text:
    Benyehudah WHITFIELD II, Plaintiff-Appellant, v. Erika R. HOWARD, et al., Defendants-Appellees.
    No. 15-2649
    United States Court of Appeals, Seventh Circuit.
    Argued October 27, 2016
    Decided March 28, 2017

      BenYeHudah Whitfield, II, Pro Se.
    Christopher M.R. Turner, Attorney, Office of the Attorney General, Chicago, IL, for Defendants-Appellees.
    Kenneth Chesebro, Attorney, Cambridge, MA, Colin H. Dunn, Attorney, Clifford Law Offices, P.C., Chicago, IL, for Amici Curiae.
    Before WOOD, Chief Judge, and BAUER and MANION, Circuit Judges.
   WOOD, Chief Judge.

Benyehudah Whitfield spent nearly 17 years in the custody of the Illinois Department of Corrections. He contends that he would have been released earlier had it not been for the retaliatory revocation of good-time credits; he lost those credits in three prison disciplinary proceedings. Whitfield filed a 42 U.S.C. § 1983 suit after his release in 2011, alleging that his constitutional rights were violated by his improperly postponed release. The district court granted summary judgment for the defendants, reasoning that Whitfield’s claims were barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), and Burd v. Sessler, 702 F.3d 429 (7th Cir. 2012). We conclude, to the contrary, that those cases do not bar his action, and so we reverse and remand for further proceedings.

I

The three prison disciplinary proceedings against Whitfield at issue here took place in 2002, 2003, and 2007. Combined, they resulted in the revocation of a total of 16 months of good-conduct credit Whitfield had earned. While incarcerated, Whitfield diligently filed administrative grievances regarding all three disciplinary reports and actions; the Administrative Review Board denied each one. In January 2003 and June 2004, Whitfield also filed separate section 1983 actions challenging the 2002 and 2003 disciplinary proceedings, each of which included a claim of retaliation in violation of the First Amendment. The district courts dismissed the First Amendment retaliation claims in both of those actions as barred by Heck. Such a dismissal is without prejudice. See Moore v. Burge, 771 F.3d 444, 446 (7th Cir. 2014) (if barred by Heck, plaintiff sued too early, not too late, because statute of limitations does not begin to run until Heck bar lifted); Polzin v. Gage, 636 F.3d 834, 839 (7th Cir. 2011) (“If the district court decides that dismissal on the Heck doctrine alone is appropriate, it should dismiss that part of [plaintiffs] complaint without prejudice.”).

Whitfield also embarked on a spirited, if proeedurally flawed, effort to vindicate his rights in state court. In March 2004, he filed a complaint for mandamus relief in the Livingston County (Illinois) circuit court alleging due process violations in the 2003 disciplinary proceeding. The circuit court denied the claim and held that Whitfield had received whatever process was due. He appealed that denial, but the state appellate court affirmed. Whitfield did not petition for leave to appeal that decision to the Illinois Supreme Court.

In August 2009 Whitfield attempted to challenge all three revocations of his good-conduct credit through a state-law petition for habeas corpus filed in the Randolph County circuit court. The circuit court dismissed the complaint without prejudice, because under Illinois law it failed to state a cognizable theory. Whitfield moved for reconsideration and argued that the court should recharacterize his complaint as one seeking mandamus, but the court refused to do so. Whitfield appealed, but he failed to include a copy of the record (because he did not have one). Claiming indigence, he requested a free record on appeal, but the court denied his motion because state law conferred no right to a free record in a civil action. He moved for and was granted two extensions of time to file the record. Although he still did not have the official record, he sought leave to file his personal documents as the record. The court rejected that motion and dismissed the appeal in June 2010 for want of prosecution (meaning only for lack of a record). Whitfield petitioned the Illinois Supreme Court for leave to appeal, but it denied his petition in September 2010.

On March 2, 2011, Whitfield filed a federal petition for habeas corpus, in which he again tried to challenge the three disciplinary actions. The state argued that Whitfield’s petition would be rendered moot in July 2011, when he was scheduled for release, and that Whitfield had failed to exhaust his state remedies. The district court dismissed the action as moot on July 25, 2011, because by that time Whitfield was no longer in custody.

This string of failures did not stop Whitfield, who filed the present section 1983 action just short of two years later, on July 8, 2013. Upon a preliminary review pursuant to 28 U.S.C. § 1915(e), the district court found that Whitfield stated claims against the adjustment committee members for due process violations and for retaliation in violation of the First Amendment. Nonetheless, it granted summary judgment for the defendants on the basis that Whitfield’s suit was barred by Heck and Balisok, as interpreted in Burd v. Sessler. The latter case requires a plaintiff to pursue timely collateral relief while in custody, and the district court concluded that Whitfield had not done so. Whitfield moved for reconsideration twice; the district court denied both requests. This appeal followed.

II

Pointing to a procedural hiccup surrounding Whitfield’s motions for reconsideration and notices of appeal, the state begins with a challenge to our appellate jurisdiction. That argument takes precedence, and so we address it first.

The district court issued its order granting summary judgment for the defendants on January 7, 2015. Relying on Federal Rule of Civil Procedure 59, Whitfield filed a timely motion for reconsideration of that order on January 21, 2015; the district court denied that motion on June 5, 2015. Complicating matters, Whitfield filed a second motion for reconsideration that purported to rely on both Rule 59 and Rule 60(b) on June 29, 2015. The district court denied that motion on July 8, 2015, and properly advised Whitfield that the June 29 motion had not reset the clock on his time to appeal from the January 7 order. Whitfield first responded with a notice of appeal limited to the July 8 order; he filed that notice on July 22, 2015. This notice of appeal was untimely in relation to the January 7 and June 5 orders, but it was timely for the July 8 order (construing it as a denial of relief under Rule 60(b)).

But Whitfield was not finished. On August 4, 2015, he filed a motion pursuant to Federal Rule of Appellate Procedure 4(a)(5) for an extension of time to file a notice of appeal of the judgment and filed an amended notice of appeal that included the January 7, June 5, and July 8 orders. That rulé permits the district court to extend the time to file a notice of appeal if “a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires.” Fed. R. App. P. 4(a)(5)(A)®. The time prescribed by Rule 4(a) for Whitfield would have been 30 days, see Fed. R. App. P. 4(a)(1)(A), had he not filed a timely Rule 59 motion for reconsideration. But he did file such a motion within the permitted 28 days, see Fed. R. Civ. P. 59(b), and that is one of the motions that extends the time for filing an appeal until the entry of the order disposing of the motion. See Fed. R. App. P. 4(a)(4)(A)(iv). The district court denied Whitfield’s original Rule 59 motion on June 5, 2015. At that point, he had 30 days to file a timely notice of appeal, or until July 5, 2015. Rule 4(a)(5)(A)® then gave him an extra 30-day period in which to file a motion for an extension of time for filing his notice of appeal. That takes us to August 4, 2015, exactly — the date when Whitfield filed his motion to extend and his notice of appeal from all of the district court’s orders.

The district court found excusable neglect in Whitfield’s failure to file a timely appeal of the original judgment, as required by Rule 4(a) (5) (A) (ii), and granted him an extension to file the amended notice of appeal. In so doing, it did not abuse its discretion or otherwise act unreasonably. The appellees neither objected to the August 4 motion to extend the time for appeal nor did they cross-appeal from the grant of that order. Cf. Sherman v. Quinn, 668 F.3d 421 (7th Cir. 2012) (consolidating plaintiffs appeal and defendant’s cross-appeal of order granting motion for time to extend appeal). Their silence can be taken into account for purposes of the prejudice inquiry, even though it cannot waive a fundamental jurisdictional defect (assuming for the sake of argument that this is the proper way to look at the provisions in the rule for extensions of time). See Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (time for appeal in civil cases is jurisdictional); see also Netzer v. Office of Lawyer Regulation, Nos. 16-3236 & 16-3713, 851 F.3d 647, 2017 WL 961740 (7th Cir. Mar. 13, 2017) (questioning whether Fed. R. App. P. 4(a)(5)(C) sets a jurisdictional time limit but finding no need to resolve the issue).

When a district court is considering whether excusable neglect exists, it should take into account such factors as “the danger of prejudice [to the non-moving party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the mov-ant, and whether the movant acted in good faith.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). The district court here did just that. It found that the delay was short, and it saw no reason to question Whitfield’s good faith. It understood how Whitfield, as a pro se litigant, could have misunderstood the operation of Rule 4(a)(4), and it noted that when the court informed him of the correct reading of the rule, he acted promptly in filing his motion to extend.

This was a reasonable response to the situation. The federal rules are complex, and the court may find excusable neglect in a pro se litigant’s confusion about how they work. See McCarty v. Astrue, 528 F.3d 541, 544 (7th Cir. 2008). With the extension, Whitfield’s August 4 notice of appeal was timely, and it sufficed to bring the full case before us. We therefore deny the state’s motion to dismiss for want of appellate jurisdiction.

Ill

We are now ready to turn to the heart of the appeal. We review a grant of summary judgment de novo, viewing all evidence and drawing all reasonable inferences in favor of the non-moving party. Janusz v. City of Chicago, 832 F.3d 770, 774 (7th Cir. 2016). Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the mov-ant is entitled to judgment as a matter of law.” Fed. R. Crv. P. 56(a). We are free to affirm a grant of summary judgment on any basis supported by the record. Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016).

