author: ROVNER, Circuit Judge.

text:
    REBIRTH CHRISTIAN ACADEMY DAYCARE, INC., Plaintiff-Appellant, v. Melanie BRIZZI and Michael Gargano, Defendants-Appellees.
    No. 15-2220
    United States Court of Appeals, Seventh Circuit.
    Argued January 5, 2016
    Decided August 30, 2016

      Gavin M. Rose, Jan Peter Kubicki-Mensz, ACLU of Indiana, Indianapolis, IN, for Plaintiff-Appellant.
    Aaron T. Craft, David L. Steiner, Office of the Attorney General, Indianapolis, IN, for Defendants-Appellees.
    Before WOOD, Chief Judge, and KANNE and ROYNER, Circuit Judges.
   ROVNER, Circuit Judge.

Rebirth Christian Academy Daycare, an Indiana non-profit corporation, ran a child care ministry — a “child care operated by a church or religious ministry that is a religious organization exempt from federal income taxation.” Ind. Code § 12-7-2-28.8. A state agency revoked Rebirth’s registration after an inspector concluded that the organization had violated several statutory and regulatory provisions governing registered child care ministries. Rebirth sued state officials for damages and injunctive relief under 42 U.S.C. § 1983, claiming that they had violated the due-process clause of the Fourteenth Amendment by revoking its registration without providing it with an opportunity to be heard. The district court dismissed Rebirth’s individual-capacity claims, concluding that qualified immunity protected the defendants from liability for civil damages because they had not violated clearly established law. After the parties developed an evidentiary record on the official-capacity claims, Rebirth ultimately prevailed on its claims for injunc-tive relief. It now challenges the district court’s dismissal of its claims for damages against the defendants sued in their individual capacities. We conclude that, based on the allegations in the complaint, the defendants were not entitled to qualified immunity because they violated clearly established law: the complaint adequately alleges that they deprived Rebirth of a property interest without first providing an opportunity for some type of hearing. Accordingly, we reinstate Rebirth’s individual-capacity claims and remand for further proceedings.

I.

Child care ministries are extensively regulated by the State of Indiana — specifically, by the Bureau of Child Care (a sub-agency of the Division of Family Resources, which is a branch of the Indiana Family and Social Services Administration, see Ind. Code §§12-13-6-1, 12-13-1-1). Indiana statutes provide that, to operate a child care ministry lawfully, a religious organization must either obtain a license from or register with the Bureau. Id. §§ 12-17.2-6-1 to-2.

A religious organization may procure a license to operate a child care ministry as either a “child care home” (a child care located in a residential building, Ind. Code § 12-7-2-28.6) or a “child care center” (a child care located in a nonresidential building, id. § 12-7-2-28.4). To secure either type of license, a provider must submit an applicátion with supporting documents, id. §§ 12-17.2-4-3, 12-17.2-5-3; undergo site visits and inspections, id. §§ 12-17.2-4-7, 12-17.2-4-15 to -16, 12-17.2-5-6,12-17.2-5-15 to -16; and get re-licensed every two years, id. §§ 12-17.2-4-12(a), 12-17.2-5-12(a).

To operate a registered (as opposed to licensed) child care ministry lawfully, a religious organization must submit an application t.o the Bureau, see Indiana Family & Social Services Administration, The ABC’s of a Child Care Business, at 7-8 (Nov. 2010), available at http://www.in.gov/ fssa/files/5236_The_ABCs_of_a_Child_ CareJBusiness.pdf; pay a registration fee of $50, Ind. Code § 12-17.2-6-12; submit an application to Indiana’s Department of Homeland Security for the state fire marshal (paying another $50), id. § 12-17.2-6-13; ABC’s of a Child Care Business, supra, at 8; and pass inspections by both the State Fire Division Inspector and the Bureau’s inspector, Ind. Code §§ 12-17.2-6-4 to -5. (A registered child care ministry must also submit to semiannual inspections, id. § 12-17.2-6-4, and re-register annually, ABC’s of a Child Care Business, supra, at 8.) A religious organization that satisfies these requirements is issued a certificate of registration showing that it is authorized to operate a child care ministry without a license.

The state may revoke a child care ministry’s certificate of registration only “if the operator or an employee of the child care ministry violates” the statutes or regulations governing registered ministries. Ind. Code § 12-17.2-6-9. A license to operate a child care ministry likewise may be revoked only for a violation of the law. Id. §§ 12-17.2-4-33, 12-17.2-5-33. State law affords a procedure for administratively appealing the revocation of a license (and allows a licensed child-care provider to continue operating while such an appeal is pending). See id. §§ 12-17.2-4-33(b)(l), 12-17.2-4-19 to -22, 12-17.2-5-33(b)(l), 12-17.2-5-19 to -22. But Indiana’s statutory scheme does not give providers an administrative opportunity to challenge the Bureau’s decision to revoke a certificate of registration.

Rebirth obtained a certificate of registration and began operating a child care ministry in late 2009. In mid-2012, a representative of the Bureau conducted an unannounced inspection of the ministry. After the inspection, the Bureau gave Rebirth a document titled “Plan of Improvement,” which stated that Rebirth had violated statutes and regulations governing registered child care ministries. The Plan of Improvement alleged eight violations; it also directed Rebirth to cure the purported infractions and submit proof within ten days that it had done so. The document did not, however, offer any procedure for challenging the Bureau’s findings.

Rebirth believed that it had not committed any of the violations identified by the Bureau and thus did not submit any documentation showing that it had cured the violations alleged in the Plan of Improvement. Shortly after the deadline for submitting the documentation had passed, Melanie Brizzi, the head of the Bureau, sent Rebirth a letter notifying the organization that the Bureau would terminate Rebirth’s certificate of registration in two weeks because of Rebirth’s failure to provide evidence that it had cured the purported violations. Like the Plan, the notice of termination did not give Rebirth a chance to challenge the Bureau’s findings or its decision to terminate Rebirth’s registration.

Rebirth nonetheless sent the Bureau a letter requesting an opportunity to appeal administratively the agency’s impending termination of the registration. Brizzi responded with a letter of her own, telling Rebirth that “[t]he Indiana General Assembly did not provide for an administrative appeal process for the loss of’ a certificate of registration and that therefore the Bureau would not grant “an administrative appeal review process before the Division of Family Resources.” The Bureau terminated Rebirth’s registration without any hearing, and Rebirth ceased operating the child care ministry.

