author: WILLIAMS, Circuit Judge.

text:
    Betty L. BROWN, Plaintiff-Appellant, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee.
    No. 16-1066
    United States Court of Appeals, Seventh Circuit.
    Argued September 21, 2016
    Decided December 22, 2016

      Dana Wayne Duncan, Attorney, Duncan Disability Law, SC, Nekoosa, WI, for Plaintiff-Appellant.
    Richard D. Humphrey, Attorney, Office of the United States Attorney, Madison, WI, Alison Talbert Schwartz, Assistant Regional Counsel, Social Security Administration, Chicago, IL, for Defendant>-Appel-lee.
    Before FLAUM, KANNE, and WILLIAMS, Circuit Judges.
   WILLIAMS, Circuit Judge.

Betty Brown applied for disability benefits on the ground that her bad back and obesity left her in too much pain to work. The Social Security Administration denied Brown’s application, and after holding a hearing, an administrative law judge (ALJ) upheld the denial, concluding that Brown could perform sedentary work associated with six jobs identified by a vocational expert.

Brown challenges this denial of benefits on several grounds. First, she argues that the ALJ insufficiently considered her obesity. We disagree. The ALJ repeatedly stated that he had considered Brown’s obesity, discussed multiple treatment records that identified the obesity, and rejected the opinions of several government-related experts that insufficiently accounted for the obesity. Brown also contends that the ALJ improperly relied on the vocational expert’s testimony from the administrative hearing, claiming that the expert failed to provide enough information to justify her departure from the Dictionary of Occupational Titles — which provides occupational information about myriad jobs in the U.S. economy — and failed to verify the source of the data on which her jobs-related opinions were based. But Brown forfeited most of these arguments by failing to object to the expert’s testimony during the hearing, and the one error that the ALJ did commit was harmless.

However, we agree with Brown that the ALJ violated the Treating Physician Rule when he rejected certain opinions proffered by Brown’s doctor regarding Brown’s ability to sit and stand for prolonged periods of time. In substituting his own opinions for the doctor’s, the ALJ focused on facts that did not directly pertain to sitting or standing and misrepresented multiple statements Brown made to treatment providers and others. So we vacate the ALJ’s denial of benefits and remand the case for further proceedings.

I. BACKGROUND

Betty Brown is five feet five inches tall and her weight has exceeded 300 pounds for over ten years. Medical records dating back to February 2004 indicate that Brown has long suffered from chronic back pain, due at least in part to several mild spinal fractures that she suffered during a car accident in 2003. Brown’s back pain became more significant as the result of a second car accident in July 2004, as well as incidents in June 2006 and January 2007 during which she heard popping noises in her back. Throughout this period, Brown regularly visited her treating physician, Dr. William Shannon, who prescribed her several medications — most notably (and most often) oxycodone, with the daily dosage steadily increasing from 30 mg in May 2004 to 240 mg in September 2009.

In March 2007, Brown applied for disability insurance benefits and supplemental security income under 42 U.S.C. §§ 416(i) and 423. At the time, she weighed approximately 310 pounds, was not working (she claimed to have last worked in October 2004), and complained that her back pain prevented her from sitting or standing for more than 30 minutes at a time and required that she periodically lie down. The Social Security Administration denied both benefits applications, and an ALJ, after holding a hearing, followed suit.

For reasons that we need not discuss, the ALJ was required to consider Brown’s benefits applications two additional times, most recently in August 2014. In that latter decision, the ALJ again denied Brown’s applications, and in doing so followed the five-step sequential evaluation process outlined in 20 C.F.R. § 404.1520(a)(4). The ALJ first concluded Brown had not performed substantial gainful activity since January 2007, and, second, found that Brown had three “severe” impairments— back pain, obesity, and migraines. Third, the ALJ determined that none of these impairments individually or collectively met the listed impairments in Appendix 1 to 20 C.F.R. § 404, Subpart P, and that Brown had the residual functional capacity to perform sedentary work with a sit/stand option so that she could avoid sitting or standing for more than thirty minutes at a time. Fourth, the ALJ found that Brown could not do her past work as a cook based on this residual functional capacity. Finally, the ALJ, relying on testimony from a vocational expert, found that Brown could perform six other jobs that existed in significant numbers in the economy — assembler, order clerk, office helper, video surveillance monitor, greeter/attendant, and telephone solicitor.

Based on these findings, the ALJ determined that Brown was not disabled. The district judge affirmed the ALJ’s determination, and this appeal followed.

II. ANALYSIS

On appeal, Brown raises the same three arguments that the district judge considered and rejected — that the ALJ improperly evaluated her obesity, that the ALJ improperly applied the Treating Physician Rule, and that there was inadequate support for the vocational expert’s testimony about jobs available to Brown in light of her physical limitations. Because we review the district judge’s decision de novo, we review the ALJ’s decision directly and ask whether there is “substantial evidence” that “a reasonable mind might accept as adequate to support” the conclusions at issue. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008) (citation omitted). In doing so, we may not decide facts anew or make independent credibility determinations, and must affirm the ALJ’s decision even if reasonable minds could differ about the ultimate disability finding. Id. (citations omitted). “We limit our review to the reasons articulated by the ALJ in the written decision.” Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011).

A. ALJ Adequately Considered Brown’s Obesity

Although obesity has been removed as a standalone listing from Appendix l’s list of disabling impairments, it must still be considered when evaluating the severity of other impairments in the five-step sequential analysis. Castile v. Astrue, 617 F.3d 923, 928 (7th Cir. 2010) (discussing SSR 02-lp, 67 Fed. Reg. 57859-02 (Sept. 12, 2002)). Obesity cannot be ignored because “[t]he combined effects of obesity with other impairments may be greater than might be expected without obesity.” SSR 02-lp; see also Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir. 2011) (“It is one thing to have a bad knee; it is another thing to have a bad knee supporting a body mass index in excess of 40.”). While an ALJ need not painstakingly evaluate every piece of evidence when undertaking this analysis, the ALJ “must build a logical bridge from evidence to conclusion.” Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009) (per curiam).

Brown maintains that although the ALJ acknowledged her obesity, he “fail[ed] to make the bridge between that condition and the numerous physical problems noted in the record.” According to Brown, the ALJ linked her back injuries with her complaints of pain and use of prescription medication, but failed to acknowledge that the severity of her pain and the corresponding need for large amounts of medication could only have resulted from injury and obesity.

Although the issue is close, we find that the ALJ adequately considered Brown’s obesity alongside her severe back pain. As Brown herself concedes, the ALJ repeatedly asserted that he had considered her obesity. For example, he stated that he “considered the fact that obesity may increase the severity of [Brown]’s back pain symptoms and may increase her fatigue and ability to sustain work activity on a regular and continuing basis”; that Brown’s “back disorder, obesity, and migraine headaches, considered in combination, warrant the restrictions set forth in the residual functional capacity”; and that he “fully considered the impact of [Brown]’s morbid obesity on her musculo-skeletal impairment.” Brown claims that these statements are merely conclusory, but we disagree. On multiple occasions, the ALJ referenced portions of Dr. Shannon’s treatment notes that discussed Brown’s weight, his encouragement that she lose weight, the increasing pain she endured as a result of her weight-loss attempts, and her inability to walk more than two blocks at a time or lift more than five pounds. More notable is the ALJ’s rejection of the opinions of several government-affiliated doctors on the ground that the “longitudinal record demonstrates that [BrownJ’s back impairment together with her morbid obesity would prevent her from working above the sedentary exertional level on a regular and continuing basis.” (emphasis added).

To be sure, the ALJ could have more explicitly detailed the effect that he believed Brown’s obesity, in conjunction with her back pain, had on her ability to sit, stand, walk, and otherwise move. Cf. Castile, 617 F.3d at 928-29 (concluding that ALJ adequately considered obesity by discussing, among other things, the claimant’s functioning with her obesity prior to her onset date, and the absence of advice from any treating physician that she restrict work-related activities, observe certain precautions, or not work at all). However, after reviewing the ALJ’s eighteen-page, single-spaced opinion, we cannot say that he failed to “articulate at some minimal level his analysis of the evidence,” Herron v. Shalala, 19 F,3d 329, 333 (7th Cir. 1994) (citation and internal quotation mark omitted), or that we simply “don’t know what he thought,” Barrett v. Barnhart, 355 F.3d 1065, 1068 (7th Cir. 2004). So Brown has failed to demonstrate that the ALJ’s consideration of her obesity was unacceptable.

B. Treating Physician Rule Improperly Applied

Under the Treating Physician Rule, a treating physician’s opinion “regarding the nature and severity of a medical condition is entitled to controlling weight if it is well supported by medical findings and not inconsistent with other substantial evidence in the record.” Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000). When controlling weight is not given, an ALJ must offer “good reasons” for doing so, after having considered: (1) whether the physician examined the claimant, (2) whether the physician treated the claimant, and if so, the duration of overall treatment and the thoroughness and frequency of examinations, (3) whether other medical evidence supports the physician’s opinion, (4) whether the physician’s opinion is consistent with the record, and (5) whether the opinion relates to the physician’s specialty. Larson v. Astrue, 615 F.3d 744, 749 (7th Cir. 2010) (citing 20 C.F.R. § 404.1527(d)(2)); 20 C.F.R. § 404.1527(c).

Here, Dr. Shannon opined that Brown (i) could sit for no more than thirty minutes at a time and no more than two hours during a workday; (ii) could stand for no more than fifteen minutes at a time and no more than two hours during a workday; (iii) would need frequent periods of walking and lying down throughout the workday; (iv) could occasionally lift up to ten pounds at a time; and (v) would likely be absent from work more than three times per month. The ALJ decided not to give controlling weight to Dr. Shannon’s opinions regarding sitting, walking/lying down, and work absences, reasoning that they were not supported by his treatment notes and were belied by Brown’s own reports of her daily living activities. Instead, the ALJ determined that Brown could perform a full day of sedentary work alternating between sitting and standing (though doing neither for more than thirty minutes at a time).