Although Whitfield, still proceeding pro se (though supported by amici, whose help we gratefully acknowledge), challenges the district court’s decision on a number of grounds, we can disregard most of them. The key question relates to the way in which Heck applies to Whitfield’s situation. We reject Whitfield’s effort to argue that the state waived its Heck defense by asserting in its motion for summary judgment that Whitfield’s claims were barred by res judicata. Our own review of the record satisfies us that the defendants preserved their Heck defense in the motion for summary judgment. Moreover, Heck formed the basis of the district court’s decision and has been fully briefed on appeal.

In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Supreme Court considered the potential overlap between suits brought under 42 U.S.C. § 1983 and those relying on the habeas corpus statute governing state prisoners, 28 U.S.C. § 2254. In Heck, the Court characterized Preiser as holding “that habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983.” Heck, 512 U.S. at 481, 114 S.Ct. 2364 (emphasis added). The section 1983 plaintiffs in Preiser had challenged the administrative revocation of their good-conduct credits. The Court, emphasizing Congress’s intent to make habe-as corpus the exclusive remedy for someone seeking a ruling from the courts that he should be released sooner, held that “when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.” Preiser, 411 U.S. at 500, 93 S.Ct. 1827.

Heck extended this rule to section 1983 suits that did not directly seek immediate or speedier release, but rather sought monetary damages that would call into question the validity of a conviction or term of confinement. 512 U.S. at 486-87, 114 S.Ct. 2364. The Court held that a prisoner has no claim under section 1983 until he receives a favorable decision on his underlying conviction or sentence, such as through a reversal or grant of habeas corpus relief. Id. In Balisok the Court extended this bar to section 1983 suits brought by prisoners who wanted to challenge the outcome of prison disciplinary proceedings in which the plaintiff sought money damages rather than release. The concern the Court identified was similar to the one involved in Heck: if the plaintiff established a procedural defect in his administrative proceedings, it would imply the invalidity of the deprivation of his good-time credits. 520 U.S. at 646, 117 S.Ct. 1584. This in turn would imply that he was entitled to an earlier release, relief for which a grant of habeas corpus is the exclusive remedy. See Preiser, 411 U.S. at 500, 93 S.Ct. 1827.

In Wilkinson v. Dotson, the Court considered another variation on this theme: a challenge under section 1983 to the procedures used in a prison parole hearing, after parole boards rejected the requests of two state prisoners. 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005). The section 1983 suits were not barred there because they did not fall within the “implicit habeas exception.” Id. at 82, 125 S.Ct. 1242. The prisoner-plaintiffs’ claims would have invalidated the state procedures used to deny parole eligibility and suitability, but would not have necessarily meant that their confinement was invalid or that they were entitled to either immediate release or a shorter term. Id. A new hearing that was untainted by the procedural flaws might just as easily result in the same substantive decision as a different one. Similarly, in Skinner v. Switzer, the Court held that a prisoner’s post-conviction claim for DNA testing could be pursued in a section 1983 action, because success in the suit would not necessarily invalidate the lawfulness of the confinement. 562 U.S. 521, 525, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011).

The Supreme Court has not yet had occasion to speak directly to the applicability of Heck when a plaintiff is no longer in custody and thus is jurisdictionally barred from using habeas corpus. See, e.g., Maleng v. Cook, 490 U.S. 488, 490, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989); Stanbridge v. Scott, 791 F.3d 715, 718 (7th Cir. 2015). We did, however, address one such situation in Burd v. Sessler. In Burd, the plaintiff waited until he had been released from prison and had completed his parole, and only then brought a section 1983 action alleging that prison officials had denied him his right of access to the courts, without which he was unable to withdraw his guilty plea or to appeal. 702 F.3d 429. We decided that “Heck applies where a § 1983 plaintiff could have sought collateral relief at an earlier time but declined the opportunity and waited until collateral relief became unavailable before suing.” Id. at 436. We worried that it would undermine Heck — and worse, the fundamental line between habeas corpus and civil rights actions dating back to Preiser — to allow a plaintiff who had not been precluded by some sort of legal impediment to skirt the Heck bar by waiting to bring his section 1983 action until habeas corpus was no longer available. Id. We therefore held that “Heck bars a § 1983 action where: (1) favorable judgment would necessarily call into question the validity of the underlying conviction or sentence and (2) the plaintiff could have pursued collateral relief but failed to do so in a timely manner.” Id.

There are a number of significant differences between Burd and the present case. First, the plaintiff in Burd sought no collateral relief — either in a timely manner, as contemplated by the prison’s rules, or otherwise- — before filing his section 1983 action after his release from custody. Whitfield, in contrast, has attempted to follow through on every remedy and more as he has tried to address what he sees as the retaliatory motive behind the revocation of his good-time credits. Thus, to the extent that diligence is needed, Burd failed the test and Whitfield passes. The key point for this purpose.is that someone such as Burd who bypasses an opportunity for collateral review cannot take advantage of the portion of Heck that postpones a claim’s accrual until release. Second, the type of relief that Burd sought was inherently not capable of being addressed by damages, as long as the underlying conviction stood. Burd was complaining about his lack of access to the law library and to the courts. The underlying claim for which he sought access to the courts was an opportunity to withdraw his guilty plea. Heck, we held, forbids such an action “until the plaintiff can demonstrate his injury by establishing the invalidity of the underlying judgment.” Id. at 435. Whitfield, in contrast, is seeking relief on the ground that he was kept in prison for too long.

The ease that governs most directly is therefore not Heck, but Balisok. There, the petitioner was challenging the procedures used in the prison disciplinary hearing that resulted in his loss of good-time credits. Had he prevailed, the result of the disciplinary proceeding would have to have been set aside. Whitfield, in contrast, is arguing that the hearings should never have taken place at all, because they were acts of retaliation for his exercise of rights protected by the First Amendment. He has no quarrel with the procedures used in the prison disciplinary system. He could just as well be saying that a prison official maliciously calculated an improper release date, or “lost” the order authorizing his release in retaliation for protected activity. In short, the essence of Whitfield’s complaint is the link between retaliation and his delayed release; the fact that disciplinary proceedings were the mechanism is not essential. Balisok also took care to be precise, when it held that the petitioner’s claim for prospective injunctive relief could go forward under section 1983, since it did not necessarily imply anything about the loss of good-time credits.

We therefore do not think that Burd provides the answer to the question now before us: whether a plaintiff who (1) did seek collateral relief of an administrative determination in a timely manner, while in custody, but was told to wait (recall that the district court’s dismissal was for mootness because of his release), (2) is not making a procedural challenge to the prison disciplinary hearings, and (3) never had his day in court prior to his release, is entitled to adjudicate his case under the only statute left: section 1983?

We addressed a similar situation in Carr v. O’Leary, 167 F.3d 1124 (7th Cir. 1999). There, the plaintiff-inmate filed a section 1983 action alleging due process flaws in the prison disciplinary system that led to the revocation of his good-time credits. He had brought his suit prior to the Supreme Court’s decisions in Heck and Balisok. After this court held that Heck applied to prison disciplinary proceedings in Miller v. Ind. Dep’t. of Corr., 75 F.3d 330 (7th Cir. 1996) — a holding confirmed the next year by the Supreme Court in Balisok — the defendants raised the Heck defense, and the district court held that the suit was barred. We ultimately remanded on a waiver issue, but suggested in dicta that Heck likely would not have barred the suit because the plaintiff had been released from custody and could therefore not maintain a habeas corpus action. See Carr, 167 F.3d at 1127.

The district court here criticized Whitfield for “ignoring] his chance to pursue collateral relief while in prison by not exhausting his state court remedies.” It thought that allowing the suit to proceed would allow a plaintiff such as Whitfield to skirt the Heck bar by waiting to file a habeas corpus action until shortly before release, and thereby avoid a state-court ruling on the merits.

This fails, however, to give Whitfield credit for the timely actions he did take. This is not a case in which the prisoner filed something long after the events in question, at the last minute before his release, and then urges that the Heck bar should be lifted after he is out of custody. Moreover, the district court’s logic is at odds with the Supreme Court’s admonition in Balisok against engrafting a nonstatuto-ry exhaustion requirement: “We reemphasize that § 1983 contains no judicially imposed exhaustion requirement; absent some other bar to the suit, a claim is either cognizable under § 1983 and should immediately go forward, or it is not cognizable and should be dismissed.” 520 U.S. at 649, 117 S.Ct. 1584. Heck makes much the same point: “... Preiser did not create an exception to the ‘no exhaustion’ rule of § 1983; it merely held that certain claims by state prisoners are not cognizable under the provision, and must be brought in habeas corpus proceedings, which do contain an exhaustion requirement.” 512 U.S. at 481, 114 S.Ct. 2364.

By requiring a plaintiff who is released from custody to have exhausted all imaginable collateral options before walking out the prison door, the district court ran afoul of this guidance. If Heck is as strict a bar to suit as the district court implied, then there is no reason why the Balisok Court would have preserved the suit for prospective injunctive relief: virtually everything would have been precluded unless or until full exoneration occurred. And, as we have said, there are important factual distinctions between Whitfield’s case and Burd.

