text:
    Tiffany DAVENPORT, et al., Plaintiffs-Appellees, v. LOCKWOOD, ANDREWS & NEWNAM, INC., et al., Defendants, Veolia Water North America Operating Services, LLC, Defendant-Appellant.
    No. 17-1200
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: April 25, 2017
    ON BRIEF: John A. K. Grunert, CAMPBELL, CAMPBELL, EDWARDS & CONROY, P.C., Boston, Massachusetts, Cheryl A. Bush, Michael R. Williams, BUSH SEYFERTH & PAIGE PLLC, Troy, Michigan, for Appellant. Emmy L. Levens, COHEN MILSTEIN SELLERS & TOLL PLLC, Washington, D.C., for Appellees.
    Before: NORRIS, BATCHELDER, and GIBBONS, Circuit Judges.
   OPINION

JULIA SMITH GIBBONS, Circuit Judge.

This case arises out of defendant Veolia Water North America Operating Services, LLC’s (“Veolia”) and other defendants’ allegedly negligent conduct in connection with the Flint, Michigan water crisis. The sole issue on appeal is the meaning of “other class actions” under the local controversy exception to the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d). The district court found that plaintiffs had met the requirements for the local controversy exception to CAFA and remanded this matter to the Michigan state courts. For the reasons that follow, we reverse the district court’s order to remand the case to state court and find that the local controversy exception is inapplicable to this case.

I.

This case is one of numerous actions arising from the water crisis in Flint, Michigan. The Flint public water system includes lead pipes. Prior to April 2014, Flint purchased treated water from the City of Detroit. Thereafter, the city began using the Flint River as its water source. The Flint River water was not treated with corrosion-inhibiting chemicals, and this led to a multitude of serious problems with the local water supply. Residents complained that the water was discolored and foul-smelling. There were reports of skin rashes, hair loss, and vomiting after drinking and bathing in the water. And most disturbingly, many children in Flint were found to have high levels of lead in their blood stream. See Mason v. Lockwood, Andrews & Newnam, P.C., 842 F.3d 383, 387 (6th Cir. 2016).

On July 26, 2016, the plaintiffs filed this putative class action in Genesee County Circuit Court asserting claims for negligence, intentional and negligent infliction of emotional distress, and unjust enrichment. They alleged that the individual plaintiffs and the members of the class have been harmed by exposure to lead from Flint’s public water system. The defendants include Veolia and Lockwood, Andrews & Newnam, P.C. (“LAN”), as well as several other entities related to either Veolia or LAN. In 2013, LAN was hired by Flint to advise the city with respect to using the Flint River as its water source. Flint hired Veolia in February 2015 as a water expert to evaluate the city’s water-treatment process. The plaintiffs seek damages from Veolia and LAN for the harm they allegedly suffered as a result of the contaminated Flint water.

Veolia timely removed the case to district court pursuant to CAFA. Veolia asserted that the amount in controversy exceeded $5 million, the putative class comprised at least 100 members, and there was the minimal diversity of citizenship required by CAFA. It also asserted that the local controversy exception did not apply to defeat federal jurisdiction because at least five similar class actions had been filed prior to the filing of this action.

The plaintiffs moved to remand on the ground that the matter was a local controversy as contemplated by § 1332(d)(4)(A) and thus did not fall within CAFA’s jurisdiction. Under the local controversy exception, a district court must decline to exercise CAFA jurisdiction:

(i) over a class action in which—
(I) greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed
(II) at least 1 defendant is a defendant—
(aa) from whom significant relief is sought by members of the plaintiff class;
(bb) whose alleged conduct forms a significant basis for the claims asserted - by the proposed plaintiff class; and
(cc) who is a citizen of the State in which the action was originally filed; and
(III) principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed; and
(ii) during the 3-year period preceding the filing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons.

28 U.S.C. § 1332(d)(4)(A). The parties agree that all requirements of § 1332(d)(4)(A)© have been met in this case. The plaintiffs, however, asserted that pursuant to subsection (ii), the case fell within the local controversy exception, despite the fact that other similar class actions had been filed within the preceding three years.

It is undisputed that, prior to the filing of this ease by the plaintiffs, Flint residents filed other class actions against Yeo-lia, LAN, and various other persons and entities seeking damages for injuries allegedly caused by the lead contamination in Flint’s water system. McIntosh v. State of Michigan, No. 16-10571 (E.D. Mich, filed Feb. 16, 2015); McMillian v. Snyder, No. 16-10796 (E.D. Mich, filed Mar. 2, 2016); Gilcreast v. Lockwood, Andrews & Newnam, P.C., No. 16-11173 (E.D. Mich, filed Mar. 31, 2016); Washington v. Snyder, No. 16-11247 (E.D. Mich, filed April 5, 2016). One of the first such cases was the Mason action, which was initially filed in state court on January 25, 2016, and then removed to district court, only to be remanded back to state court under the local controversy exception. The court in Mason did not address whether other class actions had been previously filed or the meaning of the “other class actions” provision in § 1332(d). See Mason, 842 F.3d at 389.

The district court acknowledged that other class actions had been filed in the previous three years but agreed with the plaintiffs that this case was a “truly local controversy” and remanded the case to state court. In doing so, the district court noted that CAFA was enacted to prevent “copycat class actions” in “state courts of different jurisdictions” when there is no way to consolidate cases. It noted that, here, all of the state class actions were in Michigan and cited two district cases where the state court class actions were confined to one state as well. Veolia now appeals.

II.

We review questions of subject matter jurisdiction de novo, “including a district court’s order remanding a case to the state court from which it was removed” under CAFA. Graiser v. Visionworks of Am., Inc., 819 F.3d 277, 282 (6th Cir. 2016) (internal citation and quotations omitted).

We have, in the past, interpreted the local controversy exception to CAFA. See Mason, 842 F.3d at 389. However, the statutory interpretation question before us today is an issue of first impression for our court. Mason dealt with whether the first-filed class action in the Flint water crisis met the requirements of § 1332(d)(4)(A)©. Although we spoke with broad language about the local controversy exception, we confined our holding to the two individual provisions at issue — the two-thirds citizenship and “significant basis” requirements. Id. at 389.

Here, the parties agree that all the requirements of § 1332(d)(4)(A)© have been met. They dispute whether subsection (ii) has also been met. As we did in Mason, we confine our inquiry to the issue before us: whether “during the 3-year period preceding the filing of the class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons.” 28 U.S.C. § 1332(d)(4)(A)(ii). There is no dispute that there have been other class actions filed and that they involve similar factual allegations against many of the same defendants as those present here. The sole question is whether these “other class actions” are such for CAFA purposes.

A.

For questions of statutory interpretation, we look to the statutory language as “the starting point for interpretation, and ... the ending point if the plain meaning of that language is clear.” United States v. Henry, 819 F.3d 856, 870 (6th Cir. 2016). The plain language of CAFA offers a simple answer to our inquiry. The local controversy exception will apply only if no other similar class action was brought against any of the defendants in the instant action during the three years preceding the filing of this case. § 1332(d)(4) (A.) (ii).

It is undisputed that five class actions were brought, each advancing very similar factual allegations of negligence, intentional and negligent infliction of emotional distress, and unjust enrichment. And each action sued at least one of the defendants currently in this suit. Applying the language of the exception to the facts before us, the local controversy exception cannot apply. The statutory language is clear and unambiguous. The federal court retains jurisdiction pursuant to CAFA.

Plaintiffs have a rebuttal. They assert that, when considered within the design and Congressional intent of CAFA, “other class action” should not refer to class actions filed within a single state. As applied to this case, plaintiffs certainly have a point. They argue that the Flint water crisis “exemplifies the quintessential local controversy.” Mason, 842 F.3d at 397. They emphasize language from the Mason decision that says that “it defies common sense to say a suit by Flint residents against those purportedly responsible for injuring them through their municipal water service is not a ‘local controversy.’ ” Id. And plaintiffs contend that this is not an interstate class action at all but an entirely local one, because “[t]he heart of this case concerns injuries suffered by the residents of Flint, Michigan in Flint, Michigan.” The district court, too, seemed to adopt this argument when it cited to unreported district court cases for the proposition that, “where multiple cases are filed in the courts of the same state, federal jurisdiction under CAFA may not be proper.” Logan v. CLUB Metro USA, LLC, Civil Action No. 15-6773 (JLL), 2015 WL 7253935, at *3-4 (D.N.J. Nov. 17, 2015); see also Bridewell-Sledge v. Blue Cross of Calif, 798 F.3d 923, 930 (9th Cir. 2015) (two class actions filed in state court and consolidated did not preclude application of the local controversy exception).

But the district court relied on, and the plaintiffs urge us on appeal to look to, the “local” nature of the controversy in such a way that contradicts CAFA’s plain language. It is true that the injuries were suffered by Flint residents in Flint, Michigan. In the colloquial sense, then, the controversy is “local.” However, it is not local in the way Congress contemplated in CAFA. It was the alleged conduct of primarily out-of-state defendants that caused plaintiffs’ injuries. And the class actions filed surrounding the Flint water crisis will have long-lasting implications for interstate commerce and will be felt far beyond the Flint, Michigan region. The language of CAFA defines by its own terms what qualifies as a local controversy, and those requirements are not met in this case. Even the plaintiffs concede that the local controversy exception could be plausibly read to conform to, rather than contradict, its plain meaning. Furthermore, courts agree that “[a]ny- doubt about the applicability of the local-controversy exception [should be] resolved against the party seeking remand.” Hood v. Gilster-Mary Lee Corp., 785 F.3d 263, 265 (8th Cir. 2015); Dutcher v. Matheson, 840 F.3d 1183, 1190 (10th Cir. 2016); Reece v. AES Corp., 638 Fed.Appx. 755, 767-68 (10th Cir. 2016).

B.