That decision was erroneous. For one, Dr. Shannon’s treatment records support his opinions. In over a dozen individualized assessments spread across five years, Dr. Shannon repeatedly referenced the chronic and severe back pain that radiated to Brown’s upper back and hips; that this pain was exacerbated by cold, damp weather and by physical activity such as exercise and sitting or standing for prolonged periods; that this pain often prevented her from sleeping for more than two hours at a time; and that Brown required ever-increasing dosages of oxyco-done (from 30 mg initially to 240 mg) in order to manage her pain. Taken together, these observations contradict the ALJ’s conclusion that Dr. Shannon’s “findings over time are quite benign and offer little support for the degree of limitation that he assessed.”

In addition, the Commissioner supplies little insight into what additional observations or tests Dr. Shannon could have conducted to support his challenged opinions. Nor does the Commissioner’s brief discuss any cases that shed light on this issue. Perhaps the Commissioner would be satisfied only if Dr. Shannon had somehow replicated a full work day to test the limits of Brown’s sitting and standing endurance. Such an approach, however, would be both cruel for patients and unrealistic for doctors, given the average medical practitioner’s time and resource constraints.

And even assuming that some of Dr. Shannon’s opinions were not fully corroborated by his treatment records, the ALJ cited no evidence that contradicted the opinions. This distinction is an important one, since the mere absence of detailed treatment notes, without more, is “insufficient grounds for disbelieving the evidence of a qualified professional.” Herrmann v. Colvin, 772 F.3d 1110, 1111 (7th Cir. 2014); accord Clifford, 227 F.3d at 870. The ALJ emphasized the fact that Dr. Shannon frequently observed that Brown had a stable gait, performed leg raises without incident, and had normal reflexes and mild to moderate range-of-motion limitations. But these observations do nothing to undermine the sitting, resting, and work-absence opinions that the ALJ rejected. Brown’s gait was observed as she walked, the leg raises were likely performed while she was lying down, and it is unclear how (if at all) the reflexes and range-of-motion tests were relevant to Brown’s ability to sit or stand for extended periods. In effect, the ALJ substituted his judgment for Dr. Shannon’s without explaining why Brown’s activities were inconsistent with Dr. Shannon’s opinions.

The ALJ also found that Brown’s self-reported daily living activities undermined Dr. Shannon’s opinions. Although there is not an absolute prohibition against this comparison, see Craft v. Astrue, 539 F.3d 668, 680 (7th Cir. 2008), we have repeatedly cautioned against equating daily living activities with the ability to perform a full day of work, as the former are often subject to different restraints (e.g., longer periods within which to complete and more frequent opportunities to rest) and at times can be avoided only at great personal cost. For example, we recently observed that

The critical differences between activities of daily living and activities in a full-time job are that a person has more flexibility in scheduling the former than the latter, can get help from other persons (in this case, [the claimant]’s husband and other family members), and is not held to a minimum standard of performance, as she would be by an employer.

Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012); see also, e.g., Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2005) (“[Claimant] must take care of her children, or else abandon them to foster care or perhaps her sister, and the choice may impel her to heroic efforts.”).

In failing to heed these warnings, the ALJ misrepresented many of Brown’s daily activities. Although Brown cared for her young daughter throughout the day, she often sat or laid down while doing so and at times received childcare assistance from her mother and a friend. Brown also testified that she made meals for her family, but many meals were easily assembled— for example, microwavable frozen dinners and Hamburger Helper. Brown walked to a nearby park with her daughter on a near-daily basis, but the park was a mere two blocks away and had benches (or something else she could sit on). And although Brown may have performed “light” housework, she received significant help from her nephews — for example, transporting the laundry basket to and from the laundry area and removing clean dishes from the dishwasher and putting them away. See Craft, 539 F.3d at 680 (holding that ALJ improperly considered claimant’s daily living activities where claimant’s “so-called ‘daily walk’ was merely to the mailbox at the end of the driveway, his vacuuming took only four minutes, and his grocery shopping was done on a motorized cart at the store and he was able to carry only one grocery bag in each hand into the house”); Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001) (claimant’s daily living activities “are fairly restricted (e.g., washing dishes, helping his children prepare for school, doing laundry, and preparing dinner) and not of a sort that necessarily undermines or contradicts a claim of disabling pain”).

So the ALJ must conduct a reevaluation of Dr. Shannon’s opinions to determine whether they are entitled to controlling weight.

C. No Reversible Error in Relying on Vocational Expert’s Testimony

The ALJ determined that Brown could perform substantial gainful activity based primarily on testimony from a vocational expert regarding six particular jobs. Brown attacks the ALJ’s reliance on this testimony on several grounds. For example, Brown claims that the ALJ erred in accepting the vocational expert’s testimony that all six jobs could be performed sitting or standing and that the worker could be off task up to 10% of the time while doing so. However, Brown concedes that this testimony merely supplemented (and did not conflict with) the Dictionary of Occupational Titles (DOT), which means that she forfeited these arguments by failing to object to the testimony during the administrative hearing. Liskowitz v. Astrue, 559 F.3d 736, 744 (7th Cir. 2009) (claimant forfeited argument regarding reliability of data underlying vocational experts’ job-numbers opinions by failing to object during hearing); Barrett v. Barnhart, 355 F.3d 1065, 1067 (7th Cir. 2004) (same). Brown also forfeited her argument regarding the vocational expert’s testimony about the number of positions for each of the six jobs by failing to object during the hearing. Id. And to the extent Brown alleges error in the ALJ’s acceptance of the vocational expert’s testimony relating to the telephone solicitor/call center position, Brown waived the issue by failing to raise it in her opening appellate brief. Bonnstetter v. City of Chi, 811 F.3d 969, 973 (7th Cir. 2016).

That leaves us with Brown’s argument concerning the vocational expert’s testimony on greeters/attendants. We have repeatedly noted that if a vocational expert’s testimony appears to conflict with the DOT, the ALJ “must obtain ‘a reasonable explanation for the apparent conflict,’ ” and that a claimant’s failure to object during a hearing cannot excuse an ALJ’s failure to do so. Overman v. Astrue, 546 F.3d 456, 462-63 (7th Cir. 2008) (per curiam) (quoting SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000)). An ALJ can accept conflicting testimony if the vocational expert’s “experience and knowledge in a given situation exceeds that of the DOT’s authors, or when the [vocational expert]’s contrary testimony is based on information in other reliable publications.” Id. at 464 (citation and internal quotation marks omitted).

At the administrative hearing here, the vocational expert opined that a person with Brown’s residual functional capacity could perform work as a greeter/attendant. In doing so, she acknowledged that the DOT instructs that greeters/attendants perform , “light” work, but opined that the “sedentary” label was more appropriate. The vocational expert defended this deviation by noting that greeters in theaters and in building lobbies typically have the option of .sitting or standing, and that she had “place[d] a lot of people in those jobs, who use chairs, and are seated.” The ALJ believed this was enough, but Brown claims that the vocational expert’s departure from the DOT needed more support.

Although the issue is close, we agree with Brown. While the vocational expert’s opinion does not appear eoncluso-ry — after all, she referenced her personal experience with placing individuals in sedentary greeter positions — the record does not indicate that her knowledge on the topic exceeds that of the DOT authors, or that her opinion is informed by another reliable publication. And because the ALJ declined to pose any follow-up questions on the subject, we are left without any additional information about the approximate percentage of the greeter positions that can be performed in a sedentary manner. Perhaps it is 95%; or perhaps it is closer to 9%, which would be an insufficient ground for trumping the DOT. In addition, the DOT listing that the vocational expert cited at the hearing (DOT 342.667-014, At-tendanb-Arcade) is unhelpful, since it lists job responsibilities that likely are not sedentary — in particular, “Performing] minor repairs on game machines”; “Removing] coin accepter mechanism of machines, using key, and observing] mechanism to detect causes of malfunctions, such as bent coins, slugs, or foreign material”; and “Removing] obstructions, repositioning] mechanism, inserting] coins, and observing] machine operation to determine whether malfunctions are still present.”

Nevertheless, this error is harmless, since the other five non-greeter positions totaled 5303 jobs in Wisconsin alone. Cf. Liskowitz, 559 F.3d at 743 (“[I]t appears to be well-established that 1000 jobs is a significant number.”). So Brown has failed to demonstrate that the ALJ committed reversible error in relying on the vocational expert’s testimony.

III. CONCLUSION

The judgment of the district court is Vacated, and the case is Remanded for further proceedings consistent with this opinion. We encourage the Commissioner to assign a new ALJ to oversee any additional proceedings. See Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 357 (7th Cir. 2005).

      . Due to this forfeiture, we need not reach the applicability of Voigt v. Colvin, 781 F.3d 871, 879 (7th Cir. 2015) (criticizing but not holding to be improper the AU's acceptance of the vocational expert’s job-numbers testimony based on the unknown underlying data source). Of course, if another administrative hearing occurs, Brown may be able to test the vocational expert’s reliance on her sources at that time.


source: Caselaw Access Project

author: FLAUM, Circuit Judge.

license: Public Domain

text:
    Karen SMITH, Plaintiff-Appellant, v. CAPITAL ONE BANK (USA), N.A. and Kohn Law Firm S.C., Defendants-Appellees.
    Nos. 16-1422 & 16-1423
    United States Court of Appeals, Seventh Circuit.
    Argued November 4, 2016
    Decided December 22, 2016

      Briane F. Pagel, Jr., Attorney, Gregory M. Schrieber, Attorney, Kerkman & Dunn, Milwaukee, WI, for Debtor-Appellant,
    Jarrett Lee Hale, Attorney, Gregory G. Hesse, Attorney, Eric W. Flynn, Attorney, Hunton & Williams LLP, Dallas, TX, Jeffrey P. Justman, Attorney, Jane E. Maschka, Attorney, Aaron D. Van Oort, Attorney, Faegre Baker Daniels LLP, Minneapolis, MN, Jason D. Hermersmann, Attorney, Kohn Law Firm S.C., Milwaukee, WI, for Appellee.
    Before FLAUM and KANNE, Circuit Judges, and MAGNUS-STINSON, District Judge.

       Of the Southern District of Indiana, sitting by designation.

   FLAUM, Circuit Judge.