We worried in Burd about situations in which a plaintiff has a constitutional claim, yet (perhaps for strategic reasons) sits it out while in custody and waits to bring her claim until habeas corpus is jurisdictionally barred because the “custody” requirement is no longer met. See 702 F.3d at 436. Allowing section 1983 suits by plaintiffs who sleep on their rights would undermine our interest in promoting federal-state comity: “the States have an important interest in not being bypassed in the correction of [their court and prison administration] errors.” Preiser, 411 U.S. at 492, 93 S.Ct. 1827. But there is a subtle but important difference between requiring a plaintiff to pursue appropriate relief in a timely manner (that is, while she is in custody and able to do so), and a requirement that she exhaust all collateral relief. Although Whitfield may not have pursued all of his collateral relief options in a procedurally perfect manner, he is hardly in the position of having bypassed the state options entirely or leaving them until the eve of his release. (We pass no judgment on whether any of the state court decisions would have res judicata effect in Whitfield’s section 1983 suit. This, as well as any other issues we do not reach, are open for development on remand.) Whitfield did his best to obtain relief in a timely way while he was in custody, and Burd requires no more.

We understand that the district court •may have been concerned about the incentives an inmate might have to try to file strategically in order to skirt the .strict habeas corpus requirements. But there are a number of tools that combine to block such efforts at manipulating the system. A challenge that would undermine a state-court conviction or sentence would still face Rooker-Feldman jurisdictional problems or res judicata issues in a lower federal court. Suits that challenged conditions of confinement might run into statute of limitations issues, as they could have been brought as section 1983 actions while the person was in custody. And prisoners already have the strongest possible incentive to ensure that they do not remain behind bars a day longer than necessary, whether because of the way their sentences are calculated, or because of the award or removal of good-time credits, or any other factor. There is little to no incentive to postpone such a critical question until after the harm of over-long incarceration has occurred. That, too, is unlike the library- and court-access claim involved in Bwrd, where the plaintiff lost little by waiting until his release to see what litigation might bring. See Nonnette v. Small, 316 F.3d 872, 878 n.7 (9th Cir. 2002).

We therefore find that Whitfield’s claims are not barred by Heck or Balisok, and Reverse and Remand to the district court for further proceedings consistent with this opinion.


source: Caselaw Access Project

author: POSNER, Circuit Judge. SYKES, Circuit Judge,

license: Public Domain

text:
    Deng AREJ, Petitioner, v. Jeff SESSIONS, Attorney General of the United States, Respondent.
    No. 15-2061
    United States Court of Appeals, Seventh Circuit.
    Argued March 1, 2017
    Decided March 28, 2017

      Rory K. Schneider, Attorney, Mayer Brown LLP, New York, NY, for Petitioner.
    Jamie M. Dowd, Andrew Nathan O’Mal-ley, OIL, Jonathan A. Robbins, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
    Before POSNER, SYKES, and HAMILTON, Circuit Judges.
   POSNER, Circuit Judge.

The Sudan is a very large region in northeastern Africa, the site of a number of ancient civilizations that flourished along the Nile. It became an independent nation in 1956 (before that it had been controlled by Britain and Egypt), but since 2011 it has accommodated two nations— the Republic of the Sudan and the Republic of South Sudan. Until 2011, when the southern half of the nation broke away to form the Republic of South Sudan, the Sudan was the largest nation in Africa.

The population of the Republic of the Sudan is almost entirely Muslim, whereas most of the population of the Republic of South Sudan practices Christianity or African traditional religion. The religious difference between the two nations is germane to this immigration case, as we’ll see.

The petitioner, Deng Arej, was born in South Sudan before it was an independent nation, and was sent as a child to live in the northern part of Sudan because his parents were afraid that if he remained in the south he’d be drafted into the south’s army as a child soldier. When relocated to the north he concealed both his Christian faith and his southern ethnicity to avoid being killed by northern soldiers. Later, fearing that he would be drafted into the northern army, he fled to Egypt. He was admitted to the United States as a refugee in 2005. Though a native of South Sudan, now as we said an independent nation, he remains a citizen of the Republic of the Sudan.

Once in the United States, Arej committed a series of assaults (one in a fight that resulted in a death, although he was not convicted of murder) and was sentenced to two years in prison. In April 2014, after he completed his prison sentence, an immigration judge ordered him removed (i.e., deported) to the Republic of the Sudan. He might have preferred to be removed to South Sudan, now that it’s an independent nation, as he is of South Sudanese origin and a Christian — but the record does not say which nation he prefers: probably, as we’ll see, neither. There have been previous removals of Sudanese immigrants, but it is unclear how many of them were removed to the northern republic and how many to the southern, and how many removed to one of the two countries moved or tried to move to the other.

In January 2015, awaiting removal more than eight months after having been ordered removed, Arej sought U.S. asylum on the ground that South Sudan (to which he may have intended to move from the Republic of the Sudan were he removed to that republic) was “increasingly volatile and dangerous” and by May 2014 on the brink of civil war. And as he wasn’t even a citizen of the country, he might be unable to obtain protection from its government. He may have thought it obvious that he shouldn’t be removed to the north either, in view of his vulnerability to persecution there, being Christian; in any event he was opposing, on plausible grounds, removal to either country.

He had missed the 90-day deadline for filing a motion to reopen the proceedings, however, which would have allowed him to petition for asylum. But he sought an exception to the deadline on the basis of changed circumstances since the issuance of the removal order. A civil war in South Sudan had broken out in December 2013 and by February 2015 a South Sudanese legal scholar was quoted in evidence that Arej submitted to the Board of Immigration Appeals as reporting that 20 percent of his country’s population had been displaced and an “untold number” of them killed. Removed to the north, Arej would be in danger as a southerner, but if therefore he fled to the south, he would find himself in the midst of a civil war. He was between a rock and a hard place.

But the immigration judge denied Arej’s motion to reopen (a motion that if granted would have made it possible for him to apply for asylum in the United States), remarking that Arej “states no facts constituting changed circumstances.” He appealed to the Board of Immigration Appeals, which however dismissed his appeal perfunctorily, remarking — inaccurately — that the fact that there was a “ ‘[civil] war ... in progress [in South Sudan]’ ... does not amount to a showing that circumstances have materially changed in Sudan or South Sudan since the time of the entry of the order of removal.” That remark ignored the growing violence in the south during this period. Further ignoring evidence, the Board added that Arej had failed to present evidence that “establishes that, since the time of his ultimate removal hearing, conditions have materially changed in Sudan or South Sudan.” That was incorrect; he had presented such evidence, which we summarized above.

Arej has conceded that he qualifies as a criminal alien under 8 U.S.C. § 1252(a)(2)(C), so our review of the Board’s decision is limited to issues of law. 8 U.S.C. § 1252(a)(2)(D). But it was a serious legal error for the Board to have ignored Arej’s evidence. As we noted in Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008), the Board cannot make a reasoned decision to deny a motion to reopen if it ignores the evidence that a petitioner presents.

Furthermore, a competent immigration service would not ignore world events. The dramatically worsening conditions in South Sudan have been widely reported, with the young nation described as “cracking apart” and United Nations officials raising concerns about genocide. See, e.g., Jeffrey Gettleman, “War Consumes South Sudan, a Young Nation Cracking Apart,” New York Times, March 4, 2017, https://nyti. ms/21HeELw. “Tens of thousands of civilians have been killed”; “every major ceasefire that has been painstakingly negotiated by African and Western officials has been violated”; and “dangerous fissures are opening up within the South Sudanese military.” Id. And time doesn’t stand still. The Board’s order dismissing Arej’s appeal from the immigration judge’s denial of his motion to reopen was issued on May 8, 2015 — almost two years ago. Considering that Arej has not yet been removed and that the order was perfunctory, the Board should consider whether he should be allowed to present evidence concerning current conditions in the two Sudans. See 8 C.F.R. § 1003.2(a).

The petition for review is therefore granted, the decision of the Board vacated, and the case remanded to the Board for further proceedings consistent with this opinion.

SYKES, Circuit Judge,

concurring in the judgment.

Deng Arej, a citizen of Sudan, was admitted to this country as a refugee in 2005 and thereafter committed multiple violent crimes in the State of Kentucky. Between December 2010 and May 2013, he was charged and convicted of these crimes in several separate state-court proceedings and was sentenced to serve short concurrent prison terms. The Department of Homeland Security thereafter initiated proceedings to remove him from this country. His serious criminal conduct made him removable on several grounds. See 8 U.S.C. § 1227(a)(2)(A)(ii) (making aliens removable for committing a crime of moral turpitude); id. § 1227(a)(2)(E)® (making aliens removable for committing a crime of domestic violence); id. § 1227(a)(2)(A)(iii) (making aliens removable for committing an aggravated felony).

During the removal proceedings, Arej declined the opportunity to apply for asylum, withholding of removal, or deferral of removal under the Convention Against Torture. On April 23, 2014, an immigration judge ordered him removed to Sudan. Arej waived his right to appeal the removal order to the Board of Immigration Appeals (“BIA” or “the Board”).

On January 9, 2015 — more than eight months later — Arej moved to reopen the removal proceedings, saying that he now wished to apply for asylum “in the interest of justice and humanitarian concerns.” A motion to reopen must be filed within 90 days of the entry of the order of removal, id. § 1229a(c)(7)(C)(i), so his motion was untimely by more than five months. An exception to the time bar exists if the alien can demonstrate that conditions in the country to which he has been ordered removed have materially changed since the removal order was entered. Id. § 1229a(e)(7)(C)(ii). Arej submitted no evidence and otherwise made no effort to fit his case within this exception, so the immigration judge denied the motion as untimely-

Arej appealed to the BIA and this time submitted documentary evidence in an effort to show a material change in country conditions in the Sudan and South Sudan. The Board rejected his argument and dismissed the appeal. Its dismissal order refers in general terms to the “numerous documents” Arej submitted on appeal and summarily concludes that this “additional evidence” failed to establish that conditions “materially changed in Sudan or South Sudan” since the removal order was entered. The Board also concluded “upon consideration of the totality of the record” that sua sponte reopening was unwarranted.