The following month, Rebirth filed a lawsuit claiming that the Bureau had violated its right to due process under the Fourteenth Amendment by terminating its registration without first providing Rebirth with an opportunity to challenge the termination. In Rebirth’s first amended complaint (the complaint relevant to this appeal), it named as defendants Brizzi and Michael Gargano, who was the Secretary of the Indiana Family and Social Services Administration and who oversaw the Bureau when it terminated Rebirth’s registration. Rebirth sued the defendants in both their individual and official capacities, seeking damages and injunctive relief.

Early in the litigation, the district judge granted the defendants’ motion to dismiss the individual-capacity claims on the ground of qualified immunity. The judge noted that the procedures of the Family and Social Services Administration do not require an administrative appeals process and reasoned that, in light of this fact, Brizzi and Gargano did not act contrary to clearly established law when they failed to provide Rebirth with an administrative hearing or “to otherwise take unilateral action to change” the agency’s procedures.

Rebirth’s official-capacity claims went forward. After the parties cross-moved for summary judgment, the district judge entered judgment for Rebirth on the official-capacity claims, reasoning that Rebirth was deprived of a property interest without due process. See Rebirth Christian Acad. Daycare, Inc. v. Brizzi, 96 F.Supp.3d 835 (S.D. Ind. 2015). The judge explained that when “state law gives people a benefit and creates a system of non-discretionary rules governing revocation or renewal of that benefit, the recipients have a secure and durable property right.” Id. at 845 (quoting Cornelius v. LaCroix, 838 F.2d 207, 210 (7th Cir. 1988)). And, the judge continued, because “Indiana law provides that child care ministries are entitled” to a certificate of registration “as long as they are in compliance with” the relevant statutes and regulations, Rebirth “has a property interest in its certificate of registration as an unlicensed child care ministry to which due process protections apply.” Id. The district judge concluded that the process provided by the agency— notice provided by the Plan of Improvement and only post-deprivation judicial remedies proposed by the defendants — “do not provide a level of process that comports with the due process requirements.” Id. at 849. The judge explained that the Plan of Improvement did not provide adequate process because it afforded Rebirth an opportunity “only to correct alleged violations, but not challenge them.” Id. at 850. Although an informal challenge by Rebirth to the findings in the Plan might be resolved by the individual inspector, “[s]ueh an ad hoc and unpredictable process can hardly be considered to comport with procedural due process standards.” Id. The district judge also determined that the post-deprivation judicial remedy identified by the defendants (an action in tort) did not provide due process because no tort claim exists under Indiana law that would provide relief to Rebirth. Id. at 851-52.

In the order granting Rebirth’s motion for summary judgment, the district judge directed the parties to confer and “reach an agreement regarding administrative procedures that meet the requirements” of due process. Rebirth, 96 F.Supp.3d at 852. After discussions, the parties proposed that the district judge enter a permanent injunction ordering the Family and Social Services Administration to provide registered child care ministries with “the same administrative appeal process as provided to licensed child care centers for enforcement actions.” The district judge entered the permanent injunction proposed by the parties.

II.

On appeal, Rebirth challenges the district court’s dismissal of the individual-capacity claims against Brizzi and Garga-no. Rebirth maintains that the defendants are not entitled to qualified immunity because, at the time its registration was terminated, the law clearly established that Rebirth had a property interest in its registration as a child care ministry and' that the defendants could not deprive Rebirth of this property interest without first allowing it an opportunity to be heard.

Rebirth can overcome the qualified-immunity defense (which protects government officials from liability from civil damages) only if we conclude (1) that the defendants violated a constitutional right and (2) that the constitutional right was clearly established at the time of the violation. See Wood v. Moss, — U.S. -, 134 S.Ct. 2056, 2066-67, 188 L.Ed.2d 1039 (2014); Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011); Novoselsky v. Brown, 822 F.3d 342, 354 (7th Cir. 2016). The appellees (Brizzi and Gargano) accept the district court’s ruling that they violated Rebirth’s constitutional right. Thus, we address only the question whether the constitutional right at issue was clearly established at the time of the violation.

Rebirth’s due-process claim requires a two-step analysis: “The first step requires us to determine whether the plaintiff has been deprived of a protected interest; the second requires a determination of what process is due.” Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); Forbes v. Trigg, 976 F.2d 308, 315 (7th Cir. 1992)); see Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989); Barrows v. Wiley, 478 F.3d 776, 780 (7th Cir. 2007). We therefore begin with the question whether the law clearly established that Rebirth had a property interest in its registration as a child care ministry. We conclude that the answer is yes.

This question is not a close one, as the law on this issue has been clearly established for decades. As we said almost thirty years ago (and have since repeated), “[wjhere state law gives people a benefit and creates a system of nondiscretionary rules governing revocation or renewal of that benefit, the recipients have a secure and durable property right, a legitimate claim of entitlement.” Cornelius v. La-Croix, 838 F.2d 207, 210 (7th Cir. 1988); see Kvapil v. Chippewa Cty., Wis., 752 F.3d 708, 713 (7th Cir. 2014); Barrows, 478 F.3d at 780; Talley v. Lane, 13 F.3d 1031, 1035 (7th Cir. 1994); Cont'l Training Servs., Inc. v. Cavazos, 893 F.2d 877, 893 (7th Cir. 1990). Here, the state did exactly that: it gave Rebirth a benefit — a certificate of registration entitling it to operate a child care ministry — and created a system of rules defining when the state could revoke that entitlement. See Ind. Code § 12-17.2-6-9 (providing that child care ministry’s certificate of registration may be revoked only “if the operator or an employee of the child care ministry violates” the statutes or regulations governing registered ministries). Thus, any reasonable government official would have understood that Rebirth had a property interest in its registration as a child care ministry. See Taylor v. Barkes, — U.S.-, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015) (“To be clearly established, a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” (quoting Reichle v. Howards, — U.S.-, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012))).

Numerous Supreme Court decisions reinforce our conclusion that, because Rebirth was entitled to retain its registration unless it violated state law, Rebirth’s ability to operate a registered child care ministry was a clearly protected property right at the time that the defendants revoked its registration. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (holding that classified civil service employees had property rights in continued employment where state statute provided that such employees could be dismissed only for cause); Barry v. Barchi, 443 U.S., 55, 64, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979) (holding that trainer had property interest in horse-training license where state law provided that license could be suspended “only upon a satisfactory showing that his horse had been drugged and that he was at least negligent in failing to prevent the drugging”); Mackey v. Montrym, 443 U.S. 1, 10, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979) (“[Suspension of a driver’s license for statutorily defined cause implicates a proteeti-ble property interest....”); Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (recognizing property interest in welfare benefits because “[s]uch benefits are a matter of statutory entitlement for persons qualified to receive them”).

