1995). A natural interpretation of that provision which gives meaning to all words is that Congress, post-Heintz, envisioned § 1692e of the FDCPA as applying to communications in the form of legal pleadings as well as communications in other forms such as letters, and that it sought to exempt legal pleadings from only § 1692e(11).

That interpretation is consistent with the purpose of the FDCPA, “to eliminate abusive debt collection practices, to ensure that those debt collectors who abstain from such practices are not competitively disadvantaged, and to promote consistent state action to protect consumers.” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 577, 130 S.Ct. 1605, 176 L.Ed.2d 519 (2010); 15 U.S.C. § 1692(e). That purpose would be undermined if the FDCPA was inapplicable to communications that occurred in the context of litigation, particularly in the debt collection area in which judgments are overwhelmingly reached through.forfeiture, and thus misleading or deceptive statements are more likely to influence the response of the defendant without ever coming to the attention of the court in any meaningful way. In fact, although we have not previously addressed the question of whether pleadings fall within § 1692e of the FDCPA, we have already decided a number of FDCPA cases alleging FDCPA violations in state court filings (in which this issue was presumably not raised), thus illustrating that the dangers addressed in the FDCPA arise in the context of pleadings just as in other forms of communication. See O’Rourke v. Palisades Acquisition XVI, LLC, 635 F.3d 938, 948 (7th Cir. 2011)(Tinder, J., concurring) and cases cited therein. Accordingly, we hold that representations may violate § 1692e of the FDCPA even if made in court filings in litigation. Accord Kaymark, 783 F.3d at 176-77; Powers, 776 F.3d at 574; Miljkovic, 791 F.3d at 1297; Stratton, 770 F.3d at 450; James, 724 F.3d at 1316; Donohue, 592 F.3d at 1031-32; Sayyed, 485 F.3d at 231; Goldman, 445 F.3d at 155-56.

We turn then to the question of whether the district court erred in holding that Paragraph 12 was “plainly and clearly not misleading” as a matter of law and dismissing the case on that basis. Dist. Ct. Op. at 8. The FDCPA provides that “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt,” including, but not limited to the false representation of “the character, amount, or legal status of any debt.” 15 U.S.C. § 1692e generally and § 1692e(2)(A). In McMillan v. Collection Professionals Inc., 455 F.3d 754, 759 (7th Cir. 2006), we noted that a determination of whether a statement is false, deceptive or misleading, like a determination as to whether a statement is confusing under the FDCPA, is a fact-bound determination of how an unsophisticated consumer would perceive the statement. We cautioned in McMillan that in determining whether a statement is confusing or misleading, a district court must “tread carefully” because “district judges are not good proxies for the ‘unsophisticated consumer’ whose interest the statute protects.” Id. Accordingly, Rule 12(b)(6) dismissal on that issue is appropriate only if there is no set of facts consistent with the pleadings under which the plaintiffs could obtain relief. Id.

In its effort to collect the student loan debt, the debt collectors initially sent each of the consumers a demand letter, which informed them that they were in default on their loan payments and demanded payment of the outstanding balance. Pursuant to § 1692g of the FDCPA, that letter contained a statement informing the consumers that they had 30 days after receipt of the notice to dispute the validity of the debt, and provided that “[u]nless you dispute this debt, or any portion of it, within 30 days from receipt of this notice, we will assume the debt to be valid.” The demand letter instructs the consumer to dispute the debt by either calling a toll free number or submitting a dispute in writing to their law offices.

The debt collectors subsequently filed suit against the consumers and served the consumers with a summons and complaint in that state court action. The summons informed the consumers that they had to file an appearance by a specified date approximately 30 days after issuance, and an answer to the complaint before the time period set forth in the applicable subsections of paragraph 3 or 4 on the reverse side of the summons. Unfortunately, that standard summons form contained an error, in that paragraphs 3 or 4 contain no subsections, and the relevant subsections for the consumers were contained in paragraph 2 on that reverse side of the summons. Paragraph two provided that for amounts less than $10,000, the consumer only needs to file an appearance but not an answer unless otherwise ordered by the court, but that for amounts over $10,000, an answer must be filed no more than 10 days from the appearance date (return date) set forth on the summons. In all capitalized letters for emphasis, the summons also declared that if the consumer failed to do so “A JUDGMENT BY DEFAULT MAY BE TAKEN AGAINST YOU FOR THE RELIEF ASKED IN THE COMPLAINT, A COPY OF WHICH IS HERETO ATTACHED.” Thus, the summons directs the consumers to the complaint, both in determining the answer and in the relief that could be imposed. The complaint, however, in paragraph 12 declares: “Pursuant to 11 U.S.C. § 1692g(a), Defendants [consumers] are informed that the undersigned law firm is acting on behalf of Plaintiff [debt collector] ■ to collect the debt and that the debt referenced in this suit will be assumed to be valid and correct if not disputed in whole or in part within thirty (30) days from the date hereof.” The court erred in holding that the paragraph 12 declaration would not be misleading or deceptive as a matter of law.

Paragraph 12 is misleading to the unsophisticated consumer both as to the proper timing to respond to the complaint and as to the manner of response. A plain reading of the summons and the complaint would cause a consumer to believe that he had until the date in the summons to file an answer and contest the claim, but that beyond the 30-day period in paragraph 12 he could no longer contest the validity or correctness of the debt. Because the 30-day period would expire before the date that the answer had to be filed for each of the litigants, those provisions in conjunction would lead an unsophisticated consumer to believe that he had that 30-day period to dispute the debt and beyond that period he could not dispute that debt in his answer. For each plaintiff in this FDCPA action, the time period for “disputing the debt” was shorter than the time period provided by law for the answer. For instance, for one plaintiff in this FDCPA action, the complaint provided that the debt must be disputed by December 14 while the answer was not due, according to the summons, until December 23. Paragraph 12 thus effectively shortened the time period provided in the summons for the consumer to answer, because the consumer had been told in paragraph 12 that he only had the 30-day period to dispute the validity or correctness of the debt. That would cause an unsophisticated consumer to believe that beyond that time period in Paragraph 12 for disputing the debt, even if filing an answer, the validity of the debt could no longer be disputed in that answer.

