author: RALPH B. GUY, JR., Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Eric GOOCH, Defendant-Appellant.
    No. 15-4360
    United States Court of Appeals, Sixth Circuit.
    Argued: January 27, 2017
    Decided and Filed: March 2, 2017

      ARGUED: Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids, Michigan, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids, Michigan, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
    Before: GUY, CLAY, and GRIFFIN, Circuit Judges.
   OPINION

RALPH B. GUY, JR., Circuit Judge.

Defendant Eric Gooch appeals his jury convictions and sentences for conspiracy to obstruct commerce by means of robbery, obstructing commerce by means of robbery, armed bank robbery, and carrying a firearm during the commission of a crime of violence. We affirm. •

I.

Defendant helped plan armed robberies of a discount store and two banks. During the discount store robbery, defendant accompanied two others to the business in a getaway car. Defendant planned to enter, but changed his mind. Defendant witnessed Shawn Caldwell give a firearm to codefendant Larnell Tripp, who robbed the cashier and the business’s safe at gunpoint. A month later, defendant, Caldwell, and Greg Williams robbed a bank. Caldwell remained in the car while defendant and Williams brandished firearms and robbed the bank’s vault. Three weeks later, defendant accompanied Caldwell and Williams to another bank, but remained outside the bank entrance. Williams robbed the bank at gunpoint, placing the firearm against the bank manager’s head and pistol-whipping a security guard. Defendant neither admitted nor denied knowing prior to the robbery that Williams would use a firearm.

The prosecution charged defendant in a seven-count indictment consisting of two counts of conspiracy to obstruct commerce by means of robbery, a.k.a. “Hobbs Act robbery” (18 U.S.C. §§ 1951(a), 1951(b)(1), and 2); three counts of using, carrying and brandishing a firearm during and in relation to a crime of violence (18 U.S.C. §§ 924(c)(1)(A) and 2); and two counts of armed bank robbery (18 U.S.C. §§ 2113(a), 2113(d), and 2). Although the district court initially adjudged defendant incompetent to stand trial, he later passed multiple competency evaluations.

Defendant filed and subsequently withdrew notice of his intent to present evidence that he was not guilty by reason of insanity.- Defendant also sought to represent himself. The district court engaged defendant in an extended self-representation colloquy and allowed him to self-represent with appointed counsel as standby. Defendant cross-examined some witnesses but did not present an affirmative defense. He instead moved for a judgment of acquittal based on insufficient evidence, which the district court denied. The jury found defendant guilty, and the district court sentenced him to 664 months’ incarceration.

On appeal, defendant challenges the sufficiency of the evidence that he aided and abetted the discount store robbery and second bank robbery, alleges the district court erred in allowing him to self-represent and in sentencing him to consecutive sentences on his § 924(c) convictions, and argues that Hobbs Act robbery is not a crime of violence.

II.

a. Sufficiency of the Evidence

We review the sufficiency of the evidence for a conviction “in the light most favorable to the prosecution” to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Circumstantial evidence alone may sustain a conviction. United States v. Tarwater, 308 F.3d 494, 504 (6th Cir. 2002).

Aiding and abetting in the carrying of a firearm during commission of a crime of violence requires that the defendant “associate himself with the venture, that he participates in it as something he wishes to bring about, and that he seek by his action to. make it succeed.” United States v. Lowery, 60 F.3d 1199, 1202 (6th Cir. 1995) (quoting United States v. Lawson, 872 F.2d 179, 181 (6th Cir. 1989)). The prosecution must show that defendant had advance knowledge that a firearm would be used in the course of the crime. Rosemond v. United States, — U.S. -, 134 S.Ct. 1240, 1249, 188 L.Ed.2d 248 (2014). The intent requirement of aiding and abetting “preserves the distinction between assisting the predicate ... crime and assisting the broader § 924(c) offense.” Id. at 1248.

i. Discount Store Robbery

Defendant argues that he was merely present during Tripp’s armed robbery of the discount store and therefore not guilty as an aider and abettor. See United States v. Winston, 687 F.2d 832, 835 (6th Cir. 1982). The record undermines his claim. Defendant admitted, and his co-defendants corroborated, that he helped plan- the robbery and witnessed Caldwell give Tripp a firearm. Active participation in the planning phase of an armed robbery constitutes intent to bring about the offense. See Phifer v. United States, 221 F.3d 1335, 2000 WL 924451, at *2 (6th Cir. 2000) (unpublished table decision) (affirming conviction for aiding and abetting armed robbery where defendant knew of principal’s intent to rob victim at gunpoint). The prosecution thus put forth sufficient evidence that defendant aided and abetted the armed robbery of the discount store.

ii. Second Bank Robbery

No testimony or other record evidence established — or rebutted — that defendant knew Williams possessed a firearm during the second bank robbery. The prosecution relies on defendant’s participation in the previous two armed robberies and knowledge that firearms figured in both crimes to argue that defendant had advance knowledge Williams would use a firearm in the last bank robbery.

We have reversed § 924(c) convictions where jury instructions were insufficiently clear as to the defendant’s intent to aid an armed offense. United States v. Henry, 797 F.3d 371, 374-77 (6th Cir. 2015) (applying plain error review to unpreserved jury instruction issue). Henry established that the intent instruction must go to the entire crime — the predicate offense and the violence component under § 924(c) — such that the jury convicts the defendant of armed bank robbery. Id. at 374.

Here, the jury instructions amply apprised the jurors that they must find defendant “knew in advance that his confederate would brandish, carry, or use a firearm during the robbery.” We presume that jurors follow the district court’s instructions. United States v. Lester, 238 Fed.Appx. 80, 83 (6th Cir. 2007) (collecting cases). Defendant’s participation in the two prior armed robberies with most of the same codefendants is strong circumstantial evidence that he was aware of the group’s modus operandi of using firearms in the commission of robberies. Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could find that defendant had advance knowledge Williams would use a firearm during the final bank robbery. Sufficient evidence therefore supported defendant’s aiding- and-abetting convictions.

b. Right to Counsel

Where a defendant asserts a violation of the right to counsel, we review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Cromer, 389 F.3d 662, 679 (6th Cir. 2004). We have recognized that a district court’s decision that a mentally compromised defendant may self-represent “merits deference.” United States v. Stafford, 782 F.3d 786, 791 (6th Cir. 2015).

Defendant claims the district court deprived him of his right to counsel by allowing him to self-represent when he was incapable of giving a knowing and intelligent waiver. See Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In this circuit, district courts must conduct a colloquy akin to that in section 1.02 of the Bench Book for United States District Judges. See United States v. McBride, 362 F.3d 360, 366 (6th Cir. 2004); see also United States v. McDowell, 814 F.2d 245, 249-50 (6th Cir. 1987).

The district court’s discussion with defendant coincided nearly verbatim with the colloquy provided in the Bench Book. The district court also thoroughly admonished defendant that a trained lawyer could better represent him and that it was unwise to self-represent. Defendant nevertheless chose to represent himself with counsel as standby. Whether he chose wisely is not the issue on appeal. See Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); see also United States v. Dubrule, 822 F.3d 866, 880 (6th Cir. 2016) (“[G]iven the frequency with which pro se defendants ... espouse strange [legal] theories, we decline to hold that the district court abused its discretion by failing to order a competency hearing on the basis of strange statements contained in a few ... pre-trial motions.”).

Deféndant asserts he was mentally incompetent to waive his right to representation. Because he has not appealed the district court’s competency ruling, it is not before us. Nevertheless, the record shows that the district court gave, and defendant seized, abundant opportunities to raise the issue of his competency. Although an initial evaluation found defendant incompetent to stand trial, each of the multiple subsequent evaluations and hearings found that he was competent despite certain “malingering” behaviors. With the assistance of standby counsel, defendant moved for a competency evaluation soon after asserting his right to self-represent. The district court again found him competent.

The competency standard for standing trial is identical to the standard for self-representation. Godinez, 509 U.S. at 396-97, 113 S.Ct. 2680. It is immaterial that the district court did not review defendant’s competency with a specific eye toward self-representation: it adjudged him mentally competent, and found that his waiver of the right to counsel was knowing and intelligent. The district court did not deny defendant the right to counsel by allowing him to self-represent.

c. Consecutive Sentencing

Defendant challenges the district court’s imposition of consecutive 25-year sentences for his multiple § 924(c) convictions. He raises this argument solely to preserve it for appeal to the Supreme Court of the United States. Defendant contends that the Supreme Court wrongly decided Deal v. United States, 508 U.S. 129, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). There, the Court held that when a defendant is convicted of multiple § 924(c) offenses in the same ease, each conviction is a second or subsequent conviction for purposes of § 924(c), allowing multiple consecutive sentences. Deal is still good law, and we are bound by the decision unless and until the Supreme Court overrules it. See Hohn v. United States, 524 U.S. 236, 252-53, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998).

d. Crime of Violence

Defendant contends that a Hobbs Act conviction does not qualify as a crime of violence under § 924(c)(3). Because defendant did not argue this issue below, we review it for plain error. United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

Liability for a crime of violence under § 924(c)(3) attaches where the predicate offense is a felony and

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3). To determine whether a conviction offense is a “crime of violence,” we apply a categorical approach “focus[ing] on the statutory definition of the offense, rather than the manner in which the offender may have violated the statute in a particular circumstance.” United States v. Rafidi, 829 F.3d 437, 444 (6th Cir. 2016) (quoting United States v. Denson, 728 F.3d 603, 607 (6th Cir. 2013)). Where, as here, a defendant is convicted of violating a divisible statute, we review a narrow category of documents to determine which portion the defendant violated. See id.