Arej petitioned for review, but our jurisdiction is severely limited by his status as a criminal alien; we do not have authority to review the BIA’s decision for abuse of discretion. More specifically, the Immigration and Nationality Act (“INA”) provides that “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in ... section 1227.” Id. § 1252(a)(2)(C). Without jurisdiction to review the underlying removal order, we also lack jurisdiction to review the denial of a motion to reopen that order. Cruz-Mayaho v. Holder, 698 F.3d 574, 577 (7th Cir. 2012). But the INA preserves our jurisdiction to review questions of law and constitutional claims. 8 U.S.C. § 1252(a)(2)(D). Accordingly, we lack jurisdiction to review how the BIA evaluated and weighed Arej’s evidence or to test its decision for abuse of discretion; we may review its decision only for errors of law and constitutional infirmities.

My colleagues address jurisdiction only fleetingly, though they do cite § 1252(a)(2)(D) and Iglesias v. Mukasey, 540 F.3d 528 (7th Cir. 2008). Iglesias holds that when an alien asserts that the BIA “completely ignored the evidence he presented,” he has raised “a good faith claim of legal error” that counts as “a question of law” under § 1252(a)(2)(D). Id. at 531. Relying on Iglegias, my colleagues conclude that the Board ignored Arej’s evidence. Majority Op. at p. 667. That’s incorrect.

The dismissal order is admittedly a brief summary disposition, but it’s clear that the Board was aware of the additional evidence Arej submitted on appeal. The Board acknowledged in general terms that Arej submitted “numerous documents” on appeal and ruled that this “additional evidence” is insufficient to show changed country conditions. The order also specifically states that the Board considered the “totality of the record” in declining to reopen sua sponte. That’s more than the BIA said in Iglesias; the order denying reopening in that case contained not a word about the alien’s evidence. 540 F.3d at 531-32.

Still, other language in Iglesias suggests that Arej has indeed raised a colorable claim of legal error, though it’s very narrow. Our opinion in Iglesias listed in summary fashion the key items of evidence the petitioner had presented to the BIA in his appeal. Id. at 532. We then say this: “Had the BIA at least mentioned this evidence, we could have some confidence that these materials had been considered. Unfortunately, the brevity of the decision leaves us with the impression that the BIA committed legal error....” Id. at 532. This suggests to me that it’s a legal error under Iglesias for the Board to deny a motion to reopen with a generic assurance that it has considered the “totality of the record,” as it did here. We have limited jurisdiction to correct that legal error, but not to look for factual errors or an abuse of discretion.

In Iglesias we ultimately denied the alien’s petition for review, finding the legal error harmless. 540 F.3d at 532-33. The government has not raised harmless error here, so that argument is waived.

Accordingly, I agree with the court’s decision to vacate the BIA’s order and remand for further proceedings, but I arrive at that conclusion on narrower grounds. I respectfully concur in the judgment only.


author: WOOD, Chief Judge.

text:
    Eric MAINS, Plaintiff-Appellant, v. CITIBANK, N.A., et al., Defendants-Appellees.
    No. 16-1985
    United States Court of Appeals, Seventh Circuit.
    Argued November 2, 2016
    Decided March 29, 2017

      Jonathan M. Schulte, Attorney, Smith, Carpenter, Fondrisi & Cummins, LLC, Jeffersonville, IN, for Plaintiff-Appellant.
    Jill M. Wheaton, Attorney, Dykema Gos-sett PLLC, Ann Arbor, MI, Jordan S. Huttenlocker, Attorney, Dykema Gossett PLLC, Chicago, IL, Jonathan M. Weiss, Attorney, Kirkland & Ellis LLP, Los An-geles, CA, Michael A. Dorelli, Patrick Austin Ziepolt, Attorneys, Hoover Hull Turner LLC, Derek Read Molter, Thomas E. Mix-dorf, Attorneys, Ice Miller LLP, Nathan T. Danielson, Attorney, Bose McKinney & Evans, LLP, Indianapolis, IN, Fred 0. Goldberg, Attorney, Berger Singerman LLP, Miami, FL, Amanda Warford Edge, Attorney, Wyatt, Tarrant & Combs, Louisville, KY, for Defendants-Appellees.
    Before WOOD, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.
   WOOD, Chief Judge.

Eric Mains has been battling the impending foreclosure of his home for quite some time. Most recently, he brought an action in federal court raising various state and federal law theories, related primarily to alleged fraudulent activity by the defendants. But the state courts resolved these matters long before he turned to the federal court. Mindful of our limited jurisdiction and the need to respect the finality of state-court judgments, we affirm the district court’s dismissal of this case.

I

Mains executed a mortgage on his home with Washington Mutual (“WAMU”) in December 2006 and made timely payments for a little more than two years. WAMU failed in September 2008, and the Federal Deposit Insurance Corporation (“FDIC”) became its receiver. Chase Bank (“Chase”) purchased WAMU’s loans and loan commitments, including Mains’s mortgage and note. Mains received notice in May 2009 that Chase was the servicer of his loan. (Chase would later assign the mortgage and note to Citibank in 2010.)

Around the time of WAMU’s demise, Mains began falling behind on his mortgage payments. He requested loan modifications from Chase’three times in early 2009 and discontinued his mortgage payments altogether in March of that year. Chase’s law firm, Nelson & Frankenber-ger, P.C. (“Nelson”), sent Mains a default and acceleration notice in June 2009. On April 20, 2010, Citibank (by now the holder of the paper) filed a mortgage foreclosure action in the Circuit Court of Clark County, Indiana. Citibank filed a motion for summary judgment in August 2010, but it withdrew that motion in November 2010 because it was under investigation for its alleged improper foreclosure practices. On February 11, 2013, Citibank re-filed its motion, and the state court granted summary judgment for Citibank on May 3, 2013. Mains appealed on September 12, 2013, contending that Citibank was not the proper party to foreclose on the loan and that it had committed fraud because it was not the real party in interest, yet it instructed its employees fraudulently to sign documents. The Indiana Court of Appeals affirmed the trial court’s order, and the Indiana Supreme Court denied Mains’s motion for transfer on January 22, 2015.

Mains then turned to the federal courts, filing a rambling, 90-page complaint on March 20, 2015. He alleged that he had discovered new evidence of fraud that he could not have presented to the state court — specifically, the existence of previously undisclosed consent judgments, parties in interest, and evidence of robo-sign-ing. He also claimed to have rescinded his mortgage on February 27, 2015. In addition to Chase and Citibank, the complaint named a host of others: Cynthia Riley, a former employee of WAMU; Black Knight Financial Infoserv (“Black Knight”), a computer software and form provider for Chase; Nelson & Frankenberger, Citibank’s counsel; Bose McKinney, Citibank’s appellate counsel in the Indiana foreclosure judgment; and Wyatt, Tarrant & Combs (“Wyatt”), Chase’s non-litigation counsel. The federal complaint alleged violations of a number of federal statutes: the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601-2617; the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1631-1651, and “Regulation Z,” 12 C.F.R. § 226; the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692-1692p; and the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968. Mains also brought claims under Indiana Code § 32-30-10.5 (relating to foreclosure prevention agreements), and state tort law for negligent or intentional infliction of emotional distress, negligent misrepresentation, common law fraud, and negligence.

The district court found that Mains’s claims would effectively nullify the state-court judgment if resolved in his favor, and dismissed for lack of subject matter jurisdiction under the Rooker-Feldman doctrine. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). We agree with that court that Mains is, in effect, asking us to overturn the state court’s judgment — an action we have no jurisdiction to take. The district court indicated that its dismissal was with prejudice. Because it rests on a limitation on the federal court’s jurisdiction, however, we modify it (with minor exceptions described below) to be without prejudice.

II

The crux of Mains’s argument on appeal is that the district court erred in dismissing his claims pursuant to Rooker-Feldman because he discovered evidence of fraud that was not known to the state court, and it would be unfair in light of that to hold him to the state court’s judgment.

The Rooker-Feldman doctrine prevents lower federal courts from exercising jurisdiction over cases brought by state-court losers challenging state-court judgments rendered before the district court proceedings commenced. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). It ensures that lower federal courts do not exercise appellate authority over state courts. Claims that directly seek to set aside a state-court judgment are de facto appeals that trigger the doctrine. Sykes v. Cook Cnty. Cir. Ct. Prob. Div., 837 F.3d 736, 742 (7th Cir. 2016). But even federal claims that were not raised in state court, or that do not on their face require review of a state court’s decision, may be subject to Rooker-Feldman if those claims are closely enough related to a state-court judgment. Id.

Another way of expressing the same point is to ask whether the federal plaintiff is alleging that his injury was caused by the state-court judgment. Richardson v. Koch Law Firm, P.C., 768 F.3d 732, 733 (7th Cir. 2014). If the claim alleges an injury independent of the state-court judgment that the state court failed to remedy, Rooker-Feldman does not apply. Sykes, 837 F.3d at 742. “In other words, [for Rooker-Feldman to apply] there must be no way for the injury complained of by a plaintiff to be separated from a state court judgment.” Id. Rooker-Feldman thus applies where the plaintiff seeks relief that is tantamount to vacating the state judgment. Taylor v. Fannie Mae, 374 F.3d 529, 533 (7th Cir. 2004). But if the suit does not seek to vacate the judgment of the state court and instead seeks damages for independently unlawful conduct, it is not barred by Rooker-Feldman. Johnson v. Pushpin Holdings, LLC, 748 F.3d 769, 773 (7th Cir. 2014).