These decisions thus demonstrate that the question whether Rebirth had a protected property interest in its registration was beyond debate. See al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074 (explaining that case directly on point is not required for constitutional right to be clearly established; rather, “existing precedent must have placed the statutqry or constitutional question beyond debate”); Estate of Escobedo v. Bender, 600 F.3d 770, 781 (7th Cir. 2010) (“[E]ven where there are notable factual distinctions between the precedents relied on and the case before the Court, if the prior decisions gave reasonable warning that the conduct at issue violated constitutional rights they can demonstrate clearly established law.”); McGreal v. Ostrov, 368 F.3d 657, 683 (7th Cir. 2004) (“The salient question is not whether there is a prior case on all fours with the current claim but whether the state of the law at the relevant time gave the defendants fair warning that their treatment of the plaintiff was unconstitutional.”).

The appellees respond that Rebirth’s property interest was not clearly established because the registration is “not a license but [is] an exemption from licen-sure.” But an argument over semantics does not get the appellees anywhere because, when determining the existence of a property interest, “we must look behind labels.” Reed v. Vill. of Shorewood, 704 F.2d 943, 948 (7th Cir. 1983). “A license is nothing but a promise by the issuing body not to interfere in business conducted according to its terms.” Nat’l Paint & Coatings Ass’n v. City of Chicago, 45 F.3d 1124, 1129 (7th Cir. 1995) (citing River Park, Inc. v. City of Highland Park, 23 F.3d 164, 166 (7th Cir. 1994); Toulabi v. United States, 875 F.2d 122 (7th Cir. 1989)). Thus, the certificate of registration that Rebirth obtained was a de facto license; the appellees’ referring to it as an “exemption” does not persuade us to treat it otherwise.

The appellees also maintain that “[t]he fact that a reasonable official would know that a license to operate is a property interest does not mean that the official would know that an exemption from the licensure requirement is also a property interest.” They contend that “[i]t is not unreasonable for a public official to believe that an exemption from licensure differs from a license, because even if the exemption is lost the entity can continue to operate if it obtains a license.” This argument misses the point. Even if Rebirth could have requested a license after the defendants had revoked its registration, a reasonable official would nonetheless have understood that Rebirth had a property interest in the uninterrupted registration of its child care ministry. If anything, the purported distinction between a license and registration goes only to the value of a registration, not its status as a property interest; as the appellees point out in their brief, “[t]he requirements for registering and operating an unlicensed child care ministry are less extensive than the requirements for operating a licensed child care center or home.”

The only question that remains is whether the manner in which the appel-lees deprived Rebirth of its property interest violated clearly established law. Here, too, we- conclude that the answer is yes. “An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.’ ” Loudermill, 470 U.S. at 542, 105 S.Ct. 1487 (quoting Mullane v. Cent. Hanover Bank & Trust Co. 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). It has long been clearly established that the “root requirement” of due process is that a person “be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.” Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); see Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (explaining that the Constitution usually “requires some kind of a hearing before the State deprives a person of liberty or property”); Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 570 n.7, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (stating that “deprivation of a protected interest need not be preceded by opportunity for some kind of hearing” only in “rare and extraordinary situations”); Simmons v. Gillespie, 712 F.3d 1041, 1044 (7th Cir. 2013) (“The due process clause of the fourteenth amendment does require a state to afford an opportunity for a hearing before depriving someone of a property right created by state law.”); Somerset House, Inc. v. Turnock, 900 F.2d 1012, 1015 (7th-Cir. 1990) (“Generally, a pre-deprivation hearing is required, but the formality and procedural requisites for a hearing can vary, depending on the importance of the interests involved and the nature of the subsequent proceedings.”).

Rebirth was clearly entitled to a pre-deprivation opportunity to challenge the proposed loss of its registration. We agree with the district judge’s assessment — unchallenged by the appellees— “that the interest at stake here, to wit, [Rebirth’s] interest in the continued operation of its child care business, is an important one.” Rebirth, 96 F.Supp.3d at 847. Moreover, the appellees have not identified any governmental interest that might have arguably justified their failure to provide Rebirth with an opportunity to be heard before depriving it of this significant property interest. The fact that the Bureau did not revoke the registration until two weeks after it gave Rebirth notice of the revocation further undermines any potential argument that the Bureau was responding to some perceived emergency necessitating that it quickly rescind Rebirth’s registration without first giving it a chance to challenge the Bureau’s allegations. We therefore conclude that, by revoking Rebirth’s registration without first providing the organization with an opportunity to be heard, the appellees violated clearly established law and are not entitled to qualified immunity.

The appellees argue that the proper inquiry is not whether Rebirth had a clearly established right to be heard before its registration was revoked but whether it had a clearly established right to an administrative appeal of the type available to license holders. We reject this argument. Contrary to the appellees’ assertions, this is not a case about “what amount of process is due.” Rather, this is a case in which due process clearly required some pre-deprivation opportunity to be heard and the appellees provided no opportunity for a hearing, though nothing prevented them from doing so.

The appellees offer several further arguments, but none is persuasive. First, they argue that they gave Rebirth “some form of process” — namely, notice of the termination. But notice is just one component of due process; it is not a substitute for an opportunity to be heard. Second, the ap-pellees contend, as they did in the district court, that Rebirth “had an opportunity to correct the deficiencies by submitting its plan of improvement.” As the district judge explained, however, the Plan of Improvement gave Rebirth an opportunity only to correct alleged violations, not to challenge them at a hearing. Third, the appellees continue to insist that Rebirth “had an opportunity for judicial review.” But even assuming this to be the case, post-deprivation judicial review is not equivalent to a pre-deprivation hearing, and the allegations in the complaint identify no possible justification for the appel-lees’ postponing Rebirth’s hearing until after it lost its ability to operate.

Finally, the appellees offer a fallback position. They argue that we can affirm the district court’s dismissal of the individual-capacity claims on the alternative ground that Rebirth’s complaint contains no plausible allegations that Brizzi and Gargano are “personally responsible for the due process violation.” (Recall that the district judge dismissed the individual-capacity claims on the pleadings.) Specifically, they contend that Rebirth advances only “an incorrect legal conclusion” — not a factual allegation — when it states in its complaint that Brizzi and Gargano are personally responsible for the due-process violation because they had the “authority to create an administrative appeal process.” The appellees note that the Indiana statute does not provide for an administrative appeal and'thus, they maintain, “[responsibility for not giving Rebirth an administrative appeal ... lays with the Indiana General Assembly,” which is immune from suit.