The Hobbs Act provides that

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

18 U.S.C. § 1951(a). It goes on to define robbery as

the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

18 U.S.C. § 1951(b)(1). It defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2).

Defendant contends that one can satisfy the offense elements of the Hobbs Act •without using, attempting, or threatening physical force against the person' or property of another as required by § 924(c)(3)(A). For example, defendant posits that one could nonviolently extort property from someone under color of official right. This is only so if the Hobbs Act is indivisible, i.e., if Hobbs Act extortion and Hobbs Act robbery áre one and the same offense. See Rafidi, 829 F.3d at 444.

Defendant relies on Mathis v. United States to argue that the Hobbs Act is indivisible because robbery and extortion are alternative means of violating the statute rather than distinct offenses. — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). In Mathis, the Supreme Court considered a state burglary statute containing “alternative ways of satisfying a single locational element,” id. at 2250, and held that crimes of conviction encompassing a wider range of conduct than the generic offense cannot qualify as predicate offenses for sentencing enhancement under the Armed Career Criminal Act, id. at 2251. A single crime of conviction under the Hobbs Act could not satisfy the elements of both robbery and extortion: the former requires a taking from another “against his will,” while the latter is a taking “with his consent.” See 18 U.S.C. § 1951(b)(1)-(2). This difference goes not to the mere means of violating the Hobbs Act, but to “the ‘constituent parts’ of [the] crime’s legal definition — the things the ‘prosecution must prove to sustain a conviction.’ ” Id. at 2248 (quoting Black’s Law Dictionary 634 (10th ed. 2014)). Accordingly, Mathis is inapplicable.

That different portions of § 1951(b) provide the distinct elements of robbery and extortion suggests the statute is divisible. In Rafidi, we interpreted 18 U.S.C. § 111, which “sets forth three separate crimes”— a misdemeanor, a felony, and an aggravated felony. Id. at 445 (quotation omitted). Because the defendant in Rafidi was charged with, and convicted of, violating § 111(b), the aggravated felony, we looked to the elements of § 111(b) only. Id. (“We thus consider whether § 111(b) — and not § 111(a), by itself — has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” (quotation omitted)). Applying Rafidi’s approach, we conclude that § 1951 is a divisible statute setting out separate crimes of Hobbs Act robbery and Hobbs Act extortion.

Where a divisible statute “could be violated in a way that would constitute a crime of violence and in a way that would not, we look beyond the statutory language and examine a limited set of documents to determine whether the conviction necessarily depended on the commission of a crime of violence.” Rafidi, 829 F.3d at 444 (quotations omitted); see also Shepard v. United States, 544 U.S. 13, 19-23, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (discussing relevant documents). The indictment charged defendant with “Conspiracy to Commit Hobbs Act Robbery” and “Hobbs Act Robbery.” The jury instructions referred to “robbery as that term is defined in [18 U.S.C.] § 1951(b)(1).” We thus consider only the portion of the Hobbs Act defining robbery for the elements of the conviction offense.

A conviction under § 1951(b)(1) requires a finding of “actual or threatened force, or violence, or fear of injury, immediate or future.” Section 1951(b)(1) clearly “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” as necessary to constitute a crime of violence under § 924(e)(3)(A). The jury therefore convicted defendant of a crime of violence.

Other circuits have unanimously acknowledged Hobbs Act divisibility and found that Hobbs Act robbery constitutes a crime of violence. In United States v. Hill, the Second Circuit held that the defendant committed “Hobbs Act robbery,” and looked to the definition of robbery in § 1951(b)(1) for the elements of the offense. 882 F.3d 135, 138-39 (2d Cir. 2016). The Second Circuit rejected the defendant’s argument that one could commit Hobbs Act robbery by “putting the victim in fear of injury” without violence or the threat of violence. Id. at 142-43. It further noted that a hypothetical nonviolent violation of the statute, without evidence of actual application of the statute to such conduct, is insufficient to show a “realistic probability” that Hobbs Act robbery could encompass nonviolent conduct. Id. at 139-40, 142-43 (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)). Five other circuit courts have reached similar conclusions. See United States v. Anglin, 846 F.3d 954, 964-65 (7th Cir. 2017); United States v. Howard, 650 Fed.Appx. 466, 467-68 (9th Cir. 2016); In re Saint Fleur, 824 F.3d 1337, 1340 (11th Cir. 2016); United States v. House, 825 F.3d 381, 387 (8th Cir. 2016); cf. United States v. Robinson, 844 F.3d 137, 141-44 (3d Cir. 2016) (defendant’s Hobbs Act robbery conviction is a § 924(c) crime of violence because he was simultaneously convicted of brandishing a firearm during the robbery), id. at 150-51 (Fuentes, J., concurring) (Hobbs Act robbery is categorically a crime of violence under § 924(c)).

We join our sister circuits in ruling that Hobbs Act robbery constitutes a crime of violence. The district court did not plainly err in sentencing defendant under § 924(c).

AFFIRMED.

        . The prosecution indicted defendant alongside codefendants Larnell Tripp, Jr., and Ashley White. Other participants in the robberies at issue — Shawn Caldwell and Greg Williams, Jr. — pleaded guilty to their involvement and separately appealed their sentences. Defendant Gooch is the sole party to this appeal.


source: Caselaw Access Project

author: SUTTON, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John V. BALLARD, Defendant-Appellant.
    No. 16-6254
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: March 3, 2017

      ON BRIEF: Mary C. Jermann-Robin-son, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant. Damon Keith Griffin, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.
    Before: DAUGHTREY, SUTTON, and DONALD, Circuit Judges.
   OPINION

SUTTON, Circuit Judge.

John Ballard lied about his income, hid money in family members’ bank accounts, and filed then dismissed several Chapter 13 bankruptcy petitions. Through these and other inartful dodges, he tried to avoid paying $848,798 in taxes arising from his income as a securities broker between 2000 and 2008. The Internal Revenue Service noticed. Even after the IRS started asking questions, Ballard told the agency that he did not have any income in 2009, when in truth he had made over $500,000 as a broker that year. The lies and deceptions led to a criminal charge, then a guilty plea, for violating 26 U.S.C. § 7212(a), which prohibits “corruptly ... obstructing] or impeding] ... administration of [the tax laws].”

The Sentencing Guidelines say that district courts may sentence individuals for violations of that provision as a tax evasion offense or as an obstruction of justice offense, whichever is “most appropriate.” U.S.S.G. App. A, Introductory cmt. Ballard urged the court to use the obstruction of justice guideline. The district court .disagreed. It rejected Ballard’s argument that he never intended to evade paying his taxes but was merely delaying the payments (merely obstructing justice in other words) until he made real money — apparently more than $500,000 a year. Use of the tax evasion guideline led to a higher offense level for Ballard and an increase in the sentencing range from 8-14 months to 24-80 months, and eventually led to a sentence of 18 months. We affirm.

Starting in 1998, Ballard worked as a securities broker paid on commission. Not every firm he worked for withheld his income taxes. In 2008, the IRS classified him as a “non-filer” because he filed returns without paying his tax bills. In response to IRS inquiries, Ballard filled out Form 433-A in January 2009, claiming no income and no ability to pay. In truth, he was employed by a securities brokerage in Texas and ended up making over $500,000 that year. Rather than starting to pay off the more than $800,000 he owed to the government at that point, Ballard spent that year’s income on (1) a new $96,000 Range Rover, which he titled in his wife’s name and then resold six weeks later for cash, (2) $25,000 in furniture for a new house he started leasing for $6,000 per month, and (3) an $80,000, six-week trip to Palm Beach with his family. He also sometimes used his wife’s and his mother-in-law’s bank accounts to deposit earnings and pay expenses. Unamused, the IRS issued a notice of intent to levy his brokerage income in 2010. Ballard responded by quitting his job, apparently cutting his income to spite the IRS. He filed and later dismissed a Chapter 13 bankruptcy petition, halting the collection efforts of the IRS and his other creditors. This was not the only time he deployed this tactic, having done the same thing five times before (and ten times since).

These evasive actions triggered a criminal investigation. In 2012, IRS agents interviewed Ballard. He denied having any employment in 2009 and claimed that all of the money he made that year arose from work for prior years. But in fact the money was payment for work he did in January, April, May, June, August, and December of 2009. And he knew it. That lie, charged the local United States Attorney, constituted “corruptly ... obstructing] or impeding] ... administration of [the tax laws]” in violation of 26 U.S.C. § 7212(a). He pleaded guilty to that single count.

Ballard raised one objection at sentencing: Rather than sentencing him under the tax evasion guideline, the district court should sentence him under the obstruction of justice guideline, which in his case (though not always) would lead to a lower base offense level. His offense, he claimed, was more akin to obstruction of justice than tax evasion because all that was actually charged was the 2012 lie to IRS investigators, and he had always intended, he claimed, to pay his taxes once he had the money. The district court applied the tax evasion guideline nonetheless, which produced an advisory range of 24-30 months. The district court varied downward and sentenced Ballard to 18 months, and it required him to make full restitution of his unpaid taxes. Ballard appealed the application of the tax evasion guideline, as his plea agreement permitted.