Even if Rooker-Feldman does not bar a claim, when there is a prior state-court judgment that appears to cover the same transaction or the same issues as the later federal case, the possibility exists that res judicata may apply. In Indiana, as is commonly the case, res judicata is an affirmative defense. When the earlier judgment was rendered by a state court, the Full Faith and Credit Statute, 28 U.S.C. § 1738, “requires [federal] courts to give a state court judgment the same preclusive effect it would have in state court.” Long v. Shorebank Dev. Corp., 182 F.3d 548, 560 (7th Cir. 1999). In this case, we look to Indiana law to ascertain the preclusive effect of the earlier state-court judgment.

Indiana, like most states, recognizes both claim preclusion and issue preclusion. Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013); Miller Brewing Co. v. Ind. Dept. of State Revenue, 903 N.E.2d 64, 68 (Ind. 2009). Indiana’s Supreme Court has said that “[i]n general, issue preclusion bars subsequent litigation of the same fact or issue that was necessarily adjudicated in a former suit.” Miller, 903 N.E.2d at 68. Indiana courts follow federal precedents in applying issue preclusion (also commonly referred to as collateral estoppel). Id. The courts ask two questions: “(1) whether the party in the prior action had a full and fair opportunity to litigate the issue and (2) whether it is otherwise unfair to apply collateral estop-pel given the facts of the particular case.” Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 705 (Ind. Ct. App. 2005).

In order for issue preclusion to apply under Indiana law, the rendering court’s decision must be final. Indiana courts rely on the American Law Institute’s Restatement (Second) of Judgments, section 13, in making that determination. Miller, 903 N.E.2d at 68; Johnson v. Anderson, 590 N.E.2d 1146, 1149 (Ind. Ct. App. 1992). As we put it in Haber v. Biomet, Inc., 578 F.3d 553, 556 (7th Cir. 2009), the Indiana courts use a holistic analysis of finality; they focus “on the nature of the judgment itself and specifically whether it is sufficiently firm and non-tentative.” Under Indiana law, a foreclosure judgment is an immediately appealable final judgment for the purpose of preclusion. See Bahar v. Tadros, 234 Ind. 302, 123 N.E.2d 189, 189-90 (1954).

A

Reading through the verbiage of Mains’s filings, we are left with the impression that the foundation of the present suit is his allegation that the state court’s foreclosure judgment was in error because it rested on a fraud perpetrated by the defendants. Mains wants the federal courts to redress that wrong. That is precisely what Rooker-Feldman prohibits, however. If we were to delve into the question whether fraud tainted the state court’s judgment, the only relief we could give would be to vacate that judgment. That would amount to an exercise of de facto appellate jurisdiction, which is not permissible. Mains’s remedies lie in the Indiana courts. Indiana allows a party to file for relief from judgment based on newly discovered evidence or on the fraud or misrepresentation of an adverse party, either through a motion or through an independent action. See Ind. R. Trial P. 60(B). The state’s courts are quite capable of protecting their own integrity.

Mains’s claim under RE SPA, 12 U.S.C. §§ 2601-2617, is somewhat more complex. He seeks an accounting of payments to determine whether Chase improperly charged late fees. In that connection, he asserts that the defendants should not have proceeded to collect on the note before conducting a proper accounting. That theory, too, is barred by Rooker-Feldman. In effect, it is just another way to try to undo the state court’s foreclosure judgment. To the extent that Mains may be arguing that he was charged improper late fees some time in 2008 or 2009, long before the state court acted, his claim would be independent of the state court’s judgment. See Iqbal v. Patel, 780 F.3d 728, 730 (7th Cir. 2015). But that does not help him, because the Indiana court has already determined the amount due, inclusive of late fees, and we must give preclusive effect to its decision on these issues. At best, part of his RESPA claim is beyond our jurisdiction, because of Rooker-Feldman, and the remainder has been definitively resolved by the state courts, and so must be dismissed on the merits.

B

Mains also claims that Chase and Citibank violated TILA, 15 U.S.C. §§ 1631-1651, by misrepresenting payments due and his obligations to them. He alleges that the defendants failed to respond to his February 2015 rescission, and that they provided false information, mishandled payments, and failed to disclose information prior to foreclosure because Citibank was not the proper holder and servicer of the loan. Again, these claims could be sustained only by disregarding or effectively vacating the state judgment’s judgment of foreclosure. The state court determined the amounts due and Mains’s obligation to pay them, and a lower federal court is not empowered to second-guess that decision. Insofar as Mains alleges he had the right to rescind in 2015, he also runs into Rooker-Feldman. The existence of such a right is possible only if the state court’s prior foreclosure judgment is set aside.

If Mains is making the more modest procedural claim that he was injured by one or more defendants’ failure to respond to his “rescission” in a timely manner, we would affirm for a different reason. It is clear from the pleadings that he executed his mortgage in 2006, nearly nine years before his alleged rescission. This is long past the maximum three-year time limit allowed by TILA for a rescission, see 15 U.S.C. § 1635(f). It also assumes, counter-faetually, that he still had a mortgage to rescind as of February 2015. By then, he had exhausted all state appeals of his foreclosure judgment, which resolved his obligations under the mortgage and substituted the court’s judgment for the note and hen. In short, even if aspects of the TILA claim fall outside the scope of Rooker-Feldman, it survives the jurisdictional bar only to be dismissed on the merits.

C

Mains also alleges that he sustained injuries in the form of attorney’s fees and clouding of title when he had to defend his interests, and that a RICO conspiracy by the defendants misled the state trial court. These theories are also barred by Rooker-Feldman, because they are dependent upon and interwoven with the state-court litigation. This part of the case is similar to Harold v. Steel, in which we held that a plaintiffs FDCPA claims premised on false statements were barred by Rooker-Feldman. 773 F.3d 884, 886-87 (7th Cir. 2014). We acknowledged in Harold that there are situations in which a defendant’s violation of federal statutes during ongoing state-court litigation could cause a loss independent of the outcome, such as in the case in which a debt collector violates the venue, portion of the FDCPA statute and inflicts an injury by forcing someone to travel to litigate. But in Harold, the claims were barred because “[n]o injury occurred until the state judge ruled against [Appellant]. The need to litigate was not a loss independent of the state court’s decision; costs of litigation were inevitable whether or not [Appellee] was telling the truth about his client’s rights.” Id. The same is true here.

D

Next, Mains argues that the defendants violated the FDCPA, 15 U.S.C. § 1692-1692p, by using false, deceptive, or misleading representations or means to collect money and attempt to seize his property. He alleges that Chase and Wyatt in particular ignored his rescission, stated their intent to foreclose, and tried to collect a debt that no longer existed due to his rescission. But, as we noted above, Mains was no longer able to rescind. In addition, the debt that they tried to collect was the one authorized by the state foreclosure judgment. Mains’s injury (if any) and his FDCPA claims against Chase and Wyatt for their collection attempts after . his “rescission” are therefore not independent of nor extricable from the state-court judgment. The district court was correct to disallow them under Rooker-Feldman.

Mains also alleges that Chase, Black Knight, Nelson, and Bose McKinney violated the FDCPA prior to the state-court foreclosure judgment by trying to collect a debt that they knew to be invalid because of “defective and falsified documents.” These claims, though rather vague and muddled, might generously be viewed as resting on conduct and injury that predate the state litigation. Because the FDCPA may provide relief that can be granted without setting aside a judgment of foreclosure, see Long, 182 F.3d at 555-56, they might not be jurisdictionally foreclosed by Rooker-Feldman.

But all of these claims do rest on the assertion that Chase was not authorized to collect from Mains, whether for reasons of technical defect or fraud. Yet the state court has already established that Chase was authorized to collect the debt, and we must give preclusive effect to that judgment. Haber, 578 F.3d at 556. As we have said repeatedly, the proper place to remedy any potential fraud in the state court’s judgment is the state court. We must accept the state court’s resolution of the issue, and dismissal on the merits would therefore be appropriate if the federal courts had jurisdiction.

E

In the final analysis, all of Mains’s claims must be dismissed — most under Rooker-Feldman, and a few for issue preclusion. “[T]he right disposition, when> the Rooker-Feldman doctrine applies, is an order under Fed. R. Civ. P. 12(b)(1) dismissing the suit for lack of subject-matter jurisdiction.” Frederiksen v. City of Lockport, 384 F.3d 437, 439 (7th Cir. 2004). Such a dismissal cannot be with prejudice; “that’s a disposition on the merits, which only a court with jurisdiction may render.” Id. at 438. A dismissal pursuant to Rooker-Feldman must therefore be without prejudice.

Whether a complaint fails to state a claim, on the other hand, is a decision on the merits, and thus a dismissal may be either with or without prejudice. Reed v. Columbia St. Mary’s Hosp., 782 F.3d 331, 336 (7th Cir. 2015). Here, issue preclusion prevents Mains from demonstrating a legal entitlement to relief, as his claims rely on issues that the state court has already decided. While issue preclusion is normally an affirmative defense raised in a motion under Federal Rule of Civil Procedure 12(c) (judgment on the pleadings) or 56 (summary judgment), “[a] litigant may plead [himself] out of court by alleging (and thus admitting) the elements of a defense.... ” U.S. Gypsum Co. v. Indiana Gas Co., 350 F.3d 623, 626 (7th Cir. 2003). The defendants moved to dismiss in the district court on res judicata and 12(b)(6) grounds. Even if they had not done so, Mains has pleaded himself out of court on any FDCPA, TILA, and RESPA claims over which the court may have had jurisdiction. His complaint detailed the state-court litigation, judgment, and appeals, and summarized the issues he raised to the state court in opposing summary judgment. We may therefore consider these arguments on appeal.