Plaintiff-appellant Karen Smith filed for bankruptcy. During the course of the bankruptcy proceedings, defendant-appel-lee Capital One Bank USA, N.A. (“Capital One”), represented by defendant-appellee Kohn Law Firm S.C. (“Kohn”), filed suit against Smith’s husband to collect on a credit card debt he owed. Appellant Smith initiated an adversary proceeding in the bankruptcy court, alleging that appellees had violated the co-debtor stay of 11 U.S.C. § 1301. The bankruptcy court granted summary judgment for appellant Smith, holding that Capital One’s lawsuit against Smith’s husband had violated the co-debtor stay due to the operation of Wisconsin marital law, Wis. Stat. § 766.55, which makes marital property available to satisfy certain kinds of debts. On interlocutory appeal, the district court reversed the bankruptcy court, holding that the co-debt- or stay did not apply despite the application of Wisconsin marital law. We affirm.

I. Background

Appellant Smith filed for bankruptcy under Chapter 13 in July 2011. Prior to that, Smith’s husband had obtained a Capital One credit card that he used for consumer debts for the Smith family. Smith’s husband did not join Smith’s bankruptcy petition and Smith did not list him (or anyone else) as a co-debtor. In December 2011, the bankruptcy court confirmed Smith’s Chapter 13 plan.

In July 2014, during Smith’s repayment period under her bankruptcy plan, Capital One, through Kohn, sued Smith’s husband in Wisconsin state court over amounts owed on his credit card account. Capital One received judgment in its favor in August 2014, but has not attempted to enforce the judgment.

In February 2015, Smith initiated an adversary proceeding in bankruptcy court against appellees. She brought six causes of action, alleging violations of the co-debt- or stay, 11 U.S.C. § 1301(a); the Wisconsin Consumer Act, Wis. Stat. § 427.104; and the Fair Debt Collection Practices Act, 15 U.S.C. § 1692(d)-(e). All of Smith’s claims rested on the theory that Smith’s husband’s credit card debt was covered by the co-debtor stay due to the operation of Wisconsin marital law, Wis. Stat. § 766.55, and that Capital One and Kohn had violated the co-debtor stay by suing Smith’s husband.

In April 2015, Smith moved for summary judgment. The bankruptcy court granted Smith’s motion, holding that “the Capital One debt is a debt of the Debtor [appellant Smith] subject to the co-debtor stay.”

Capital One and Kohn sought and obtained leave for an interlocutory appeal to the district court. The district court held that the husband’s credit card debt was not Smith’s consumer debt, reversed the bankruptcy court, and remanded the case back to the bankruptcy court to enter judgment in appellees’ favor. The court concluded that “consumer debt of the debt- or,” as used in § 1301(a), does not include a debt for which the debtor is not personally liable but that may be satisfied from the debtor’s interest in marital property. Though the district court’s order remanded the case to the bankruptcy court, the former’s decision effectively ended Smith’s action, since all of her claims depended on the application of the co-debtor stay rule. Smith now appeals that decision.

II. Discussion

This Court has jurisdiction over appeals from final district court decisions. 28 U.S.C. § 158(d)(1). In the bankruptcy context, both the bankruptcy court decision and the district court decision must be final. In re Behrens, 900 F.2d 97, 99 (7th Cir. 1990). Though “a district court’s decision on appeal from a bankruptcy court’s interlocutory order is generally not regarded as final and appealable,” id. a “district court’s decision on a bankruptcy court’s interlocutory order may leave nothing for the bankruptcy court to do, and thus transform the bankruptcy court’s interlocutory order into a final appealable order,” id. n.1 (citing In re Cash Currency Exch., Inc., 762 F.2d 542, 545 n.3 (7th Cir. 1985)); see also In re Jartran, 886 F.2d 859, 861 (7th Cir. 1989) (“[A] district court order remanding the case to the bankruptcy court may qualify as final if all that remains to do on remand is a purely ... ministerial task.... ”). In this case, the district court’s reversal of the bankruptcy court’s grant of summary judgment foreclosed all of Smith’s causes of action and left nothing for the bankruptcy court to do except enter judgment in appellees’ favor. Therefore, we may review the district court’s decision.

We review a summary judgment decision de novo, with factual inferences construed in favor of the non-moving party. Chi Reg’l Council of Carpenters Pension Fund v. Schal Bovis, Inc., 826 F.3d 397, 402 (7th Cir. 2016).

A. The Co-Debtor Stay

In addition to automatically staying claims against the debtor herself, see 11 U.S.C. § 362, the Bankruptcy Code provides other (albeit narrower) protections when co-debtors are involved:

[A]fter the order for relief under this chapter, a creditor may not act, or commence or continue any civil action, to collect all or any part of a consumer debt of the debtor from any individual that is liable on such debt with the debt- or, or that secured such debt_

11 U.S.C. § 1301(a). For the co-debtor stay to apply: 1) there must be an action to collect a consumer debt, 2) the consumer debt must be of the debtor, and 3) the action to collect must be against an individual that is liable on such debt with the debtor. The parties agree that Smith’s husband’s Capital One credit card debt was a “consumer debt” and that appellee’s action was against the husband.

However, Smith and appellees disagree as to whether the credit card bills were a “consumer debt of the debtor [appellant Smith],” triggering the co-debtor stay protections, as opposed to simply being a consumer debt of the husband. Ordinarily, one’s credit card debt is one’s own, and the co-debtor stay would not bar a creditor from collecting on a non-bankrupt spouse’s own debts simply because the other spouse had filed for bankruptcy. Smith argues that under a broader definition of “consumer debt of the debtor,” and by operation of Wisconsin marital law, her husband’s credit card debt became Smith’s for purposes of the co-debtor stay.

We agree with appellees that the credit card debt was not covered by the co-debtor stay. The phrase “consumer debt of the debtor,” as Smith points out, is not itself defined in the statute; and Smith attempts to fill this gap by highlighting the Bankruptcy Code definitions of “debt” (as “liability on a claim”), and “claim” (as a “right to payment”). Thus, argues Smith, this Court should read “debt of the debt- or” to include “liability on a claim against the debtor.” However, the Bankruptcy Code explicitly provides debtors with protections against “claims” in other provisions. See, e.g,, 11 U.S.C. § 362(a)(1) (forbidding the commencement of an action to “recover a claim against the debtor”) (emphasis added). And “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion.” Russello v. U.S., 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983). Smith’s proposed definition also effectively reads out of § 1301 the important qualification that the debt be “of the debtor.” See 11 U.S.C. § 1301(a); River Rd. Hotel Partners, LLC v. Amalgamated Bank, 651 F.3d 642, 651 (7th Cir. 2011), aff'd sub nom. RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 132 S.Ct. 2065, 182 L.Ed.2d 967 (2012); TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (“It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”) (citations and internal quotation marks omitted).

Furthermore, attempting to collect a judgment from a spouse’s marital property would likely violate the automatic stay that already protects the filing spouse. See 11 U.S.C. § 362; In re Thongta, 401 B.R. 363, 368 (Bankr. E.D. Wis. 2009) (docketing of judgment against property of the bankruptcy estate “created a lien on the property under [Wisconsin law, and] violated the automatic stay of Bankruptcy Code § 362(a)(4)”). The automatic stay prevented appellees from asserting a “right to payment” from any of appellant’s marital property during the bankruptcy proceedings, so Smith had no “liability on a claim” in the first place. If we interpreted the co-debtor stay to eliminate the same liability, and thus to provide the same protections against collection — as Smith suggests we do — then we would render that stay duplicative of the automatic stay. Such an interpretation is not appropriate. See River Rd. Hotel Partners, 651 F.3d at 651 (“Interpretations that result in provisions being superfluous are highly disfavored.”). The best reading of the co-debtor stay involves shielding non-filing co-debtors from actions to collect on the consumer debts only of the filing debtor. As Smith does not demonstrate that her husband’s credit card debt is her own, the co-debtor stay does not apply.

B. Wisconsin Marital Law

Even if appellant’s reading of § 1301 were correct, application of Wisconsin marital law would not convert her husband’s debts into her own. In Wisconsin, married individuals can have both individual and marital property. See Wis. Stat. § 766.55. Debts incurred during marriage are “presumed to be incurred in the interest of the marriage or the family,” id. § 766.55(1), and “[a]n obligation incurred by a spouse in the interest of the marriage or the family may be satisfied only from all marital property and all other property of the incurring spouse [Smith’s husband],” id. § 766.55(2)(b). Further, in order to satisfy a judgment for a debt, a successful creditor “may proceed against either or both spouses to reach marital property available for satisfaction of the judgment.” Id. § 803.045(3).

Smith says that once appellees obtained a judgment against her husband, they could collect it from either the husband’s individual property or the marital property belonging to both spouses, and that appel-lees therefore created a liability on Smith’s part under the co-debtor stay. Section 766.55(2) would ordinarily allow appellees to satisfy Capital One’s judgment from the Smiths’ marital property were the Smiths not under Chapter 13 protections. Appel-lees in this case, however, could not have sought to satisfy the judgment against Smith’s husband from the marital property due to the automatic stay. Consequently, Smith had no liability whatsoever, and thus no debt, for her husband’s credit card bills.

Simply obtaining a judgment against a non-filing spouse who happens to have shared property interests with the filing spouse, without more, does not make the debts involved in that lawsuit the debts of the filing spouse under Wisconsin law. “[Wisconsin Statute] § 766.55(2)(a) and (b) ... do[ ] not create a direct cause of action against the noncontracting spouse. None of the paragraphs in § 766.55(2) create[s] a direct cause of action against a spouse. Indeed, no part of § 766.55(2) creates any cause of action, direct or indirect.” St. Mary’s Hosp. Med. Ctr. v. Brody, 186 Wis,2d 100, 519 N.W.2d 706, 711 (Ct. App. 1994). Furthermore, “[njothing in § 803.045 ... imposes a liability against either spouse under § 766.55(2)(a) or (b).... Rather, § 803.045 is procedural. It authorizes a creditor to proceed against a spouse under the circumstances described in the statute to reach the property described in § 766.55(2).” Id. at 712. The Wisconsin courts have made clear that, with respect to consumer debts, the state’s marital laws do not give rise to direct causes of action against, or liability on the part of, the non-incurring spouse. In this case, appellant Smith is the non-incurring spouse, and therefore is not liable for her husband’s credit card debt. The debt is not hers.