The language used in Paragraph 12 is particularly pernicious in that regard. The language regarding the 30-day dispute period was not merely lifted from the demand letter, which provided that unless the debt was disputed within that 30-day period, “we [the debt collector] will assume the debt to be valid.” [emphasis added] Nor does that language track § 1692g(a)(3), which provides that if consumers do not dispute the debt within 30 days of the written notice, “the debt will be assumed to be valid by the debt collector.” The language in Paragraph 12 differs in a material way from those provisions, in that it does not contain the limiting language that the debt will be considered valid by the debt collector, instead stating that after the 30-day period “the debt will be considered valid.” The presence of such language in a court complaint, cross-referenced in the summons, would lead an unsophisticated consumer to believe that the debt will be considered valid by the court if not disputed within that 30 days, because the relevant language that would have limited the assumption to only the debt collector is absent from Paragraph 12, whether intentionally or otherwise. Whether the consumer is a sophisticated or unsophisticated consumer, one cannot say — as the district court did — that reading the summons and paragraph 12 in relation to each other is to interpret it in a “bizarre or idiosyncratic fashion.” It is in fact a rational reconciliation of the two provisions.

Magnifying the problem, that sentence regarding the 30-day period to dispute the debt mirrored the earlier demand letter to the consumers informing them of their rights to dispute the debt. The inclusion of that sentence in the complaint would lead an unsophisticated consumer to believe that she must dispute the debt through the procedures outlined in the earlier letter, rather than in an answer in court, or she would forfeit her right to contest the debt. That would place the consumers at risk of losing their rights in court if they disputed the debt through contact with the debt collectors rather than in the form of an answer.

The district court’s reading of the provisions illustrates the problem with its analysis. The district court characterizes Paragraph 12 as providing that a consumer could dispute the “debt” and that the “debt” will be valid if not disputed, not as providing that the legal claim to collect it will somehow be resolved. Therefore, according to the district court, the consumer might attempt to dispute the debt directly with the debt-collection firm but could not view that as a 'sufficient response to the lawsuit. The problem with the court’s interpretation is twofold. First, it asks us to assume that an unsophisticated consumer will distinguish the “disputing of a debt” from “disputing a claim to collect that debt.” But an unsophisticated consumer is unlikely to distinguish those concepts. In fact, even at oral argument counsel for defendants alternated between stating that the plaintiffs could dispute the debt by answering the complaint and that they could dispute it by contacting the law firm. Given the shortened time frame for disputing the debt set forth in Paragraph 12, the notion that the dispute should be in the form of the answer illustrates the problem — its 30-day provision would thereby shorten the time for the answer. Moreover, the court acknowledges that the consumer may be led to dispute the debt directly with the debt collector. Yet if a consumer was led to believe that she had to pursue a dispute directly with the debt collector, as the district court acknowledges, then that same consumer is also likely to believe that if she fails to do so within the 30-day period, the debt is assumed to be valid and correct, and cannot be contested in the court action. This is particularly true because, as previously discussed, the wording in paragraph 12 has moved the phrase “by the debt collector” so that it no longer clarifies who will assume the debt to be valid. Finally, paragraph 12 is simply improper in its entirety at this stage of the proceedings, as the failure to dispute the debt will have no impact on the court case. Its presence in the complaint serves no purpose, as conceded by counsel for defendant. Its function in the complaint is only to mislead. In Ruth v. Triumph Partnerships, 577 F.3d 790, 800 (7th Cir. 2009), we recognized that suits alleging deceptive or misleading statements fall within three distinct categories: (1) “cases involving statements that plainly, on their face, are not, misleading or deceptive;” (2) “cases involving statements that are not plainly misleading or deceptive but might possibly mislead or deceive the unsophisticated consumer,” for which plaintiffs must produce extrinsic evidence to prove that unsophisticated consumers find the statements to be so; and (3) communications which are plainly deceptive and misleading to an unsophisticated consumer as a matter of law. See also Janetos v. Fulton Friedman & Gullace, LLP, 825 F.3d 317, 322-23 (7th Cir. 2016). The district court held that the statements in this case rest within the first category, but they fall within the third. For the reasons stated above, we hold that Paragraph 12 is misleading and deceptive as a matter of law, and that the district court erred in reaching the opposite conclusion. Accordingly, the district court erred in granting the motion to dismiss.

The decision of the district court is REVERSED and the case REMANDED for further proceedings consistent with this opinion.

      . The terms "plaintiff” and "defendant” can cause confusion in this case, because the defendants in the state court collection action are the plaintiffs here, and vice versa. To avoid such confusion, we will refer to the plaintiffs and defendants in the state court action as debt collectors and consumers, and use the terms plaintiff and defendant to refer to the parties in this FDCPA action.-

      . NCO attempts to raise a number of other issues on appeal that were not properly presented to the district court, but those arguments are waived and we do not address them. Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012).


author: YANDLE, District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Roy K. SHANNON, Jr., Defendant-Appellant.
    No. 15-2667
    United States Court of Appeals, Seventh Circuit.
    Argued May 31, 2016
    Decided September 7, 2016

      William Novak, Jacqueline O. Stern, Attorneys, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
    Raymond D. Pijon, Attorney, Chicago, IL, Joshua Sachs, Attorney, Law Office of Joshua Sachs & Associates, Evanston, IL, for Defendant-Appellant.
    Before EASTERBROOK and WILLIAMS, Circuit Judges and YANDLE, District Judge.

       Of the Southern District of Illinois, sitting by designation.

   YANDLE, District Judge.

Following a bench trial, Roy Shannon, Jr. was found guilty of one count of conspiracy to commit wire fraud, two counts of identity theft, and two counts of aggravated identity theft. Shannon was sentenced to 14 months on Counts 1, 2 and 3, to run concurrently with each other, and 24 months on Counts 4 and 5, to run concurrently with each other, but consecutively as to Counts 1-3. Shannon’s total prison sentence amounted to 38 months of incarceration followed by a 3 year term of supervised release.

On appeal, Shannon challenges his conviction and sentence, arguing first that the Government’s evidence was heavily dependent of the uncorroborated testimony of Marcus Taylor, a cooperating witness with “powerful motivation to falsify.” As such, Shannon contends that the evidence was insufficient to establish beyond a reasonable doubt that he is guilty of the charged offenses. Secondly, Shannon challenges the district court’s application of a 2-level Sentencing Guidelines enhancement for the organizer or leader of a criminal enterprise. We reject both challenges and affirm his conviction and sentence.

I. Background

On October 9, 2014, a federal grand jury returned a five count second superseding indictment charging Shannon with one count of conspiracy to commit wire fraud (Count 1); two counts of identity theft (Counts 2 and 3); and two counts of aggravated identity theft (Counts 4 and 5). On November 3, 2014, the case proceeded to a bench trial before the district judge during which the judge heard testimony from Marcus Taylor, seven identity theft victims, two FBI case agents, an FBI fingerprint examiner, a computer forensic examiner, an IRS records custodian, a bank custodian and a phone records custodian.