Ill

Although each of Mains’s federal claims is either barred by Rooker-Feldman or fails to state a claim, there is an additional reason why his suit against defendant Cynthia Riley cannot go forward. The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIR-REA”) divests courts of jurisdiction over any claim' involving an act or omission of a depository institution placed in receivership by the FDIC until the claimant has exhausted his administrative remedies. 12 U.S.C. § 1821(d)(13)(D); Farnik v. FDIC, 707 F.3d 717, 720-21 (7th Cir. 2013).

Mains seems to allege that Riley, a former Vice President of WAMU, fraudulently endorsed his note even though she was not validly employed (by WAMU? as a Vice President?) at the time of the alleged endorsement. Or perhaps a better way to characterize the implication in his complaint is that Riley did not endorse his note, and that her purported endorsement was a forgery. But Mains also alleges in his RICO claim that Riley acted in her capacity as an employee of WAMU (or, at least, with the appearance of such an employee), and that WAMU then transferred the fraudulent note to the FDIC.

Any of Riley’s acts or omissions as an employee and agent of WAMU taken before the FDIC receivership would be attributable to WAMU for purposes of liability, and FIRREA bars a court from considering this claim against WAMU. Insofar as Matos’s complaint alleges that Riley’s signature was a “blatant forgery,” she is not even the proper party to sue, as she would not have forged her own signature. The correct party, we presume, would once again have been WAMU, which supposedly was responsible for the note’s forgery and transfer, but FIRREA blocks such an action in the absence of administrative exhaustion.

IV

When a district court does not have subject-matter jurisdiction over federal claims, it cannot exercise supplemental jurisdiction over any state claims under 28 U.S.C. § 1367. See e.g., Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1188 (2d Cir. 1996) (“[S]ince a court must have original jurisdiction in order to exercise supplemental jurisdiction, a dismissal pursuant to Rule 12(b)(1) precludes a district court from exercising supplemental jurisdiction over related state claims.”). Insofar as Rooker-Feldman deprived the district court of jurisdiction over the federal claims, the state claims also had to be dismissed without prejudice for lack of jurisdiction. To the extent any of Matos’s theories fall outside the scope of Rooker-Feldman, supplemental jurisdiction is possible. Nonetheless, the federal claims were properly dismissed on the merits at a very early stage, and so the district court properly could relinquish its jurisdiction over the state claims.

We therefore modify the district court’s judgment to show that most of Matos’s federal and state law claims are dismissed without prejudice, and the remainder are dismissed with prejudice. We Affirm the judgment as so modified.


author: HAMILTON, Circuit Judge.

text:
    Manuel PANTOJA, Plaintiff-Appellee, v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant-Appellant.
    No. 15-1567
    United States Court of Appeals, Seventh Circuit.
    Argued December 11, 2015
    Decided March 29, 2017
    Rehearing and Rehearing En Banc Denied May 15, 2017

      Matthew Henry Hector, Attorney, Sulai-man Law Group, Ltd., Oak Brook, IL, Plaintiff-Appellee.
    Joel D. Bertoechi, Attorney, Hinshaw & Culbertson LLP, Chicago, IL, for Defendant-Appellant.
    Before KANNE, ROVNER, and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge.

Back in 1993, according to defendant Portfolio Recovery Associates, plaintiff Manuel Pantoja incurred a debt for a Capital One credit card that he applied for but never actually used. Twenty years later, long after the statute of limitations had run, Portfolio Recovery had bought Capital One’s rights to this old debt and sent Pantoja a dunning letter trying to collect. The federal Fair Debt Collection Practices Act (“FDCPA”) prohibits collectors of consumer debts from, among other things, using “any false, deceptive, or misleading representation or means in connection with the/ collection of any debt.” 15 U.S.C. § 1692e. This appeal concerns the practice of attempting to collect an old consumer debt that is clearly unenforceable under the applicable statute of limitations.

The district court granted summary judgment in favor of plaintiff Pantoja on his claim under § 1692e. The court found the dunning letter was deceptive or misleading because (a) it did not tell the consumer that the defendant could not sue on this time-barred debt and (b) it did not tell the consumer that if he made, or even just agreed to make, a partial payment on the debt, he could restart the clock on the long-expired statute of limitations, in effect bringing a long-dead debt back to life. Pantoja v. Portfolio Recovery Assocs., LLC, 78 F.Supp.3d 743 (N.D. Ill. 2015). We affirm, essentially for the reasons explained concisely by Judge Gettleman.

I. Factual and Procedural Background

We review de novo a grant of summary judgment, considering facts that are not disputed and giving the non-moving party the benefit of conflicts in the evidence and reasonable inferences that might be drawn from the evidence. Ruth v. Triumph P’ships, 577 F.3d 790, 794 (7th Cir. 2009), quoting Belcher v. Norton, 497 F.3d 742, 747 (7th Cir. 2007). In 1993, plaintiff Manuel Pantoja applied for a credit card from Capital One Bank. He was approved for the credit card, but he never activated the account or used the card for any purpose. Nevertheless, Capital One assessed annual fees, late fees, and activation fees against Pantoja’s account. Not surprisingly, he never made any payment on the account. Defendant Portfolio Recovery Associates purchased a portfolio of consumer debts including the debt allegedly owed by Pantoja. In 1998, Portfolio Recovery attempted to collect the alleged debt by telephone calls but apparently stopped in fairly short order without success. Nothing more happened with the account until April 2013, when Portfolio Recovery sent a dunning letter to Pantoja claiming he owed $1,903.15. The letter said:

We are offering to settle this account FOR GOOD! Life happens and at times you may fall behind on your commitments. We understand and are offering you the opportunity to lock in this settlement offer with a low down payment of $60.00. If settling this account with the options that we are offering is difficult for you, give us a call.
Other payment options may be available so please call 1-800-772-1413 for more information.
Please understand, we can’t help you resolve this debt if you don’t call, our friendly representatives are waiting. Because of the age of your debt, we will not sue you for it and we will not report it to any credit reporting agency.

The letter also proposed three “settlement offers” to choose among. The first called for a “down payment” of $60.00 and payment of an additional $511.00 within a month, with the claim that this would “save” Pantoja $1,332.15. The second option called for a down payment of $45.00 and six monthly payments of $104.00 each, to “save” Pantoja $1,234.15. The third option called for a down payment of $40.00 and twelve monthly payments of $60.00, to “save” Pantoja $1,143.15. The offers added: “Once the full settlement payment is received your account will be considered settled in full.” The second page of the letter cautioned: “We are not obligated to renew this offer.” See Evory v. RJM Acquisitions Funding L.L.C., 505 F.3d 769, 776 (7th Cir. 2007) (stating that this sentence, word-for-word, would protect consumers from false impressions concerning collectors’ supposedly “one-time” settlement offers).

Our principal focus is on the following language in the dunning letter: “Because of the age of your debt, we will not sue you for it and we will not report it to any credit reporting agency.” The parties filed cross-motions for summary judgment. Portfolio Recovery pointed out that the dunning letter said the debt was so old that it would not sue the debtor, and it argued that the letter was at worst ambiguous as to whether it could have sued to collect the debt.

As noted, the district court granted summary judgment for Pantoja on his claim under the FDCPA. The court offered two independent reasons, and we agree with both. The first is that the dunning letter failed to warn Pantoja that if he accepted any of the settlement offers, whether by making a partial payment or even by just agreeing to make a payment, he would lose the protection of the statute of limitations. The second is that the letter deceptively said that Portfolio Recovery had chosen not to sue Pantoja, rather than saying that the debt was so old that Portfolio Recovery could not sue him for the alleged debt. The court entered a final judgment in favor of Pantoja for statutory damages of $1,000 but deferred until after this appeal any action on Pantoja’s claim for attorney fees under 15 U.S.C. § 1692k(a)(3).

II. Analysis

The purposes of the FDCPA are “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). To accomplish those purposes, the Act provides in sweeping terms: “A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. The question is how that language applies to the dunning letter here, which attempted to collect a debt barred by the applicable statute of limitations.

We start with law that we believe is settled. First, a debt collector violates the Act by suing to collect a consumer debt after the statute of limitations has run and bars the suit. Phillips v. Asset Acceptance, LLC, 736 F.3d 1076, 1079 (7th Cir. 2013), collecting cases, including Kimber v. Federal Financial Corp., 668 F.Supp. 1480, 1488 (M.D. Ala. 1987); Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 32-33 (3d Cir. 2011); Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 332-33 (6th Cir. 2006).

Second, a debt collector also violates the Act by threatening to sue to collect such a debt. See 15 U.S.C. § 1692e(5) (outlawing a “threat to take any action that cannot legally be taken or that is not intended to be taken”); McMahon v. LVNV Funding, LLC, 744 F.3d 1010, 1021 (7th Cir. 2014) (“The plain language of the FDCPA prohibits ... threatening to take actions that the collector cannot take.”); Huertas, 641 F.3d at 33 (plaintiffs FDCPA claim regarding attempt to collect a time-barred debt “hinges on whether [the dunning] letter threatened litigation”); Freyermuth v. Credit Bureau Services, Inc., 248 F.3d 767, 771 (8th Cir. 2001) (“[I]n the absence of a threat of litigation or actual litigation, no violation of the FDCPA has occurred when a debt collector attempts to collect on a potentially time-barred debt that is otherwise valid.”); Parkis v. Arrow Financial, 2008 WL 94798, at *7 (N.D. Ill. Jan. 8, 2008); Walker v. Cash Flow Consultants, Inc., 200 F.R.D. 613, 616 (N.D. Ill. 2001); Beattie v. D.M. Collections, Inc., 754 F.Supp. 383, 393 (D. Del. 1991).