When a taxpayer violates § 7212(a)’s omnibus clause, as Ballard did, the Guidelines give the sentencing judge two options: § 2T1.1 (tax evasion) or § 2J1.2 (obstruction of justice). U.S.S.G. App. A.

Section 2T1.1 covers “Tax Evasion; Willful Failure to File Return, Supply Information, or Pay Tax; Fraudulent or False Returns, Statements, or Other Documents.” It explains that the base offense level should be calculated under the Guidelines’ tax table according to the “[tax] loss that would have resulted had the offense been successfully completed,” and that the applicable “tax loss is not reduced by any payment of the tax subsequent to the commission of the offense.” U.S.S.G. § 2T1.1. Other offenses punishable under that section include evading taxes, 26 U.S.C. § 7201, willfully failing to file a tax return, keep records, or supply information as the tax code and regulations require, id. § 7203, making fraudulent statements under penalty of perjury in a “return, statement, or other document,” id. § 7206(1), removing, depositing, or concealing “any [taxed or levied] goods or commodities ... with intent to evade or defeat the assessment or collection of any tax,” id. § 7206(4), and perpetrating various forms of fraud on the Secretary, id. §§ 7206(3), 7207; see United States v. Neilson, 721 F.3d 1185, 1188 (10th Cir. 2013).

Section 2J1.2, in partial but not complete contrast, covers “Obstruction of Justice.” The section’s background note explains that “[n]umerous offenses of varying seriousness may constitute obstruction of justice,” including obstructing a criminal investigation, intimidating jurors, stealing or altering court records, intercepting grand jury deliberations, altering evidence, threatening or injuring witnesses, and impeding the communications of judges or law enforcement. U.S.S.G. § 2J1.2; see 18 U.S.C. §§ 1001, 1503, 1505, 1506, 1508, 1509, 1510(a), 1512, 1513, 1516, 1519; U.S.S.G. App. A. This guideline thus “covers a broad range of conduct that generally involves interfering with the administration of the justice system.” Neilson, 721 F.3d at 1188. Its instructions on “specific offense characteristics” tell courts what to do when the offense involves violence or threats, sex offenses, terrorism, or substantial fabrication or destruction of documents, but they do not mention tax offenses or lying to investigators specifically. U.S.S.G. § 2J1.2(b).

We give fresh review to a district court’s application of the Guidelines to a set of undisputed facts. United States v. Kimble, 305 F.3d 480, 485 (6th Cir. 2002). When “more than one guideline section is referenced for the particular statute” of conviction, the Guidelines tell us to “use the guideline most appropriate for the offense conduct charged.” U.S.S.G. App. A, Introductory cmt. The only offense conduct we look at is what’s described in the indictment or stipulated in the plea agreement. See U.S.S.G. § 1B1.2, comment, (n.1); United States v. Almeida, 710 F.3d 437, 441 (1st Cir. 2013); Neilson, 721 F.3d at 1187. Our analysis of the relevant guidelines looks at function (what does each guideline section say it is for) and the neighborhood of covered offenses (what other crimes does the guideline section apply to). See United States v. Hochschild, 442 F.3d 974, 977-78 (6th Cir. 2006); Neilson, 721 F.3d at 1188. The question, at bottom, is whether the conduct described in the count of conviction is “more akin to the conduct covered” by one guideline section or the other. Neilson, 721 F.3d at 1187-88.

The district court thought the most appropriate guideline for Ballard’s crime was § 2T1.1, and so do we. Consider the description of his offense conduct, as outlined in the indictment: that he “falsely staffed] to an Internal Revenue Service-Criminal Investigations Special Agent investigating [Ballard’s] outstanding debt for taxes due ... that commission checks [Ballard] received from NFP Securities, Inc. in January 2009, April 2009, May 2009, June 2009, August 2009, and December 2009 were for work done at an earlier date, and that he was not working in 2009, whereas in truth and in fact [Ballard] then well knew that these commission checks were for work done” in the months the checks issued. R. 1 at 1.

This is just the sort of ‘Willful Failure to ... Supply Information[ ] or Pay Tax” that § 2T1.1 is built for. He lied to an IRS agent. Why? To throw off the investigation of his “outstanding debt for taxes.” R. 1 at 1. That offense conduct could have been charged under other statutes punishable under § 2T1.1. See, e.g., 26 U.S.C. §§ 7201 (tax evasion), 7203 (willfully failing to supply required information). And the government would have incurred a tax loss of over $800,000 if that lie, in conjunction with his many other uncharged evasions, had succeeded. Even if Ballard is telling the truth about always intending to pay his tax bill once he hit it big — even indeed if he had already started repaying his outstanding taxes — § 2T1.1 has a provision explaining how to account for that circumstance: Change nothing about the tax loss calculation. All of that points to § 2T1.1 as the right guideline. Yes, § 2J1.2 covers a broad genus of obstruction offenses, including Ballard’s. But when another possible guideline explicitly includes the offense conduct, in addition to covering offenses that are close cousins of that conduct, that’s where the offense belongs. See Neilson, 721 F.3d at 1188-89.

Ballard objects. Because he always admitted he owed taxes, because he had always intended to pay them one day, and because the only charged conduct was one false statement, he claims that his offense is more like obstruction of an investigation than tax evasion. Like the district court, we think these points are fair. But like the district court, we think they are unpersuasive in the end. Ballard’s promise about intending to eventually pay his taxes is irrelevant to our determination of which guideline is the right one; the only facts that matter are the ones in the criminal information. See U.S.S.G. § 1B1.2; United States v. Malki, 609 F.3d 503, 510 (2d Cir. 2010). Ballard stipulated that he lied to IRS investigators in order to avoid having to pay taxes at that time and that he failed to pay the debt even- though he earned a significant income in 2009, conduct quite .similar to tax evasion. But even if we looked outside the charges, we have nothing but Ballard’s word to indicate that he was going to pay one day. His promise is less than credible, we think, in context— particularly in the context of his efforts to outmaneuver the IRS over a dozen years and the sudden appearance of his noble intentions only after being caught.

Nor are we swayed by the fact that the charged conduct was just one lie. The egregiousness of the offense does not determine which of these two sections is appropriate (though it can, and here did, drive the district court to vary below the guidelines range). What matters in the choice between two guidelines sections is which section is more precisely tailored to reflect offense characteristics — like tax evasion and tax loss — and which section covers a more closely related group of crimes. What Ballard did, and what the government charged, was a lie to the tax collector about his earnings. The district court sentenced Ballard accordingly.

For these reasons, we affirm.


author: SYKES, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Rakesh WAHI, Defendant-Appellant.
    No. 15-2094
    United States Court of Appeals, Seventh Circuit.
    Argued February 10, 2016
    Decided March 2, 2017

      Greggory R. Walters, Attorney, Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.
    Eanaon P. Joyce, Attorney, Sidley Austin LLP, New York, NY, Mark D. Taticchi, Attorney, 3G, Brooklyn, NY, for Defen-danh-Appellant.
    Before BAUER, FLAUM, and SYKES, Circuit Judges.
   SYKES, Circuit Judge.

Circuit precedent holds that a district court has inherent authority to reopen a closed criminal case to consider a request to expunge the judicial record based on an equitable balancing test that weighs the public and private interests at stake. See United States v. Flowers, 389 F.3d 737, 739 (7th Cir. 2004); United States v. Janik, 10 F.3d 470, 472 (7th Cir. 1993). We’re asked to decide whether this precedent is sound in light of Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Kokkonen clarified that ancillary jurisdiction exists for two limited purposes: (1) to permit claims that are factually interdependent to be resolved in a single proceeding; and (2) to enable the court to “manage its proceedings, vindicate its authority, and effectuate its decrees.” Id. at 380, 114 S.Ct. 1673.

Ancillary jurisdiction is the formal name for the inherent power recognized in Flowers and Janik. But a petition for equitable expungement satisfies neither of Kokko-nen’s criteria for the assertion of ancillary jurisdiction. Because Flowers and Janik cannot be reconciled with Kokkonen, they are overruled. This holding brings our circuit into conformity with a growing appellate consensus: Every circuit that has specifically addressed this question in light of Kokkonen has held that the district court lacks ancillary jurisdiction to hear requests for equitable expungement. Doe v. United States, 833 F.3d 192, 199 (2d Cir. 2016); United States v. Field, 756 F.3d 911, 916 (6th Cir. 2014); United States v. Coloian, 480 F.3d 47, 52 (1st Cir. 2007); United States v. Meyer, 439 F.3d 855, 859-60 (8th Cir. 2006); United States v. Dunegan, 251 F.3d 477, 479 (3d Cir. 2001); United States v. Sumner, 226 F.3d 1005, 1014 (9th Cir. 2000). These decisions recognize that ex-pungement authority is not inherent but instead must be grounded in a jurisdictional source found in the Constitution or statutes.

Here, however, the district judge was bound by existing circuit precedent. She acknowledged the force of Kokkonen but nonetheless took jurisdiction over Rakesh Wahi’s expungement petition, weighed the equities under the balancing test approved in Flowers and Janik, and concluded that his circumstances did not warrant ex-pungement. We vacate that decision and remand with instructions to dismiss the petition for lack of jurisdiction.