At trial, the Government produced evidence that from November 2013 through February 2014, Shannon conspired with James Williams to devise and undertake a scheme to obtain money from the IRS through fraud and deceit. Shannon and Williams agreed to obtain stolen identities and to fraudulently obtain tax refunds by using those identities to file false and fraudulent tax returns — with the assistance of Marcus Taylor, an accountant. Shannon and Williams obtained 107 stolen identities, and provided those to Taylor, directing him to use the stolen identities to prepare and file false tax returns. Unbeknownst to Shannon and Williams, Taylor was cooperating with the United States Government. Taylor approached the FBI after discovering that Shannon had been having an affair with his (Taylor’s) wife. Thereafter, under the supervision of the FBI, Taylor recorded four meetings and three phone calls between himself and Shannon. At the conclusion of the-4-day trial, Shannon was convicted on all counts.

II. Analysis

A. Conviction

This Court has held repeatedly that a guilty verdict will only be overturned if the Court concludes, “[I]n a light a most favorable to the prosecution, that no rationale trier of fact could have found the defendant guilty beyond a reasonable doubt.” See United States v. Wasson, 679 F.3d 938 (7th Cir. 2012); Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Doody, 600 F.3d 752, 753 (7th Cir. 2010). This is a high bar — establishing that the evidence is insufficient is a nearly insurmountable task. See United States v. Taylor, 637 F.3d 812, 815 (7th Cir. 2011).

Shannon asserts that the district court placed “undue reliance” on the testimony of Marcus Taylor which lacked sufficient credibility. Specifically, Shannon points out that Taylor testified pursuant to a grant of immunity and argues that his testimony was.significantly motivated by his personal resentment against Shannon, based on his belief that Shannon had an affair with his (Taylor’s) wife. Moreover, Shannon contends that he would not have been found guilty without Taylor’s “tainted” testimony.

The Government maintains that the district court correctly weighed the evidence and that Taylor’s testimony was substantially corroborated by the testimony of several other witnesses as well as by video and audio recorded evidence. Additionally, the Government argues that the district judge admittedly considered Taylor’s testimony with skepticism and, in light of the other evidence presented, appropriately concluded that the Government proved Shannon’s guilt beyond a reasonable doubt. We agree.

The district court was clearly aware of Taylor’s credibility problems and observed, “[tjhere is no question Mr. Taylor had and has a very significant motive to, for want of a better word, bury Mr. Shannon.” With that in mind, the court proceeded to identify and assess other factors that it viewed as corroborating Taylor’s testimony, including: recordings of interactions between Shannon, Taylor and Williams; the laptop Shannon gave to Taylor which contained a list of victim names and identifying information including dates of birth and social security numbers; the masking software installed on the laptop; and the degree to which Shannon tried to exert control over Taylor. On these facts, the district court’s finding of guilt beyond reasonable doubt is not subject to reversal.

B. Sentencing Guidelines Enhancement

Shannon’s sentencing took place over the course of three days during which the district court heard and ruled on the objections to the Presentence Investigation Report (“PSR”), including Shannon’s objection regarding his leadership role. The Government argued that a 4-level enhancement applied under Guideline § 3B1.1(a) based on evidence showing Shannon to be the leader or organizer of the conspiracy. The probation office agreed that Shannon planned and organized the scheme, but recommended a 2-level enhancement instead because the number of people involved in the conspiracy qualified Shannon as a supervisor under § 3B1.1(c). The court found that based on the weight of the evidence, Shannon was a supervisor of the criminal activity.

We review the district court’s underlying factual findings with respect to the application of a sentencing enhancement for clear error. See United States v. Har ris, 791 F.3d 772, 778 (7th Cir. 2015). We review de novo the facts used to reach said judgment. Id. at 778. U.S.S.G. § 3B1.1(c) provides, in part, that “[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described [in subsections (a) and (b) ] increase by 2 levels.” Under §3B1.1(c), a manager or supervisor is one who, “[e]xer-cise[s] control and authority over another,” such as “[w]hen he ‘tells people what to do and determines whether they’ve done it.’ ” See United States v. Dade, 787 F.3d 1165, 1167 (7th Cir. 2015) (quoting United States v. Figueroa, 682 F.3d 694, 697 (7th Cir. 2012)).

Here, there was evidence that Shannon assigned his co-conspirators their roles within the conspiracy. He also recruited his co-conspirators and brought them together for purposes of executing the fraudulent scheme. There is also evidence that shows Shannon exerted significant control over his co-conspirators and their actions in furtherance of the scheme. In one instance, when Taylor asked Shannon if he should continue filing the bogus returns after having already filed a first batch, Shannon gave the “green light.” In that same exchange, Shannon said that “[i]f my money gets fucked up, I’m gonna kill everybody involved ... ”.

By all indications, the district court appropriately considered the relevant facts in concluding that the preponderance of the evidence supported a finding that Shannon was a “supervisor” under § 3B1.1(c) of the Sentencing Guidelines. The court did not err.

III. Conclusion

We AFFIRM Shannon’s conviction and sentence.

      . Shannon has withdrawn his argument that he received ineffective assistance of counsel at trial.


author: ROVNER, Circuit Judge.

text:
    Jeremy MEYERS, individually, and on behalf of all others similarly situated, Plaintiff-Appellant, v. ONEIDA TRIBE OF INDIANS OF WISCONSIN, Defendant-Appellee.
    No. 15-3127
    United States Court of Appeals, Seventh Circuit.
    Argued February 19, 2016
    Decided September 8, 2016

      Thomas A. Zimmerman, Jr., Attorney, Zimmerman Law Offices, P.C., Chicago, IL, for Plaintiff-Appellant.
    Thomas M. Pyper, Attorney, Husch Blackwell, LLP, Madison, WI, for Defendant-Appellee.
    Before MANION and ROVNER, Circuit Judges, and BLAKEY, District Judge.

       The Honorable John Robert Blakey, of the Northern District of Illinois, sitting by designation.

   ROVNER, Circuit Judge.

In response to the burgeoning problem of identity theft, when Congress enacted the Fair and Accurate Credit Transaction Act (FACTA) in 2003, it included within the Act a provision to reduce the amount of potentially misappropriateable information produced in credit and debit card receipts. The Act prohibits merchants from printing on the receipt the credit card expiration date and more than the last five digits of the credit or debit card number. The plaintiff in this case, Jeremy Meyers, used his credit card to make purchases at two stores owned by the defendant, the Oneida Tribe of Indians of Wisconsin, and received an electronically-printed receipt at each store that included more than the last five digits of his credit card as well as the card’s expiration date. Meyers brought a putative class action in the eastern District of Wisconsin for violations of FACTA, but the district court determined that the defendant, an Indian Tribe, was immune from suit under the Act. Meyers appeals and we affirm.

I.