Like . the appellees’ other arguments, this one lacks merit. As an initial matter, although the appellees are correct that no statutory provision requires an administrative appeal before the revocation of a registration, this does not mean that Brizzi and Gargano are excused from providing Rebirth with due process. True, the statutory scheme did not require that registered child care ministries receive an administrative appeal of the type afforded to license-holders, but neither did it prohibit the appellees from providing registered child care. ministries with some type of pre-deprivation hearing. The issue then is whether Rebirth adequately alleged that the appellees personally decided to withhold from Rebirth the pre-deprivation hearing that they could have provided.

We conclude that Rebirth’s complaint plausibly alleges that Brizzi and Gargano were personally involved in depriving Rebirth of an opportunity for a pre-deprivation hearing, and thus the complaint satisfies the requirements of notice pleading. See Bank of Am., N.A. v. Knight, 725 F.3d 815, 818 (7th Cir. 2013) (explaining that “[t]he Rules of Civil Procedure set up a system of notice pleading,” under which a “defendant is entitled to know what he or she did that is asserted to be wrongful”); Alexander v. United States, 721 F.3d 418, 422 (7th Cir. 2013) (“[A] complaint must contain facts that are sufficient, when accepted as true, to ‘state a claim to relief that is plausible on its face.’ ... [T]he plausibility requirement demands only that a plaintiff provide sufficient detail ‘to present a story that holds together.’ ” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010))). The letters that the Bureau sent to Rebirth are attached to the complaint and demonstrate that, as the head of the Bureau of Child Care, Brizzi personally notified Rebirth that the Bureau would terminate its registration and, when Rebirth requested ' a hearing, told the organization that her Bureau would provide none. These letters, coupled with the allegations in the complaint, plausibly allege that Brizzi was personally involved in the constitutional violation. See Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013) (“[W]hen a plaintiff attaches to the complaint a document that qualifies as a written instrument, and her complaint references and relies upon that document in asserting her claim, the contents of that document become part of the complaint and may be considered as such when the court decides a motion attacking the sufficiency of the complaint.”).

Although the allegations against Garga-no are less specific, the complaint permits an inference that he was also personally responsible for the denial of due process. As Secretary of the Family and Social Services Administration, Gargano was empowered to “[establish and implement the policies and procedures necessary to implement” the statutes governing child care ministries. Ind. Code § 12-8-1.5-7. He had the statutory authority to perform any functions permitted by the human-services provisions of the Indiana statutes, see id. § 12 — 8—1.5—7(9), (10), and the appellees have identified no law prohibiting him from providing registered child care ministries the opportunity — however informal— for a pre-deprivation hearing. The complaint permits the plausible inference that Gargano knew that registered organizations like Rebirth lacked pre-deprivation hearings, yet he did nothing within his power to provide such organizations with an opportunity to be heard. These allegations are thus sufficient to permit fact development on the individual-capacity claims.

III.

In sum, we do not decide the type of pre-deprivation hearing that Rebirth was entitled to or that Rebirth shall now recover damages. We conclude only that Rebirth’s complaint alleges that the appellees personally violated clearly established law by depriving Rebirth of a property interest (its registration) without first providing Rebirth with any opportunity to be heard. Rebirth will, of course, need more than allegations to prevail on these claims; it will need evidence proving that these defendants were personally involved in the constitutional violation. Given the procedural posture of this case, the district court should, if necessary, provide Rebirth with an opportunity for additional discovery so that it may obtain such evidence.

Accordingly, the judgment of the district court is VACATED only to the extent that it dismisses Rebirth’s individual-capacity claims against Brizzi and Gargano, and the case is REMANDED to the district court for further proceedings consistent with this opinion.


source: Caselaw Access Project

author: WILLIAMS, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joshua A. WALDMAN, Defendant-Appellant.
    No. 15-1756
    United States Court of Appeals, Seventh Circuit.
    Argued February 16, 2016
    Decided August 30, 2016

      James M. Warden, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.
    William H. Dazey, Jr., Sara J. Varner, Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Appellant.
    Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
   WILLIAMS, Circuit Judge.

Inmate Joshua Waldman was convicted of forcibly assaulting a correctional officer after head-butting him during an argument about a pat-down search. He advanced a self-defense argument at trial, but was unsuccessful. On appeal, he argues that the district court erred in holding that there needed to be an imminent threat of death or serious bodily harm before he could justifiably use force in self-defense. We agree. Requiring that an inmate fear serious bodily harm or death before using force to protect himself is inconsistent with both the Eighth Amendment and common law principles justifying the use of self-defense. But we find no clear error in the district court’s finding that Waldman had a legal alternative to force in complying with the pat-down. So we affirm Waldman’s conviction because he failed to prove at least one of the required components of his defense.

I. BACKGROUND

On June 30, 2013, correctional officer Jason Buescher and two of his fellow officers conducted random pat-down searches while inmates walked to the cafeteria in the Terre Haute Federal Correctional Complex. Waldman grabbed his winter coat before heading outside for lunch, even though it was warm out. Noticing Wald-man wearing the winter coat, Buescher called Waldman for his pat-down search. Concerned that Waldman could be hiding contraband under the coat, Buescher ordered Waldman to take off his coat. The two began arguing and Waldman took the coat off, wadded it up, and threw it down next to Buescher. The testimony at trial conflicted as to how the argument turned physical.

A.Waldman’s Account of the Incident

Waldman testified that Buescher grabbed his left arm in a very hard grip and ordered Waldman to stand against a nearby wall. In his pretrial statement, Waldman stated that Buescher grabbed and threw him against the wall. But this was inconsistent with Waldman’s trial testimony that someone he could not see had grabbed him and he walked to the wall on his own. He further testified that Buescher told him that he would “punk him out” in front of everyone. Multiple defense witnesses testified that the men raised their voices and may have used profanity during the argument.

Waldman testified that Buescher then advanced toward him in a threatening manner, causing Waldman to fear harm. As Buescher completed his approach, Waldman reacted by head-butting him. Waldman testified that when Buescher stuck his fingers in Waldman’s mouth and pushed his fingers into Waldman’s eye socket, he bit Buescher’s finger to get it out of his mouth and to stop the attack. Waldman admitted that it took two other officers to help Buescher to restrain him. Waldman suffered bruises to his face, head, and arms.