To the extent that the district court and the plaintiffs rely on policy considerations in lieu of a plain-meaning reading of the text, we note that the policy implications behind CAFA do not require that we remand this case to state court. Plaintiffs argue that Congress’s intent when enacting CAFA was to eliminate “copycat, or near copycat, suits in multiple forums.” They are not wrong. Congress did intend to prevent copycat suits in multiple forums, enabling class actions to be consolidated to promote judicial efficiency. See S. Rep. 109-14, 7, as reprinted in 2005 U.S.C.C.A.N. 3, 27. But there are also policy goals behind CAFA that support the plain-language reading of the statute here. The statute was enacted to broaden the availability of diversity-jurisdiction for class-action suits. See Dart Cherokee Basin Operating Co. v. Owens, — U.S. -, 135 S.Ct. 547, 554, 190 L.Ed.2d 495 (2014) (quoting S. Rep. 109-14, at 35, that “the overall intent of [CAFA] is to strongly favor the exercise of federal diversity jurisdiction over [interstate] class actions”). Congress was concerned about what “appeared] to be state court provincialism against out-of-state defendants” and the need “to shore up confidence in the judicial system by preventing even the appearance of discrimination in favor of local residents.” S. Rep. No. 109-15, at 6, 8. Congress valued a federal forum for all cases “with significant interstate and economic impacts,” id. at 8, in order “to allow defendants to defend large interstate class actions in federal court.” Freeman v. Blue Ridge Paper Prods., Inc., 551 F.3d 405, 407 (6th Cir. 2008).

CAFA was not to be read narrowly, but as a broad grant of jurisdiction in interstate class actions. S. Rep. 109-14, at 43 (The “provisions [of 28 U.S.C. S 1332(d) ] should be read broadly .'.. ”). And the exception, specifically, was not to be read to create a jurisdictional loophole by which a plaintiff could defeat federal jurisdiction. See id. at 39. To read the statute narrowly but give broad sweep to the local controversy exception, in direct contradiction of its plain language, would be to contort Congress’s intent as embodied in the statutory language.

C.

Finally, it is worth noting the unique procedural posture of this case and contrasting it with cases cited by both the district court and the plaintiffs to support a finding that the local controversy exception must apply here. In Vodenichar, the Third Circuit addressed whether a case met the requirements of § 1332(d)(4)(A)(ii), but remanded the case to state court because it was a continuation of the first class action filed in the dispute. Vodenichar v. Halcon Energy Props., Inc., 733 F.3d 497, 509 (3d Cir. 2013). The case was the same suit in a second iteration, not a separate, second-filed suit with similar factual allegations against some of the same defendants. Id. at 509-10. Therefore, because no other suit with similar factual allegations had been filed preceding that one, the case met the requirements for the local controversy exception and the district court was required to remand. Id. Unlike Vodenichar, this case is an independent action and is not a continuation of the first-filed case.

Mason, on the other hand, did not address the requirements of § 1332(d)(4)(A)(ii) at all. See Mason, 842 F.3d at 389. It was the first class action filed in the Flint water crisis. By the plain language of the local controversy exception, “no other class action had been filed asserting the same or similar factual allegations against any of the defendants” in the three years prior to Mason being filed. 28 U.S.C. § 1332(d)(4)(A)(ii). Mason, by the language of the exception, belonged in state court. This case, by the same language, does not. It is undisputed that multiple class actions have been filed in the three years preceding the July 26, 2016 filing of this suit, and thus the local controversy exception cannot apply here.

III.

For the reasons stated above, we reverse the judgment of the district court and remand for further proceedings not inconsistent with this opinion.

      . This action was voluntarily dismissed on May 25, 2016.


source: Caselaw Access Project

author: GRIFFIN, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Nikita GRIFFIN, Defendant-Appellant.
    No. 16-4127
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: April 26, 2017

      ON BRIEF: Kevin M. Cafferkey, Cleveland, Ohio, for Appellant. Paul M. Flan-nery, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
    Before: GIBBONS, COOK, and GRIFFIN, Circuit Judges.
   OPINION

GRIFFIN, Circuit Judge.

Defendant Nikita Griffin pleaded guilty to conspiring to submit false income tax returns in violation of 18 U.S.C. § 286. He appealed his twelve-month sentence, and we remanded for resentencing because the district court made insufficient factual findings to support its imposition of a two-level enhancement for obstructing justice and its denial of a two-level reduction for acceptance of responsibility. United States v. Griffin, 656 Fed.Appx. 138, 139 (6th Cir. 2016). Griffin now appeals from the ten-' month sentence the district court imposed on remand. For the reasons set forth below, we dismiss this appeal.

I.

Defendant pleaded guilty to conspiring to defraud the government by submitting false income tax refund claims and obtaining the fraudulent proceeds. The indictment described a scheme in which a co-defendant prepared fraudulent tax returns that generated “refund anticipation” loan checks from a bank, which Griffin cashed. Pursuant to a written plea agreement, Griffin understood the maximum penalty was up to ten years imprisonment, three years of supervised release, a $250,000 fine, and a $100 special assessment. He further understood the district court would determine the advisory Guideline range at sentencing and could “depart or vary from the advisory guideline range.”

Griffin’s plea agreement also contained an appellate waiver provision, stating in relevant part that:

Defendant acknowledges having been advised by counsel of Defendant’s rights, in limited circumstances, to appeal the conviction or sentence in this case, including the appeal right conferred by 18 U.S.C. § 3742, and to challenge the conviction or sentence collaterally through a post-conviction proceeding, including a proceeding under 28 U.S.C. § 2255. Defendant expressly and voluntarily waives those rights, except as specifically reserved below. Defendant reserves the right to appeal: (a) any punishment in excess of the statutory maximum; or (b) any sentence to the extent it exceeds the maximum of the sentencing imprisonment range determined under the advisory Sentencing Guidelines in accordance with the sentencing stipulations and computations in this agreement, using the Criminal History Category found applicable by the Court.

In paragraph 14 of the agreement, the parties stipulated that Griffin’s total offense level was ten “before Acceptance of Responsibility.” The government agreed to recommend a two-level reduction for acceptance of responsibility so long as “Defendant’s conduct continues to reflect Defendant’s acceptance of responsibility!,]” but “Defendant understands it will be up to the Court at the time of sentencing to determine whether a reduction for acceptance of responsibility is appropriate.” There was no agreement regarding Griffin’s applicable Criminal History Category.

At his plea hearing, Griffin affirmed he understood he was waiving most of his rights to appeal. He also acknowledged the factual basis for his guilty plea. At the hearing, the government summarized Griffin’s involvement in the scheme as having deposited three refund checks into his bank account and withdrawing $9,000 once the deposits cleared. The government further stated the taxpayer information for preparing the fraudulent returns came from an accountant in Georgia. Griffin agreed this information was “all true,” and the district court accepted his guilty plea.

Following entry of Griffin’s guilty plea, a probation officer prepared a presentence investigation report (“PSR”) that set his adjusted offense level at ten, and his criminal history as category I. The PSR contained Griffin’s statement as to acceptance of responsibility, admitting he cashed fraudulent checks and “also gave other people’s personal information to another to make the checks.” Assuming a two-level adjustment for acceptance of responsibility, the officer calculated the total offense level at eight, resulting in a Guidelines range of zero to six months. At sentencing, the district court denied an adjustment for acceptance of responsibility and increased the base offense level by two for obstruction of justice. As a result, the sentencing range was ten to sixteen months. The district court sentenced Griffin to twelve months in prison.

Griffin appealed. We remanded for re-sentencing because the district court did not make sufficient factual findings to support its obstruction of justice and acceptance of responsibility determinations. At resentencing, Special Agent Joseph Ziegler testified that, during a 2012 investigative interview, Griffin limited his role in the scheme to cashing checks and denied ever sending personal information to anyone. During Griffin’s 2015 proffer interview in anticipation of his plea agreement, he again characterized his role as that of a check casher and said he did not think he had done anything wrong. Although the factual basis for his plea stated that Griffin had received personal information from an individual named William Walton, Ziegler testified that Griffin told Ziegler he had some of Walton’s personal information from completing a résumé on Walton’s behalf, not to defraud the government.

Ziegler also detailed how the investigation continued after Griffin’s plea until the accountant identified Griffin as the source of the taxpayer information. The government explained that, in minimizing his role in the scheme, Griffin was able to obtain a more favorable plea agreement while it had to prolong the investigation. Although Griffin’s attorney admitted his client provided the personal information used to create the fraudulent tax returns, Griffin denied in his allocution any involvement in gathering or transmitting taxpayer information other than Walton’s.

In light of this testimony, the district court found that Griffin had obstructed justice under Sentencing Guideline § 3C1.1 by providing materially false information to the judge, and materially false statements to law enforcement officers that significantly impeded the investigation and prosecution of his case. Specifically, the district court found Griffin misrepresented to it that the personal information used to prepare the fraudulent tax returns had been supplied by an accountant, when, in fact, Griffin provided the information to the accountant. Moreover, Griffin misrepresented to Special Agent Ziegler that he only cashed checks and had never sent anyone’s personal information to another.

The district court then denied Griffin a reduction for acceptance of responsibility under Sentencing Guideline § 3E1.1 because he “falsely den[ied] relevant conduct for which he’s accountable.” In addition, the district court observed that obstructing justice is a typical “disqualifier for acceptance of responsibility” per Application Note 4 to § 3E1.1. Moreover, Griffin’s own statements during resentencing provided “more evidence for the denial of acceptance of responsibility.”

The district court calculated Griffin’s Guideline range to be ten to sixteen months. This time, the district court sentenced Griffin to ten months in prison. Griffin timely appeals from this sentence. He again challenges the district court’s imposition of the obstruction-of-justice enhancement and its denial of a reduction for acceptance of responsibility.

II.

The government argues Griffin’s appellate waiver bars this appeal. “It is well settled that a defendant in a criminal case may waive any right, even a constitutional right, by means of a plea agreement.” United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001) (internal quotation marks and citation omitted). A knowing and voluntary waiver of the right to appeal precludes appellate review. Id. at 764.

Griffin does not contest the validity of his appeal waiver. Instead, he argues it does not bar this appeal. We thus “look to see if the claimfs] raised on appeal fallf] within the scope of the appellate waiverf.]” United States v. Toth, 668 F.3d 374, 378 (6th Cir. 2012). We review that question de novo. Id.