I. Background

Drs. Gautam Gupta and Rakesh Wahi operated nutrition clinics throughout Illinois. In 2011 they were indicted on charges of mail fraud, healthcare fraud, and conspiracy to defraud Medicaid, private insurers, and their patients. Gupta fled the country, but Wahi faced the charges. After more than a year of pretrial proceedings, the government learned that during the execution of a search warrant for electronic records, an FBI Special Agent had inadvertently accessed emails that might have contained communications covered by the attorney-client privilege. A prosecutor advised the court that although the breach was “likely minimal and unintentional,” it was “impossible at this stage” to determine whether the agent’s access to privileged communications had “spread in any manner to'others on the prosecution team.”

Because the prejudice to Wahi’s case was unknown, the government moved to dismiss the indictment. The judge granted the motion, dismissed the indictment, and ordered the government to file all discovery materials with the clerk under seal. The judge retained jurisdiction for the limited purpose of monitoring the government’s compliance with the turnover order. The government promptly complied and the case was closed.

More than two years later, Wahi filed a pro se petition for expungement of the judicial and FBI records related to his case. He alleged that the public information about the case was inhibiting his ability to obtain employment in the medical profession commensurate with his education and experience. Relying on Kokko-nen, the government resisted the petition on jurisdictional grounds. In light of circuit precedent, however, the government also addressed the petition on the merits, arguing that Wahi’s circumstances didn’t warrant the exceptional remedy of expungement.

The judge approached Wahi’s petition in two steps. First, she acknowledged that our caselaw — namely, Flowers and Jan-ik — supports jurisdiction over requests to expunge judicial records but not records maintained by the executive branch. Flowers, 389 F.3d at 738-39; Janik, 10 F.3d at 472. She also acknowledged that Flowers and Janik may be on shaky ground under Kokkonen. Bound by circuit precedent, however, the judge proceeded to the merits, but only to the extent that Wahi sought expungement of the judicial records in his case; she did not take jurisdiction over his request to expunge FBI records. In the second step, the judge held a hearing, applied the balancing test described in Flowers and Janik, and concluded that Wahi’s circumstances did not justify the extraordinary remedy of expungement.

Wahi appealed, initially representing himself, as he had in the district court. After briefing was completed, however, counsel appeared on his behalf and sought leave to file a supplemental brief. We granted the motion and also allowed the government an opportunity to respond. So we have the benefit of counseled adversarial briefing on both the jurisdictional and merits questions. As we’ll explain, our cases regarding the district court’s inherent power to expunge judicial records are inconsistent with Kokkonen and thus require reconsideration.

II. Analysis

“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673 (citations omitted). We begin our analysis by noting what is probably obvious: The district court’s statutory original criminal jurisdiction cannot support Wahi’s petition for expungement. See 18 U.S.C. § 3231 (“The district courts of the' United States shall have original jurisdiction ... of all offenses against the laws of the United States”). The charges against Wahi had long since been dismissed when he filed his petition; the entry of final judgment in the case ended the court’s § 3231 jurisdiction.

A handful of statutes give the court expungement authority, but only for certain types of records and in special classes of cases not relevant here. See, e.g., 10 U.S.C. § 1565(e) (requiring expungement of DNA records if a military conviction is overturned); 42 U.S.C. § 14132(d) (allowing expungement of FBI DNA records if a conviction is overturned); 18 U.S.C. § 3607(c) (permitting expungement motions in certain drug-possession cases). No statute vests the court with the general power to expunge the judicial record of a criminal case on purely equitable grounds.

That leaves ancillary jurisdiction as the only possible source of jurisdiction for Wahi’s expungement petition. The term “ancillary jurisdiction” refers to the court’s power to hear claims that are closely linked to other claims over which the court’s jurisdiction is otherwise secure. As the Supreme Court explained in Kokko-nen, the doctrine holds that the federal courts have a limited inherent authority to assert jurisdiction “over some matters (otherwise beyond their competence) that are incidental to other matters, properly before them.” 511 U.S. at 378, 114 S.Ct. 1673.

The precise question in Kokkonen was whether the doctrine of ancillary jurisdiction authorized a district court to hear a postjudgment motion to enforce a settlement agreement when the court’s dismissal order neither incorporated the agreement’s terms nor reserved jurisdiction to enforce it. Id. at 376-77, 114 S.Ct. 1673. The original lawsuit in Kokkonen was filed in state court, alleged only state-law claims, and was removed to. federal court-on the basis of diversity jurisdiction. Id. at 376, 114 S.Ct. 1673. The parties eventually settled the ease, and the district judge entered an order of dismissal that made no mention of the settlement agreement. Id. at 377, 114 S.Ct. 1673. When a dispute arose over one party’s compliance with its obligations under the agreement, the coun-terparty returned to court and asked the judge to enforce the agreement. Relying on “inherent power,” the district judge issued an order of enforcement, and the Ninth Circuit affirmed. Id.

The Supreme Court reversed, id. at 382, 114 S.Ct. 1673, observing that a motion to enforce a settlement agreement “requires its own basis for jurisdiction,” id. at 378, 114 S.Ct. 1673. The district court’s invocation of “inherent power” could only have been understood as a reference to ancillary jurisdiction. The Court explained that this form of jurisdiction exists for “two separate, though sometimes related, purposes: (1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent, and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.” Id. at 379-80, 114 S.Ct. 1673 (citations omitted).

“Neither of these heads,” the Court said, “supports the present assertion of jurisdiction.” Id. at 380, 114 S.Ct. 1673. First, the facts of the original suit and the facts of a claim for breach of the settlement agreement “have nothing to do with each other; it would neither be necessary nor even particularly efficient that they be adjudicated together.” Id. Second, the power to adjudicate an alleged breach of a settlement agreement “is quite remote from what courts require in order to perform their functions.” Id. The judgment in the underlying case consisted of a simple dismissal order, “a disposition that is in no way flouted or imperiled by the alleged breach of the settlement agreement.” Id. Instead, the postjudgment dispute was a garden-variety contract claim. The facts to be determined in a claim for breach of a settlement agreement “are quite separate from the facts to be determined in the principal suit, and automatic jurisdiction over such contracts is in no way essential to the conduct of federal-court business.” Id. at 381, 114 S.Ct. 1673.

The case would be “quite different,” the Court observed, if the dismissal order had retained jurisdiction to enforce the settlement agreement or incorporated its. terms. Id. “In that event, a breach of the agreement would be a violation of the order, and ancillary jurisdiction to enforce the agreement would therefore exist.” Id. But the dismissal order in Kokkonen — written by the parties themselves — did neither of these things, and “[ajbsent such action, ... enforcement of the settlement agreement is for state courts, unless there is some independent basis for federal jurisdiction.” Id. at 382, 114 S.Ct. 1673.

Kokkonen’s clarification of the permissible scope of ancillary jurisdiction requires us to revisit Flowers and Janik, our equitable-expungement cases. Like the lower courts’ assertion of jurisdiction in Kokko-nen, our treatment of jurisdiction in these opinions rests on unexamined assumptions about the district court’s inherent authority.

Flowers is our most recent opinion on the subject; it postdates Kokkonen but does not mention the case. Indeed, Flowers skims over the jurisdictional question without much discussion at all, simply citing Janik for the proposition that although district courts lack jurisdiction to expunge executive-branch records, the “district courts do have jurisdiction to expunge records maintained by the judicial. branch.” 389 F.3d at 738-39. Beyond that, Flowers is silent on the jurisdictional issue; the rest of the opinion is devoted to the balancing test for equitable expungement. Id. at 739-40. Relying again on Janik, Flowers explains that “[t]he test for the expungement of judicial records is a balancing test: ‘if the dangers of unwarranted adverse consequences to the individual outweigh the public interest in maintenance of the records, then expunction is appropriate.’ ” Id. at 739 (quoting Janik, 10 F.3d at 472). But Flowers added a thumb on the scale: The court held that because the public has a strong interest in maintaining “accurate and undoctored records,” the balance “very rarely tips in favor of expungement.” Id.

Janik, for its part, draws on two earlier cases — Scruggs v. United States, 929 F.2d 305 (7th Cir. 1991), and Diamond v. United States, 649 F.2d 496 (7th Cir. 1981)— neither of which directly addresses the court’s authority to expunge judicial records. Scruggs involved a request to expunge an arrest record; we explained that no statute authorized the district court to expunge arrest records, and “even if’ the court had the authority to do so, the district judge had not abused his discretion in declining the request. 929 F.2d at 307.

Along the way to this holding, Scruggs clarified that while “some cases” (including our own circuit’s decision in Diamond) contain loose language about the district court’s “inherent powers to obliterate arrest records,” the court’s inherent authority actually doesn’t reach that far. Id. at 306. Whatever else might be said about the scope of inherent power, it is plainly limited to “the management of judicial business” and does not include “supervisory powers over the behavior of the Executive Branch of the government.” Id. This part of Scruggs is in significant tension with Diamond, which authorized district judges to expunge arrest records using a case-specific balancing test without ever addressing the source of the court’s authority-over records held by the executive branch. 649 F.2d at 499. Although Scruggs noted this flaw in Diamond, the case remains on the books, and the balancing test it approved is carried forward to Janik and Flowers. And again, neither Scruggs nor Diamond has anything to say about the source of the court’s authority to expunge judicial records.