Smith next argues that she otherwise became liable for her husband’s credit card debt under Wisconsin’s doctrine of necessaries. This common-law doctrine, codified at Wis. Stat. § 765.001(2), provides a direct cause of action against one spouse for any marital “necessaries” incurred by the other spouse during the marriage. Smith says the possibility of a direct cause of action against her for her husband’s credit card debts brings those debts within the co-debtor stay. However, she raises this theory for the first time on appeal to this Court, and it is therefore waived. See Domka v. Portage Cty., Wis., 523 F.3d 776, 783 (7th Cir. 2008). The passages appellant cites from previous filings to avoid waiver refer only to Smith’s broader legal theory that she is liable for her husband’s debt. Raising this general theory below was not enough to adequately raise the specific doctrine-of-necessaries theory for appellate review. Id. Furthermore, even if the doctrine did create a direct cause of action against appellant, Smith provides no evidence that the credit card debt was for necessaries, as opposed to ordinary consumer goods, and she does not explain why this situation would trigger the co-debtor stay, as opposed to the automatic stay. As noted above, appellees have not brought a lawsuit directly against Smith and have not sought to satisfy their judgment against her husband from any of Smith’s individual or marital property.

Smith’s suggested expansion of the co-debtor stay cuts against its plain meaning and purpose. The stay was meant to head off the undue pressure that creditors could otherwise exert on a debtor by threatening action against third parties— often relatives — who have co-signed the debtor’s debts. For example, take the case of a parent who co-signs a car lease for their child, and the child later files for bankruptcy. Without the stay, the creditor car dealer could receive preferential treatment from the child by threatening legal action against the parent. The co-debtor stay eliminates the risk of such unwanted treatment by shielding the parent from suit on the child’s debts. The co-debtor stay, however, is not meant to shield third parties from facing judgments on their own debts. Here, for instance, there is no risk of preferential treatment, since the plaintiff in the collection proceeding (Capital One) is not a creditor of the debtor who has filed for bankruptcy (appellant Smith). So Smith could not have paid off appellees any sooner, or have given them any other preferential treatment, as appellees were not seeking payment of the credit card debts under Smith’s bankruptcy plan.

Appellees’ lawsuit against Smith’s husband did not violate the co-debtor stay, and Smith’s adversarial proceeding was properly dismissed.

III. Conclusion

For the foregoing reasons, we AffiRM the judgment of the district court.

      . Smith listed Capital One as an unsecured creditor in her bankruptcy schedules, and Capital One received notice of the bankruptcy. Capital One then filed a claim for $1,350.08 for "goods sold.” However, this was in connection with an unrelated debt for Smith's purchases at Kohl’s not made using Mr. Smith’s Capital One credit card.

      . The Bankruptcy Code defines several of the contested terms in the co-debtor stay. While the phrase "consumer debt of the debtor” as a whole is not defined, "consumer debt” is defined as a "debt incurred by an individual primarily for a personal, family, or household purpose,” and “debt” is defined as a "liability on a claim.” 11 U.S.C. §§ 101(8), (12). "Claim” is defined as a "right to payment, whether or not such right is reduced to judgment.” Id. § 101(5). Additionally, a "claim against the debtor" is to be construed to include claims against the property of the debt- or. Id. § 102(2).

      . Wisconsin Statute § 806.15(1) provides, "Every judgment properly entered in the judgment and lien docket showing the judgment debtor’s place of residence shall, for 10 years from the date of entry, be a lien on all real property of every person against whom the judgment is entered.” However, § 806.15(4) states that liens under the statute do not attach to the non-incurring spouse’s property unless that spouse is also named as a defendant in the original action. In this case, it does not appear that Smith was named as a defendant in Capital One’s lawsuit against Smith’s husband.

      . Capital One has not tried to satisfy the judgment from either spouse’s individual property. Though appellees would likely be entitled to satisfy their judgment from the husband’s individual property under Wisconsin law and the Bankruptcy Code, the parties agree that the husband has no individual property. Re-latedly, even if appellant Smith had individual property at the time of the judgment, appel-lees concede that they could not satisfy their judgment from that property without running afoul of the automatic stay, Wisconsin law, or both.

      . In Wisconsin, marital necessaries are most often medical bills, see., e.g., Baldwin Area Med. Ctr. v. Bengston, No. 2015AP1413, 2016 WL 4766037, at *1 (Wis. Ct. App. Sept. 13, 2016); Med. Coll. of Wis. v. Missimer, 320 Wis,2d 485, 769 N.W.2d 878 (Ct. App. 2009) (unpublished table opinion) (citing St. Mary’s, 519 N.W.2d 706), but they may also encompass goods and services “necessary for the adequate support and maintenance of [a spouse's] minor children and of the other spouse,” Wis. Stat. § 765.001(2). In medical necessaries cases, the medical services provider may bring a cause of action directly against the spouse that did not use the medical services to recover the cost of the services used by the other spouse. Baldwin, 2016 WL 4766037, at *1. The parties disagree as to whether an entity that is not the direct provider of necessaries, such as Capital One, may bring a cause of action against the non-incurring spouse under this doctrine. We do not need to resolve the issue to decide this case and therefore decline to do so.


author: MAGNUS-STINSON, District Judge.

text:
    SELECTIVE INSURANCE COMPANY OF SOUTH CAROLINA, Plaintiff-Appellant, v. TARGET CORPORATION, Defendant-Appellee.
    No. 16-1669
    United States Court of Appeals, Seventh Circuit.
    Argued November 4, 2016
    Decided December 29, 2016
    Amended January 25, 2017.

      Kristina M. Beck, Brian O’Gallagher, Attorneys, Cremer, Spina, Shaughnessy, Jansen & Siegert, LLC, Chicago, IL, for Plaintiff-Appellant.
    Garrett L. Boehm, Jr., Robert M. Burke, Peter R. Ryndak, Attorneys, Johnson & Bell, Ltd., Chicago, IL, for Defendant-Appellee.

      Before FLAUM and KANNE, Circuit Judges, and MAGNUS-STINSON, District Judge.

       Of the Southern District of Indiana, sitting by designation.

   MAGNUS-STINSON, District Judge.

Plaintiff-Appellant Selective Insurance Company of South Carolina (“Selective”) filed a declaratory judgment action, asking the district court to declare that it owed no duty to defend or indemnify Defendant-Appellee Target Corporation (“Target”) in a lawsuit initiated by customer Angela Brown, who sued Target after a fitting room door fell on her. The district court granted summary judgment in favor of Target, finding that Target was an additional insured on a commercial general liability insurance policy (the “Policy”) that the door supplier, Harbor Industries, Inc. (“Harbor”), had with Selective. The district court further held that Selective had both a duty to defend and indemnify Target for the entire cost Target incurred settling the Brown litigation. Selective appealed the district court’s decision and, for the reasons that follow, we affirm.

I. Background

On December 17, 2011, Angela Brown was injured at a Target store in Gurnee, Illinois, when a fitting room door came off its hinges and fell on her. She sued Target in Illinois state court on February 14, 2012, and Target removed the case to federal court. In her complaint, Ms. Brown alleged that Target was negligent for failing to maintain and repair the fitting room door and failing to warn her that the fitting room door was in an unreasonably dangerous and hazardous condition. Target filed a third-party complaint against Harbor — the company that Target had contracted to supply the fitting rooms at the Gurnee store — seeking contribution and indemnification. Discovery during the Brown litigation revealed that the same fitting room door fell on another Target customer approximately one week before it fell on Ms. Brown. Ultimately, both Target and Harbor settled with Ms. Brown.

Target tendered its defense of Ms. Brown’s lawsuit to Selective on May 7, 2012, claiming that it was an additional insured on Harbor’s Policy with Selective because of a contract with Harbor. On July 30, 2013, Selective filed the underlying declaratory judgment action against Target in Illinois state court, and Target removed it to federal court on the basis of diversity jurisdiction.

The parties filed cross-motions for summary judgment, and the district court granted summary judgment to Target after finding in its favor on three issues. First, the district court found that Target was an additional insured on Harbor’s Policy with Selective because of the interaction between a Supplier Qualification Agreement (“Supplier Agreement”) that required Harbor to designate Target as an additional insured and their Program Agreement for the fitting rooms. Second, the district court found that Selective had a duty to defend Target because Ms. Brown’s allegations fell within the scope of the Policy, since they could reasonably be read to assert a bodily injury caused in whole or' in part by Harbor’s product. Third, the district court found that Target had settled the lawsuit with Ms. Brown in reasonable anticipation of liability and, thus, Selective had a duty to indemnify Target for costs incurred defending and settling the Brown litigation. Final judgment was entered in favor of Target in the total amount of $714,450.24. Selective now appeals.

II. Analysis

Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). We review de novo a district court’s decision on cross-motions for summary judgment. Calumet River Fleeting, Inc. v. Int’l Union of Operating Eng’rs, Local 150, AFL-CIO, 824 F.3d 645, 647 (7th Cir. 2016) (citations omitted). “The general standards for summary judgment do not change: with cross summary judgment motions, we construe all facts and inferences therefrom in favor of the party against whom the motion under consideration is made.” Id. at 647-48 (citations and quotations omitted). Because we are only considering whether it was proper for the district court to grant summary judgment in favor of Target, we resolve any factual disputes in Selective’s favor.

Our subject matter jurisdiction over this dispute is based on the parties’ diversity of citizenship. 28 U.S.C. § 1332. Federal courts deciding state law claims under diversity jurisdiction apply the forum state’s choice of law rules to select the applicable state substantive law. McCoy v. Iberdrola Renewables, Inc., 760 F.3d 674, 684 (7th Cir. 2014) (citations omitted). If no party raises a choice of law issue to the district court, “the federal court may simply apply the forum state’s substantive law.” Id. Although Selective correctly points out that there is a Minnesota choice-of-law provision in one of the contracts at issue, it admits that Target and Selective have both argued the insurance coverage issues under Illinois law. Thus, we will continue to apply Illinois law to this case.