Griffin’s appeal is foreclosed. The waiver allows appeals from the district court’s sentencing determination in very limited circumstances. Relevant here, Griffin can appeal a sentence that “exceeds the maximum of the sentencing imprisonment range determined under the advisory Sentencing Guidelines in accordance with the sentencing stipulations and computations in thfe] agreement.” The parties stipulated to a total offense level of ten. Although the parties did not stipulate to a Criminal History Category, neither party disputes the district court’s calculation of category I. An offense level of ten and Criminal History Category I yield a Guideline range of six to twelve months. See U.S.S.G. § 5A (sentencing table). Although the district court used an offense level of twelve at resentencing, Griffin’s ten-month sentence did not exceed “the maximum of the sentencing imprisonment range ... in accordance with the sentencing stipulations and computations in thfe] agreement.” See United States v. Mooter, 667 Fed.Appx. 540, 541 (6th Cir. 2016) (per curiam) (right to appeal waived even though the district court used an offense level higher than the offense level the parties agreed to in the plea agreement). Accordingly, the waiver applies.

Griffin argues the appropriate sentencing range is zero to six months, thus his ten-month sentence exceeds it. According to Griffin, because the government agreed to recommend a two-level reduction for acceptance of responsibility, the agreed-upon offense level is not ten but eight per “the sentencing stipulations in his plea agreement.”

We rejected this argument in United States v. English, 520 Fed.Appx. 428, 432-33 (6th Cir. 2013), a case involving a nearly-identieal appellate waiver. See id. at 430. There, as here, the parties stipulated to a total offense level “before Acceptance of Responsibility.” Id. at 433. And there, as here, the subsequent paragraph made clear the parties had not also “stipulated” that such a reduction was appropriate: although the government believed at the time of the plea that the defendant had accepted responsibility, the defendant acknowledged “it w[ould] be up to the Court at the time of sentencing to determine whether a reduction for acceptance of responsibility is appropriate.” Id. Given this acknowledgment, we could not conclude in English, and cannot conclude here, that “the plea agreement manifested ‘sentencing stipulations and computations’ that envisioned a level-[8] sentencing range for” Griffin. See id.-, cf. Moorer, 667 Fed.Appx. at 541 (waiver bars appeal where sentence did not exceed “the maximum of the sentencing imprisonment range ... in accordance with the sentencing stipulations and computations” in the parties’ plea agreement).

Defendant “fails to realize ... that the maximum of the sentencing range that must be exceeded before [he] may appeal his sentence is not the sentencing range associated with the sentence computation that [he] believes is appropriate.” English, 520 Fed.Appx. at 432. Because Griffin’s ten-month sentence did not exceed the maximum of the sentencing range as determined “in accordance with the sentencing stipulations and computations” in his plea agreement, his claims, since they relate directly to his sentence, have been knowingly and voluntarily waived.

III.

For these reasons, we dismiss Griffin’s appeal.

      . Griffin was originally sentenced on January 13, 2016. He was resentenced on September 29, 2016. The 2015 version of the Guidelines Manual applied at both proceedings. See U.S.S.G. § 1B1.11(a); see also 18 U.S.C. § 3742(g)(1) (instructing district courts to apply, upon remand for resentencing, the Guidelines in effect on the date of the original sentencing).


author: POSNER, Circuit Judge.

text:
    Lawrence HAYES, Plaintiff-Appellant, v. Gregg SCOTT, Defendant-Appellee.
    No. 16-1262
    United States Court of Appeals, Seventh Circuit.
    Submitted December 21, 2016
    Decided January 25, 2017
    Lawrence Hayes, Pro Se.
    Aaron Talen Dozeman, Attorney, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendant-Appel-lee.
    Before WOOD, Chief Judge, and POSNER and FLAUM, Circuit Judges.
   POSNER, Circuit Judge.

The Rushville Treatment and Detention Facility in Rushville, Illinois, houses persons adjudged to be sexually violent; often they are persons who have completed prison sentences for sexually violent acts but are considered too dangerous to be released into the general population; so they remain confined, though in a facility (Rushville) that is not, at least technically, a prison. See, e.g., Hughes v. Scott, 816 F.3d 955, 955-56 (7th Cir. 2016). The plaintiff, a detainee at Rushville named Lawrence Hayes, sued Gregg Scott, Rushville’s acting director, claiming that Scott was deliberately indifferent to Hayes’s hydration needs during a five-day “boil order” imposed by the City of Rushville and applicable to the treatment and detention facility- .

The boil order directed residents of Rushville (including the detainees in the treatment and detention center) to boil tap water before drinking it. The detainees have sinks in their rooms and access to a microwave oven, so during the five days in which the boil order was in effect Hayes could boil the water from his sink in his microwave. He was also given an eight-ounce carton of milk at each of his three daily meals. Yet he claims to have gone without any drinkable water for five days, during which time he felt dizzy and dehydrated.

The district judge granted summary judgment in favor of defendant Scott. He ruled that the boil order did not deprive Hayes of adequate hydration, as he did not deny that microwave-boiled water from his room’s tap was drinkable and milk available to him at all meals. The unlimited microwave-boiled water and the servings of milk at each mealtime (not to mention beverages at the commissary) were reasonable and adequate options for hydration. Nor is there any evidence that Scott was deliberately indifferent to the plight of the detainees during the boil order, since he notified them of the order and how to cope with it (by boiling water in their microwave ovens), and even ordered extra supplies of boiled water. Officials of detention facilities do not incur liability if they “responded reasonably to [a] risk [of harm to a detainee’s health and safety], even if the harm ultimately was not averted.” Peate v. McCann, 294 F.3d 879, 882 (7th Cir. 2002). Here it was averted.

As for Hayes’s complaint about feeling dizzy and dehydrated during the boil order, he didn’t tell Scott about this, and there can’t be deliberate indifference if the indifferent person did not know what harm he was being indifferent to.

The judgment of the district court is therefore

AFFIRMED.


text:
    Ennis Lee BROWN, Plaintiff-Appellant, v. WISCONSIN STATE PUBLIC DEFENDER’S OFFICE, et al., Defendants-Appellees.
    No. 16-3182
    United States Court of Appeals, Seventh Circuit.
    Submitted March 27, 2017
    Decided April 20, 2017
    Rehearing Denied May 3, 2017

      Ennis L. Brown, Pro se.
    Before POSNER, SYKES, and HAMILTON, Circuit Judges.
   POSNER, Circuit Judge.

Ennis Brown, a Wisconsin state prisoner, appeals the dismissal of a suit in which he charged the Wisconsin State Public Defender’s Office, and others, with violating what he claims to be his constitutional right to represent himself on appeal. 42 U.S.C. § 1983.

Brown has had a contentious relationship with lawyers since being charged in 2012 with sexually abusihg his children. See Brown v. Hicks, — F.3d -, 2017 WL 701197 (7th Cir. 2017); Wisconsin v. Brown, 365 Wis.2d 608, 2015 WL 5919165 (Wis. Ct. App. 2015). Three times before the trial in' the state court on those charges the presiding judge had allowed Brown’s appointed counsel to withdraw because Brown would not cooperate with him. So Brown appeared pro se at the trial but after “multiple outbursts” and “attempts by him to intimidate the victim-witnesses,” the court held that he’d “forfeited his right to represent himself.” Wisconsin v. Brown, supra, at *8.

Brown was convicted and the Public Defender’s Office then appointed lawyer Mark Rosen to represent Brown on appeal — who objected that in representing him Rosen was acting without his “consent or participation.” Brown then brought the present suit, against Rosen, the Public Defender’s Office, and others, charging that they’d combined to use “unconstitutional procedures” by appointing counsel without determining whether Brown was indigent, requesting his permission to appoint counsel, or asking whether he wanted to appeal. Brown further alleged that one of the lawyers had deprived him of legal documents and prevented him from requesting legal help from a nonprofit organization.

The district court screened Brown’s complaint under 28 U.S.C. § 1915A and concluded that his claim that Rosen had been ineffective in representing him was barred by Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because it implied that his conviction may have been invalid; for Brown’s argument that Rosen was ineffective m representing him on appeal implies that the appeal was winnable, in which event Brown’s conviction at trial may have been mistaken. As for Brown’s further claim that he’d been deprived of the right to represent himself on appeal, the district judge correctly ruled that the claim failed because there is no constitutional right to self-representation on appeal. The Supreme Court had held in Martinez v. Court of Appeal of California, 528 U.S. 152, 160-63, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000), that in an appeal the state’s “interest in the fair and efficient administration of justice” outweighs the defendant’s interest in his autonomy because there is no longer the presumption of innocence and because the Sixth Amendment does not refer to appellate proceedings.

Brown sought reconsideration, arguing that he had a due process right to decide whether to proceed pro se in his appeal, hire counsel, or be represented by appointed counsel. But he didn’t explain why the Public Defender’s practice of assigning appellate counsel immediately after trial violates the due process clause. See Riggins v. McGinnis, 50 F.3d 492, 494 (7th Cir. 1995). The judge further noted that because there is no right to self-representation on appeal, the Constitution isn’t violated by requiring an indigent defendant to accept, against his will, an appointed appellate attorney. Martinez v. Court of Appeal of California, supra, 528 U.S. at 160-61, 163-64, 120 S.Ct. 684; Speights v. Frank, 361 F.3d 962, 965 (7th Cir. 2004).

We affirm the district court’s rejection of Brown’s arguments concerning representation (self- or by counsel) on appeal. And because Brown’s appeal is frivolous, we impose two strikes on him pursuant to 28 U.S.C. § 1915(g); see Hains v. Washington, 131 F.3d 1248, 1250 (7th Cir. 1997) (per curiam).


author: EASTERBROOK, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Rod BLAGOJEVICH, Defendant-Appellant.
    No. 16-3254
    United States Court of Appeals, Seventh Circuit.
    Argued April 18, 2017
    Decided April 21, 2017
    Rehearing and Rehearing En Banc Denied June 5, 2017

      Debra Riggs Bonamici, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
    Leonard Goodman, Attorney, Len Goodman Law Office LLC, Michael Bernard Nash, Attorney, Chicago, IL, for Defendant-Appellant.
    Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.