The point of controversy here concerns efforts to collect consumer debts on which the statute of limitations has expired when the effort does not involve filing or threatening a lawsuit. Compare McMahon, 744 F.3d at 1020 (dunning letters offering to “settle” time-barred debts could violate Act by leading debtors to believe the debts were legally enforceable); Daugherty v. Convergent Outsourcing, Inc., 836 F.3d 507, 509 (5th Cir. 2016) (effort to collect is not automatically unlawful, but letter violates FDCPA if it could lead unsophisticated consumer to believe her time-barred debt is legally enforceable); and Buchanan v. Northland Group, Inc., 776 F.3d 393, 397 (6th Cir. 2015) (reversing dismissal on pleadings; offer to settle time-barred debt could violate Act by failing to disclose that suit would be time-barred or that partial payment would remove statute of limitations bar), with Huertas, 641 F.3d at 33 (holding that attempt to collect a time-barred debt was permissible if litigation not threatened), and Freyermuth, 248 F.3d at 771 (same).

Even without an express threat of litigation, such collection efforts offer opportunities for mischief and deception, as we explain below. We recognize that most states (though not Wisconsin, in this circuit) treat a debt as a debt even after the statute of limitations has run so that it cannot be legally enforced, at least 'if the defendant appears and asserts the affirmative defense. See, e.g., Buchanan, 776 F.3d at 396-97 (recognizing general rule); cf. Wis. Stat. § 893.05 (when statute of limitations expires, “the right is extinguished as well as the remedy”). The creditor retains the legal right to appeal to the debtor to honor the debt out of a sense of moral obligation even if the legal obligation can no longer be enforced in court. Nevertheless, the opportunities for mischief and deception, particularly when sophisticated parties aim carefully crafted messages at unsophisticated consumers, may well be so great that the better approach is simply to find that any such efforts violate the FDCPA’s prohibitions on deceptive or misleading means to collect debts, § 1692e, and on “unfair or unconscionable means” to attempt to collect debts, § 1692f.

The plaintiff does not argue for that broad rule here, however, and we can decide this case on narrower grounds. We agree with the district court’s two reasons for finding that the dunning letter here was deceptive. First, the letter does not even hint, let alone make clear to the recipient, that if he makes a partial payment or even just a promise to make a partial payment, he risks loss of the otherwise ironclad protection of the statute of limitations. Second, the letter did not make clear to the recipient that the law prohibits the collector from suing to collect this old debt. Either is sufficient reason to affirm summary judgment for the plaintiff.

A. The Danger of Resetting the Statute of Limitations

We begin with the danger that a debtor who accepts the offered terms of settlement will, by doing so, waive his otherwise absolute defense under the statute of limitations. Only the rarest consumer-debtor will recognize this danger. See, e.g., Buchanan, 776 F.3d at 399; McMahon, 744 F.3d at 1021; Pantoja, 78 F.Supp.3d at 746; Debt Collection, 78 Fed. Reg. 67,848, 67,876 (Nov. 12, 2013) (advance notice of proposed rulemaking by Consumer Financial Protection Bureau).

This danger is present under Illinois law, which governs the underlying debt here. The statute of limitations for written contracts and debts is ten years. The statute provides further: “if any payment or new promise to pay has been made, in writing ... within or after the period of 10 years, then an action may be commenced thereon at any time within 10 years after the time of such payment or promise to pay.” 735 ILCS 5/13-206. That is, a new payment or written promise to pay starts a new ten-year clock.

The applicable statute of limitations could also be the five-year limit of 735 ILCS 5/13-205, which seems to apply if the plaintiff-debt collector does not have written proof of the debt. See Herkert v. MRC Receivables Corp., 655 F.Supp.2d 870, 878 (N.D. Ill. 2009), citing Parkis, 2008 WL 94798, at *5; Ramirez v. Palisades Collec tion, LLC, 2008 WL 2512679, at *3-*4 (N.D. Ill. 2008). Illinois courts hold that a new promise to pay will also start a new five-year clock under this statute. See, e.g., Abdill v. Abdill, 292 Ill. 231, 126 N.E. 543, 544 (1920); Schmidt v. Desser, 81 Ill.App.3d 940, 37 Ill.Dec. 206, 401 N.E.2d 1299 (1980) (requiring unambiguous written promise to restart clock); Ross v. St. Clair Foundry Corp. 271 Ill.App. 271, 273 (1933).

On this point, case law allows some room for disagreement about the precise scope of Illinois law, such as which statute applies, whether the new promise to pay must be explicit or may be implied, and whether the new promise to pay must be in writing. Portfolio Recovery also points out that the most relevant precedents are relatively old. None of those points save this letter from being deceptive.

Whatever the precise scope of the Illinois law on restarting the statute of limitations clock with a partial payment or new promise to pay, either step would have put Pantoja in a much worse legal position than he would have been" in before taking the step. Before he received defendant’s letter, he had an absolute defense to any possible collection suit, which would have been illegal to file. If he had made or promised to make a partial payment, he could have been sued, likely as a pro se defendant, in a new suit. In such a suit, at best, he would have had to challenge the collector’s reliance on these Illinois statutes and case law that would have given the collector substantial support. Silence about that significant risk of losing the protection of the statute of limitations renders Portfolio Recovery’s dunning letter misleading and deceptive as a matter of law.

To avoid this result, Portfolio Recovery points to the opening language in its letter: “We are offering to settle .this account FOR GOOD!”, and the language close to the settlement offers: “Once the full settlement payment is received your account will be considered settled in full.” Portfolio Recovery argues that these assurances show there was no danger of deception here because an unsophisticated consumer would have understood that his debt would have been extinguished if he had accepted its offer.

That argument misses the point. We assume that if the debtor actually accepted the offer and made all payments required for the settlement, without missing one or being late once, the defendant could not have tried to revive the underlying debt for the full amount. But that’s not the relevant danger. The point is that an unsophisticated consumer debtor who makes the first payment or who promises to make a partial payment is much worse off than he would have been without taking either step. If he then fails or refuses to pay further, he will face a potential lawsuit. For purposes of this appeal, it does not matter whether a failure to make further payments would revive the original amount of the debt or just the smaller amount of the settlement offer. Either way, the debt- or will be much worse off.

We assume that a few consumer debtors, even if they know the debt can never be collected in a lawsuit, might choose to pay an asserted debt based on a sense of moral obligation. But we believe the FDCPA prohibits a debt collector from luring debtors away from the shelter of the statute of limitations without providing an unambiguous warning that an unsophisticated consumer would understand. We will not attempt to prescribe exact language for debt collectors to use when writing such letters, but the language would need to be clear, accessible, and unambiguous to the unsophisticated consumer. Summary judgment for plaintiff was appropriate here because this letter provided no indication of the relevant danger.

B. We Choose Not to Sue You, or We Cannot Sue You?

The second reason we agree with the district court that Portfolio Recovery’s letter is deceptive and misleading is that it gives the impression that Portfolio Recovery has only chosen not to sue, not that it is legally barred from doing so. Defendant points out, though, that its letter to Panto-ja does not threaten a lawsuit, and it even says that Portfolio Recovery “will not sue you for it.”

As the district noted, this carefully worded sentence was taken from a 2012 consent decree between the Federal Trade Commission and another debt collector. Where that other collector knew the statute of limitations had expired, the decree required collection letters to say: “The law limits how long you can be sued on a debt. Because of the age of your debt, we will not sue you for it.” McMahon v. LVNV Funding, LLC, 2012 WL 2597933, at *2 (N.D. Ill. July 5, 2012), rev’d on other grounds, 744 F.3d 1010 (7th Cir. 2014); see also 78 Fed. Reg. at 67,876 n.240 (quoting consent decree). As the district court also noted, Portfolio Recovery omitted the first sentence from the consent decree about the law limiting how long you can be sued for a debt. It opted instead to include only the vaguer “Because of the age of your debt we will not sue you for it....” The reader is left to wonder whether Portfolio has chosen to go easy on this old debt out of the goodness of its heart, or perhaps because it might be difficult to prove the debt, or perhaps for some other reason.

The district court wrote: “Upon receipt of the letter the only reasonable conclusion that an unsophisticated consumer (or any consumer) could reach is that defendant was seeking to collect on a legally enforceable debt, even if defendant indicated that it chose not to sue.” 78 F.Supp.3d at 746. Portfolio Recovery argues that its letter’s language is ambiguous, so that summary judgment was improper and so that the plaintiff should have been required to come forward with a consumer survey or some other convincing evidence that consumers would actually understand the language as the district court did.

When handling FDCPA cases, we use the legal concept of the unsophisticated consumer to gauge the actions of debt collectors. The unsophisticated consumer is “uninformed, naive, and trusting, but possesses rudimentary knowledge about the financial world, is wise enough to read collection notices with added care, possesses ‘reasonable intelligence,’ and is capable of making basic logical deductions and inferences.” Williams v. OSI Educ. Servs., Inc., 505 F.3d 675, 678 (7th Cir. 2007) (internal quotations and alterations removed). Applying this standard, the issue is whether the dunning letter “could well confuse a substantial number of recipients.” Id., quoting Taylor v. Cavalry Inv., LLC, 365 F.3d 572, 575 (7th Cir. 2004).