B. Buescher’s Account of the Incident

Buescher testified that after Waldman threw his jacket on the ground, he ordered him to stand against the wall for a pat-down search. Waldman initially followed his order and walked toward the wall, but as Buescher approached him, Waldman turned around quickly and head-butted him in the face, causing him to fall backwards. The other two officers conducting pat-down searches testified that they saw Waldman head-butt Buescher. Buescher testified that while he and the other two officers tried to restrain Waldman, Wald-man flailed his legs around, tucked his arms under his chest, and bit Buescher’s finger. Buescher said his hand dug into Waldman’s eye socket as he tried to stop Waldman’s biting. Buescher. suffered a fractured nose, head injury, and a bite wound on his left index finger.

C. Prior Proceedings

Waldman was indicted for forcibly assaulting, resisting, impeding, intimidating, or interfering with a corrections officer, in violation of 18 U.S.C. § 111(a) and (b). Following his indictment, Waldman appeared before the district court for a one-day bench trial. At the close of evidence, the judge requested further briefing from, the parties regarding Waldman’s theory of self-defense, and specifically what constitutes unlawful force by a federal correctional officer acting in pursuit of his official duties.

After hearing arguments on what should be considered unlawful force, the district court held that in a prison setting, for an inmate to establish self-defense, he must face the imminent threat of death or serious bodily injury. Because Buescher’s actions did not expose Waldman to a threat of imminent serious bodily injury or death, and Waldman could have complied with Bueseher’s orders to avoid escalation of the situation, the court found Waldman guilty and sentenced him to 60 months in prison.

II. ANAJLYSIS

On appeal, Waldman challenges his conviction on two grounds: first, that the district court legally erred when it conditioned a prisoner’s right of self-defense on the presence of an imminent threat of death or serious bodily injury, and second, that the district court factually erred when it found that Buescher did not expose Waldman to ah imminent threat of harm and that Waldman had a reasonable legal alternative to head-butting Buescher. We review Waldman’s challenge to the district court’s legal conclusions de novo, and its factual findings for clear error. United States v. P.H. Glatfelter Co., 768 F.3d 662, 676 (7th Cir. 2014).

A. Self-Defense under 18 U.S.C. § 111

While 18 U.S.C. §111 does not explicitly address self-defense, when a statute is silent on the question of affirmative defenses, we are to effectuate the defense as “Congress may have contemplated it,” looking to the common law as a guide. See United States v. Dixon, 548 U.S. 1, 13-14, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006). At common law, self-defense is the use of force necessary to defend against the imminent use of unlawful force. See United States v. Haynes, 143 F.3d 1089, 1090 (7th Cir. 1998) (citing Model Penal Code 3.04(1) (1962)). But what is unlawful force in a prison setting? Obviously correctional officers will sometimes need to use force to maintain order inside prison walls. The government urges that we adopt the definition of unlawful force used by the Fourth Circuit, and hold that an inmate is only permitted to use force in self-defense against a correctional officer if the inmate faces an “unlawful and present threat of serious bodily injury or death.” United States v. Gore, 592 F.3d 489, 494 (4th Cir. 2010); see also United States v. Jones, 254 Fed.Appx. 711, 722 (10th Cir. 2007) (unpublished). But unlike the defenses of duress or necessity, fearing death or serious bodily harm is not required to make out a claim of self-defense. While using lethal force to defend oneself may require such a serious threat, under our own Pattern Instructions, non-lethal force (like head-butting, for example) does not contain such a requirement. See Pattern Criminal Jury Instructions of the Seventh Circuit 6.01 at 85 (2012).

Rather than fashioning our own definition of unlawful force in a prison setting, we look to the Eighth Amendment, which already sets the legal limits on prison officials’ acts towards inmates. Sometimes, it is within the bounds of the Eighth Amendment for correctional officers to use force that would be unlawful outside of prison walls. That is because “lawful incarceration brings about the necessary withdrawal or limitation of many privileges or rights, a retraction justified by the considerations of our penal system.” Bell v. Wolfish, 441 U.S. 520, 545-46, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). And corrections officers face the difficult task of balancing the need to maintain or restore discipline through force against the risk of injury to inmates. Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992). So whether a prison security measure violates the Eighth Amendment turns on whether “force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). We think’this test is as useful in determining if an inmate is justified in using self-defense as it is in determining if a prisoner has an Eighth Amendment claim against his jailers.

The government argues that if self-defense is not contingent upon fearing serious bodily injury or death, inmates will be allowed to use force against guards any time they believe the officer might be using slightly more force than necessary against them. But such a danger is overblown. Prisoners will still need to prove their fear was reasonable, meaning that there was an objective reason to believe that officers intended to cause sadistic and malicious harm. That is not an easy burden. A prisoner cannot prevail under the Eighth Amendment because he “reasonably believed his handcuffs were too tight causing momentary interruption of his circulation.” Gore, 592 F.3d at 495 (citing Jones, 254 Fed.Appx. at 722). Indeed, under the Eighth Amendment, “not every push or shove by a prison guard violates a prisoner’s constitutional rights.” DeWalt v. Carter, 224 F.3d 607, 620 (7th Cir. 2000). Similarly, the fear that “guards would second-guess every use of force to ascertain whether the force used exceeded, even by a bit, what was necessary” is no different than the fear that guards already have that they will be sued for using excessive force. Gore, 592 F.3d at 495 (internal citation omitted). So we hold that an inmate may act in self-defense if he reasonably fears imminent use of sadistic and malicious force by a prison official for the very purpose of causing him harm.

The opposite holding would prevent inmates from protecting themselves from sadistic and malicious acts which do not cause serious bodily harm, but which everyone can agree are egregious violations of the Eighth Amendment. For example, what about cases of sexual abuse of inmates? We have previously held that forcing a prisoner to perform sexually provocative acts in front of spectators is a viable Eighth Amendment claim. Calhoun v. DeTella, 319 F.3d 936, 940 (7th Cir. 2003). Prisoners should not endure such abuse when they could easily act to stop it because they would risk being convicted of assaulting an officer. Under the federal definition of “serious bodily harm,” without a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss of the function of a bodily member, organ or mental faculty, inmates would risk further incarceration if they tried to resist such abuse. See 18 U.S.C. § 1365 (h)(3) (defining “serious bodily harm”). In the midst of enduring abuse by officials, prisoners should not be expected to calculate whether the requisite disfigurement or loss of bodily function will come to pass before acting to protect themselves. Such a result is not consistent with the Eighth Amendment, and would “give prison officials free reign to maliciously and sadistically inflict psychological torture on prisoners, so long as they take care not to inflict any physical injury in the process.” Calhoun, 319 F.3d at 940. Under common law principles, requiring the threat of serious bodily injury or death certainly might be appropriate for use of lethal force in self-defense, see, e.g., United States v. White Feather, 768 F.3d 735, 740 (7th Cir. 2013). But in a case where a prisoner is simply acting to stop abuse completely untethered to official discipline, which can only be interpreted as sadistic, malicious, and intended to cause harm, she is entitled to act in self-defense. And while Congress clearly intended to protect correctional officers from harm in passing 28 U.S.C. § 111, that purpose must be harmonized with Eighth Amendment protections, not supersede them.