       Judge Flaum did not participate in the consideration of this petition.

   EASTERBROOK, Circuit Judge.

Rod Blagojevich was convicted of 18 crimes committed while he was Governor of Illinois. The district court sentenced him to 168 months’ imprisonment. Our initial opinion vacated five of the convictions but affirmed the others and remanded for a potential retrial on the five vacated charges and for resentencing. 794 F.3d 729 (7th Cir. 2015). Blagojevich asked the Supreme Court to review that decision, and while the petition for certiorari was pending the district court put proceedings in abeyance. After the Supreme Court denied the petition, — U.S. -, 136 S.Ct. 1491, 194 L.Ed.2d 585 (2016), rehearing denied, — U.S. -, 136 S.Ct. 2386, 195 L.Ed.2d 275 (2016), the prosecutor announced that the five vacated charges would not be retried, and the district judge resentenced Blagojevich on the remaining 13 convictions.

The sentence was again 168 months. As before, the judge determined that the Sentencing Guidelines recommend a term within the range of 360 months to life, then made some reductions that produced a final range of 151 to 188 months. (Our first opinion rejected a challenge to that range. See 794 F.3d at 748.) The judge recognized that 168 months is a stiff sentence for nonviolent crimes by someone with no criminal record and unlikely to commit the same kinds of crimes again, because his impeachment and removal from office by the state legislature makes him ineligible for election to a new state office. Ill. Const. Art. IV § 14. But the judge concluded that the sentence is justified by the gravity of Blagojevich’s offenses and the need to deter other public officials from acting as Blagojevich did.

Our first opinion stated: “It is not possible to call 168 months unlawfully high for Blagojevich’s crimes, but the district judge should consider on remand whether it is the most appropriate sentence.” 794 F.3d at 743. The judge did consider that issue in the new sentencing and stuck by his conclusion. Despite what we said in 2015, in this successive appeal Blagojevich contends that the sentence is unlawfully high. He makes three contentions: first that the judge should not have rejected evidence of what Blagojevich calls his “extraordinary” rehabilitation while in prison; second that the judge should have revised the sentence in light of the dismissal of the five vacated counts; third that the judge failed to address an argument about sentencing disparities. We consider these in turn.

Pepper v. United States, 562 U.S. 476, 481, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), holds that “when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range.” Blagoje-vich’s original sentence was imposed in December 2011, and he entered prison in March 2012. He submitted evidence that between then and the new sentencing in August 2016 he had helped other inmates with their educations and set an example of moral and caring behavior.

The district judge acknowledged this evidence but found that it did not justify a lower sentence, in large part because none of the other inmates had known Blagojevich while he held office and therefore could not show that he had fundamentally changed his attitude toward corrupt dealing. The judge demonstrated that he understood the extent of discretion under Pepper and did not need to explain at greater length why he found the new evidence unpersuasive. See Rita v. United States, 551 U.S. 338, 356-59, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (brief reasons suffice). Blagojevich’s treatment of fellow inmates may show that outside of office he is an admirable person, but the court was entitled to impose punishment that reflects how Blagojevich behaved when he had a different menu of opportunities and to deter those who hold office today. The authority recognized by Pepper belongs to the district judge. As with many discretionary subjects the fact that a judge could have ruled otherwise does not imply that the judge was compelled to rule otherwise.

. Blagojevich’s contention that the vacatur of five convictions calls for a lower sentence likewise was considered by the district judge, who observed that the remaining counts of conviction represent the same kind of conduct as the vacated counts. We did not hold that Blagojevich was innocent of the charges in the vacated counts; we concluded, rather, that the jury instructions did not separate political horse trading (Blagojevich’s offer to 'appoint someone to the Senate in exchange for the President’s promise to appoint him to the Cabinet) from extortion and similar crimes (Blagojevich’s offer to appoint someone to the Senate in exchange for cash). 794 F.3d at 734. The district judge, who presided over two lengthy trials, was free to consider all of the evidence even though the prosecutor elected not to retry these five counts. The district judge also observed that the vacatur did not affect the Guidelines range. Given the standards of Rita, the judge said enough to justify the sentence.

The third argument about sentencing is that the district judge did not address Blagojevich’s contention, based on 18 U.S.C. § 3553(a)(6), that a 168-month sentence would produce an unwarranted disparity compared with the sentences meted out to other persons convicted of corruption in political office. The problem with this argument is that the Sentencing Guidelines are themselves an anti-disparity 'formula, and the Supreme Court stated in Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), that to base a sentence on a properly determined Guidelines range is to give adequate consideration to the relation between the defendant’s sentence and those of other persons:

Section 3553(a)(6) requires judges to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” The Court of Appeals stated that “the record does not show that the district court considered whether a sentence of probation would result in unwarranted disparities.” [U.S. v. Gall,] 446 F.3d [890] at 890 [ (8th Cir. 2006) ]. As with the seriousness of the offense conduct, avoidance of unwarranted disparities was clearly considered by the Sentencing Commission when setting the Guidelines ranges. Since the District Judge correctly calculated and carefully reviewed the Guidelines range, he necessarily gave significant weight and consideration to the need to avoid unwarranted disparities.

552 U.S. at 54, 128 S.Ct. 586 (emphasis added). See also, e.g., United States v. Bartlett, 567 F.3d 901, 907-09 (7th Cir. 2009); United States v. Boscarino, 437 F.3d 634, 638-39 (7th Cir. 2006). District judges have discretion to sentence outside a Guidelines range, but as we observed in Bartlett such a step comes at the expense of increased disparities; it is never compelled by § 3553(a)(6) in order to avoid unwarranted disparities. 567 F.3d at 908-09. The district judge gave a sentence within the revised Guidelines range he constructed — a range that Blagojevich does not now contend is too high — and therefore did not need to discuss § 3553(a)(6) separately.

In addition to contesting the sentence imposed on remand, Blagojevich contends that our 2015 opinion erred to the extent it affirmed any of his convictions. We do not see a need to elaborate on or depart from what that decision said about the merits. We offer only a few words about McDonnell v. United States, — U.S. -, 136 S.Ct. 2355, 195 L.Ed.2d 639 (2016), which postdates our opinion.

According to Blagojevich, McDonnell calls the reasoning of our first decision into question. Not so. The only issue before the Court was whether McDonnell had traded “official acts” for money and other benefits. The Justices considered the definition of “official act” in 18 U.S.C. § 201(a)(3) and concluded that McDonnell’s jury had been instructed incorrectly. Blagojevich, by contrast, has never contended that the activities of appointing someone to a vacant seat in the Senate, signing legislation, or the other activities that a jury found he sought to profit from, were not “official acts” of a state’s governor.

Blagojevich’s remaining arguments do not require discussion.

Affirmed


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Nicole C. EASON, Defendant-Appellant.
    No. 16-2756
    United States Court of Appeals, Seventh Circuit.
    Argued February 23, 2017
    Decided April 21, 2017
    James Inman Pearce, Attorney, Department of Justice, Criminal Division, Washington, DC, for Plaintiff-Appellee. -
    Elisabeth R. Pollock, Attorney, Office of the Federal Public Defender, Urbana, IL, for Defendant-Appellant.
    Before POSNER, EASTERBROOK, and MANION, Circuit Judges.
   POSNER, Circuit Judge.

Nicole Eason and her husband Calvin Eason were indicted on two counts of kidnapping (one for each child kidnapped), in violation of a federal statute that so far as relates to this case punishes “(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when — (1) the person is willfully transported in interstate or foreign commerce.” 18 U.S.C. § 1201. The Easons were indicted in a third count of violating another federal statute, 18 U.S.C. § 2423(a),' by transporting one of the children across state lines intending that the child “engage in ... sexual activity” forbidden by Illinois law.

Calvin Eason pleaded guilty to all three counts; Nicole went to trial and the jury convicted her of all counts as well. The judge sentenced each defendant to 20 years in prison on each of the kidnapping counts and 40 years on the transportation-for-sexual-activity count, the sentences to run concurrently, making the total sentence for each defendant 40 years. There is no challenge to the sentences, and only Nicole has appealed the conviction.

In the first three years of their marriage the defendants had two children — and both were removed from the defendants’ custody, the first child because she had been readmitted at the age of 10 months to the hospital in which she’d been born, with multiple fractures in her legs that the Ea: sons could not explain, and the second child because of the removal of the first child from their custody as a consequence of their abuse and neglect of her and also because a social worker found that the Easons had neglected the second child as well and had kept their home in an unfit condition for raising children. As a further consequence of the mistreatment of the children the defendants’ parental rights were permanently terminated.

After that the defendants, often using the Internet to make their pitch, falsely represented to adoptive parents (often from out of state) who could no longer take proper care of their adopted children that they (that is, the defendants) were qualified to provide foster care to children — and even that they had documents prepared by social workers recommending them for the care of foster children. The Easons eventually obtained custody of some of these children, including the two children at issue in this case.

The Easons found the adoptive parents of the first child, K.R., in an Internet chat room for adoptive parents struggling to take care of the children they’d adopted. K.R. was experiencing emotional problems; another child in the same family had a rare, serious kidney disease and was deteriorating; and the father needed open-heart surgery — in short, the parents were overwhelmed. Although Nicole Eason’s history of mistreating her own children would almost certainly have precluded her being allowed to take custody of new children, she told the parents that she had recently adopted a child who had the same emotional difficulties as K.R. (she hadn’t), that she had paperwork authorizing her to provide foster care to children (she didn’t), and that she could help out the family by taking custody of K.R. (she couldn’t or wouldn’t). The parents, perhaps out of desperation, agreed. They drove K.R. from their house in California to the Easons’ residence, in Illinois. She was seven years old.