It should be clear from this brief survey that Flowers and Janik are built on a weak foundation, resting as they do on a series of unexplained assertions — what we’ve described elsewhere as “the judicial equivalent of a rumor chain.” Thomas v. Clements, 797 F.3d 445, 448 (7th Cir. 2015). Perhaps it goes too far to characterize them as “drive-by jurisdictional rulings” lacking in any precedential effect whatsoever. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); see also Magruder v. Fid. Brokerage Servs. LLC, 818 F.3d 285, 289 (7th Cir. 2016) (“[A]n unreasoned assertion of jurisdiction lacks prece-dential value.”). Still, there is good reason to revisit the jurisdictional issue that both decisions treated so perfunctorily. Neither opinion addresses the effect of the Supreme Court’s decision in Kokkonen. (Janik predates it; Flowers overlooks it.) When an intervening Supreme Court decision unsettles our precedent, it is the ruling of the Court that sits on 1 First Street that must carry the day. See De Leon Castellanos v. Holder, 652 F.3d 762, 765 (7th Cir. 2011); Reiser v. Residential Funding Corp., 380 F.3d 1027, 1029 (7th Cir. 2004).

Starting afresh and applying Kok-konen, we now conclude that the district court’s ancillary jurisdiction does not stretch so far as to permit the assertion of jurisdiction over a petition to expunge'the judicial record in a criminal case on purely equitable grounds. First, a request for equitable expungement is not factually dependent on the underlying criminal case in any sense that matters. Instead, it will always turn on facts collateral to or arising after the case is over — in short, matters external to the criminal case itself. For example, here Wahi alleges that he has been unable to secure professional employment because of the reputational taint associated with the public record of his indictment and arrest. In another case a defendant might claim that his post-judgment good behavior justifies expungement. Other scenarios can be imagined. The material point is that expungement based on an equitable balancing test that weighs the public and private interests in maintaining the judicial record is a wholly collateral inquiry based on new facts and, frankly, a policy choice. As such, it is not incidental to anything properly before the court and “requires its own basis for jurisdiction.” Kokkonen, 511 U.S. at 378, 114 S.Ct. 1673.

Second, the power to expunge judicial records on equitable grounds is not incidental to the court’s ability to function successfully as a court. Equitable ex-pungement is not needed to enable the court to “manage its proceedings” for the simple reason that the criminal proceedings are over. Id. at 380, 114 S.Ct. 1673. Nor is expungement authority needed to enable the court to “vindicate its authority” or “effectuate its decrees.” Id. Ex-pungement is not a remedial tool to enforce a ruling in the underlying criminal case. In short, equitable expungement “is in no way essential to the conduct of federal-court business.” Id. at 381, 114 S.Ct. 1673.

Properly understood, then, ancillary jurisdiction does not include a general equitable power to expunge judicial records in a criminal case. Expungement authority must instead have a source in the Constitution or statutes. In light of Kokkonen, Flowers and Janik are overruled. To the extent that any language in Scruggs or Diamond suggests that the district court has inherent power to order expungement of judicial records, that language is withdrawn.

With this holding we join five of our sister circuits, each of which has read Kok-konen to preclude the assertion of ancillary jurisdiction over a request to expunge judicial records on purely equitable grounds. See Doe, 833 F.3d at 199; Field, 756 F.3d at 916; Coloian, 480 F.3d at 52; Meyer, 439 F.3d at 859-60; Dunegan, 251 F.3d at 479; Sumner, 226 F.3d at 1014. No circuit has rejected this understanding of Kokkonen. Our status as an outlier is another compelling reason to overrule. See Glaser v. Wound Care Consultants, Inc., 570 F.3d 907, 915 (7th Cir. 2009) (explaining that circuit precedent may justifiably be overruled “when our position remains a minority one among other circuits [or] when the Supreme Court issues a decision on an analogous issue that compels us to reconsider our position”) (citation omitted).

Here, the district judge faithfully fol-' lowed existing circuit precedent, as she was required to do, and denied Wahi’s expungement petition on the merits using the balancing test approved in Flowers and Janik. We Vacate that decision and Remand with instructions to dismiss for lack of jurisdiction.

      . Because this opinion overrules circuit precedent, we have circulated it to all judges in active service in accordance with Circuit Rule 40(e). No judge voted to hear the case en banc.

      . To be clear, Wahi sought expungement of the publicly available FBI records in his case (i.e., records regarding his arrest and indictment). He did not seek expungement of the FBI's nonpublic files.

      . Wahi has abandoned his quest to expunge FBI records; he does not challenge the judge's refusal to take jurisdiction over this aspect of his expungement petition.


author: POSNER, Circuit Judge.

text:
    Billy CANNON, Plaintiff-Appellant, v. Dean NEWPORT, et al., Defendants-Appellees.
    Nos. 16-1339 & 16-3216
    United States Court of Appeals, Seventh Circuit.
    Submitted February 21, 2017
    Decided March 3, 2017

      Billy Cannon, Stanley Correctional Institution, Stanley, WI, for Plaintiff-Appellant.
    Before WOOD, Chief Judge, and POSNER and HAMILTON, Circuit Judges.
   POSNER, Circuit Judge.

Billy Cannon appeals the dismissal of two civil rights complaints, see 42 U.S.C. § 1983, that accuse Milwaukee police, prosecutors, and judges of having violated his constitutional rights during a series of investigations and prosecutions. -

In 2008 a state investigator obtained from a Wisconsin court authorization to intercept calls made to and from- a telephone number being used by suspected drug traffickers. That telephone number was not Cannon’s, but he says he was intercepted during this wiretap. Then on March 17 of the following year Milwaukee police obtained consent from Cannon’s son to search the home where he lived with his father. The police found $14,000 in cash in the home, and arrested Cannon for drug and gun crimes on the basis of a report by a government informant that the informant had purchased cocaine, and borrowed a gun, from Cannon. The day after his arrest the judge set bail for each of the crimes charged at $2,500. Cannon posted the required bail but was not released because the police filed another complaint, charging him with a third crime — giving a gun to an unauthorized person. Wis. Stat: § 941.29(4) (2007). A different judge reviewed that complaint the next day, found probable cause, and set bail at $2,500. Cannon did not post this additional amount.

He appeared in court on March 20, and prosecutors filed an amended criminal complaint covering all three charges, leading to the judge’s raising Cannon’s bail to $250,000. He eventually made bail, but in August was again arrested, this time for .bail jumping after he changed his residence without notifying the police. He was jailed, but released a few days later without being charged.

Cannon was finally tried in 2011, and though acquitted of the drug charge pleaded guilty to illegal possession of the gun (the second gun charge was dismissed) and was sentenced to two years in prison. Just before he’d pleaded guilty, however, a warrant had been issued for his arrest on new gun and drug charges. Two days later a state trooper stopped him for a traffic violation and upon learning his identity arrested him on the outstanding warrant. Four days after that Cannon appeared for a probable cause hearing.

In 2013 Cannon got hold of what he calls “exculpatory” material — copies of police reports and other documents relating to his March 2009 arrest — and on the basis of this documentation filed suit under 42 U.S.C. § 1983 against the police, prosecutors, and judges claiming that his prosecutions in 2009 and 2011 had been the elements of a conspiracy to violate his constitutional rights. That suit was dismissed as premature, because appeals by him in both criminal cases were pending. In 2014 he was convicted of the 2011 drug and gun charges and sentenced to 16 years’ imprisonment, a term he is currently serving.

In November 2015 he filed the two suits, both also under 42 U.S.C. § 1983, that have given rise to the appeals before us. In one, which focuses on the events of 2009, he claims that Milwaukee police officers, prosecutors, and judges violated his constitutional rights under the Fourth, Sixth, Eighth, and Fourteenth Amendments to the Constitution — that the police had lacked probable cause when they arrested him in March and August 2009, that he had been denied counsel when the first two criminal complaints were reviewed by two different judges before he appeared in court on March 20, 2009, that the $250,000 bail set that day had been excessive, and that the defendants had conspired maliciously to prosecute him. The district court dismissed the. complaint as barred by the six-year statute of limitations applicable to section 1983 claims in Wisconsin. Wis. Stat. § 893.53; Gray v. Lacke, 885 F.2d 399, 409 (7th Cir. 1989).

Cannon tries to sidestep the statute of limitations in three ways. He argues that he was unaware of the violations of his rights until he received the “exculpatory” material; that the defendants’ actions from the time of his arrest in March 2009 until they released that material to him in June 2013 constituted a “continuing violation” of his rights, amounting to a “custom and policy” of unconstitutional behavior; and that a plaintiff is not required to address in his complaint affirmative defenses to his claims.

The district judge was correct that Cannon’s claim that the police falsely arrested him in violation of the Fourth Amendment is time-barred. A claim to have been arrested in violation of the amendment accrues “at the time of (or termination of) the violation.” Dominguez v. Hendley, 545 F.3d 585, 589 (7th Cir. 2008). Cannon was brought before a judge three days after his March 2009 arrest, and his Fourth Amendment claim accrued then because by virtue of the arrest he was now “detained pursuant to legal process.” Wallace v. Kato, 549 U.S. 384, 397, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). And since any violation of the Fourth Amendment caused by his August 2009 arrest had ended when he was released on September 3, 2009, without charges being filed, id. at 389-90, 127 S.Ct. 1091; Harrington v. City of Nashua, 610 F.3d 24, 28 (1st Cir. 2010), the latest he could have sued concerning his two arrests were March 20, 2009, and September 3, 2015, respectively.