A The Contracts at Issue

Three contracts are relevant to addressing the parties’ arguments — Target and Harbor’s Supplier Agreement, which was executed in April 2007; Target and Harbor’s Program Agreement for the fitting rooms, which was executed in April 2009; and Harbor and Selective’s Policy, which was in effect when Ms. Brown was injured on December 17, 2011.

Target and Harbor executed the Supplier Agreement in April 2007. It provides, in relevant part, that it

shall apply to and control and shall be deemed incorporated into all agreements relating to the purchase of non-retail (not for resale) goods and/or services from [Harbor] by Target, including, but not limited to, any program agreement (or other agreement specific to the goods or services to be provided) entered into by the parties (Program Agreement).... In the event of any conflict between this Agreement and the specific Order or Program Agreement, the terms of the Order or Program Agreement shall govern.

The Supplier Agreement requires Harbor to maintain commercial general liability (“CGL”) insurance “in full force and effect during the term of this Agreement” and to “designate Target as an additional insured by endorsement acceptable to Target.” The Supplier Agreement provides that it “shall remain in effect until terminated as provided herein.” It is undisputed that neither Target nor Harbor has terminated the Supplier Agreement pursuant to that provision.

In April 2009, Target and Harbor entered into the Program Agreement for Harbor to supply fitting rooms to Target. The Program Agreement incorporates the terms and conditions of the Supplier Agreement and provides that as long as Harbor complies with certain criteria, “Target agrees to purchase from [Harbor] all of Target’s needed supply of the Goods [Fitting Rooms] during the Term of this Program Agreement.” It identifies specific parts to be provided, including fitting room doors. It further provides that “[t]his Program Agreement shall begin on the Effective Date and end on July 1, 2010 (through the July 2010 cycle) unless otherwise terminated.”

Harbor’s Policy with Selective that was in effect on the date of Ms. Brown’s injury provides, in relevant part, that Selective “will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury* or ‘property damage’ to which this insurance applies.” The Policy specifically provides “[pjrod-ucts-completed operations hazard” coverage that “[ijncludes all ‘bodily injury* and ‘property damage’ occurring away from premises you own or rent and arising out of ‘your product.’ ” An endorsement to the Policy provides as follows:

WHO IS AN INSURED is amended to include as an additional insured any person or organization whom you have agreed in a written contract, written agreement or written permit to add as an additional insured on your policy. Such person or organization is an additional insured only with respect to liability for “bodily injury” or “property damage” or “personal and advertising injury” caused, in whole or in part, by ... “your product”_

B. The Additional Insured Provision of the Selective Policy

The parties dispute whether Target was an additional insured on Harbor’s Policy with Selective. Specifically, the parties dispute the interaction between Target and Harbor’s Supplier Agreement and Program Agreement and whether the term provisions in those contracts conflict.

Under Illinois law, the goal of contract interpretation is to ascertain the parties’ intent and, in doing so, we first look to “the plain and ordinary meaning” of the contract language. Aeroground, Inc, v. CenterPoint Properties Trust, 738 F.3d 810, 813 (7th Cir. 2013) (quoting Gallagher v. Lenart, 226 Ill.2d 208, 314 Ill.Dec. 133, 874 N.E.2d 43, 58 (2007)). We must construe the contract “as a whole, viewing each part in light of the others.” Aeroground, 738 F.3d at 813 (citing Gallagher, 314 Ill.Dec. 133, 874 N.E.2d at 58). We also must seek to give effect to each clause and word used, without rendering any terms meaningless. Aeroground, 738 F.3d at 813 (citing Hufford v. Balk, 113 Ill.2d 168, 100 Ill.Dec. 564, 497 N.E.2d 742, 744 (1986)).

There is no dispute that the Program Agreement for Harbor to supply Target with the fitting rooms terminated in July 2010 before Ms. Brown’s injury. The parties dispute, however, whether the Supplier Agreement remained in effect when Ms. Brown was injured, such that it could be a “written contract” rendering Target an additional insured on Harbor’s Policy with Selective. Selective argues that although the term of the Supplier Agreement was open ended, that provision directly conflicts with the Program Agreement’s July 2010 termination date, and the Supplier Agreement expressly states that the Program Agreement controls if there is a conflict. Target disagrees with this interpretation, emphasizing that the Supplier Agreement was a broad agreement that even now has not been terminated.

We agree with the district court that applying the plain and ordinary meaning of the contract language, the Supplier Agreement is a broad agreement governing the overarching relationship between Target and Harbor. It contemplates discrete purchases by Target from Harbor to be governed by the provisions set forth in future program agreements. One of those future agreements was the Program Agreement executed by Target and Harbor two years after the Supplier Agreement. That Program Agreement required Target to purchase fitting rooms from Harbor until July 2010 if Harbor met the conditions specified therein. Although that obligation ended in July 2010, the language in the more general Supplier Agreement makes it clear that the parties did not intend for the Supplier Agreement to terminate when specific program agreements terminated. For example, the Supplier Agreement states that Harbor must maintain “[p]roducts and completed operations liability coverage,” and it also requires Harbor to provide Target with a certificate of insurance evidencing the required coverage “upon each renewal of such policies.” These provisions confirm the parties’ intent for the insurance requirement set forth in the Supplier Agreement to survive the expiration of specific program agreements entered into between Target and Harbor. Additionally, this understanding of the relationship between the Supplier Agreement and the Program Agreement construes both contracts as a whole, renders no terms or clauses in either meaningless, and applies the plain and ordinary meaning of the language in each contract to ascertain the parties’ intent as to the relationship between the two. For these reasons, we agree with the district court that the Supplier Agreement is a “written contract” requiring Harbor to designate Target as an additional insured on the Policy.

But the inquiry does not end there. The Policy specifically limits additional insured coverage such that, in relevant part, Target is “an additional insured only with respect to liability for ‘bodily injury’ ... caused, in whole or in part, by ... ‘[Harbor’s] product’.... ” Accordingly, we must also determine whether liability for Ms. Brown’s claim was caused by Harbor’s product before we can conclude that Target was an additional insured.

It is beyond dispute that the fitting room door that fell on Ms. Brown was Harbor’s product. The Program Agreement between Harbor and Target explicitly states that the “product” at issue in the agreement is “fitting rooms,” and it specifically identifies “fitting room door” as a component to be purchased. Ms. Brown’s complaint alleged that she sustained bodily injury after being struck by a fitting room door that was in “an unreasonably hazardous and dangerous condition.” We readily conclude that Ms. Brown’s claim for “bodily injury” was “caused, in whole or in part,” by Harbor’s “product.” (Emphasis added.) Thus, we agree with the district court that Target was an additional insured under the Selective Policy.

C. Selective’s Duty to Defend Target

The parties dispute whether Selective owed Target a duty to defend it in the Brown litigation. Specifically, the parties dispute whether the allegations in Ms. Brown’s complaint against Target were sufficient to trigger Selective’s duty to defend. The parties also dispute whether the allegations in Target’s third-party complaint against Harbor can be considered in determining whether Selective had a duty to defend Target.

The duty to defend is broader than the duty to indemnify. Health Care Indus. Liab. Ins. Program v. Momence Meadows Nursing Ctr., Inc., 566 F.3d 689, 693 (7th Cir. 2009). As a general rule under Illinois law, the duty of an insurance company to defend against a suit “is determined by the allegations of the complaint in that suit rather than by what is actually proved.” Nat’l Am. Ins. Co. v. Artisan & Truckers Cas. Co., 796 F.3d 717, 724 (7th Cir. 2015). To determine whether an insurer has a duty to defend, we compare the factual allegations of the underlying complaint to the language of the insurance policy. Amerisure Mut. Ins. Co. v. Microplastics, Inc., 622 F.3d 806, 810 (7th Cir. 2010). If the facts alleged fall within or potentially within the policy’s coverage, the insurer’s duty to defend arises. Id. “Both the policy terms and the allegations in the underlying complaint are liberally construed in favor of the insured, and any doubts and ambiguities are resolved against the insurer.” Id. at 811 (citations omitted). The general rules that favor the insured, however, must “yield to the paramount rule of reasonable construction which guides all contract interpretations.” Id.

When an insurer tries to deny coverage without seeking a declaratory judgment or defending under a reservation of rights, our inquiry is necessarily limited to the allegations in the underlying complaint. See Landmark Am. Ins. Co. v. Hilger, 838 F.3d 821, 824 (7th Cir. 2016) (citing MFA Mut. Ins. Co. v. Crowther, Inc., 120 Ill.App.3d 387, 75 Ill.Dec. 903, 458 N.E.2d 71, 73 (1983) (“An insurer may not justifiably refuse to defend an action against its insured unless it is clear from the face of the complaint that the allegations fail to state facts which bring the claim within, or potentially within, the policy’s coverage.”)). When an insurer seeks a declaratory judgment, however, that limitation does not apply. Landmark Am., 838 F.3d at 824. In fact, the Illinois Supreme Court has emphasized that “‘[t]he trial court should be able to consider all the relevant facts contained in the pleadings, including a third-party complaint, to determine whether there is a duty to defend. After all, the trial court need not wear judicial blinders and may look beyond the complaint at other evidence appropriate to a motion for summary judgment.’ ” Pekin Ins. Co. v. Wilson, 237 Ill.2d 446, 341 Ill.Dec. 497, 930 N.E.2d 1011, 1020 (2010) (emphasis omitted) (quoting Am. Econ. Ins. Co. v. Holabird & Root, 382 Ill.App.3d 1017, 320 Ill.Dec. 97, 886 N.E.2d 1166, 1179 (2008)). “The only time such evidence should not be permitted is when it tends to determine an issue crucial to the determination of the underlying lawsuit.” Pekin Ins., 341 Ill.Dec. 497, 930 N.E.2d at 1020 (citation omitted); see also Landmark Am., 838 F.3d at 824-25 (“[W]hen an insurer has elected to either defend under a reservation of rights or file a declaratory judgment action, ... the insurer may present evidence beyond the underlying complaint, so long as it does not tend to determine an ultimate issue in the underlying proceeding.”) (citation omitted). A crucial issue is “one that would collaterally estop the plaintiff in the underlying lawsuit from raising a theory of recovery or be crucial to the insured’s liability.” Landmark Am., 838 F.3d at 825.