Mrs. Eason used similar tactics to obtain custody of the second child, A.B., who was thirteen and suffered from behavioral disorders. Eason met A.B.’s parents in an online chat group for struggling adoptive parents and expressed an interest in taking custody of A.B. The parents told Ea-son that she’d need to show them a home study (a document, routinely used in adoptions, prepared by a social worker and assessing a family’s suitability to care for foster children and including a background check). Eason agreed and flew to Texas, where A.B.’s parents lived, and gave them a home study forged by her though purportedly written by a social worker named Sharon Smalls. (That was an odd — and fraudulent — detail, for Sharon Smalls was the name of the social worker who had advised that the Easons’ second biological child be removed from their custody.) The forged study stated falsely that Smalls “did not hesitate to recommend Calvin and Nicole Eason as good and prospective adoptive parents.” And so Eason was able to return to Illinois with A.B. in tow.

Given the reasons for the removal of the Easons’ own children from their custody, it is difficult to imagine a social worker’s recommending that they be allowed to care for new children, and there is no evidence of any such recommendation. The Easons obtained the children by inveiglement (i.e., luring, enticement) of the children’s adoptive parents. Once they had the children in their custody they abused them, or groomed them for abuse — including sexual abuse.

K.R., who turned eight while in the Ea-sons’ custody, testified that they’d had her lie in bed with them and watch pornographic movies, had fondled her, and had hit her when she resisted. A.B. was with the Easons for only a few days, but she likewise testified that the Easons had her lie in bed with them and watch pornographic movies, that Nicole Eason would sometimes lie naked in the bed, that the Easons monitored A.B.’s communications with her adoptive parents, and that she had begun to assume that the Easons’ behavior was normal, because the Easons were her caretakers.

Eventually the adoptive parents, having grown suspicious, asked the defendants to return their children, and the defendants complied.

Mrs. Eason’s principal argument (her husband, having pleaded guilty, has not appealed) is that the children who were the victims of the alleged kidnapping were not inveigled — it was the victims’ adoptive parents who were inveigled — and that kidnapping by inveiglement requires that the person or persons inveigled be the ones, who were kidnapped — i.e., held “for ransom or reward or otherwise” — and of course the adoptive parents whom the defendants inveigled were not removed from their homes or otherwise held against their will. Eason thus argues that the person inveigled must be the person held, and vice versa.

It’s true that the first subsection of the federal kidnapping statute, quoted at the beginning of our opinion, states that “whoever unlawfully ... inveigles ... and holds for ransom or reward or otherwise any person ... [and] the person is willfully transported in interstate or foreign commerce,” is guilty of kidnapping. And here the inveigled — the adoptive parents- — were not held or “willfully transported in interstate or foreign commerce.” But the notion that inveiglement falls out of a kidnapping case if the kidnap victim is not inveigled is too confining. Suppose the defendants had gone to the adoptive parents’ homes pretending to be medical personnel, and once there had convinced the parents that because of a polio epidemic the defendants had to take the children to a local hospital to be vaccinated. They would thus have been inveigling the parents as the means of absconding with the children. If that isn’t kidnapping, then if a kidnapped baby were only three months old when kidnapped and thus incapable of having been inveigled there would be no violation of the federal kidnapping statute even though the kidnappers had inveigled the parents of the baby to give it up to them. What sense would that make? None that we can see. As explained in Chatwin v. United States, 326 U.S. 455, 460, 66 S.Ct. 233, 90 L.Ed. 198 (1946), “if the victim is of such an age or mental state as to be incapable of having a recognizable will, the confinement then must be against the will of the parents or legal guardian of the victim.” There is also, however, evidence that the defendants in this case inveigled the children too, by trying to make them feel that they would benefit from living with them.

Mrs. Eason argues that she didn’t “hold” the children — an element of kidnapping in 18 U.S.C. § 1201(a) — because the parents voluntarily gave the children to her, and she returned the children at the parents’ request, and therefore the children were not held against the will of the parents. But the children were “held”— they lived in her house, in her custody, under her control, unable to leave until Eason returned them to their adoptive parents at the parents’ request — and Ea-son’s holding of the children flouted the will of their parents because she had obtained the parents’ consent to this arrangement only through inveiglement — by falsely claiming that she had been recommended to care for foster children.

After taking custody of them, moreover, she kept the adoptive parents at bay with further lies. She told KR.’s parents she’d mail them a copy of her paperwork, but never did; she made excuses and then became difficult to contact. She had told A.B.’s parents she’d send them an updated home study — the forged home study that she had originally shown them had (strangely) been out of date. When they pressed, she said there had been delays. Only when the parents realized she was lying did they demand the return of the children.

It remains only to consider Eason’s objections to the jury instructions. The jury was instructed that “in order for you to find the Defendant guilty of [kidnapping], the Government must prove ... First, the Defendant knowingly and acting contrary to law, kidnapped, seized, confined, inveigled, or decoyed any person; Second, the Defendant held the person for ransom, reward, or otherwise.” Eason argues that these instructions allowed the jury to convict her on what she contends was the government’s unsound theory of the case — that she had kidnapped the children by inveigling their parents. But as we’ve explained, the government’s theory is sound — children can be kidnapped by means of the inveiglement of their parents; they were here. Notice too that the instruction we quoted required the jury, so far as bears on the present case, to find that the defendant knowingly “confined, inveigled, or decoyed any person,” without requiring that the inveigled person also have been the confined (= kidnapped) person, consistent with Eason’s having inveigled the adoptive parents but confined the children.

Second she argues that the instructions should have listed only “inveiglement” as a means of kidnapping — not the other methods or forms of kidnapping listed in the federal kidnapping statute — “kidnapped, seized, confined, ... or decoyed,” because inveiglement was the only form of kidnapping that the government asserted at trial. But there is nothing to suggest that limiting the instruction to inveiglement would have altered the jury’s verdict. The word “or” before the last term in the list would have made clear to the jury that it didn’t have to find any kidnapping method other than inveiglement in order to convict the defendant. Indeed during its deliberations the jury sent a note to the judge asking whether it had to find all the means of kidnapping in order to convict Eason, or only one — and the judge replied that it had to find only one.

We find no error in the district court proceedings. The judgment of the district court is therefore

Affirmed.


author: HAMILTON, Circuit Judge.

text:
    Robin Willie TURNER, Plaintiff-Appellant, v. HIRSCHBACH MOTOR LINES, Defendant-Appellee.
    No. 15-3263
    United States Court of Appeals, Seventh Circuit.
    Argued July 6, 2016
    Decided April 24, 2017

      Lawrence C. Redmond, Attorney, Chicago, IL, for Plaintiff-Appellant.
    D. Faye Caldwell, Attorney, Caldwell Everson PLLC, Houston, TX, for Defen-danb-Appellee.
    Before POSNER, SYKES, and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge.

Plaintiff Robin Turner sued defendant Hirschbach Motor Lines for failing to hire him as a truck driver after his routine drug test was positive for marijuana use. Turner alleges the decision was racially discriminatory, but the district court granted summary judgment against him. Turner argues that the district court erred in requiring him to offer evidence both (a) that racial animus of a Hirschbach employee who was not a decision-maker caused the decision not to hire him, and (b) that Hirschbach and a medical doctor came to an agreement to cancel Turner’s request for a second drug test. We affirm. The district court correctly concluded that Turner lacked evidence supporting his federal claim for race discrimination and his state-law claim for civil conspiracy.

Hirschbach is a commercial trucking company. It offered Turner a job as a driver contingent on his completion of orientation and a drug test, among other conditions. Turner is African American. Throughout orientation, Turner asserted, he was subjected to insults by Nancy Thompson, Hirschbach’s employee responsible for evaluating and hiring applicants. Turner testified that she stared at him and once whispered insults to him.

During orientation, Turner tested positive for marijuana use. An independent medical facility collected a urine sample, which was then sent to MedTox Laboratories for testing. MedTox split the sample in two, tested one part, and stored the other. As required by United States Department of Transportation regulations, MedTox reported the positive result to Hirschbach’s independent medical review officer, Dr. Richard Thompson (no apparent relation to Nancy Thompson). In turn, Dr. Thompson contacted Turner through Hirschbach and notified him that his results were positive for marijuana. See 49 C.F.R. § 40.97(b). Hirschbach’s safety officer, Lester Winegarden, then told Turner he had the right to request that the second half of his sample be tested by a different laboratory (a “split test” covered by 49 C.F.R. § 40.171). Turner told Winegarden he wanted the split test, though he admits that he had not requested the test from Dr. Thompson.

The split test never took place, and the reason for that is disputed. Turner testified in his deposition that Winegarden told him the split test would be a “waste of time” and that he was “never going to pass the test.” Turner recalled asking: “Are you telling me there’s some racial b* ⅜ :⅛⅝ * ⅜ you’re pulling me into?” to which Winegar-den responded, “Yeah, you got it. You got it now.” Turner asserts that Winegarden then cancelled the split test by falsely reporting to Dr. Thompson that Turner had changed his mind about it. Winegarden denied all this and testified that he would have cancelled a split test only if Turner had in fact changed his mind about it.

The initial positive test result was verified by Dr. Thompson and sent to Hirsch-bach. Turner decided to leave the company’s orientation program and was not hired. Hirschbach, as permitted by Department of Transportation regulations, reported Turner’s positive drug test to an industry consortium from which future employers could, with Turner’s permission, seek his previous test results. See 49 C.F.R. §§ 40.25, 40.345, 40.349.

Turner then filed this suit against Hirschbach under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000-e(2)(a)(l), as well as 42 U.S.C. § 1981 and Illinois civil conspiracy law. He claimed that Hirschbach refused to hire him because of his race, discriminated against him by reporting his drug results to the industry consortium, and conspired with Dr. Thompson to cancel the second or split test.

The district court granted summary judgment for Hirschbach. Because Turner had not responded to the majority of Hirschbach’s statements of undisputed facts, the court deemed most of them undisputed. The court considered the theory that Winegarden’s alleged racial animus caused the decision not to hire Turner, using a so-called “cat’s paw” theory of liability for his Title VII and § 1981 claims. Under that theory, Turner needed to offer evidence that the racial animus of Winegarden, who was not a decision-maker, was a proximate cause of the adverse decision. See Nichols v. Michigan City Plant Planning Dep’t, 755 F.3d 594, 604 (7th Cir. 2014); Smith v. Bray, 681 F.3d 888, 897 (7th Cir. 2012).