The facts in this case are simple and not in dispute. Between February 6 and 17, 2015, Meyers used his credit card to make purchases at the Oneida Travel Center and two Onéida One Stop retail locations in and around Green Bay, Wisconsin. All three stores are owned and operated by a federally-recognized Indian tribe, the Oneida Tribe of Indians of Wisconsin. At each store he received electronically printed receipts that included more than the last five digits of his credit card as well as the card’s expiration date. He alleges that the Tribe issued these receipts in violation of FACTA.

FACTA, an amendment to the Fair Credit Reporting Act, states that,

[n]o person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.

15 U.S.C. § 1681c(g)(1). FACTA defines a person as “any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity.” 15 U.S.C. § 1681a(b).

Meyers sued the Oneida Tribe for these alleged violations of FACTA and brought a putative class action on behalf of all credit and debit card holders who, after June 3, 2008, received from the Oneida Tribe, an electronically printed receipt that displayed more than the last five digits of the person’s credit or debit card or displayed the card’s expiration date. The district court judge stayed a decision on certification of the class. (R. 7).

The Oneida Tribe moved to dismiss Meyers’ claim for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The Tribe argued that Meyers’ claims were barred under the doctrine of tribal sovereign immunity and that Meyers had not suffered an “injury in fact” granting him standing under Article III of the Constitution.

The district court correctly noted, as we discuss below, that the question of sovereign immunity is not jurisdictional. Nevertheless, the court properly treated the Tribe’s motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) as a motion to dismiss for failure to state a claim for which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). See Miller v. Herman, 600 F.3d 726, 732-33 (7th Cir. 2010); citing Peckmann v. Thompson, 966 F.2d 295, 297 (7th Cir. 1992) (when appropriate, a court may treat a motion filed under Rule 12(b)(1) as if it were a Rule 12(b)(6) motion). The district court subsequently concluded that the Tribe was immune from suit and granted the motion to dismiss. This appeal followed.

II.

A.

We begin with the threshold matter of jurisdiction. Just recently, the Supreme Court issued its decision in Spokeo which considered whether a plaintiff had adequately alleged injury in fact so as to acquire standing under Article III of the Constitution.. Spokeo, Inc. v. Robins, — U.S. —, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016). The plaintiff in that case alleged injury pursuant to a different part of the Fair Credit Reporting Act than the one at issue in this case — one that set forth requirements concerning the accurate creation and use of consumer reports. The Supreme Court explained that in order to satisfy the “case or controversy” requirement of Article III of the Constitution, the injury must be both particularized and concrete and thus a plaintiff cannot satisfy these demands by alleging a bare procedural violation. Id. at 1550. It went on to explain:

Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation.

Id. at 1549.

In the district court, the defendants raised a claim of subject matter jurisdiction, and noted the then-pending Spokeo case (R. 14, p.15-16), but it has abandoned that issue on appeal and instead focuses only on the issue of sovereign immunity as decided by the district court. Neither party briefed the issues of subject matter jurisdiction raised in Spokeo, nor did either party submit supplemental authority regarding Spokeo. It is certainly true that a court may not decide the merits of a case without subject matter jurisdiction even if the parties have not themselves raised it. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), United States v. Cook County, 167 F.3d 381, 387 (7th Cir. 1999). This form of “ ‘hypothetical jurisdiction’ that enables a court to resolve contested questions of law when its jurisdiction is in doubt” was squarely rejected by the Supreme Court in Steel Co., 523 U.S. at 101, 118 S.Ct. 1003. Shortly thereafter, however, the Supreme Court made clear that its ruling in Steel Co. did not mean that a federal court must consider subject matter jurisdiction over all other threshold matters. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-85, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). To the contrary, “a federal court has leeway to choose among threshold grounds for denying audience to a case on the merits.” Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007), citing Ruhrgas, 526 U.S. at 584-85, 119 S.Ct. 1563.

The issue of Article III constitutional standing after Spokeo, which was decided after all of the briefing and argument had concluded in this case, has not been presented to this court. We could remand this case to the district court to determine whether Meyers has standing in light of Spokeo (or request additional briefing in this court). That would answer the threshold question of whether the plaintiff is properly before this court for purposes of subject matter jurisdiction. However, another threshold issue is easily answered— that is whether the plaintiff can obtain relief from the defendant through this suit. We conclude that the defendant has sovereign immunity and therefore it cannot. The Supreme Court has instructed that a court “may find that concerns of judicial economy and restraint are overriding” and therefore decide other threshold issues before subject matter jurisdiction. See Ruhrgas, 526 U.S. at 586, 119 S.Ct. 1563. It makes little sense for this court to waste the resources of the district court (and the time for remand, .and the parties in briefing) asking it to determine one threshold issue when another is so easily and readily resolved here.

There is one wrinkle to this conclusion: this circuit has clearly, held that the question of sovereign immunity is not a jurisdictional one. See, e.g., Smoke Shop, LLC v. United States, 761 F.3d 779, 782, n.1 (7th Cir. 2014); Blagojevich v. Gates, 519 F.3d 370, 371 (7th Cir. 2008), Parrott v. United States, 536 F.3d 629, 634-35 (7th Cir. 2008). “What sovereign immunity means is that relief against the United States depends on a statute; the question is not the competence of the court to render a binding judgment, but the propriety of interpreting a given statute to allow particular relief.” Parrott, 536 F.3d at 634-35, citing Cook County, 167 F.3d at 389. Sovereign immunity, therefore, is a waiva-ble defense. Sung Park v. Indiana Univ. Sch. of Dentistry, 692 F.3d 828, 830 (7th Cir. 2012). In addition to being a defense, however, sovereign immunity, like qualified immunity, also bears the characteristics of “immunity from trial and the attendant burdens of litigation.” Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 667 (7th Cir. 2012); Herx v. Diocese of Fort Wayne-S. Bend, Inc., 772 F.3d 1085, 1089 (7th Cir. 2014) (Sovereign immunity is part of a class “of cases [that] involve claims of immunity from the travails of a trial and not just from an adverse judgment.”); see also Ashcroft v. Iqbal, 556 U.S. 662, 672, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (qualified immunity “is both a defense to liability and a limited entitlement not to stand trial or face the other burdens of litigation.”),. This is why “an order rejecting a foreign government’s claim of sovereign immunity also meets the criteria for collateral-order appeal.” Herx, 772 F.3d at 1089. Thus, no matter whether we give sovereign immunity the label “jurisdictional” or not, it is nevertheless a “threshold ground[ ] for denying audience to a case on the merits.” Ruhrgas, 526 U.S. at 585, 119 S.Ct. 1563.