B. No Error in Finding Waldman Had Reasonable Legal Alternative to Using Force

In addition to showing that the force threatened against them violated the Eighth Amendment, inmate-defendants have other hurdles to mount. They must prove that the unlawful use of force against them was imminent, and that they had no reasonable legal alternatives to using force in self-defense. United States v. Haynes, 143 F.3d 1089, 1092 (7th Cir. 1998). The district court correctly evaluated whether Waldman had reasonable legal alternatives to striking Buescher, which was a required element of his defense. While we are very dubious that Buescher used or threatened any force which violated the Eighth Amendment, we can affirm Waldman’s conviction solely based on the district court’s finding that he did not avail himself of legal alternatives to assaulting Buescher.

Waldman could have simply submitted to Buescher’s search — which no one is arguing was itself a violation of Wald-man’s constitutional rights — instead of escalating the situation into a physical fight. Waldman insists that he did submit to the search and only used force after Buescher needlessly grabbed his arm and advanced toward him as if to strike him in the throat. But the district court was entitled to credit Buescher’s version of the facts— that Waldman was the first aggressor, and used force before Buescher even touched him. We will not disturb the court’s factual findings unless we are left with a definite and firm conviction that a mistake has been made, and if two permissible views of the facts exist, the fact-finder’s choice between them cannot be clearly erroneous. United States v. Breland, 356 F.3d 787 (7th Cir. 2004). There was no clear error here. We see no basis for reversing the district court’s factual findings, and agree with its conclusion that Waldman had reasonable alternatives to striking Buescher.

III. CONCLUSION

For the foregoing reasons, we Affirm •Waldman’s conviction.

      . Three of our sister circuits have adopted a similar approach to analyzing what type of unlawful force justifies self-defense under Section 111 outside of prison walls. The Fifth, Sixth and Ninth Circuits have suggested that self-defense might be available under Section 111 when a defendant uses force against a law enforcement agent who engages in excessive force against him first. See United States v. Acosta-Sierra, 690 F.3d 1111, 1126 (9th Cir. 2012) (citing United States v. Span, 970 F.2d 573, 577 (9th Cir. 1992)); United States v. Branch, 91 F.3d 699, 715 (5th Cir. 1996); United States v. Weekes, 517 Fed.Appx. 508, 511 (6th Cir. 2013) (unpublished).

      . The district court appeared to place the burden of disproving self-defense on the government, which may have been an error. See Dixon, 548 U.S. at 1, 126 S.Ct. 2437 (no Constitutional requirement that government negates elements of a defense that does not negate an element of the charged offense; rather the allocation of proof depends on statute, or, in absence of clear guidance, common law). Because the government did not raise this issue on cross-appeal, and Waldman cannot prevail regardless of which party bears the burden of proof, we decline to rule on the burden of proof allocation for self-defense claims under Section 111.


author: SYKES, Circuit Judge. HAMILTON, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Patrick S. MCGUIRE, Defendant-Appellant.
    No. 15-2071
    United States Court of Appeals, Seventh Circuit.
    Argued May 24, 2016
    Decided August 30, 2016

      Laura Reppert, Office of the United States Attorney, Fairview Heights, IL, James Inman Pearce, Department of Justice, Washington, DC, for Plaintiff-Appel-lee.
    Thomas C. Gabel, Office of the Federal Public Defender, East St. Louis, IL, for Defendant-Appellant.
    Before ROVNER, SYKES, and HAMILTON, Circuit Judges
   SYKES, Circuit Judge.

Patrick McGuire pleaded guilty to a single count of interfering with commerce by threat or violence. At sentencing the district court classified McGuire as a career offender under § 4Bl.l(a) of the Sentencing Guidelines, which increases the offense level if the defendant has two prior felony convictions for a “crime of violence.” U.S.S.G. § 4Bl.l(a) (2014). “Crime of violence” is defined in § 4B1.2 and includes “any offense ... that ... is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 4B1.2(a)(2) (emphasis added). The emphasized text is known as the residual clause.

The district judge counted two of McGuire’s prior convictions as crimes of violence, one of which — a conviction for fleeing the police — qualified only under the residual clause. With the career-offender enhancement in the mix, McGuire’s Guidelines range increased from 63-78 months to 151-188 months. Citing McGuire’s extensive criminal history, the judge imposed a 188-month sentence. In doing so she noted her surprise that the government hadn’t asked for the statutory maximum sentence of 20 years.

McGuire appeals, arguing that in light of Johnson v. United States, — U.S.-, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the residual clause in the career-offender guideline is unconstitutionally vague. The government agrees and confesses error. In a recent decision circulated to the full court under Circuit Rule 40(e), we also agreed and invalidated § 4B1.2(a)(2)’s residual clause as unconstitutionally vague. United States v. Hurlburt, No. 14-3611, 835 F.3d 715, 2016 WL 4506717 (7th Cir. Aug. 29, 2016) (en banc).

Applying Hurlburt here, McGuire was wrongly classified as a career offender. As in most cases involving miscalculation of a defendant’s Guidelines range, that error warrants full resentencing.

I. Background

McGuire pleaded guilty to one count of interfering with commerce by threat or violence, which carries a 20-year maximum sentence. See 18 U.S.C. § 1951. At sentencing the judge classified McGuire as a career offender based on two prior felony convictions for crimes of violence. See U.S.S.G. § 4B1.1. As relevant here, one of the predicates for the career-offender enhancement — a conviction for fleeing the police — qualified under the residual clause of the erime-of-violence definition in § 4B1.2(a)(2). Applying the enhancement substantially increased McGuire’s Guidelines sentencing range, which jumped from 63-78 months to 151-188 months.

The government asked for a sentence at the high end of the range, and the judge agreed that McGuire’s extensive criminal history warranted at least that:

But, if anything, I think all of the defense arguments in mitigation, they certainly don’t call for anything below the [Gjuidelines range. And I’m actually a little surprised that the government isn’t seeking the statutory maximum in this case because I think they would have all the argument for why that is appropriate.

The judge sentenced McGuire to 188 months in prison and 3 years of supervised release.