Bearing in mind that we must construe the Policy liberally in favor of coverage when determining the duty to defend, we agree with the district court that the allegations in Ms. Brown’s complaint against Target were sufficient to trigger Selective’s duty to defend. Ms. Brown alleged that she was a business invitee at Target’s store in Gurnee when the fitting room door fell off its hinges and injured her. While Selective emphasizes that Ms. Brown’s legal claims focused on Target’s negligence, Illinois law gives little weight to the legal label a party uses to characterize the underlying allegations. Santa’s Best Craft, LLC v. St. Paul Fire & Marine Ins., 611 F.3d 339, 346 (7th Cir.2010) (citing Lexmark Int’l, Inc. v. Transp. Ins. Co., 327 Ill.App.3d 128, 260 Ill.Dec. 658, 761 N.E.2d 1214, 1221 (2001)). Instead, if “the alleged conduct arguably falls within at least one of the categories of wrongdoing listed in the policy,” a duty to defend arises. Santa’s Best, 611 F.3d at 346 (citing Lexmark, 260 Ill.Dec. 658, 761 N.E.2d at 1221).

As we have concluded, Target is an additional insured on the Policy because the allegations in Ms. Brown’s complaint can reasonably be read to fall within the Policy’s coverage for bodily injury caused in whole or in part by Harbor’s product. The parties do not dispute that the Policy provides liability coverage for bodily injury arising out of Harbor’s product within the “products-completed operations hazard” provision. This triggered Selective’s duty to defend. See Amerisure, 622 F.3d at 810 (“If the facts alleged in the underlying complaint fall within, or potentially within, the policy’s coverage, the insurer’s duty to defend arises.”). Illinois law rejects Selective’s argument that it can avoid this duty simply because of legal labels Ms. Brown used in her complaint. See Santa’s Best, 611 F.3d at 346 (citing Lexmark, 260 Ill.Dec. 658, 761 N.E.2d at 1221).

Alternatively, even if the facts alleged in Ms. Brown’s complaint were insufficient to trigger Selective’s duty to defend, the allegations in Target’s third-party complaint against Harbor certainly were enough. We can consider the allegations of Target’s third-party complaint because Selective sought a declaratory judgment and does not argue that considering them will determine an issue crucial to the determination of the underlying lawsuit. Landmark Am., 838 F.3d at 824. In its third-party complaint, Target alleged that it contracted with Harbor for Harbor to design and provide materials for the construction of the Gurnee fitting rooms. Target also alleged that Harbor’s negligence in doing so caused Ms. Brown’s injuries. Again, these allegations squarely fall within the Policy’s coverage. Thus, we agree with the district court that Selective had a duty to defend Target in the Brown litigation.

D. Selective’s Duty to Indemnify Target

The parties disagree whether Selective had a duty to indemnify Target for costs it incurred while defending and settling the lawsuit with Ms. Brown. On appeal, Selective emphasizes that it is impossible to reasonably conclude that Target’s entire settlement payment represented damages for a covered loss.

The duty to indemnify “is determined once liability has been affixed.” Nat’l Am. Ins. Co. v. Artisan & Truckers Cas. Co., 796 F.3d 717, 724 (7th Cir. 2015). If an insured settles an underlying claim before trial, “it must show that it settled an otherwise covered loss in reasonable anticipation of liability” for the duty to indemnify to apply. Caterpillar, Inc. v. Great Am. Ins. Co., 62 F.3d 955, 966-67 (7th Cir.1995) (citing United States Gypsum Co. v. Admiral Ins. Co., 268 Ill.App.3d 598, 205 Ill.Dec. 619, 643 N.E.2d 1226, 1244 (1994)); see also Rosalind Franklin Univ. of Med. & Sci v. Lexington Ins. Co., 380 Ill.Dec. 89, 8 N.E.3d 20, 39 (2004) (“When an insured settles an underlying claim, it must show that the settlement was made in reasonable anticipation of liability for an otherwise covered loss.”).

There is no evidence in the record that Target allocated its settlement with Ms. Brown into covered and uncovered claims. We have previously predicted how Illinois courts would handle this situation in the context of the duty to indemnify:

Consistent with the Illinois policy that a coverage action should not require the insureds to conclusively establish their own liability in the interest of promoting settlement, we think the proper inquiry is whether the claims were not even potentially covered by the insurance policy. A competing policy interest is equity — it is inequitable to require an insurer to pay for a settlement that is clearly not within the terms of its policy. Consequently, our prediction is that Illinois courts, in cases in which it is possible that none of the settlement was attributable to the dismissal of claims for damage covered by the insurer’s policy, would evaluate whether a “primary focus” of the claims that were settled was a potentially covered loss (burden on the insured). Conversely, if it can be established that the claims were not even potentially covered (burden on the insurer), then the insurer is not required to reimburse the settlement.

Santa’s Best, 611 F.3d at 351-52. After Santa’s Best, the Illinois Appellate Court followed our predicted approach. See Rosalind, 380 Ill.Dec. 89, 8 N.E.3d at 40 (“In cases where an insured enters into a settlement that disposes of both covered and non-covered claims, the insurer’s duty to indemnify encompasses the entire settlement if the covered claims were ‘a primary focus of the litigation.’”) (citing Santa’s Best, 611 F.3d at 352).

Based on this precedent, the first question is whether Target settled an otherwise covered loss in reasonable anticipation of liability. If so, the second question is whether the covered claims were a primary focus of the litigation.

We conclude that Target settled an otherwise covered loss in reasonable anticipation of liability in the Brown litigation. Ms. Brown testified that she carried an article of clothing into Target’s fitting room, she closed the fitting room door behind her and latched it, she tried on the clothing, and then she unlatched the fitting room door and it fell on her. Discovery in that case revealed that the same fitting room door fell on another Target patron on December 9, 2011 — approximately one week before it fell on Ms. Brown. This establishes a covered loss because it shows that Ms. Brown sought damages from Target for a bodily injury “arising out of’ Harbor’s “product” — the fitting room door. Thus, we conclude that Target settled an otherwise covered loss in reasonable anticipation of liability to Ms. Brown.

Turning to the second question, Selective argues that it does not have a duty to indemnify Target for the entire amount of its settlement because at least some of Ms. Brown’s claims against Target were based on premises liability, which would not be covered by the Policy. This argument requires us to determine whether the covered claims were “a primary-focus of the litigation.” See Rosalind, 380 Ill.Dec. 89, 8 N.E.3d at 40 (“In cases where an insured enters into a settlement that disposes of both covered and non-covered claims, the insurer’s duty to indemnify encompasses the entire settlement if the covered claims were ‘a primary focus of the litigation.’”) (citing Santa’s Best, 611 F.3d at 352). While neither the district court nor the parties addressed the primary focus standard in analyzing Selective’s duty to indemnify Target, it is clear from the evidence that the district court cited in analyzing the duty to indemnify that covered claims were a primary focus of the litigation. Specifically, the Brown litigation focused on the injuries Ms. Brown sustained when Harbor’s fitting room door fell on her, and Selective’s counsel admitted at oral argument that Selective defended Harbor in the Brown litigation and also settled with her for the injuries she sustained. For these reasons, we conclude that Selective had a duty to indemnify Target for the entire cost it incurred settling the Brown litigation.

III. Conclusion

For the foregoing reasons, we Affirm the judgment of the district court.

      . Selective argues that Target concedes that the Supplier Agreement and the Program Agreement were a single contract, Selective cites Target's third-party complaint in the Brown litigation to support this position because Target attached the contracts as a single exhibit to its pleading and referred to them as one. Selective’s position ignores the reality that the two contracts were executed two years apart and were not one contract. Cf. Gallagher v. Lenart, 226 Ill.2d 208, 314 Ill.Dec. 133, 874 N,E.2d 43, 58 (2007) ("We further note the longstanding principle that instruments executed at the same time, by the same parties, for the same purpose, and in the course of the same transaction are regarded as one contract ... ").

      . We reject Selective's specious argument that a fitting room may have goods or products in it but that it is not a "product" entitled to coverage under the Policy. The Program Agreement unequivocally provides otherwise.

      . Selective does not challenge the reasonableness of the amount of Target’s settlement.

      . Target submitted an affidavit from counsel to the district court to support its position, but Selective objected to its admissibility and the district court did not consider it, We agree with the district court that even without considering counsel’s affidavit, the cited evidence is sufficient to confirm that Target settled an otherwise covered loss in reasonable anticipation of liability.


author: EASTERBROOK, Circuit Judge.

text:
    FEDERAL TRADE COMMISSION, Plaintiff-Appellee, v. Kevin TRUDEAU, Defendant. Appeal of: Hogan Marren Babbo & Rose, Ltd., and Faruki Ireland & Cox, P.L.L.
    No. 15-3472
    United States Court of Appeals, Seventh Circuit.
    Argued September 14, 2016
    Decided December 29, 2016

      Michael D. Bergman, Joel Marcus, Attorneys, Michael Mora, Federal Trade Commission, Office of the General Counsel, Washington, DC, David A. O’Toole, Attorney, Federal Trade Commission, Chicago, IL, for Plaintiff-Appellee.
    Patrick E. Deady, Attorney, Hogan Marren, Babbo & Rose, Ltd., Chicago, IL, for Appellants.
    Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
   EASTERBROOK, Circuit Judge.

This decision marks the end of litigation about Kevin Trudeau’s frauds — or so we hope. Earlier decisions affirmed his criminal conviction and sentence and his adjudication in civil contempt after he refused to surrender the profits made from violating orders of the Federal Trade Commission. See United States v. Trudeau, 812 F.3d 578 (7th Cir. 2016); FTC v. Trudeau, 662 F.3d 947 (7th Cir. 2011). The contempt judgment is approximately $38 million, and Trudeau claims to be destitute. Believing that this is just another of his lies, the FTC demanded that firms it thought to be affiliated with Trudeau turn over business records.