The district court concluded that such a claim could not succeed. Giving Turner the benefit of conflicts in the evidence, as required when considering Hirschbach’s summary judgment motion, Turner had offered evidence that Winegarden can-celled the split test and acted based on racial animus. The court found that Turner lacked evidence that Winegarden’s racial animus caused him not to be hired because he offered no evidence that the MedTox drug test was unreliable or that the split test would have been negative. The court also found that Turner did not offer sufficient evidence for a reasonable jury to infer that Nancy Thompson herself decided not to hire him because of racial animus rather than his positive test result. Nor did Hirschbach discriminate against Turner by reporting his positive drug test result to the industry consortium, the court concluded. Hirschbach presented undisputed evidence that it reported positive tests as a matter of routine and as required by federal regulations. Finally, the court concluded that the civil conspiracy claim failed because Turner lacked evidence that Hirschbach and Dr. Thompson had come to an agreement to cancel the split test.

Turner argues that he was not required to offer evidence to support an inference that the allegedly improper cancellation of the split test caused him not to be hired. Turner asserts without elaboration that he did not need to provide such evidence because the cancellation violated Department of Transportation regulations and therefore suffices to prove discrimination.

We disagree with Turner’s arguments. Winegarden did not make the decision not to hire Turner. Nancy Thompson was the decision-maker. Under a cat’s paw theory of liability, the challenge is to show a causal link between the presumed unlawful animus of someone like Winegarden, who did not make the decision, and the decision itself. The district court properly required Turner to support his cat’s paw theory with evidence casting doubt on the reliability of the initial drug test or the positive result itself. As the district court correctly determined, Turner needed evidence that Thompson’s failure to hire him was proximately caused by Winegarden’s presumably discriminatory action — cancel-ling the split test. Nichols, 755 F.3d at 604; Smith, 681 F.3d at 897.

Undisputed evidence shows that Thompson would not hire someone who fails a drug test and that Turner had failed a drug test administered by an independent medical agency. Without evidence that the drug test was a false positive or some other evidence showing that the split test would have come back negative and cleared Turner, a jury could not reasonably infer that Thompson’s hiring decision was proximately caused by Winegarden’s presumed racial animus. See Johnson v. Koppers, Inc., 726 F.3d 910, 915 (7th Cir. 2013) (no inference that colleague’s story concocted out of racial animus caused supervisor’s termination decision when undisputed facts showed that plaintiff misbehaved); Young v. Dillon Companies, Inc., 468 F.3d 1243, 1253 (10th Cir. 2006) (no inference that biased investigator’s report caused termination when investigator did not make recommendation and supervisor independently reviewed report and other evidence showing misconduct).

Turner also contends that a purported violation • of Department of Transportation regulations is enough to show discrimination by Thompson, who made the hiring decision. The district court correctly rejected that argument. Turner has not offered any evidence that Thompson herself knew he had requested a second test. The regulations do not prohibit an employer from making a hiring decision on the basis of one positive test. Turner has not offered any evidence that Thompson violated the regulations..

A failed drug test does not necessarily mean a plaintiff like Turner cannot succeed on a discrimination claim, but he would need additional evidence to permit a reasonable inference that the decision not to hire, him was based on his race. For example, if an employer did not treat similarly situated applicants of other races in a similar way when they tested positive for marijuana, an inference of discrimination would find some traction. But Turner did not offer ,any evidence that Thompson treated differently any similarly situated applicants of other races who failed one drug test. The district court correctly concluded that a jury could not reasonably infer that Thompson was motivated by Turner’s race rather than his test result. Stockett v. Muncie Indiana Transit System, 221 F.3d 997, 1002 (7th Cir. 2000) (no discrimination where employee who failed drug test was fired under clear policy regarding drug use and there was no evidence of direct discrimination by supervisor or of similarly-situated employees treated differently); Tatum v. City of Berkeley, 408 F.3d 543, 550-51 (8th Cir. 2005) (termination after positive drug test result was facially legitimate under employer’s zero-tolerance drug policy).

Finally, Turner argues that he offered sufficient evidence that Hirschbaeh and Dr. Thompson engaged in a civil conspiracy under Illinois law by cancelling the split test. Turner contends that it' does not matter whether Dr. Thompson and Wine-garden came to an agreement to cancel the split test against his wishes. What matters, he maintains, is that Dr. Thompson’s failure to confirm with him directly whether he had changed his mind meant that Dr. Thompson somehow became a party to a conspiracy to cancel the split test.

The district court correctly concluded that Turner needed evidence of an agreement between Winegarden and Dr. Thompson to support his claim of civil conspiracy. See Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502, 509 (7th Cir. 2007). Under Illinois tort law, a civil conspiracy requires “(1) an agreement between two or more persons for the purpose of accomplishing either an unlawful purpose or a lawful purpose by unlawful means; and (2) at least one tortious act by one of the co-conspirators in furtherance of the agreement that caused an injury to the plaintiff.” Id., citing McClure v. Owens Corning Fiberglas Corp., 188 Ill.2d 102, 241 Ill.Dec. 787, 720 N.E.2d 242, 258 (1999). An agreement is “a necessary and important” element of this cause of action, and “[a] defendant who innocently performs an act which happens to fortuitously further the tortious purpose of another is not liable under the theory of civil conspiracy.” Adcock v. Brakegate, Ltd., 164 Ill.2d 54, 206 Ill.Dec. 636, 645 N.E.2d 888, 894 (1994). Turner offered no evidence that Dr. Thompson agreed with Winegarden to cancel the second test against Turner’s wishes, and Turner has not even claimed that Dr. Thompson knew he had not changed his mind.

The judgment of the district court is AFFIRMED.


text:
    MEDICAL COLLEGE OF WISCONSIN AFFILIATED HOSPITALS, INC., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 16-3863
    United States Court of Appeals, Seventh Circuit.
    Argued April 10, 2017
    Decided April 25, 2017

      Thomas D. Sykes, Attorney, Law Offices of Thomas D. Sykes LLC, Lake Forest, IL, for Plaintiff-Appellant.
    Norah Bringer, Attorney, Department of Justice, Tax Division, Appellate Section, Richard Farber, Attorney, Department of Justice, Civil Division, Immigration Litigation, Gilbert Steven Rothenberg, Attorney, Department of Justice, Office of the Attorney General, Hilarie E. Snyder, Attorney, Department of Justice, Tax Division, Civil Trial Section, Washington, DC, for Defen-danh-Appellee.
    Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
   EASTERBROOK, Circuit Judge.

Medical College of Wisconsin, a nonprofit corporation, received a refund of Social Security (FICA) taxes after the Internal Revenue Service ruled that medical residents were exempt from them until April 1, 2005. (A regulation governing later periods requires hospitals to pay FICA taxes on residents’ salaries. See Mayo Foundation for Medical Education & Research v. United States, 562 U.S. 44, 131 S.Ct. 704, 178 L.Ed.2d 588 (2011).) The IRS added to the refund approximately $13 million in interest but later demanded $6.7 million back, informing Medical College that it had used too high a rate. Medical College returned the money and filed this suit under 28 U.S.C. § 1346(a)(1), asking to have the disputed sum restored. See also 26 U.S.C. § 7422. The district court rejected its request, 2016-2 U.S. Tax Cas. (CCH) ¶50,409 (E.D. Wis. Sept. 14, 2016), precipitating this appeal.

The parties’ dispute arises from 26 U.S.C. § 6621, which begins:

(a) General rule.

(1) Overpayment rate. The overpayment rate established under this section shall be the sum of—
(A) the Federal short-term rate determined under subsection (b), plus
(B) 3 percentage points (2 percentage points in the case of a corporation).
To the extent that an overpayment of tax by a corporation for any taxable period (as defined in subsection (c)(3), applied by substituting “overpayment” for “underpayment”) exceeds $10,000, subparagraph (B) shall be applied by substituting “0.5 percentage point” for “2 percentage points”.

The IRS initially paid Medical College interest at the federal short-term rate plus 3 percentage points under § 6621(a)(1)(B) but then decided that interest should be paid at the short-term rate plus 2 percentage points for the first $10,000 and 0.5 percentage points for the rest. Medical College contends that the IRS got it right the first time, because, in light of subsection (c), a nonprofit is not the sort of corporation to which paragraph (a)(1)(B) refers.

Subsection (c) reads:

(c) Increase in underpayment rate for large corporate underpayments.
(1) In general. For purposes of determining the amount of interest payable under section 6601 on any large corporate underpayment for periods after the applicable date, paragraph (2) of subsection (a) shall be applied by substituting “5 percentage points” for “3 percentage points”.
(2) Applicable date. For purposes of this subsection—
(A) In general. The applicable date is the 30th day after the earlier of—
(i) the date on which the 1st letter of proposed deficiency which allows the taxpayer an opportunity for administrative review in the Internal Revenue Service Office of Appeals is sent, or
(ii) the date on which the deficiency notice under section 6212 is sent. The preceding sentence shall be applied without regard to any such letter or notice which is withdrawn by the Secretary.
(B) Special rules.
(i) Nondeficiency procedures. In the case of any underpayment of any tax imposed by this title to which the deficiency procedures do not apply, subparagraph (A) shall be applied by taking • into account any letter or notice provided by the Secretary which notifies the taxpayer of the assessment or proposed assessment of the tax.
(ii) Exception where amounts paid in full. For purposes of subpara-graph (A), a letter or notice shall be disregarded if, during the 30-day period beginning on the day on which it was sent, the taxpayer makes a payment equal to the amount shown as due in such letter or notice, as the case may be.
(iii)Exception for letters or notices involving small amounts. For purposes of this paragraph, any letter or notice shall be disregarded if the amount of the deficiency or proposed deficiency (or the assessment or proposed assessment) set forth in such letter or notice is not greater than $100,000 (determined by not taking into account any interest, penalties, or additions to tax).
(3)Large corporate underpayment. For purposes of this subsection—
(A) In general. The term “large corporate underpayment” means any underpayment of a tax by a C corporation for any taxable period if the amount of such underpayment for such period exceeds $100,000.
(B) Taxable period. For purposes of subparagraph (A), the term “taxable period” means—
(i) in the case of any tax imposed by subtitle A, the taxable year, or
(ii) in the case of any other tax, the period to which the underpayment relates.