II. Discussion

McGuire argues that the residual clause in the career-offender guideline is unconstitutionally vague in light of the Supreme Court’s decision in Johnson. Ordinarily our review would be de novo. United States v. Boatman, 786 F.3d 590, 593 (7th Cir. 2015). But McGuire did not raise this challenge at sentencing, so plain-error review applies instead. United States v. Jenkins, 772 F.3d 1092, 1096 (7th Cir. 2014). That standard requires McGuire to establish “(1) an error or defect (2) that is clear or obvious (3) affecting the defendant’s substantial rights (4) and seriously impugning the fairness, integrity, or public reputation of the judicial proceedings.” Id. at 1097 (quotation marks omitted).

In Johnson the Supreme Court invalidated the residual clause in the Armed Career Criminal Act as unconstitutionally vague. 135 S.Ct. at 2563. The residual clause in the career-offender guideline is identical. The government agrees that Johnson’s holding applies to § 4B1.2(a)(2)’s residual clause and therefore confesses error in McGuire’s case.

In our recent decision in United States v. Hurlburt, No. 14-3611, we accepted the government’s concession and overruled our circuit precedent in United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012), which held that the Sentencing Guidelines are immune from vagueness challenges. 835 F.3d 715, 718, 724-25, 2016 WL 4506717, (7th Cir. Aug. 29, 2016) (en banc). Applying Johnson, we held that the residual clause in the career-offender guideline is unconstitutionally vague. Id.

Hurlburt resolves the central issue in this case. Relying on an unconstitutional guideline to calculate McGuire’s Guidelines range is plain error. See Henderson v. United States, — U.S. -, 133 S.Ct. 1121, 1130, 185 L.Ed.2d 85 (2013) (explaining that “whether a legal question was settled or unsettled at the time of trial, ‘it is enough that an error be plain at the time of appellate consideration’ ” (quoting Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997))).

The question ' remains whether the Johnson error “affected [McGuire’s] substantial rights.” United States v. Good win, 717 F.3d 511, 520 (7th Cir. 2013). To satisfy the prejudice requirement of plain-error review, a defendant typically must “ ‘show a reasonable probability that, but for the error,’ the outcome of the proceeding would have been different.” Molina-Martinez v. United States, — U.S.-, 136 S.Ct. 1338, 1343, 194 L.Ed.2d 444 (2016) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 76, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). “When a defendant is sentenced under an incorrect Guidelines range[,] ... the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” Id. at 1345 (emphasis added).

There’s no question that McGuire was sentenced under an incorrect Guidelines range: Without the career-offender enhancement, McGuire’s range drops from 151-188 months to 63-78 months. That’s obviously a substantial difference, and McGuire asks us to remand for full resen-tencing. Here’s where the parties’ positions diverge. The government argues that in light of the judge’s comments at sentencing, it’s unclear whether she would have chosen a different sentence had she properly calculated McGuire’s Guidelines range. Specifically, the judge noted that she was “actually a little surprised that the government isn’t seeking the statutory maximum in this case because ... they would have all the argument for why that is appropriate.” The government urges us to order a limited remand similar to the procedure we adopted in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005).

The Paladino remand was devised in the wake of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to determine whether a sentencing judge’s misunderstanding of the Guidelines’ legal effect implicated the defendant’s substantial rights — in other words, whether the judge would have imposed a different sentence had he known that the Guidelines were merely advisory. Paladino, 401 F.3d at 483. In holding that a limited remand was the appropriate remedy, we emphasized the unique circumstances that necessitated this solution. We explained:

[Ujnless any of the judges in the cases before us had said in sentencing a defendant pre-Booker that he would have given the same sentence even if the [GJuidelines were merely advisory ..., it is impossible for a reviewing court to determine — without consulting the sentencing judge ... — whether the judge would have done that.

Id. at 482. Accordingly, we fashioned a limited-remand procedure “to permit the sentencing judge to determine whether he would (if required to resentence) reimpose his original sentence.” Id. at 484.

Consistent with its origins, a Pa-ladino remand is generally not appropriate when the judge’s sentencing error involves a miscalculation of the defendant’s Guidelines range as opposed to a misunderstanding of the Sentencing Guidelines’ legal effect. United States v. Williams, 742 F.3d 304, 307 (7th Cir. 2014); see also United States v. Adams, 746 F.3d 734, 743 (7th Cir. 2014). “When a district court incorrectly calculates the [G]uideline[s] range, we normally presume the improperly calculated [G]uideline[s] range influenced the judge’s choice of sentence, unless he says otherwise.” Adams, 746 F.3d at 743. That presumption follows naturally from the Guidelines’ centrality to the sentencing process: “The Guidelines inform and instruct the district court’s determination of an appropriate sentence. In the usual case then, the systemic function of the selected Guidelines range will affect the sentence.” Molina-Martinez, 136 S.Ct. at 1346.

Of course the presumption can be overcome. See id. (“The sentencing process is particular to each defendant, of course, and a reviewing court must consider the facts and circumstances of the ease before it.”)- We have sometimes ordered a Pala-dino-style limited remand in cases involving miscalculation of the defendant’s Guidelines range when the sentence imposed fell either within or below the correct range, creating ambiguity about whether the miscalculation actually affected the defendant’s sentence. See United States v. Maxwell, 724 F.3d 724, 728-29 (7th Cir. 2013); United States v. Billian, 600 F.3d 791, 794-95 (7th Cir. 2010). But it remains “[o]ur normal practice ... to presume that the improperly calculated [G]uidelines range influenced the choice of sentence unless the judge said otherwise at sentencing.” Williams, 742 F.3d at 307.

McGuire’s sentence (188 months) falls far above the correct range (63-78 months), so there’s no ambiguity on that front. And the judge did note that she was surprised the government had not requested the statutory maximum of 20 years. However, she also . explicitly cited McGuire’s (miscalculated) Guidelines range to justify the 188-month sentence: “[I]f I look at the [Gjuidelines ... as I must, I think a high end sentence ... will be sufficient.” On this record we see no reason to .depart from the usual presumption that the judge’s miscalculation of McGuire’s Guidelines range influenced her choice of sentence. And to the extent that the miscalculation resulted in a higher Guidelines range, it seriously affected the integrity of the proceedings. See United States v. Garrett, 528 F.3d 525, 530 (7th Cir. 2008).

Accordingly, we Vacate McGuire’s sentence and Remand for full resentencing.

HAMILTON, Circuit Judge,

concurring.