In short, at the same time that we exercise our right to “choose among threshold grounds for denying audience to a case on the merits,” Id. we emphasize two issues while doing so. First, the question of sovereign immunity is not one on the merits so we do not run afoul of the Supreme Court’s prohibitions in Steel Company. See Steel Co., 523 U.S. at-93-94, 118 S.Ct. 1003. “[J]urisdiction is vital only if the court proposes to issue a judgment on the merits.” Sinochem Int’l, 549 U.S. at 431, 127 S.Ct. 1184, citing Intec USA, LLC v. Engle, 467 F.3d 1038, 1041 (7th Cir. 2006).

Second, our decision to decide the question of sovereign immunity rather than remand for a determination of standing under Spokeo is not meant to declare that the question of sovereign immunity is a jurisdictional one. “Customarily, a federal court first resolves doubts about its jurisdiction over the subject matter.” Ruhrgas, 526 U.S. at 578, 119 S.Ct. 1563. As the Supreme Court noted, however, there are numerous circumstances in which a court appropriately accords priority to a non-merits threshold inquiry other than subject matter jurisdiction, such as pendent jurisdiction, forum non conveniens, abstention, and others. Sinochem, 549 U.S. at 431, 127 S.Ct. 1184. As it was pending, we. predicted that this would be the Supreme Court’s likely ruling in Sinochem, noting that “there are many reasons for not adjudicating — lack of subject-matter jurisdiction, lack of personal jurisdiction, lack of ripeness, abstention, and forum non conT veniens.” Intec USA, 467 F.3d at 1041 (emphasis in original). And, in fact, the Supreme Court adopted this court’s statement that “jurisdiction is vital only if the court proposes to issue a judgment on the merits.” Sinochem Int’l, 549 U.S. at 431, 127 S.Ct. 1184, citing Intec, 467 F.3d at 1041. In this case, the Supreme Court issued the Spokeo decision after this case was already briefed and argued. The question as to whether the injuries sustained in FACTA cases such as this one are concrete enough to satisfy the standard in Spokeo is still unresolved. Compare Guarisma v. Microsoft Corp., — F.Supp.3d —, —, 2016 WL 4017196, at *3 (S.D. Fla. July 26, 2016) (“violation of the FAC-TA constitutes a concrete injury in and of itself’) and Wood v. J Choo USA, Inc., No. 15CV81487BLOOMVALLE, — F.Supp.3d —, —, 2016 WL 4249953, at *6 (S.D. Fla. Aug. 11, 2016) (noting that printing the violating receipt is, in and of itself, a concrete injury) with Noble v. Nevada Checker CAB Corp., No. 215CV02322RCJVCF, 2016 WL 4432685, at *4 (D. Nev. Aug. 19, 2016) (“Plaintiffs have no standing to complain of the putative technical violations of the statute alleged here, because the putative violations created no ‘concrete’ harm of the type sought to be prevented by Congress, and Plaintiffs have not separately alleged any actual harm.”) A later court might decide it best to address the Article III standing issue first, but because a federal court has leeway to choose among threshold grounds for denying an audience on the merits, and our conclusion that the defendants have sovereign immunity resolves a non-merits threshold matter without further burden on the courts and parties, we choose that route today.

B.

In evaluating the Tribe’s claim of sovereign immunity, we begin with the uncontroversial, two-century-old-concept that Indian tribes have inherent sovereign authority. Michigan v. Bay Mills Indian Comty., — U.S. —, 134 S.Ct. 2024, 2030, 188 L.Ed.2d 1071 (2014). More could be said of the history and philosophy behind this sovereignty as the court described it in Bay Mills, but the upshot is that Indian tribes possess “common-law immunity from suit traditionally enjoyed by sovereign powers. ... Thus unless and until Congress acts, the tribes retain their historic sovereign authority” Id. This is true even for a tribe’s commercial activities. Id. at 2031.

The Supreme Court has instructed time and again that if it is Congress’ intent to abrogate tribal immunity, it must clearly and unequivocally express that purpose. Id. See also, C & L Enters., Inc. v. Citizen Band Potawatomi Tribe of Okla., 532 U.S. 411, 418, 121 S.Ct. 1589, 149 L.Ed.2d 623 (2001); United States v. Dion, 476 U.S. 734, 738-39, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). The list of cases could continue at length. Any ambiguity must be interpreted in favor of sovereign immunity. Dolan v. United States Postal Serv., 546 U.S. 481, 498, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143-44, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980) (“Ambiguities in federal law have been construed generously in order to comport with these traditional notions of sovereignty and with the federal policy of encouraging tribal independence.”). We review the legal question of whether Congress has abrogated tribal sovereign immunity de novo. Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 929 (7th Cir. 2008).

Congress did not specifically list Indian tribes in FACTA’s definition of “person.” See 15 U.S.C. § 1681 a(b). Meyers claims that the definition of “person” which includes “any ... government” is broad enough to include Indian tribes. Perhaps if-Congress were writing on a blank slate, this argument would have more teeth, but Congress has demonstrated that it knows full well how to abrogate tribal immunity. See, e.g., Safe Water Drinking Act, 42 U.S.C. §§ 300j-9(i)(2)(A), 300f(10), 300f(12) (defining person to include municipality and municipality to include an Indian tribe); Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§6901, 6903(13)(A), 6903(15); Fair Debt Collection Procedures Act, 28 U.S.C. §§ 3002(7), 3002(10) (defining “person” to include “a natural person (including an individual Indian) ... or an Indian tribe.”

It is true that Congress need not invoke “magic words” to abrogate immunity. F.A.A. v. Cooper, — U.S. —, 132 S.Ct. 1441, 1448, 182 L.Ed.2d 497 (2012). In fact, in both Blue Legs and Osage Tribal Council, the courts had to take an indirect route to determine that Congress meant to abrogate immunity by finding that the term “person” in the respective statute covered municipalities, and that the term “municipalities,” in turn, was defined to cover “Indian tribes,” See Blue Legs, 867 F.2d at 1097; Osage Tribal Council, 187 F.3d at 1182. As one federal district court noted while surveying the field, however, “there is not one example in all of history where the Supreme Court has found that Congress intended to abrogate tribal sovereign immunity without expressly mentioning Indian tribes somewhere in the statute.” In re Greektown Holdings, LLC, 532 B.R. 680, 693 (E.D. Mich. 2015) (emphasis in original).