Website Solutions, one of these entities, hired Hogan Marren Babbo & Rose, Ltd., and Faruki Ireland & Cox, P.L.L. (collectively the Law Firms) to represent it in responding to the FTC’s demand. After considering some of the documents ultimately revealed, the district judge concluded that Website Solutions is under Trudeau’s control and that all of its assets are available to satisfy his obligations. The judge appointed a receiver to marshal the assets of Website Solutions and Trudeau’s other entities. The receiver collected a net of approximately $8 million, which the FTC wants to distribute to Trudeau’s defrauded customers. In October 2015 the district court approved the receiver’s plan; this order also rejected the Law Firms’ request for compensation from funds in the receiver’s custody. In November the judge authorized the receiver to send $4 million to the FTC; in December the judge approved the receiver’s compensation; in February 2016 the judge accepted the receiver’s final report and authorized the receiver to send all remaining funds to the FTC. That order closed the receivership estate.

The Law Firms have appealed— but from the October 2015 order rather than any of the later orders. This led us to question whether the order is appeal-able, because as of October 2015 all $8 million remained in the receiver’s control. The Law Firms could have waited until the estate-closing order without jeopardizing their claim to reimbursement. At oral argument we directed the parties to file supplemental memoranda addressing appellate jurisdiction. After receiving these submissions, we conclude that the October 2015 order functioned as approval of the receiver’s proposed plan of distribution. If this were a bankruptcy proceeding rather than a receivership, the October 2015 order would have been labeled a plan of reorganization (or perhaps a plan of liquidation). And in bankruptcy the confirmation of such a plan is appealable as a “final decision” even though funds remain in the estate. See Bullard v. Blue Hills Bank, — U.S. —, 135 S.Ct. 1686, 191 L.Ed.2d 621 (2015) (recognizing that an order confirming a plan of reorganization is appealable, while holding that an order declining to approve such a plan is not). So we conclude that the October 2015 order is “final” under 28 U.S.C. § 1291 and move to the merits.

No one has appealed from the district court’s conclusion that Trudeau controls Website Solutions and that all of its assets are available to reimburse the persons he defrauded. Nor has anyone appealed from the district court’s approval of the plan of distribution. The Law Firms, the sole appellants, contend only that their fees should be paid ahead of compensation for Trudeau’s victims.

The Law Firms depict their role as helping the receiver understand Website Solutions’ business and recover its assets; the FTC, by contrast, contends that the Law Firms did little but obstruct discovery in an effort to keep the FTC from laying hands on assets that Trudeau was trying to hide. We need not decide which characterization is correct, because either way the Law Firms face an insuperable hurdle: well before they were hired by Website Solutions to deal with the FTC’s discovery demands, the federal judiciary had directed Trudeau to ton over all proceeds of his improper commercial activities. That order created a lien on Website Solutions’ assets (once the judge found that they were under Trudeau’s control) that was senior to any claim created later. As a proxy for Trudeau, Website Solutions had no right to make commitments to pay third parties with funds belonging to Trudeau’s victims. Cf. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989); United States v. Monsanto, 491 U.S. 600, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989). And lawyers, particularly, had to understand that their claims to compensation would be junior to those asserted by the FTC on the victims’ behalf.

In bankruptcy, law firms that represent the estate (or the trustee) can be compensated ahead of other creditors, but only if they receive the court’s approval for their hiring and demonstrate that their activities are necessary and benefit the estate. See 11 U.S.C. §§ 327, 330, 1103; Baker Botts L.L.P. v. ASARCO LLC, — U.S. —, 135 S.Ct. 2158, 192 L.Ed.2d 208 (2015). Neither the Law Firms nor Website Solutions obtained the court’s approval for their engagement and proposed course of conduct, nor did they demonstrate to the district judge’s satisfaction afterward that what they had done was necessary or helped the estate. (The judge implied agreement with the FTC’s submission that the Law Firms did more to obstruct the discovery than to promote it.) Indeed, the Law Firms have not even tried to show that they would have satisfied the requirements for compensation had this been a bankruptcy rather than a receivership. We don’t see why the use of the receivership device should make the Law Firms better off.

There was another potential route to compensation: Website Solutions might have asked the district court to order the FTC to ensure that Website Solutions would be reasonably compensated for its expenses in responding to the subpoenas. See Fed. R. Civ. P. 45(d)(3)(C)(ii). But Website Solutions did not make such a request.

The Law Firms stress that Rule 45 is not the only way that lawyers may be paid for their work in civil litigation, and that is correct. But Website Solutions was holding other people’s money and so could not make financial commitments to third parties. That’s why the Law Firms needed the district court’s approval. They concede that the judge had discretion to say yes or no. And given the fact that anyone hired by Website Solutions presumptively stands in line behind Trudeau’s victims, the district court did not abuse that discretion by saying “no.”

Affirmed


author: EASTERBROOK, Circuit Judge. POSNER, Circuit Judge,

text:
    Jose I. CHAVARRIA-REYES, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
    No. 15-3730
    United States Court of Appeals, Seventh Circuit.
    Argued September 20, 2016
    Decided December 30, 2016

      Matthew J. Singer, Attorney, Eileen Boyle, Attorney, Joshua Edward Liebman, Attorney, Novack & Macey LLP, Chicago, IL, for Petitioner.
    James A. Hurley, Attorney, OIL, Attorney, Department of Justice, Washington, DC, for Respondent.
    Before BAUER, POSNER, and EASTEBROOK, Circuit Judges.
   EASTERBROOK, Circuit Judge.

An immigration judge ordered Jose Chavarria-Reyes removed to Mexico after concluding that he lacks permission to be here and is ineligible for discretionary relief because he has committed a crime of moral turpitude. He does not contest either conclusion but contends nonetheless that the IJ erred by failing to alert him to the possibility of voluntary departure under § 240B(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(a).

Voluntary departure usually depends on a showing of good moral character, a showing that Chavarria-Reyes cannot make: he has at least three convictions, for domestic battery, retail theft, and home-repair fraud. But voluntary departure under § 240B(a) is available without regard to the alien’s character, provided he claims this privilege at the outset of the proceedings and forswears all other arguments. An alien who departs voluntarily has more opportunity to return in later years than does an alien removed involuntarily. The Board of Immigration Appeals rejected his argument that the IJ had violated the Due Process Clause of the Fifth Amendment, and Chavarria-Reyes has filed a petition for review of that order.

His initial problem is that the Board entered its decision on November 6, 2015, and the petition for review was not received in our clerk’s office until December 8, two days beyond the 30-day time limit. 8 U.S.C. § 1252(b)(1). The Supreme Court has characterized a predecessor statute as jurisdictional, Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995), and we held in Sankarapillai v. Ashcroft, 330 F.3d 1004, 1005 (7th Cir. 2003), that the current version also is jurisdictional. Chavarria-Reyes maintains, however, that while in detention preceding removal he handed his petition to a guard on November 30, making it timely under Fed. R. App. P. 25(a)(2)(C), which applies the “prison mailbox rule” to all appellate papers. The Attorney General agrees with this contention, which poses a novel question in this circuit.

Rule 25(a)(2)(C) provides:

A paper filed by an inmate confined in an institution is timely if deposited in the institution’s internal mailing system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.

We can’t see any reason why this rule would not apply to immigration. Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), created the prison mailbox rule for use in civil litigation, where the time limit for filing a notice of appeal is jurisdictional. Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). If intra-prison filing satisfies a jurisdictional requirement for civil litigation, it can equally satisfy a jurisdictional requirement for administrative litigation.

We recognize that a panel of the Fifth Circuit once held that the prison mailbox rule does not apply to immigration matters. Guirguis v. INS, 993 F.2d 508 (5th Cir. 1993). But Rule 25(a)(2)(C) was amended after Guirguis, and a later decision from the same circuit said that a filing while in immigration detention after the Rule was amended counts as timely. Smith v. Conner, 250 F.3d 277, 279 n.11 (5th Cir. 2001) (dictum). The Fifth Circuit has since held that immigration detainees represented by counsel cannot take advantage of Rule 25(a)(2)(C), see Navarro-Miranda v. Ashcroft, 330 F.3d 672, 676 (5th Cir. 2003), but Chavarria-Reyes lacked counsel when he handed his petition to the guard. What’s more, this circuit has concluded that represented prisoners, no less than those proceeding on their own, can use the prison mailbox rule, whose text does not draw a distinction between represented and pro se litigants. See United States v. Craig, 368 F.3d 738 (7th Cir. 2004).

The Second and Ninth Circuits have held that the prison mailbox rule applies to immigration proceedings. See Arango-Aradondo v. INS, 13 F.3d 610, 612-13 (2d Cir. 1994); Barrientos v. Lynch, 829 F.3d 1064 (9th Cir. 2016). No court — other than the superseded opinion in Guirguis — has held otherwise. We join the Second, Fifth, and Ninth Circuits in concluding that aliens detained pending removal can take advantage of Rule 25(a)(2)(C). Chavarria-Reyes’s petition is timely.

The Attorney General maintains that we nonetheless lack jurisdiction because of Chavarria-Reyes’s criminal convictions and the fact that voluntary departure is a discretionary remedy. See 8 U.S.C. § 1252(a)(2)(B), (C). But § 1252(a)(2)(D) provides that questions of law are reviewable notwithstanding the other parts of § 1252(a). The question Chavarria-Reyes presents — whether the IJ had a duty to notify him of the opportunity for relief under § 240B(a) — is one of law for the purpose of § 1252(a)(2)(D).

And there can be no doubt that the IJ failed in this duty. Section 240B(a) has been implemented by 8 C.F.R. § 1240.26(b)(1)(i), which provides that an IJ may grant voluntary departure before the conclusion of removal proceedings if the alien:

(A)Makes such request prior to or at the master calendar hearing at which the case is initially calendared for a merits hearing;
(B) Makes no additional requests for relief (or if such requests have been made, such requests are withdrawn pri- or to any grant of voluntary departure pursuant to this section);
(C) Concedes removability;
(D) Waives appeal of all issues; and
(E) Has not been convicted of a crime described in section 101(a)(43) of the Act and is not deportable under section 237(a)(4).

A second regulation, 8 C.F.R. § 1240.11(b), provides that the IJ must tell all aliens about voluntary departure. Although this regulation does not spell out the required advice, or say when it must be supplied, In re Cordova, 22 I. & N. Dec. 966 (1999) (BIA en banc), concluded that an IJ must raise the subject of voluntary departure at an early procedural hearing — that is to say, the sort of hearing at which the IJ identifies the issues that will be addressed by evidence at later hearings — unless the alien has been convicted of an aggravated felony, which Chavarria-Reyes has not. (Another regulation, 8 C.F.R. § 1240.11(a)(2), requires comprehensive advice about all opportunities for relief from removal, but it is limited to aliens admitted for permanent residence. Cha-varria-Reyes is not in that category.)