Most of subsection (c) is irrelevant to the computation of interest under subsection (a). True, subsection (a) absorbs the definition of “taxable period” from paragraph (c)(3), but that definition does not assist Medical College.

Medical College sees greater significance in subsection (c). It points to subpar-agraph (c)(3)(A), which defines the term “large corporate underpayment” as an underpayment of more than $100,000 by a “C corporation.” According to Medical College, nonprofit corporations are not C corporations. (We indulge that assumption in this opinion, though it is hard to reconcile with 26 U.S.C. § 1361(a)(2), which defines as a C corporation every corporation that is not an S corporation.) That “C corporation” excludes not-for-profit entities is significant, Medical College insists, because reading the word “corporation” in subsection (a) to mean C corporation would entitle all nonprofit corporations to the higher rate of interest called for by paragraph (a)(1). Two other courts of appeals have considered this line of argument; both have rejected it. Maimonides Medical Center v. United States, 809 F.3d 85 (2d Cir. 2015); United States v. Detroit Medical Center, 833 F.3d 671 (6th Cir. 2016). Medical College wants us to disagree with these decisions, but we find them persuasive.

The cornerstone of Medical College’s argument is that one word means the same thing throughout a statutory section. See Antonin Scalia & Bryan A. Garner, Reading Law Canon 25 (2012). Scalia and Garner call this canon the “Presumption of Consistent Usage”; Medical College prefers the Latin in pari materia. Either way, the contention is that if “corporation” means “for-profit corporation” in subsection (c), then “corporation” means the same thing throughout § 6621 even though in other parts of the Internal Revenue Code — as indeed in other titles of the United States Code, such as the diversity jurisdiction of 28 U.S.C. § 1332(a) — an incorporated nonprofit entity is a “corporation.”

At least two things are wrong with this line of argument.

First, subparagraph (c)(3)(A) does not define the word “corporation.” It defines the phrase “large corporate underpayment.” That phrase doesn’t contain the noun “corporation,” and the use of “corporate” as an adjective does not tell us anything about the kind of corporation involved. The rest of that subsection tells us that the phrase as a whole means an underpayment of more than $100,000 by a C corporation, but this does not say or imply that every reference to “corporation” in all of § 6621 means “C corporation.” To the contrary, the distinction between “corporation” in subsection (a) and “C corporation” in subparagraph (c)(3)(A) implies a different meaning. A presumption that a single word means the same thing throughout a statute goes together with a presumption that different words mean different things.

Second, paragraph (c)(3) tells us how far its definitions extend. It begins “[f]or purposes of this subsection” — in other words, subsection (c), the only part of § 6621 in which “large corporate underpayment” plays a role. What Scalia and Garner call the presumption of consistent usage is just that: a presumption. It is overcome by other indicators, such as a provision that a definition covers just one subsection. Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50,125 S.Ct. 460, 160 L.Ed.2d 389 (2004), is among many decisions showing that the Justices take seriously the way statutory subdivisions refer to each other. Subsection (a) likewise tells us exactly how much of paragraph (c)(3) is borrowed: its definition of “taxable period”. The rest of paragraph (e)(3) pertains to subsection (c) alone.

It follows from each of these reasons that Medical College was entitled to interest at the rate for all corporations. This is where matters now stand, so Medical College is not entitled to more. The opinions in Maimonides Medical Center and Detroit Medical Center address these issues, in greater detail. To the extent we have skipped over any of Medical College’s arguments, it is enough to say that we agree with our colleagues in the Second and Sixth Circuits.

Affirmed


text:
    Alaa I. MUSA, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 16-1841
    United States Court of Appeals, Seventh Circuit.
    Argued January 12, 2017
    Decided April 26, 2017

      Timothy L. Baldwin, Attorney, Law Office of Timothy L. Baldwin, Ohioma Emil Ovbiagele, Attorney, JB Enterprises, S.C., Milwaukee, WI, for Petitioner-Appellant.
    Ivan Clay Dale, Joan I. Oppenheimer, Attorneys, Department of Justice, Tax Division, Appellate Section, Gilbert Steven Rothenberg, Attorney, Department of Justice, Office of the Attorney General, Washington, DC, for Respondent-Appellee.
    Before BAUER, SYKES, and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge.

The central issue in this appeal from the Tax Court is how to apply the “duty of consistency,” an equitable tax doctrine analogous to judicial estoppel, which prevents a party from prevailing in a court proceeding by taking one position and then taking a contradictory position in a later case. See Kielmar v. Commissioner, 884 F.2d 959, 965 (7th Cir. 1989). The Tax Court correctly applied the duty of consistency in this case to prevent a taxpayer’s unfair tactic to minimize the consequences of his fraud.

Appellant Alaa Musa owns and operates a restaurant in Milwaukee, Wisconsin. The Commissioner of Internal Revenue determined that Musa made numerous misrepresentations on his tax returns, including underreporting his federal income taxes by more than $500,000 for the years 2006 to 2010. Musa challenged this determination in the Tax Court. The Tax Court upheld the Commissioner’s determination, including a civil fraud penalty. On appeal, Musa does not challenge the fraud finding. Instead, he makes arguments that are heavy on chutzpah but light on reasoning or any sense of basic fairness.

Musa’s central argument is that after his fraud was discovered, the Commissioner should have allowed him additional deductions on his individual tax returns based on amended employment tax returns in which Musa had corrected earlier false underre-porting of wages. He made these corrections, however, only after the statute of limitations had run on the Commissioner’s ability to collect the correct amounts of employment taxes that Musa’s amended returns admitted were due. Musa argues that the Tax Court mishandled this issue by permitting the Commissioner to amend his answer to add the affirmative defense of the duty of consistency under tax law, and then erred by granting partial summary judgment to the Commissioner on that defense. Musa also argues that the Tax Court erred by denying his request to recall a witness. Musa’s claims are without merit. We affirm the decision of the Tax Court.

I. Factual and Procedural Background

A. Musa’s Fraudulent Tax Filings

Musa opened his restaurant iii 2005. He is the sole member of the limited liability company that owns and operates the restaurant. Since its early days, Musa’s family members regularly worked as employees at the restaurant, and he paid them based on informal agreements. Musa did not report their wages to the company the restaurant hired to assist with payroll. The payroll company’s services included withholding required taxes from employees’ paychecks, issuing annual wage and tax statements to employees and the IRS, and filing Musa’s quarterly employment tax returns.

Musa gave the payroll company his employees’ information over the phone on a biweekly basis. He did not include any of his family members in the information that he provided between 2006 and 2008. He included only two of his family members during 2009 and 2010. Instead, Musa paid family employees in cash under the table and maintained no record of these payments. He also underreported the amount his staff received in tips.

At the same' time, Musa was underre-porting the restaurant’s revenues on his individual tax returns and the restaurant’s Wisconsin monthly sales tax returns for 2006 to 2008. He did this by íying to his then-accountant, J & M Accounting and Tax Services. Musa reported the restaurant’s monthly sales over the phone to J & M. He gave the accounting firm in-accurate information and failed to disclose relevant banking information.

B. Investigation and Tax Court Proceedings

The- IRS began to audit Musa in 2009. The examination started with Musa’s 2007 income tax return, but soon expanded to include his returns from 2006 and 2008. A review of the bank statements for Musa and the restaurant revealed that the amount of credit card deposits in the restaurant’s account exceeded the amount Musa reported on his income tax returns. The IRS considered pursuing criminal charges against Musa for his tax fraud but ultimately opted for only civil remedies.

While under audit, Musa hired accountant Charles Sturm to replace J & M. Sturm prepared returns for 2009 and 2010 and amended returns for 2006 to 2008. Musa signed the amended returns for 2006 and 2007 in October 2011.

On August 21, 2012, the IRS sent Musa a Notice of Deficiency for tax years 2006 to 2010. Musa then petitioned the Tax Court for a redetermination of his tax deficiency. He challenged many aspects of the deficiency notice, including the Commissioner’s determination that his underpayment was due to fraud. On September 23, 2013, Musa responded to the Commissioner’s discovery request and provided a spread-sheet listing employees who he claimed had been paid additional wages but who were not previously included in the restaurant’s wage statements. Over the next few months, the restaurant submitted amended wage and tax statements, as well as amended quarterly employment tax returns for 2006 to 2010. Based on these amended returns, Musa sought additional deductions from his income tax liabilities. On the amended forms for 2007 and 2010, Musa claimed that he first learned about these errors on May 2, 2012. Musa provided copies of these amended statements to the Commissioner on January 10, 2014.

Contrary to Musa’s arguments on appeal, the Commissioner responded promptly to Musa’s tactic. Just a month later in a conference call with the Tax Court and Musa, the Commissioner raised the affirmative defense of the duty of consistency. He argued that the doctrine prevents Musa from claiming new expense deductions on his income tax returns for wages paid between 2006 and 2009 because the IRS had relied on those representations and because the period for assessing employment taxes on those wages had expired. The Commissioner also made this argument in his pretrial memorandum on February 24, 2014.

Because the duty of consistency is an affirmative defense, the Commissioner sought and was granted leave to amend his answer in March 2014. The Commissioner also sought partial summary judgment on this defense, and the Tax Court ruled in his favor on March 27, 2014. The Tax Court denied Musa’s motion to reconsider its decisions on the amendment and partial summary judgment.