There is, however, one example of a circuit court abrogating tribal immunity without an express mention of Indian tribes somewhere in the statute, and Meyers attempts to hitch himself to this wagon. See Krystal Energy Co. v. Navajo Nation, 357 F.3d 1055 (9th Cir. 2004), cert. denied, 543 U.S. 871, 125 S.Ct. 99, 160 L.Ed.2d 118 (2004). In Krystal Energy, the Ninth Circuit found that Congress intended to abrogate Indian immunity under the Bankruptcy Code despite the fact that no definition in the Bankruptcy Code actually lists “Indian tribes” as either a foreign or domestic government. Id. at 1057. The Bankruptcy Code at issue specifically stated that it abrogated sovereign immunity as to a “governmental unit” which it defined to include:

United States; State; Commonwealth; District; Territory; municipality; foreign state; department, agency, or instrumentality of the United States (but not a United States trustee while serving as a trustee in a case under this title), a State, a Commonwealth, a District, a Territory, a municipality, or a foreign state; or other foreign or domestic government.

11 U.S.C.A. § 01(27) (emphasis added). Id. at 1057. The Ninth Circuit concluded that the category of “Indian tribes” is simply a specific member of the group of domestic governments, the immunity of which Congress intended to abrogate. Id. at 1058.

Other federal courts to have considered this question disagree. These other courts hold that because Indian tribes are not specifically named in the Bankruptcy Code, a court would have to infer that Congress intended the phrase “other foreign or domestic government” to encompass tribes and that such an inference is inappropriate. For example, in In re Whitaker, 474 B.R. 687, 695 (8th Cir. BAP 2012), the Bankruptcy Appellate Panel of the Eighth Circuit rejected the Ninth Circuit’s conclusion that Congress can express its intent to abrogate sovereign immunity as to Indian tribes without specifically saying so. Instead, the Whitaker court adhered to the general principle that statutes are to be interpreted for the benefit of Indian tribes and that inferences like the one made by the Ninth Circuit were therefore impermissible. Id. It concluded, as a result, that in enacting the provision of the Bankruptcy Code, Congress did not unequivocally express its intent to abrogate the sovereign immunity of Indian tribes. Id. In the same vein, the district court in In re Greektown holdings, sitting in review of the United States Bankruptcy Court for the Eastern District of Michigan, reasoned as follows:

This Court cannot say with “perfect confidence” that the phrase “other domestic government” unambiguously, clearly, unequivocally and unmistakably refers •to Indian tribes. The Bankruptcy Court’s conclusion does not give appropriate deference to the Supreme Court’s recent admonition that “[t]he special brand of sovereignty the tribes retain— both the nature and its extent — rests in the hands of Congress.” Bay Mills, 134 S.Ct. at 2037. While Congress may not have to utter “magic words,” Supreme Court precedent clearly dictates that it utter words that beyond equivocation or the slightest shred of doubt mean “Indian tribes.” Congress did not do so in sections 106(a) and 101(27) of the Bankruptcy Code and thus the Tribe is entitled to sovereign immunity from suit in the underlying MUFTA proceeding.

In re Greektown Holdings, 532 B.R. at 700-01. The bankruptcy court for the Northern District of Iowa came to the same conclusion, noting that the bankruptcy statute makes no specific mention of Indian tribes, and thus was insufficient to express an unequivocal congressional abrogation of tribal sovereign immunity. In re Nat’l Cattle Cong., 247 B.R. 259, 267 (Bankr. N.D. Iowa 2000).

Of course we are not beholden to the precedent of any of these courts. Nor is the interpretation of the specific definition of “domestic government” in the Bankruptcy Code directly on point for purposes of interpreting a different definition in FACTA. We need not weigh in on the conflict between these courts on how to interpret the breadth the term “other domestic governments” under the Bankruptcy Code, because we conclude that Congress simply has not unequivocally abrogated the sovereign immunity of Indian Tribes under the FACTA provision at issue in this case.

Meyers makes much of this court’s decision in Bormes v. United States, 759 F.3d 793 (7th Cir. 2014), in which we held that, in enacting the Fair Credit Reporting Act, Congress abrogated the United States’ sovereign immunity. We reasoned that the Act declares that any “person” who willfully or negligently fails to comply with the Fair Credit Reporting Act is liable for damages, and then defines “person” as “any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity.” Bormes, 759 F.3d at 795, citing 15 U.S.C. §§ 1681n(a), 1681o(a), 1681a(b). Because there is no debate that the United States is a government, we held, the answer was plain. Bormes, 759 F.3d at 795. In Bormes, we concluded that, “[b]y authorizing monetary relief against every kind of government, the United States has waived its sovereign immunity.” Id. (emphasis in original). Meyers would like us to interpret this statement to mean that “every government” must also include Indian tribes. As the district court noted, however, if there was any implication about other sovereigns, it was clearly dicta. In fact, the government conceded that it was a “person” for purposes of the Act so the court had no reason to engage in a full analysis of the scope of the term “any government.” Id. The district court hit the nail on the head when it explained that:

It is one thing to say “any government” means “the United States.” That' is an entirely natural reading of “any government.” But it’s another thing to say “any government” means “Indian Tribes.” Against the long-held tradition of tribal immunity ... “any government”' is equivocal in this regard. Moreover, it is one thing to read “the United States” when Congress says “government.” But it would be quite another, given that ambiguities in statutes are to be resolved in favor of tribal immunity, to read “Indian tribes” when Congress says “government.”

D. Ct. Order at 4 (R. 23, p.4) (emphasis in original).

Meyers argues that the district court dismissed his claim based on its erroneous conclusion that Indian tribes are not governments. He then dedicates many pages to arguing that Indian Tribes are indeed governments. Meyers misses the point. The district court did not dismiss his claim because it concluded that Indian tribes are not governments. It dismissed his claim because it could not find a clear, unequivocal statement in FACTA that Congress meant to abrogate the sovereign immunity of Indian Tribes. Meyers has lost sight of the real question in this sovereign immunity case — whether an Indian tribe can claim immunity from suit. The answer to this question must be “yes” unless Congress has told us in no uncertain terms that it is “no.” Any ambiguity must be resolved in favor of immunity. Cooper, 132 S.Ct. at 1448. Abrogation of tribal sovereign immunity may not be implied. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). Of course Meyers wants us to focus on whether the Oneida Tribe is a government so that we might shoehorn it into FACTA’s statement that defines liable parties to include “any government.” See Bormes, 759 F.3d at 795. But when it comes to sovereign immunity, shoehorning is precisely what we cannot do. Congress’ words must fit like a glove in their un-equivocality. See Bay Mills, 134 S.Ct. at 2031; C & L Enters., 532 U.S. at 418, 121 S.Ct. 1589. It must be said with “perfect confidence” that Congress intended to abrogate sovereign immunity and “imperfect confidence will not suffice.” Dellmuth v. Muth, 491 U.S. 223, 231, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989), superseded by statute on other grounds as recognized in United States v. Nordic Vill. Inc., 503 U.S. 30, 45, n.14, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). Congress has demonstrated that it knows how to unequivocally abrogate immunity for Indian Tribes. It did not do so in FACTA.