Requiring the IJ to raise the subject as soon as possible is necessary, the Board concluded in Cordova, because § 1240.26(b)(1)(i) requires an alien to make irrevocable choices, such as abandoning all other requests for relief and waiving the right to appeal. But the IJ did not tell Chavarria-Reyes about his option to request early voluntary departure. Instead he told Chavarria-Reyes to consult with his lawyer (Chavarria-Reyes told the IJ he had one) and then make any motions or requests that counsel told him would be appropriate. It turned out that Chavarria-Reyes did not have a lawyer — at least, none ever entered an appearance — and so we must assume that he did not learn until too late about the possibility of relief under § 240B(a).

Here Chavarria-Reyes encounters a final roadblock: § 1252(d)(1) provides that a court may review a final order of removal “only if ... the alien has exhausted all administrative remedies available to the alien as of right” (emphasis added). The exhaustion requirement is not a jurisdictional bar, see Korsunskiy v. Gonzales, 461 F.3d 847, 849 (7th Cir. 2006); Abdelqadar v. Gonzales, 413 F.3d 668, 670-71 (7th Cir. 2005), but it is a mandatory case-processing rule and must be enforced if a litigant claims its benefits. The Attorney General asks us to enforce this rule, observing that Chavarria-Reyes did not argue, on his appeal to the BIA, that the IJ failed to follow § 1240.11(b) as understood in Cordova. Instead he contended that the IJ had violated the Due Process Clause of the Fifth Amendment by holding his pro se status against him. The BIA rejected that argument, and Chavarria-Reyes, with the benefit of counsel in this court, does not repeat it. Now he seeks relief based on an argument that he could have made, but did not. Exhaustion means not just taking an appeal to the Board but also presenting an argument, so that the Board has “an opportunity to pass upon the particular legal arguments and contentions that [the alien] now raises”. Zeqiri v. Mukasey, 529 F.3d 364, 369-70 (7th Cir. 2008).

Chavarria-Reyes maintains that, when an I J’s error leaves an alien ignorant of his rights, it is unfair to require the alien to complain in detail to the BIA — a complaint that would depend on the very knowledge that the IJ failed to convey. Yet the statute says that judicial review is permissible “only if’ exhaustion has been accomplished. Nothing in the statute suggests that an alien can avoid the exhaustion requirement by asserting ignorance of an I J’s error. Nor does the statute suggest that exhaustion is required only of aliens who have lawyers. We have not found any decision, from any circuit, concluding that § 1252(d)(1) is inapplicable to aliens who represent themselves or to aliens who claim to be in the dark about what the IJ did wrong — for a claim of ignorance is easy to make but almost impossible for the agency or a court to refute, even if the assertion is false.

The function of exhaustion is to alert the Board so that it can fix the IJ’s errors. That function can’t be served if courts take the existence of an error as a reason not to require exhaustion. And judges would be hard pressed to require more of an administrative tribunal than they require of themselves. When litigants file briefs in this court, the judges regularly address only those contentions presented (whether or not the litigant has a lawyer) and treat all others as forfeited. The plain-error rule of Fed. R. Crim. P. 52(b) does not apply to civil litigation or to civil administrative proceedings. Requiring the BIA to dredge through a record and find all of the things an IJ might have done but didn’t do, plus all those the IJ did do, and then evaluate both actions and inactions against a long list of administrative requirements and prohibitions, would prolong and complicate all immigration proceedings. Both judges and administrative adjudicators need the help of lawyers and litigants to focus attention on problematic areas, and they are entitled to limit their consideration to contentions actually presented — whether they call that requirement forfeiture or exhaustion of remedies.

Although the exhaustion requirement prevents us from granting Chavarria-Reyes’s petition, he remains free to ask the BIA to reconsider or reopen its decision in light of the IJ’s failure to implement the holding of Cordova. That step would be unnecessary if the Attorney General consents to a reopening on the basis of this established error. And, no matter what happens to Chavarria-Reyes, we hope that the agency will revise the procedural checklists (or “scripts”) it prepares for use by IJs. The checklist for initial hearings with unrepresented aliens, https://www..justice.gov/sites/default/fíles/ eoir/legacy/2014/08/15/Script_MC_ Checklist.pdf, appears to contemplate advice about voluntary departure only if the IJ first decides that the alien is ineligible for any other kind of relief. That’s not what Cordova contemplates: § 1240.11(a)(2) requires advice to permanent residents about all entitlements, not just about a fallback after other possibilities have been exhausted, and § 1240.11(b) requires advice to all aliens about voluntary departure. Worse, the checklist for use at hearings with aliens who have counsel — the category in which the IJ (wrongly) supposed Chavarria-Reyes to be — does not call on the IJ to give advice about voluntary departure under § 240B(a), whether or not some other option is available. See https://www.justice.gov/sites/ default/fíles/eoir/legacy/2014/08/15/Script-Initial_Hearing.pdf. The agency could do aliens, and its own personnel, a big favor by revising these checklists to reflect all entitlements within the scope of a statute or regulation.

The petition for review is denied.

POSNER, Circuit Judge,

dissenting.

This case involves a typical botch by an immigration judge. No surprise: the Immigration Court, though lodged in the Justice Department, is the least competent federal agency, though in fairness it may well owe its dismal status to its severe underfunding by Congress, which has resulted in a shortage of immigration judges that has subjected them to crushing workloads. See, e.g., Julia Preston, “Deluged Immigration Courts, Where Cases Stall for Years, Begin to Buckle,” NY Times, Dec. 1, 2016, www.nytimes.com/2016/12/01/us/ deluged-immigration-courts-where-cases-stall-for-years-begin-to-buckle.html?_r=0 (visited Dec. 30, 2016).

The immigrant, Chavarria-Reyes, is a citizen of Mexico. Although married to an American citizen with whom he has four citizen children, he is an undocumented (i.e., unlawful) immigrant who has been ordered removed. The primary issue he presents in this appeal challenging the order of removal is procedural: he was not told that he could apply, as authorized by 8 U.S.C. § 1229c(a)(1), for permission to depart voluntarily before the conclusion of the removal proceeding. Lacking legal representation until he appealed to us, he was unfamiliar with the intricacies of immigration law and therefore failed to take issue with anything the immigration judge said at the removal hearing, though the judge considered only whether to allow Chavar-ria-Reyes to depart voluntarily after completion of the removal proceeding rather than before — “after” being a steeper hill for the immigrant to climb because it requires him (as is not required for voluntary departure before the conclusion of the removal hearing) to prove that he “is, and has been, a person of good moral character for at least 5 years immediately preceding the alien’s application for voluntary departure.” § 1229c(b)(1)(B). Applying that standard the immigration judge — without giving Chavarria-Reyes an opportunity to try to prove that he had been a person of good moral character for the last five years — denied voluntary departure and ordered him removed.

This was a heavy blow, because a person who has been ordered removed is subject to criminal penalties if he’s found to have re-entered the United States without authorization, see 8 U.S.C. § 1326, and in addition he’s not permitted to return with authorization for ten years, 8 U.S.C. § 1182(a)(9)(A). Had Chavarria-Reyes been allowed to depart voluntarily, he would still be barred from returning for ten years, § 1182(a)(9)(B), but he would have an opportunity to obtain a waiver of the ten-year bar by demonstrating that refusal to admit him would result in extreme hardship to his spouse, who is an American citizen.

The ground of the immigration judge’s harsh ruling was her belief that the immigrant “had been arrested and convicted on several occasions for offenses ranging from retail theft, home repair fraud, driving on a revoked license, and a domestic battery” (actually there’s no record of a driving offense) — a criminal record that the judge remarked “does not reflect well on the respondent’s character in the United States.” The judge further remarked that “his negative factors [the crimes] far outweigh any positives that have been demonstrated in this case.” In fact she didn’t think there were “any positives.” For she was skeptical — though the government is not — that Chavarria-Reyes has an American family or has ever been employed in the 17 years he’s been in the United States. Yet she never invited him to present evidence on his own behalf, and — testifying through a translator, over a video feed, without counsel — he couldn’t have been expected to interrupt and insist on presenting his side of the case.

The removal proceeding was thus cursory, indeed farcical. See Kerciku v. INS, 314 F.3d 913, 917-18 (7th Cir. 2003). Cha-varria-Reyes was given no opportunity to explain his employment history in the United States (he claims to have worked as a carpenter throughout his sojourn here, until he was detained in anticipation of the removal proceeding), to prove his family status, to promise to leave the country if granted voluntary departure — or to explain his criminal record. That record, the details of which the immigration judge ignored, is a joke, consisting as it does of three misdemeanors committed over the course of 15 years, for which crimes he served a total of seven days in jail. The government states in its brief that one of the crimes of which the immigrant was convicted was a “crime of moral turpitude.” That is ridiculous, and the government doesn’t even bother to say which of the immigrant’s three crimes it thinks was a crime of moral turpitude.

Chavarria-Reyes was railroaded by the immigration judge. The majority does not deny this but concludes that he failed to exhaust his administrative remedies because his pro se appeal to the Board of Immigration Appeals did not provide a precise articulation of his argument that the immigration judge had failed to inform him of the possibility of voluntarily departing before the conclusion of his removal hearing. But by arguing both that the immigration judge had erred by failing to grant him voluntary departure and that he was denied due process at his removal hearing, Chavarriar-Reyes placed the Board of Immigration Appeals on notice that the immigration judge had made a hash of her duty to inform him of the availability of voluntary departure. See Hamdan v. Mukasey, 528 F.3d 986, 991 (7th Cir. 2008), quoting approvingly, from Yan Lan Wu v. Ashcroft, 393 F.3d 418,422 (3d Cir. 2005), that “so long as an immigration petitioner makes some effort, however insufficient, to place the Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed to have exhausted her administrative remedies.” See also Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th Cir. 2006); Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004).

We should vacate the removal order and remand the case.