His attempt to excuse his lateness is unpersuasive. Nothing in the material he attaches to his complaint reveals circumstances of the arrests or of the charging and bail procedures that he wouldn’t have known at the time. Nor can he “use a theory of a continuing civil conspiracy to recover for individual overt acts that would themselves be time-barred.” Rosado v. Gonzalez, 832 F.3d 714, 718 (7th Cir. 2016). And when a complaint reveals that the action is untimely, the court can dismiss it. United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005).

His claim that he was denied counsel in violation of the Sixth Amendment when judges reviewed the first two criminal complaints against him has not yet accrued, because his conviction has not been set aside. He is not allowed to seek damages that would impugn a conviction, see Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); Gilbert v. Cook, 512 F.3d 899, 900 (7th Cir. 2008), though his claim to have been denied counsel at a critical stage in the litigation will, if vindicated, invalidate his conviction of the gun charge.

His claim of malicious prosecution of the drug charge, a charge eliminated by his acquittal in 2011 and thus accruing in that year, would be litigable as a constitutional claim only if there were no adequate state tort remedy, but Wisconsin law provides such a remedy. Strid v. Converse, 111 Wis.2d 418, 331 N.W.2d 350, 353-54 (1983); Julian v. Hanna, 732 F.3d 842, 845 (7th Cir. 2013); Newsome v. McCabe, 256 F.3d 747, 750-51 (7th Cir. 2001). And anyway under both state and federal law probable cause is a complete defense to malicious prosecution, see Hart v. Mannina, 798 F.3d 578, 587 (7th Cir. 2015); Strid v. Converse, supra, 331 N.W.2d at 354, and the police reports that he appended to his complaint leave no room for doubt that there was probable cause to charge him with the drug offense. See United States v. Sidwell, 440 F.3d 865, 869 (7th Cir. 2006).

His claim that the judge set excessive bail in violation of the Eighth Amendment also fails, because the defendants whom he sued are entitled to immunity, having acted either as lawyers for the state or in a judicial capacity. Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Pierson v. Ray, 386 U.S. 547, 553-55, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Thomas v. City of Peoria, 580 F.3d 633, 638-39 (7th Cir. 2009); Dawson v. Newman, 419 F.3d 656, 660-61 (7th Cir. 2005).

Cannon’s second complaint, which underlies appeal No. 16-3216, focuses on the 2008 wiretap application and the resulting 2011 arrest. It makes three claims. The first is that Wisconsin’s attorney general never authorized the 2008 wiretap application and it was therefore void under both federal and state law. See 18 U.S.C. § 2516(2); Wis. Stat. § 968.28. The district court dismissed that claim because the wiretap order that Cannon appended to his complaint contradicts his allegations by noting the attorney general’s prior approval of the application. The second claim is that the state trooper used the traffic violation as a pretext to stop him and execute the outstanding warrant on the 2011 gun and drug charges, which was not in the trooper’s physical possession. Moreover, Cannon continues, the warrant must have been doctored because the copies he obtained from the court and a sheriffs department are not identical. The district court rejected the claim because his arrest was pursuant to a valid warrant, the differences between the copies of the warrant being readily explainable. The third claim is that too much time elapsed before his probable cause hearing. The district court rejected the claim because Cannon received a probable cause determination before his arrest and was not entitled to another determination after his arrest.

On appeal Cannon insists that his second complaint states a Fourth Amendment claim by virtue of his allegation that Wisconsin’s attorney general did not authorize investigators to wiretap the telephone calls of Cannon’s associate. Yet the order he calls defective cites the prior approval of the attorney general.

He further argues that his second complaint states a Fourth Amendment claim arising from his 2011 arrest because, he insists, the state trooper did not have a copy of the warrant, which anyway was formatted incorrectly and may even, he says, have been doctored. But the trooper didn’t have to possess the warrant for the arrest to be valid. See Utah v. Strieff, - U.S. -, 136 S.Ct. 2056, 2060, 2062-63, 195 L.Ed.2d 400 (2016); United States v. Hensley, 469 U.S. 221, 232, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); United States v. Patrick, 842 F.3d 540, 542 (7th Cir. 2016); Atkins v. City of Chicago, 631 F.3d 823, 826-27 (7th Cir. 2011). Nor is there any reason to believe that the warrant was doctored. One copy was faxed to the sheriffs office before Cannon’s arrest; the other, which was filled out post-arrest, noted that the warrant had been executed by the trooper arresting him.

Last, Cannon contends that his second complaint pleads a Fourth Amendment violation because he was in jail for four days before being brought before a judge. But the judge who issued the warrant had found probable cause before Cannon was arrested; he was not entitled to another judicial determination. See Baker v. McCollan, 443 U.S. 137, 142-43, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); cf. Holloway v. Delaware County Sheriff, 700 F.3d 1063, 1068 (7th Cir. 2012). Anyway he later received credit against his sentence for those four days.

Because all his claims are barred, he has incurred four strikes under the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), one for each complaint and one for each appeal. He therefore is no longer permitted to file a civil action or appeal in any federal court without prepaying all fees, unless he is in imminent danger of serious injury.

Affirmed.


author: KANNE, Circuit Judge.

text:
    Joseph S. McGREAL, Plaintiff-Appellant, v. The VILLAGE OF ORLAND PARK, Timothy McCarthy, Patrick Duggan, and James Bianchi, Defendants-Appellees.
    No. 16-2365
    United States Court of Appeals, Seventh Circuit.
    Argued December 8, 2016
    Decided March 6, 2017
    Rehearing Denied March 27, 2017

      John P. DeRose, Attorney, DeRose & Associates, Hinsdale, IL, for Plaintiff-Appellant.
    Lance C. Malina, Attorney, Klein, Thorpe & Jenkins, Alan S. Madans, Attorney, Rothschild, Barry & Myers, Chicago, IL, Michael J. Wall, Attorney, Palos Park, IL, for Defendants-Appellees.
    Before MANION, KANNE, and HAMILTON, Circuit Judges.
   KANNE, Circuit Judge.

On June 28, 2010, Joseph McGreal was fired from his position as a police officer with the Orland Park Police Department. Thereafter, he sued the Village of Orland Park and three members of the police department — Chief of Police Timothy McCarthy, Lieutenant Patrick Duggan, and Lieutenant James Bianchi — claiming that' the defendants violated his First Amendment rights by firing him in retaliation for his exercise of protected speech at a community board meeting. He also brought a state-law intentional-infliction-of-emotional-distress claim. The defendants filed a motion for summary judgment, which the district court granted.

This appeal ultimately comes down to evidence, or perhaps more appropriately, a lack of it. Because McGreal has offered no admissible evidence showing that he is entitled to relief, the district court properly dismissed his claims.

I. Background

McGreal began working as a police officer in the Village of Orland Park on January 10, 2005. Early in his career, McGreal performed competently: he received positive reviews on his performance evaluations and was nominated for various commendations and other honors. But conflict between McGreal and the police department arose in 2009, which culminated in McGreal’s firing on June 28, 2010.

McGreal alleges that he was fired because of his exercise of protected speech at a village board meeting held on November 2, 2009. The village had called that meeting to discuss options to address an anticipated budgetary shortfall. One of the cost-saving options that the village proposed involved laying off as many as seven full-time police officers. McGreal, who had been elected secretary of the local police union in 2008, contends that he attended the meeting on behalf of the union. There, he allegedly presented three alternative solutions, none of which required the laying off of any full-time officers: (1) eliminating certain newly-created, non-essential positions; (2) eliminating the take-home squad-car program for certain lieutenant positions; and (3) creating a new longevity-benefit program that would allow eligible officers to take early retirement. McGreal contends that those solutions, which protected lower-level police officers at the expense of their superiors, drew the ire of the defendants. According to McGreal, the defendants then retaliated against him because of his speech by accusing, interrogating, and ultimately firing him under the pretext of unsubstantiated violations of department policy.

The defendants, on the other hand, deny knowing that McGreal engaged in any protected speech or even attended the November 2 board meeting. Instead, they argue that McGreal was legitimately fired because of a series of incidents that occurred in late 2009 and early 2010, none of which involved any protected speech.

The first incident occurred on October 27, 2009. That evening, McGreal conducted a traffic stop of a man named Charles Robson, which McGreal’s in-squad video camera recorded. Because McGreal turned his microphone off shortly after placing Robson in handcuffs, the police department questioned whether the stop had been performed properly. The defendants also allege that McGreal initially refused to write a report for the stop and even lied under oath about what occurred during the stop. The department conducted an investigation of the stop and its aftermath on November 23, 2009.

The defendants next contend that McGreal committed several acts of misconduct shortly after the November 2 board meeting. These included two unauthorized, unnecessary, and dangerous high-speed chases. The defendants also point to McGreal’s behavior at an awards banquet on November 24, 2009, during which McGreal allegedly ostracized a fellow officer who had been honored ás the Officer of the Year. The defendants further allege that McGreal continued this inappropriate behavior during his shift that same evening after the banquet.

Because of these and other incidents,the department interrogated McGreal on January 21, 2010. Specifically, they questioned McGreal under oath about his actions during the Robson traffic stop, the awards ceremony, and his shift immediately following the awards ceremony. The defendants allege that McGreal lied during the interrogation about each of those incidents. Afterward, the defendants contend that McGreal committed several additional acts of misconduct, including one instance of reckless driving while off duty.