While I dissented in United States v. Hurlburt, No. 14-3611, 835 F.3d 715 (7th Cir. 2016) (en banc), it is now the law of the circuit. As Judge Sykes explains, it requires a remand in this case for re-sentencing. On remand, however, the district judge will have the power and the right to impose the same sentence she did in the first place. See Hurlburt, 835 F.3d at 728-29 (Hamilton, J., dissenting). The advice from the Sentencing Guidelines will be different on remand, but that should not necessarily change the judge’s assessment of the relevant sentencing factors under 18 U.S.C. § 3553(a). In particular, the criminal history provisions in the Guidelines have always been somewhat arbitrary. (For example, a defendant receives the same three points for a bar fight that produced a fourteen-month sentence and a first-degree murder conviction. See U.S.S.G. § 4A1.1.) That’s why the Guidelines have always encouraged departures on the basis that a defendant’s guideline calculation of criminal history is under- or over-representative. U.S.S.G. § 4A1.3. On remand, the judge needs to exercise her judgment under § 3553(a).

      . ' The judge’s assessment was based primarily on McGuire's extensive criminal history: Over-the past three decades, he had been found guilty of more than 50 offenses, including 15 felonies.

      . The Sentencing Commission amended the career-offender guideline to remove the residual clause in light of Johnson v. United States, - U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015); the amendment became effective August 1, 2016. See 81 Fed. Reg. 4741, 4742 (2016).


author: YANDLE, District Judge.

text:
    Charmaine HAMER, Plaintiff-Appellant, v. NEIGHBORHOOD HOUSING SERVICES OF CHICAGO & Fannie Mae, Defendants-Appellees.
    No. 15-3764
    United States Court of Appeals, Seventh Circuit.
    Argued June 2, 2016
    Decided August 31, 2016

      Charmaine Hamer, Chicago, IL, Pro Se Plaintiff-Appellant.
    Gwendolyn B. Morales, Jeffrey Nowak, Attorneys, Franczek Radelet P.C., Chicago, IL, for DefendanL-Appellee Neighborhood Housing Services of Chicago.
    Daniel J. Fazio, Attorney, Winston & Strawn LLP, Chicago, IL, Damien Stewart, Attorney, Fannie Mae, Washington, DC, for Defendant-Appellee Fannie Mae.
    Before POSNER and SYKES, Circuit Judges and YANDLE, District Judge.

       Of the Southern District of Illinois, sitting by designation.

   YANDLE, District Judge.

Charmaine Hamer, a former Intake Specialist for the Housing Services of Chicago (“NHS”) and Fannie Mae’s Mortgage Help Center (“Fannie Mae”) (together “Appellees”), filed suit against her former employers, alleging violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et. seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended. The district court granted summary judgment in favor of NHS and Fannie Mae on September 14, 2015. As such, pursuant to Fed. R. App. P. 4(a)(1)(A) and 28 U.S.C. § 2107(a), the original deadline for Hamer to file her Notice of Appeal was October 14, 2015.

On October 8, 2015, Hamer’s counsel filed a “Motion to Withdraw and to Extend Deadline for Filing Notice of Appeal” in which she requested an extension to December 14, 2015 for Hamer to file her Notice of Appeal. The district court granted the motion and extended the deadline to December 14, 2015.

Hamer filed her Notice of Appeal with this Court on December 11, 2015; within the timeframe permitted by the district court’s Order, but exceeding the extension allowable under Fed. R. App. P. 4(a)(5)(C) which provides: “No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.”

On December 31, 2015, we, sua sponte, entered an Order instructing the Appellees to file a brief addressing the timeliness of this appeal. They did so, arguing that Hamer’s Notice of Appeal is untimely under Rule 4(a)(5)(C) and, therefore, that this Court lacks jurisdiction over her appeal.

Hamer asserts that the district court extended the time to file her Notice of Appeal pursuant 28 U.S.C. § 2107(c), which states in relevant part: “[T]he district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause.” She contends that Rule 4(a)(5)(C) does not apply since the district court did not consider it when granting the extension. Hamer further argues that the Appellees waived their timeliness challenge by not initially raising it.

The Supreme Court has consistently held that the statutory requirement for filing a timely notice of appeal is “mandatory and jurisdictional.” Bowles v. Russell, 551 U.S. 205, 207, 209, 127 S.Ct. 2360, 2362, 168 L.Ed.2d 96 (2007). In Bowles, the Court explained the relationship between the statutory filing period set forth in § 2107(a) and the district court’s authority to extend that period under § 2107(c) and Rule 4:

According to 28 U.S.C. § 2107(a), parties must file notices of appeal within 30 days of the enjry of the judgment being appealed. District courts have limited authority to grant an extension of the 30-day time period... Rule 4 of the Federal Rules of Appellate Procedure carries § 2107 into practice. In accord with § 2107(c), Rule 4(a)(6) describes the district court’s authority to reopen and extend the time for filing a notice of appeal after the lapse of the usual 30 days ... Id. at 208, 127 S.Ct. 2360. Like the initial 30-day period for filing a notice of appeal, the limit on how long a district court may reopen that period is set forth in a statute, 28 U.S.C. § 2107(c). Because Congress specifically limited the amount of time by which district courts can extend the notice-of-appeal period in § 2107(c), that limitation is more than a simple ‘claim-processing rule.’ (emphasis added). As we have long held, when an ‘appeal has not been prosecuted in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction.’ Id. at 213, 127 S.Ct. 2360. (internal citation omitted).

Like Rule 4(a)(6), Rule 4(a)(5)(C) is the vehicle by which § 2107(c) is employed and it limits a district court’s authority to extend the notice of appeal filing deadline to no more than an additional 30 days. Thus, the district court was in error when it granted Ms. Hamer an extension that exceeded the Rule 4(a)(5)(C) time period by almost 30 days.

Although we recognize that Ms. Hamer relied upon the district court’s erroneous Order and was misled into believing that she had until December 14, 2015 to file her Notice of Appeal, this Court simply has no authority to excuse the late filing or to create an equitable exception to jurisdictional requirements. See Bowles at 214,127 S.Ct. 2360. Therefore, Hamer’s Notice is untimely.

Finally, Hamer’s argument that the Ap-pellees waived the issue of the timeliness of her appeal also fails. When a filing error is one of “jurisdictional magnitude”, forfeiture or waiver cannot excuse the lack of compliance with the statute’s time limitation.” See Bowles at 213, 127 S.Ct. 2360. Had the Appellees never challenged the timeliness of Hamer’s Notice, they could not waive what this Court is bound by statute to uphold. Accordingly, because we have no jurisdiction to consider Hamer’s appeal on the merits, it is dismissed.