When assessing whether a dunning letter violates the FDCPA, whether an unsophisticated consumer would find certain debt-collection language misleading is often a question of fact. Lox v. CDA, Ltd., 689 F.3d 818, 822 (7th Cir. 2012), citing Walker v. Nat’l Recovery, Inc., 200 F.3d 500, 503 (7th Cir. 1999); Evory, 505 F.3d at 776. We have further explained:

As an outgrowth of this practice, we have determined that there are three categories of § 1692e cases. The first category includes cases in which the allegedly offensive language is plainly and clearly not misleading. In cases of this nature, no extrinsic evidence is needed to show that the reasonable unsophisticated consumer would not be confused by the pertinent language. The second category of cases includes debt collection language that is not misleading or confusing on its face, but has the potential to be misleading to the unsophisticated consumer. If a case falls into this category, we have held that plaintiffs may prevail only by producing extrinsic evidence, such as consumer surveys, to prove that unsophisticated consumers do in fact find the challenged statements misleading or deceptive. The final category includes cases involving letters that are plainly deceptive or misleading, and therefore do not require any extrinsic evidence in order for the plaintiff to be successful.

Lox, 689 F.3d at 822, quoting Ruth, 577 F.3d at 800 (internal citations omitted). Where the FDCPA requires clarity, however, ambiguity itself can prove a violation. E.g., Janetos v. Fulton Friedman & Gullace, LLP, 825 F.3d 317, 323 (7th Cir. 2016), citing Chuway v. National Action Fin. Servs., Inc., 362 F.3d 944, 947-48 (7th Cir. 2004).

We are not sure that the only reasonable way to read defendant’s letter is the district court’s reading, that the letter would confuse all unsophisticated consumers, but we are confident that it is one reasonable way to read it. Closer to the heart of the issue, this letter is an example of careful and deliberate ambiguity. (Recall how it adopts part of the language from another debt collector’s consent decree.) The very ambiguity that Portfolio Recovery claims should save it from summary judgment convinces us that summary judgment was appropriate. The carefully crafted language, chosen to obscure from the debtor that the law prohibits the collector from suing to collect this debt or even from threatening to do so, is the sort of misleading tactic the FDCPA prohibits. The only reason to use such carefully ambiguous language is the expectation that at least some unsophisticated debtors will misunderstand and will choose to pay on the ancient, time-barred debts because they fear the consequences of not doing so.

The judgment of the district court is AFFIRMED.

      . The court also granted summary judgment to Portfolio Recovery on a state-law claim that is no longer at issue in the case. Pantoja, 78 F.Supp.3d at 747.

      . We would expect a debt collector to know whether it has written proof of the debt, and thus which statute would apply, before it attempts to collect the debt.


author: POSNER, Circuit Judge.

text:
    Shlomo LEIBOVITCH, et al., Plaintiffs-Appellants, v. ISLAMIC REPUBLIC OF IRAN, et al., Defendants, and Bank of Tokyo-Mitsubishi UFJ, Ltd. and BNP Paribas, Appellees.
    No. 16-2504
    United States Court of Appeals, Seventh Circuit.
    Argued February 23, 2017
    Decided March 29, 2017

      Robert J. Tolchin, Attorney, Berkman Law Office, LLC, Brooklyn, NY, for Plaintiffs-Appellants.
    Christopher Michael Viapiano, Attorney, Sullivan & Cromwell LLP, Washington, DC, Britt M. Miller, Attorney, Mayer Brown LLP, Brendan J. Healey, Attorney, Mandell Menkes, LLC, Chicago, IL, Carmine D. Boccuzzi, Jr., Attorney, Cleary, Gottlieb, Steen & Hamilton LLP, for Ap-pellees.
    Before POSNER, EASTERBROOK, and MANION, Circuit Judges.
   POSNER, Circuit Judge.

In 2003, a 7-year-old Israeli girl was killed, her 3-year-old sister (an American citizen) permanently disabled, and six Israeli members of the children’s family (two other siblings of the Israeli girl plus her parents and grandparents) were injured emotionally, when the minivan they all were riding in on a highway in Jerusalem was shot up by members of Palestine Islamic Jihad, a terrorist group supported by the government of Iran.

The surviving family members, plus the estate of the child who was killed, filed a damages suit against the Islamic Republic of Iran and its Ministry of Information and Security (we’ll simplify by pretending that the only defendant is Iran) in the federal district court in Chicago, under both the Antiterrorism Act, 18 U.S.C. § 2333, and the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605A. After protracted proceedings that included an appeal to this court, see Leibovitch v. Islamic Republic of Iran, 697 F.3d 561 (7th Cir. 2012), the district court entered a default judgment of $67 million against the Iranian defendants.

But how to collect? The plaintiffs began their search with two large foreign banks that had held Iranian assets in the past. Although both the Japanese bank, Bank of Tokyo-Mitsubishi UFJ, Limited, and the French bank, BNP Paribas, have branches in Chicago, neither branch holds any Iranian government assets or has any information regarding such assets held by other branches of their parent banks, or by the parent banks themselves in their home offices (Tokyo and Paris, respectively). In an effort to obtain that information, the plaintiffs issued both federal subpoenas and Illinois citations (the equivalent of subpoenas) in the federal district court in Chicago, seeking an order directing the parent banks to reveal Iranian assets held in any of the far-flung, worldwide branches of the two banks. See Fed. R. Civ. P. 45. The Japanese bank has branches in more than 40 countries and the French bank has branches in 75 countries, and it is possible that branches in some of those countries, or perhaps the home offices of the two parent banks, hold Iranian assets that the plaintiffs might be able to seize by means of their default judgment.

The banks agreed to provide the information sought by the plaintiffs’ citations and subpoenas, but only with respect to their 17 branches in the United States— and it turns out that there are no Iranian assets in any of those branches. The total number of branches of the two banks worldwide exceeds 7,500, and plaintiffs insist that they are entitled, by virtue of their subpoenas and citations, to compel the parent banks to search all their branches for Iranian government assets— assets that once located the plaintiffs might be able to execute their default judgment against. The banks asked the district court to quash the subpoenas, arguing that the federal court does not have personal jurisdiction over them to force them to comply.

At the oral argument of the appeal, the plaintiffs counsel argued that personal jurisdiction is irrelevant for enforcing subpoenas under Rule 45. That can’t be right, for a court that issues subpoenas is enforcing something rather than begging, and so far as we know no court has bought the argument. See, e.g., Gucci America, Inc. v. Weixing Li, 768 F.3d 122, 134, 136-37 (2d Cir. 2014); 9A Charles A. Wright et al., Federal Practice & Procedure § 2454, pp. 398-99 (3d ed. 2008). So to be entitled to use the federal district court in Chicago to obtain from the parent banks the worldwide information that the plaintiffs seek, they had to be able to prove that the court has personal jurisdiction over the banks, that is, jurisdiction over the “persons” (the two banks) against which relief is sought— hence jurisdiction to subpoena them.

It’s not as if the foreign banks are incorporated or headquartered in the United States. If they were, they would be within the court’s personal jurisdiction, and the district court could force them to comply with any discovery request that didn’t present an undue burden. But “a court may assert jurisdiction over a foreign corporation ‘to hear any and all claims against [it]’ only when the corporation’s affiliations with the State in which suit is brought are so constant and pervasive ‘as to render [it] essentially at home in the forum State.’ ” Daimler AG v. Bauman, — U.S. —, 134 S.Ct. 746, 751, 187 L.Ed.2d 624 (2014). That is hardly the situation with regard to the two foreign banks.

It is true that a district court can have what is called “specific” jurisdiction over a corporation if the corporation’s activities within the jurisdiction of the court are closely related to the lawsuit or, as in this case, to subpoenas (or state-court citations, which needn’t be discussed separately) issued within that jurisdiction. See, e.g., Walden v. Fiore, — U.S. —, 134 S.Ct. 1115, 1121-23, 188 L.Ed.2d 12 (2014); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Application to Enforce Administrative Subpoenas of S.E.C. v. Knowles, 87 F.3d 413, 417 (10th Cir. 1996). But the subpoenas issued in this case are not tailored to the banks’ presence or activities in the United States. If the subpoenas sought only to discover whether, and if so what, Iranian government assets were in either or both of the two Chicago branch banks, the district court would have jurisdiction to enforce the subpoenas (and citations) because the branches are in the court’s district. But we now know that the Chicago branches neither are holding Iranian government assets nor know which if any of their sister branches elsewhere (either in or outside the United States), or the parent banks’ home offices, are holding any such assets. That being so, there can be no personal jurisdiction'over the parents. As there’s no indication that any U.S. branch of either bank is holding Iranian assets, if the plaintiffs are determined to execute their default judgment against Iranian government assets they’ll have to look abroad.

We’re puzzled that none of the plaintiffs who brought the suit against Iran that resulted in the default judgment are residents of Illinois. Why they are suing here rather than in the districts in which they live or work is unexplained. What is worse than merely unexplained is that they’ve presented no evidence to suggest that the two Chicago branch banks are either holding Iranian government assets or have any knowledge of where those assets might be held. In short, what are they doing here?

The briefs filed in this case sum to 140 pages and include numerous issues that we haven’t touched on — having no need to do so. It should be apparent from what we’ve said so far that the plaintiffs have no legal right to the information that they have demanded from the respondent Tokyo and Paris banks.

Affirmed