On March 5, 2010, the department placed McGreal on paid administrative leave. McGreal’s misconduct continued after this date. The written order placing McGreal on leave included a no-contact clause, which ordered McGreal “to have no contact or discussion of any kind with any member of this department, citizen or complainant regarding these investigations.” (R. 215-23 at 1.) According to the defendants, McGreal violated the no-contact clause on at least two occasions. The department interrogated McGreal again on March 24, 2010. There, the defendants allege that McGreal again lied under oath, claiming that he never contacted anyone in the department about his case. The department ordered him to provide his phone records to verify his testimony, but McGreal refused, claiming that he was not an authorized user on his telephone account and could not obtain the records. The department then obtained the records by subpoena, which revealed that McGreal had in fact contacted at least two officers. The records also showed that, on the same day the department had asked him to provide his phone records, McGreal had removed his name as an authorized user on the account in an apparent effort to obstruct the department’s investigation.

On April 21, 2010, the department presented McGreal with a “summarized list of reasons for contemplated disciplinary action,” which charged McGreal with a total of sixteen acts of misconduct. (R. 215-24 at 2.) After meeting with McGreal, Chief McCarthy filed ap statement of charges with the Board of Fire and Police Commissioners. (R. 220-20.) McGreal was then fired on June 28, 2010.

McGreal contested his termination through arbitration. After meeting with the parties seventeen times over a fourteen-month period, the arbitrator sustained McGreal’s termination on November 14, 2012. McGreal unsuccessfully appealed the arbitrator’s decision in the Appellate Court of Illinois. McGreal v. Village of Orland Park, No. 1-14-1412, 2015 WL 256529 (Ill. App. Ct. Jan. 20, 2015); McGreal v. Ill. Labor Relations Bd. State Panel, No. 1-13-3634, 2014 WL 7176785 (Ill. App. Ct. Dec. 16, 2014).

On June 27, 2012, McGreal filed this lawsuit under 42 U.S.C. § 1988 against the defendants in the Northern District of Illinois. In his complaint, McGreal alleged various constitutional and state-law claims surrounding his termination including: (1) a violation of due process under the Fourteenth Amendment, (2) retaliation in violation of the First Amendment, (3) a Monell claim against the Village of Orland Park and the police department, (4) tortious interference with advantageous business relations', and (5) intentional infliction of emotional distress. He further alleged that the village was liable under respondeat superior and indemnification theories.

The defendants filed a motion to dismiss, which the district court granted in part and denied in part on August 2, 2013. In particular, the district court dismissed all claims against the .individual defendants in their official capacities, limited McGreal’s § 1983 claims to alleged violations that occurred on or after June 28, 2010, and dismissed certain claims that were related to the arbitration hearing or that should •have been filed with the Illinois Labor Relations Board. The defendants then filed a motion for summary judgment, which the district court granted in its entirety on April 15, 2016. The district court denied McGreal’s motion for reconsideration on May 24, 2016. This appeal followed.

II. Analysis

We review de novo a district court’s grant of summary judgment, construing all facts and reasonable inferences in favor of the nonmoving party. Tapley v. Chambers, 840 F.3d 370, 376 (7th Cir. 2016). Summary judgment is proper when “the admissible evidence shows that there is no genuine issue as to any material fact and that'the moving party is entitled to judgment as a matter of law.” Id. (quoting Hanover Ins. Co. v. N. Bldg. Co., 751 F.3d 788, 791 (7th Cir. 2014)).

On appeal, McGreal contests only the district court’s dismissal of his First Amendment and intentional-inflietion-of-emotional-distress claims. Our review is thus limited to those claims. See e.g., United States v. Beavers, 756 F.3d 1044, 1059 (7th Cir. 2014) (treating as waived arguments that an appellant did not raise in his opening brief). We begin with his First Amendment claim and then turn to his intentional-infliction-of-emotional-distress claim.

A. First Amendment Retaliation

McGreal first argues that the defendants violated his First Amendment rights by firing him in retaliation for his speech at the November 2 board meeting. To prevail on this claim, McGreal must show that “(1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was at least a motivating factor in the defendants’ decision to take the retaliatory action.” Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015) (quoting Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)). The defendants dispute only the third element — in short, causation — arguing that McGreal’s termination had nothing to do with his speech.

At summary judgment in First Amendment retaliation cases, the burden of proof for causation is divided and shifts between the parties. Kidwell v. Eisenhauer, 679 F.3d 957, 965 (7th Cir. 2012). First, the plaintiff must produce evidence that his speech was “at least a motivating factor — or, in philosophical terms, a ‘sufficient condition’ — of the employer’s decision to take retaliatory action against him.” Id. (quoting Greene v. Doruff, 660 F.3d 975, 979-80 (7th Cir. 2011)). If the plaintiff makes this initial showing, the burden then “shifts to the employer to rebut the causal inference.” Id. The employer can meet its burden by offering an alternative explanation for the firing, showing that its decision to terminate the plaintiff “would have been made -in the absence of the protected speech.” Thayer v. Chiczewski, 705 F.3d 237, 252 (7th Cir. 2012). If the employer successfully rebuts the causal inference, the burden shifts back to the plaintiff to “demonstrate that the [employer’s] proffered reason was pretextual and that the real reason was retaliatory animus.” Id.

Here, McGreal fails at both steps one and three in this burden-shifting analysis. First, he has provided no admissible evidence ' that’ his speech was a motivating factor of the defendants’ decision to fire him. Second, even if he had made that initial showing and shifted the burden back to the defendants, McGreal has provided no admissible evidence that the defendants’ alternative explanations for his firing were pretextual. See Swearnigen-El v. Cook Cnty. Sheriff's Dept., 602 F.3d 852, 861-63 (7th Cir. 2010) (analyzing both steps).

1. McGreal’s Speech as a Motivating Factor

To show that his firing was motivated by his protected speech, McGreal must first demonstrate that the defendants knew of the protected speech. “Allegedly protected speech cannot be proven to motivate retaliation, if there is no evidence that the defendants knew of the protected speech.” Stagman v. Ryan, 176 F.3d 986, 999-1000 (7th Cir. 1999) (citation omitted). McGreal argues that the defendants retaliated against him because of his speech at the November 2 board meeting. To survive summary judgment, he thus has to provide admissible evidence that the defendants were aware of that speech before they initiated disciplinary proceedings.

McGreal has not met his burden: none of the “many documents” he references actually show that the defendants were aware of his speech. (Appellant’s Br. at 29.) The first few documents McGreal cites — a memorandum written by the village manager to “All Village Employees” (R. 220-15 at 24) and an email from the union president to the union’s members (R. 220-15 at 25) — were actually created weeks before the November 2 meeting and thus could not have provided the defendants with knowledge of who attended the meeting or what the meeting’s attendees discussed. Other documents McGreal references — a letter from the village manager to the union president (R. 220-17 at 20) and -an email from the union president to the village manager (R. 220-16 at 14) — do not address the November 2 meeting at all.

The deposition testimony that McGreal cites also doesn’t show that the defendants knew of McGreal’s speech. Although Chief McCarthy admitted during his deposition that he was aware that McGreal had met with the mayor and other board members on .October 26, McCarthy did not testify that he knew McGreal attended or engaged in protected speech at the November 2 meeting. (R. 220-9 at 26.) Because McGreal has provided no evidence that the defendants knew of his speech, he has failed to show that his speech was a motivating factor of the defendants’ decision to fire him. Stagman, 176 F.3d at 999-1000.

2. The Defendants’ Alternative Explanations

Had McGreal made the initial showing that the defendants were aware of his protected speech and that his speech was a motivating factor in his firing, the burden would have shifted to the defendants to provide a legitimate and nonretaliatory explanation for the firing. But because the defendants provided several alternative explanations for McGreal’s firing- — -that he (1) lied under oath during several formal interrogations, (2) committed numerous acts of insubordination, and (3) engaged in reckless conduct while on duty — the burden would have again shifted back to McGreal to show that these explanations were pretextual. See Thayer, 705 F.3d at 252. To show pretext and to survive summary judgment, McGreal must “produce evidence upon which a rational finder of fact could infer that the defendant[s’] proffered reason[s] [are] lie[s].” Zellner v. Herrick, 639 F.3d 371, 379 (7th Cir. 2011).

Again, McGreal has failed to meet his burden: he has offered no admissible evidence to show that the defendants’ non-retaliatory explanations for his firing were anything but true. Although he does cite a few documents to bolster his pretext argument, none of these are sufficient to withstand summary judgment. For instance, he cites his own unsigned affidavit (R. 220-14), his Second Amended Complaint (R. 89 at ¶ 14), his statement of undisputed material facts (R. 220-2 at ¶¶ 39, 41), and a spreadsheet that he created based largely on his own experiences (R. 220-21 at 45-47). He also tries to bolster his argument with irrelevant citations to portions of the record that have nothing to do with his firing. In short, the documents he references are not admissible evidence showing that the defendants’ explanations are pre-textual.

McGreal also largely relies on the suspicious timing of events to show pretext. But as we have repeatedly held, suspicious “timing alone does not create a genuine issue as to pretext if the plaintiff is unable to prove, through other circumstantial evidence, that he was terminated for a reason other than that proffered by the employer.” Pugh v. City Of Attica, 259 F.3d 619, 629 (7th Cir. 2001). “The reason is obvious: ‘[s]uspicious timing may be just that — suspicious—and a suspicion is not enough to get past a motion for summary judgment.’ ” Kidwell, 679 F.3d at 966 (quoting Loudermilk v. Best Pallet Co., 636 F.3d 312, 315 (7th Cir. 2011)). Because McGreal has cited no evidence apart from suspicious timing that the defendants’ alternative explanations are untrue, he has failed to meet his burden. The district court thus did not err in granting the defendants’ motion for summary judgment as to McGreal’s First Amendment retaliation claim.