This leaves one last loose end. Meyers argues that the Fair Credit Reporting Act is a statute of general applicability and thus is assumed to apply to Indian tribes. See Smart v. State Farm Ins. Co., 868 F.2d 929, 932 (7th Cir. 1989), superseded by statute on other grounds, Pub. L. No. 109-280, § 906(a)(2)(A), 120 Stat. 780, 1051 (2006), as recognized in Bolssen v. Unum Life Ins. Co. of Am., 629 F.Supp.2d 878, 881 (E.D. Wis. 2009) (“when Congress enacts a statute of general applicability, the statute reaches everyone within federal jurisdiction not specifically excluded, including Indians and Tribes.”). As the district court correctly pointed out, “the question here is not whether the Tribe is subject to FCRA; it is whether Plaintiff can sue the Tribe for violating FCRA.” D. Ct. Order at 6 (R. 23, p.6). “[W]hether an Indian tribe is subject to a statute and whether the tribe may be sued for violating the statute are two entirely different questions.” Florida Paraplegic, Ass’n, Inc. v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126, 1130 (11th Cir. 1999) (emphasis in original); see also Kiowa Tribe v. Manufacturing Tech., Inc., 523 U.S. 751, 755, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998) (“There is a difference between the right to demand compliance with state laws and the means available to enforce them.”); In re Nat'l Cattle Cong., 247 B.R. at 265.

The Tribe has sovereign immunity and thus the district court’s grant of the Tribe’s motion to dismiss is AFFIRMED.

      . Unless otherwise noted, references are to the record in the district court.

      . In another pending matter by this same plaintiff before this court, Meyers has alleged an almost identical violation of FACTA against a different defendant. The parties in that matter did brief the issue of standing after the Supreme Court's decision in Spokeo, Inc. v. Robins, — U.S. —, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016). See Meyers v. Nicolet Restaurant, DePere, LLC, No. 16-2075, Appellate Record No. 8, 11, 13. And the parties have presented letters of supplemental authority informing the court of recently decided cases which cite Spokeo. Id. at 15, 16, & 17.

      . Other courts disagree. See, e.g., Black v. Wigington, 811 F.3d 1259, 1270 (11th Cir. 2016); Patchak v. Jewell, No. 15-5200, 828 F.3d 995, 1007-08, 2016 WL 3854056, at *8 (D.C. Cir. July 15, 2016); Puckett v. Lexington-Fayette Urban Cty. Gov’t, No. 15-097, 833 F.3d 590, 598-600, 2016 WL 4269802, at *3 (6th Cir. Aug. 15, 2016); E.F.W. V. St. Stephen's Indian High Sch., 264 F.3d 1297, 1302 (10th Cir. 2001). It is not entirely clear, however, whether the disagreement in each case is a matter of substance or labels. See note 4, infra.

      . See Radha A. Pathak, Statutory Standing and the Tyranny of Labels, 62 Okla. L. Rev. 89 (2009).

      . See Osage Tribal Council ex rel. Osage Tribe of Indians v. U.S. Dep’t of Labor, 187 F.3d 1174, 1180-81 (10th Cir. 1999) ("the language of the Safe Drinking Water Act contains a clear and explicit waiver of tribal immunity.”).

      . See Blue Legs v. U.S. Bureau of Indian Affairs, 867 F.2d 1094, 1097 (8th Cir. 1989) (“It thus seems clear that the text and history of the RCRA clearly indicates congressional intent to abrogate the Tribe's sovereign immunity with respect to violations of the RCRA.”).

        . See United States v. Weddell, 12 F.Supp.2d 999, 1000 (D.S.D. 1998), aff'd, 187 F.3d 645 (8th Cir. 1999) (finding "the clear language supports a conclusion that Congress waived the sovereign immunity of Indian tribes.”).

      . Meyers implores us to give extra weight to the Ninth Circuit’s holding because it has more experience with issues involving Indian Tribes. This is a frivolous imploration. Courts of Appeals hear cases on everything from bankruptcy to maritime law to ERISA to diversity suits about matters of state law. It is the job of the Court of Appeals to become expert on any area of law before it. The Ninth Circuit has no more access to legal research on Indian tribe immunity than any other court.


author: BAUER, Circuit Judge. POSNER, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Franklin BROWN, Defendant-Appellant.
    No. 16-1216
    United States Court of Appeals, Seventh Circuit.
    Argued August 9, 2016
    Decided September 8, 2016

      Renai Scherri Rodney, for Plaintiff-Ap-pellee.
    Jeremy Gordon, for Defendant-Appellant.
    Before BAUER, POSNER, and SYKES, Circuit Judges.
   BAUER, Circuit Judge.

Franklin Brown seeks to reduce his 292-month drug-distribution sentence based on the retroactive application of Amendment 782 to the federal sentencing guidelines. See 18 U.S.C. § 3582(c). The district court denied the motion, determining that Brown’s .offense level was unaffected by the amendment. We affirm.

Between 2003 and 2008, Brown purchased and distributed millions of dollar’s worth of cocaine in the Chicago area. United States v. Brown, 726 F.3d 993, 995 (7th Cir. 2013). He eventually was arrested by federal authorities and convicted by a jury of conspiring to distribute at least five kilograms of cocaine, see 21 U.S.C. §§ 846, 841(a)(1). Brown, 726 F.3d at 995-96.

At sentencing the parties disputed the quantity of cocaine for which Brown'was responsible. Brown argued that he should be held responsible only for five kilograms, as the jury had found, because, he asserted, that was the maximum established by reliable evidence. The government sought to hold him responsible for nearly 3000 kilograms, based on the trial testimony of three cooperating witnesses about the number of Brown’s transactions and the volume of drugs sold in each. The district court determined without elaboration that 150 kilograms were “within the zone of this defendant’s responsibility,” and that this quantity had been “proven and probably proven twice over.” The quantity corresponded to a base offense level of 38 — the top base offense level provided in the drug quantity table. See U.S.S.G. § 2D1.1(c)(1) (2011) (base offense level of 38 applies to “150 KG or more of Cocaine”). The court added, “I think if we had a level 40 or a level 42 on top of that, it probably makes that figure, too.” Combined with a criminal history category of III, Brown’s total offense level of 38 (he received no adjustments) yielded a guidelines range of 292 to 360 months. The court sentenced him to the bottom of that range. Brown appealed his conviction — but not the court’s drug quantity calculation— and we affirmed. Brown, 726 F.3d 993.