B. Intentional Infliction of Emotional Distress

McGreal next argues that the defendants’ conduct amounted to an intentional infliction of emotional distress. To prevail on this claim under Illinois law, McGreal must show that (1) the defendants engaged in “extreme and outrageous” conduct; (2) the defendants “either intended that [their] conduct would inflict severe emotional distress, or knew there was a high probability that [their] conduct would cause severe emotional distress”; and (3) the defendants’ “conduct in fact caused severe emotional distress.” Zoretic v. Darge, 832 F.3d 639, 645 (7th Cir. 2016) (citing Doe v. Calumet City, 161 Ill.2d 374, 204 Ill.Dec. 274, 641 N.E.2d 498, 506 (1994)).

McGreal has offered absolutely no evidence that the defendants’ conduct was extreme or outrageous or that their conduct caused him severe emotional distress. To the contrary, in his own brief, McGreal admits that the “severity” of his emotional distress was “probably of the garden variety.” (Appellant’s Br. at 53.) “The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.” McGrath v. Fahey, 126 Ill.2d 78, 127 Ill.Dec. 724, 533 N.E.2d 806, 809 (1988) (quoting Restatement (Second) of Torts § 46, cmt. j (1965)). Garden-variety emotional distress is insufficient to meet that standard. The district court did not err in granting the defendants’ motion for summary judgment as to McGreal’s intentional-infliction-of-emotional-distress claim.

III. Conclusion

For the foregoing reasons, the district court’s grant of the defendants’ motion for summary judgment is AFFIRMED.


text:
    Charlene EIKE, et al., on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. ALLERGAN, INC., et al., Defendants-Appellants.
    No. 16-3334
    United States Court of Appeals, Seventh Circuit.
    Argued February 7, 2017
    Decided March 6, 2017
    Rehearing En Banc Denied April 7, 2017

      Richard Steven Cornfeld, Attorney, Law Office of Richard S. Cornfeld, Kevin M. Carnie, Jr., Attorney, Simon Law Firm, St. Louis, MO, Leah M. Nicholls, Attorney, Public Justice, Washington, DC, for Plaintiffs-Appellees.
    Troy A. Bozarth, Attorney, Hepler Broom, LLC, Edwardsville, IL, James P. Muehlberger, Attorney, Lori Connors McGroder, Attorney, Shook, Hardy & Bacon LLP, Kansas City, MO, for Defendant-Appellant Allergan, Inc.
    Gregory E. Ostfeld, Attorney, Green-berg Traurig, LLP, Chicago, IL, for Defendant-Appellant Alcon Laboratories, Inc.
    Robyn Eileen Bladow, Attorney, Kirkland & Ellis LLP, Los Angeles, CA, for Defendant-Appellant Pfizer, Incorporated.
    Stephen G. Strauss, Attorney, Bryan Cave LLP, St. Louis, MO, for Defendant Appellant Merck & Company, Incorporated.
    Jeffrey S. Bucholtz, Attorney, King & Spalding LLP, Washington, DC, for Amici Curiae Chamber of Commerce of the United States of America, American Tort Reform Association.
    Stephen Gardner, Attorney, Stanley Law Group, Dallas, TX, for Amicus Curiae National Association of Consumer Advocates, Incorporated.
    Before BAUER, POSNER, and SYKES, Circuit Judges.

       Circuit Judge llana Rovner did not participate in the consideration of this petition for rehearing.

   POSNER, Circuit Judge.

The defendants appeal from an order certifying eight classes (which for simplicity we’ll pretend are just one class), consisting of persons in Illinois and Missouri who take eye drops manufactured by six pharmaceutical companies — the defendants in the case — for treatment of glaucoma. The claim is that the defendants’ eye drops are unnecessarily large, in violation of the Illinois Consumer Fraud Act, 815 ILCS 505/1 et seq., and the Missouri Merchandising Practices Act, Mo. Rev. Stat. §§ 407.010 et seq., because each eye drop exceeds 16 microliters (equal to a tenth of one percent of a tablespoon), and the class contends that the optimal size of an eye drop for treatment of glaucoma is 16 microliters, no more. In places it says that drops as small as 5 microliters would be safe, but its claim is merely that anything larger than 16 microliters is wasteful because, it contends, the additional microliters add no therapeutic value.

The difference between the price per drop of the eye drops at their present size, and the presumably lower price if the drops were smaller, multiplied by the number of drops that have been bought by the members of the class, are the damages the class is seeking.

Yet it does not argue that the price of the current eye drops is a result of collusion, whether tacit or express, among the defendants; this is not an antitrust case. Nor is there any allegation of misrepresentation. The argument is only that the price of the eye drops is excessive because a smaller drop, costing less to produce and (especially) to package, could be sold at a lower price yet still cover the producers’ costs, and therefore the only benefit of the larger drop is to the producers’ profits, which is why, the class argues, the producers are not motivated to make the change. This assumes that profits would decline if the defendants switched to selling the smaller, cheaper-to-produce eye drops. But that’s far from certain; lower prices might result in greater sales and as a result higher rather than lower profits.

The class further alleges that the large eye drops have a higher risk of side effects — but does not explain what the side effects are — and are more likely to be used up faster. Yet there is no claim that members of the class have experienced side effects from the large drops, or have been harmed because they ran out of them early (on the theory that the larger the drops the fewer there are in each bottle). Unsurprisingly, therefore, the only damages sought are for the “pocketbook” injury of paying what the class contends to be an unnecessarily high price for the defendants’ eye drops because of the size of those drops.

Given the lack of any suggestion of collusion by the defendants either with each other or with other producers (if there are other producers) of eye drops for treatment of glaucoma, or of any claim that the defendants misrepresent the quality of their product, we are asked to decide a case based simply on dissatisfaction with a product made by multiple firms, or with its price. Suppose the class members all happened to own pedigreed cats, and the breeders who had sold the eats to the class members had told them that as responsible cat owners they would have to feed the cats kibbles during the day and Fancy Feast at night and buy a fountain for each cat because cats prefer to drink out of a fountain (where gravity works for them) rather than out of a bowl (where gravity works against them) and they don’t like to share a fountain with another cat. And suppose the buyers do as told, buying what they are told to buy from pet stores, but it turns out that the cats have large appetites, the cat food is quite expensive, and the fountains are expensive and not wholly reliable. The breeders had made no misrepresentations, concealed no information, answered all questions of prospective buyers truthfully. Nevertheless many of the buyers are dissatisfied. They think— maybe correctly — that the cat food is needlessly expensive and the fountain a fragile luxury. Yet would anyone think they could successfully sue the breeders? For what? The breeders had made no misrepresentations. Had a prospective buyer asked one of the breeders what the annual cost of maintaining the cat would be, the breeder would, let’s assume, have given him a realistic estimate. There would be disappointment in the example given, but no cause of action.

It’s the same here. The only eye drops sold by the defendants for the treatment of glaucoma are larger than 16 microliters. There are reasons for this, or so the defendants argue. Each eye drop consists mostly of inactive ingredients; the active pharmaceutical ingredient that is what treats the glaucoma is only about 1 percent of the drop, and only 1 to 7 percent of that ingredient crosses the cornea into the eye itself, where it can exert its therapeutic effect. The amount of fluid the eye can hold without overflowing varies from person to person and, the defendants assert, often exceeds 16 microliters. The smaller the drop, therefore, the weaker its likely therapeutic effect for patients whose eyes could have absorbed a larger drop. In addition, elderly patients, patients with unsteady hands, and patients who already have serious eye problems, often have trouble getting eye drops into their eyes, and the smaller the drop the likelier they are to miss.

The defendants’ large eye drops have been approved by the Food and Drug Administration (FDA) — in other words have been determined-to be safe and effective for treatment of glaucoma. That doesn’t exclude the possibility that a smaller drop would be as or even more effective, and also cheaper. But those are matters for the class members to take up with the FDA. See 21 C.F.R. § 10.30. A court can review a determination by the FDA, but it cannot bypass the agency and make its own evaluation of the safety and efficacy of an unconventionally sized eye drop for treatment of glaucoma. Not that the class members are likely to get far with the FDA. They don’t want the agency to rescind its approval of the large drops— they don’t argue that the large drops are unsafe or ineffective. They just want the defendant companies vto start manufacturing smaller drops. But the agency can’t force a private company to manufacture a product the company doesn’t want to make — all it can do is approve or disapprove drugs that a company does make.

Even supposing it were demonstrable that a smaller eye drop would be more effective and cheaper than the ones manufactured by the defendants, the class members would have no cause of action. You cannot sue a company and argue only — “it could do better by us” — which is all they are arguing. In fact, such a suit fails at the threshold, because there is no standing to sue. One cannot bring a suit in federal court without pleading that one has been injured in some way (physically, financially — whatever) by the defendant. That’s what’s required for standing. The fact that a seller does not sell the product that you want, or at the price you’d like to pay, is not an actionable injury; it is just a regret or disappointment — which is all we have here, the class having failed to allege “an invasion of a legally protected interest.” Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

And so the grant of class certification is vacated and the case remanded with directions to dismiss the suit with prejudice.