Three years after he was sentenced, Brown filed a motion under 18 U.S.C. § 3582(c)(2) to reduce his sentence under Amendment 782. That amendment raised the amount of cocaine necessary to qualify for a base offense level of 38 from 150 kilograms to 450 kilograms. See U.S.S.G. § 1B1.10(d) & Supp. to App. C, amends. 782, 788 (2014). The government maintained that Brown’s base offense level was unchanged by the amendment because he was responsible for well over 450 kilograms based on witness testimony about his drug transactions. In reply Brown noted that the court had not found him accountable for a quantity more specific than 150 kilograms or more of cocaine, and asked the court to make a finding about the actual drug weight in order to determine whether he qualified for a sentence reduction under Amendment 782. If the court found him responsible for less than 450 kilograms, the amended guideline range would be 235 to 293 months (down from 292 to 360) and Brown asked the court to resentence him to the 240 month statutory minimum.

The district court declined to disturb its guideline calculation and denied the motion:

The problem for Brown is that his offense level is not, and has not, been lowered. He has an offense level of 38, and this level applies under both the older and the newer revised guidelines. The continuing existence of the level of 38 is the result of the very large quantities of cocaine involved. I found that Brown was clearly responsible for 150 kilograms of cocaine. Indeed, I thought the quantities might have been higher, but a level 40 or 42 was appropriate as well if the 2012 guidelines provided for levels of 40 to 42.1 thought there was no way to go further than level 38. There was evidence that more than 450 kilograms was part of his responsibility.

As an alternative basis for denying Brown’s motion, the court added that he was sentenced under the career offender guideline and therefore ineligible for any sentence reduction under the amendment.

Brown argues that the district court erred in concluding that Amendment 782 does not lower his offense level. He contends that the district court failed to make a drug-quantity finding more specific than his being responsible for “150 kilograms or more” of cocaine, and as a result could not have evaluated whether he was eligible for a reduction under § 3582(c)(2).

When a retroactive amendment to the guidelines alters the relevant drug-quantity thresholds for determining the base offense level, a district court in ruling on a § 3582(c) motion may need to make new findings — findings that are supported by the record and not inconsistent with those made in the original sentencing determination. United States v. Hall, 600 F.3d 872, 876 (7th Cir. 2010).

The district court’s order is cursory but it did not commit reversible error in denying Brown’s motion. The court denied Brown’s motion because the amendment did not lower his offense level, noting that “there was evidence that more than 450 kilograms was part of his responsibility.” This statement — along with the court’s comment at sentencing that the very large quantities of cocaine warranted a higher base offense level than what was authorized under the guidelines — reflects the court’s determination that Brown was responsible for 450 kilograms or more of cocaine. While the district court could have expressed its drug-quantity finding more clearly, remand is not necessary because the outcome of such proceedings would be clear and remand futile. See United States v. Hallahan, 756 F.3d 962, 971 (7th Cir. 2014); United States v. Purchess, 107 F.3d 1261, 1269 (7th Cir. 1997). As the government points out, the record confirms that Brown was responsible for 450 kilograms: witnesses testified to delivering thousands of kilograms of cocaine and receiving millions of dollars as payments. Brown, 726 F.3d at 996.

We close by noting that the court’s alternative basis for denying the motion— that Brown was sentenced under the career offender guideline — was incorrect. But because the court properly concluded Brown’s offense level was unchanged by the amendment, this error was harmless. See United States v. Clayton, 811 F.3d 918, 921 (7th Cir. 2016) (applying harmless error to decision on § 3582(c)(2) motion).

AFFIRMED.

POSNER, Circuit Judge,

dissenting.

In 2012 the defendant was sentenced to 292 months in prison after being convicted of conspiring to distribute five kilograms of cocaine. At sentencing the government argued that he had sold not five but 2942 kilograms; the government based the argument on testimony from three cooperating witnesses about the number of the defendant’s sales and the amount of drugs in each sale. The district judge stated summarily that 150 kilograms were “within the zone of this defendant’s responsibility,” this quantity having been “proven and probably proven twice over.” That determination, coupled with the defendant’s criminal history, made his base offense level 38, yielding a guidelines range of 292 to 365 months; the sentence imposed was thus at the bottom of the range.

Judgment and sentence were affirmed in United States v. Brown, 726 F.3d 993, 995 (7th Cir. 2013). But three years after the defendant was sentenced, he filed a motion to reduce his sentence in reliance on Amendment 782 to the guidelines, which had raised the amount of cocaine required for a base offense level of 38 from 150 to 450 kilograms. He pointed out that the judge had not found him accountable for any quantity of cocaine other than 150 kilograms, and he asked the judge to make a finding about the actual drug weight in order to determine whether his guideline range had been reduced by Amendment 782. For unless the weight was at least 450 kilograms, his guideline range would fall from 292 to 365 months to 235 to 293 months (actually 240 months, the statutory minimum, to 293). He asked that he be resentenced to 240 months. The judge refused, adhering to his original sentence of 292 months, primarily on the ground that “there was evidence that more than 450 kilograms was part of his responsibility.” But he offered no substantiation for this conclusion. He described neither the evidence he relied on to support that finding nor the method he’d used to calculate the weight of the drugs from that evidence.

It would be one thing had the cooperating witnesses’ testimony about the tons of cocaine that the defendant allegedly had distributed been uncontradicted, but it wasn’t; the defendant’s lawyer argued to the judge that “when you look at ... the two [cooperating witnesses] that had testified to giving drugs to my client, there’s, really only one deal that had any specifics, and that, was ... the last deal of the conspiracy' and that was 57 kilos.” The judge did not engage the lawyers, or indeed so much as mention their argument or the evidence concerning those two cooperating witnesses on which the argument rested. As a result we have no indication of the judge’s thought process in finding the defendant responsible for more than 450 kilograms of cocaine.

A sentencing judge must “provide ‘some description of the reliable evidence used to support the finding and the method used to calculate it,’ ” United States v. Garrett, 757 F.3d 560, 572-73 (7th Cir. 2014), quoting United States v. Claybrooks, 729 F.3d 699, 707 (7th Cir. 2013). These cases involve original sentencing, but the principle they enunciate is, as held in such cases as United States v. Goings, 407 Fed.Appx. 967, 969 (7th Cir. 2011), and United States v. Marion, 590 F.3d 475, 477-78 (7th Cir. 2009), equally applicable to a resentencing, as in this case.

I am mindful that the judge offered an alternative, unrelated basis for denying the defendant’s motion: that the defendant had been properly sentenced under a different guideline, the guideline for career offenders. But as the government concedes, the defendant was not sentenced under that guideline. So the judge had no alternative to the 450 kilogram finding as a basis for the defendant’s motion. But he didn’t know that, and for all we know his mistaken belief in an alternative ground for adhering to his original sentence made him all the more casual in estimating drug levels.