The Tax Court held a trial on the remaining issues in May 2014. One issue was Musa’s liability for the fraud penalty for his underpayments from 2006 to 2010. The fraud penalty was supported by an accountant from J & M who testified that Musa had not been forthcoming with certain financial information, such as the existence of numerous bank accounts. Musa tried to rebut that testimony with testimony by his new accountant, Sturm. After Sturm testified and the court gave Musa a chance to question him again on re-direct examination, the court dismissed the witness. The Commissioner then introduced Exhibit 128, which was an interrogatory response by Musa identifying eleven of his bank accounts. Musa did not object to Exhibit 128.

During the trial, the court permitted the testimony of three witnesses (Musa’s family members) to be delayed so they could discuss with counsel the potential criminal ramifications of their testimony. After the trial had otherwise concluded, during a conference call to arrange for the testimony of these remaining witnesses, Musa’s counsel asked to recall accountant Sturm for further questioning regarding Exhibit 128. The Tax Court denied the motion because Musa had not objected to Exhibit 128, Sturm already had a chance to discuss the subject matter of the exhibit, and further delay would prejudice the Commissioner.

On March 25, 2015, the Tax Court issued a memorandum opinion ruling in favor of the Commissioner and holding Musa liable for his deficiency and the fraud penalty. To support this conclusion, the court pointed out that Musa had: (1) understated his income; (2) failed to keep adequate records; (3) offered implausible explanations for his behavior; (4) concealed income; (5) failed to cooperate with tax officials; (6) failed to file Forms W-2 and 1099-MISC for all employees; (7) filed false documents; (8) failed to make estimated tax payments; and (9) relied extensively on cash payments. The court determined that Musa owed over $500,000 in income tax for years 2006 to 2010 and over $380,000 in fraud penalties.

On appeal, Musa does not deny that he filed fraudulent income and employment tax returns. Instead, he argues that the Tax Court erred in two ways: first in its rulings on the duty of consistency and second in denying his request to recall accountant Sturm.

II. Analysis

A. Duty of Consistency

1. Amendment to Answer

We review for abuse of discretion the Tax Court’s decision to allow the Commissioner to amend his answer. See Estate of Ranter v. Commissioner, 387 F.3d 833, 851 (7th Cir. 2003), rev’d on other grounds, Ballard v. Commissioner, 544 U.S. 40, 125 S.Ct. 1270, 161 L.Ed.2d 227 (2005). The Tax Court enjoyed ample discretion to permit this amendment of the pleading. Rule 41(a) of the Rules of Practice and Procedure of the Tax Court provides: “A party may amend a pleading once as a matter of course at any time before a responsive pleading is served.... Otherwise a party may amend a pleading only by leave of Court or by written consent of the adverse party, and leave shall be freely given when justice so requires.” This Rule was derived from Rule 15(a) of the Federal Rules of Civil Procedure, and the two rules should be interpreted in a similar manner. See Kramer v. Commissioner, 89 T.C. 1081, 1084-85 (1987); Curr-Spec Partners, LP v. Commissioner, 94 T.C.M. (CCH) 314, at *4 (2007). Civil Rule 15(a) requires courts “to allow, amendment unless there is a good reason — futility, undue delay, undue prejudice, or bad faith — for denying leave to amend.” Life Plans, Inc. v. Security Life of Denver Ins., 800 F.3d 343, 358 (7th Cir. 2015), citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also Ax v. Commissioner, 146 T.C. 153, at *168 (2016) (“The question of prejudice under Rule 41(a) is ... whether the addition of those new issues by a later amendment, rather than by inclusion in the initial pleading, works an unfair disadvantage to the other party.”).

Musa claims that he was “unduly prejudiced” when the court permitted the Commissioner to amend his pleading, but he offers no support for this claim. He claims that the Commissioner amended his pleadings “just days before trial.” That is simply not true. The Commissioner raised the issue more than three months before trial during a conference call on February 7, 2014 and sought leave to amend his answer more than two months before trial. This was no last-minute surprise on the part of the Commissioner, at least. Moreover, since Musa did not make clear in his original petition that he would seek additional deductions based on his payments of previously unreported wages, the Commissioner had no grounds to raise the duty of consistency until he actually raised it. Musa’s approach would unfairly penalize the Commissioner (and thus other taxpayers) for Musa’s own delays and false tax returns. The Tax Court did not abuse its discretion in allowing the amendment.

2. Partial Summary Judgment

Musa next claims that the Tax Court misapplied the duty of consistency in granting the Commissioner’s motion for partial summary judgment. Since we review the Tax Court’s decisions “in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury,” 26 U.S.C. § 7482(a)(1), we review de novo the Tax Court’s award of summary judgment. Kindred v. Commissioner, 454 F.3d 688, 693-94 (7th Cir. 2006).

Musa claims he should have been allowed additional deductions on his individual income tax returns based on the amended employment tax returns that he filed after his fraud was discovered. This is so, he claims, because the Commissioner failed to satisfy the requirements for applying the duty of consistency. Here, again, Musa’s argument is disconnected from any sense of basic fairness.

The duty of consistency is an equitable tax doctrine analogous to judicial estoppel, which prevents a party from prevailing in a court proceeding by taking one position and then taking a contradictory position in a later case. See In re Knight-Celotex, LLC, 695 F.3d 714, 721-22 (7th Cir. 2012), citing New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). We outlined the requirements of the duty of consistency as follows:

The duty of consistency applies when there have been: “(1) a representation or report by the taxpayer; (2) on which the Commission[er] has relied; and (3) an attempt by the taxpayer after the statute of limitations has run to change the previous representation or to recharac-terize the situation in such a way as to harm the Commissioner.”

Kielmar v. Commissioner, 884 F.2d 959, 965 (7th Cir. 1989), quoting Herrington v. Commissioner, 854 F.2d 755, 758 (5th Cir. 1988). The Tax Court correctly concluded that the undisputed facts satisfied these three elements.

First, Musa made representations on the various tax forms he filed, including the restaurant’s quarterly employment tax returns for 2006 to 2009 and the W-2 and W-3 forms provided to the restaurant’s employees and the IRS. In his initial filings, Musa represented that the restaurant paid employees the following sums in non-tip wages from 2006 to 2009, respectively: $28,248; $18,900; $30,993; and $70,890. Then in the fall of 2013, Musa amended his filings to identify additional wages that he had paid to employees but failed to report for those same years: $42,000; $1.05,000; $92,000; and $153,000.

Second, the Commissioner relied on the original representations because the IRS assessed employment taxes based on Musa’s original reports of employee wages in the restaurant’s quarterly tax returns. See, e.g., Estate of Ashman v. Commissioner, 231 F.3d 541, 546 (9th Cir. 2000) (“The mere fact that [the Commissioner] did not take steps against her, but accepted the return and let the statute of limitations run, demonstrates that he did rely.”); Herrington, 854 F.2d at 758 (“[T]he Commissioner relied on this representation [by petitioners] by accepting their 1976 return and allowing the statute of limitations to run.”).

In one of his heavier doses of chutzpah, Musa argues that the Commissioner did not rely on the employment returns because the Commissioner should have known they were inaccurate. This is so, Musa claims, because the Commissioner had “all facts available to him” or had the “opportunity to gain such knowledge” pri- or to the expiration of the statute of limitations, so the Commissioner did not “rely” on Musa’s false representations. In other words, Musa argues, after the IRS discovered his income tax fraud and he submitted amended income tax returns, the IRS should have induced from the amended income tax returns that the restaurant’s quarterly employment tax returns had also been incorrect.

The Ninth Circuit observed that a similar argument that the Commissioner “did not rely because he should have suspected ... wrongdoing is a wallydraigle.” Estate of Ashman, 231 F.3d at 546. We agree. There is no merit to Musa’s claim that the Commissioner loses his ability to rely on Musa’s employment tax returns because Musa amended his income tax returns. Ours is a “self-reporting system of taxation,” and for that system to function, the Commissioner must be able to rely on “truthful reporting.” United States v. Paepke, 550 F.2d 385, 391 (7th Cir. 1977).

Musa claims that the IRS should have known about his inaccurate wage reporting even before Musa himself supposedly knew about it. On the restaurant’s amended quarterly employment tax returns for 2007 and 2010, Musa claimed that he learned about the errors on May 2, 2012. He now argues that the Commissioner should have learned about the errors sooner, because by May 2, 2012 the assessment period for 2006, 2007, and 2008 had expired. We reject this remarkable assertion. The Commissioner was permitted to take at face value the representations in Musa’s original tax returns.

Third, failing to hold Musa to the duty of consistency would harm the Commissioner. As just mentioned, the assessment period for the restaurant’s employment tax returns for 2006 to 2008 expired before the IRS could assess additional taxes based on the amended employment tax returns. This is because, in general, the IRS may assess an employment tax or associated penalty only within three years after the return is filed. 26 U.S.C. § 6501(a). Since the IRS could not collect additional taxes based on Musa’s amended employment tax returns, it was harmed. Based on undisputed facts, the duty of consistency applies. The Tax Court did not err when it ruled that Musa is estopped from claiming the additional deductions he seeks to offset the consequences of his own fraud.

B. Recalling Expert Witness

Finally, Musa claims that the Tax Court erred when it refused to recall accountant Charles Sturm for further testimony. Sturm had .testified on several matters, including the number of bank accounts that Musa used, but he admitted to being ill-prepared on that subject, which was also addressed in Musa’s interrogatory answer admitted without objection as Exhibit 128. On appeal, Musa argues that Exhibit 128 was admitted “without any context or testimony,” and that Sturm, if recalled, would have “contradicted, impeached or defused the Commissioner’s conjecture” about the fraudulent nature of the numerous bank accounts.

Whether to recall a witness who has completed his testimony is the sort of trial management isspe that appellate courts leave to the sound discretion of trial judges, United States v. Liefer, 778 F.2d 1236, 1249 n.11 (7th Cir. 1985), so we review for abuse of discretion the Tax Court’s denial of Musa’s request. United States v. Dent, 984 F.2d 1453, 1463 (7th Cir. 1993), abrogated on other grounds as recognized in United States v. Gilbert, 391 F.3d 882 (7th Cir. 2004).

The Tax Court did not abuse its discretion. First, the exhibit did not contain new or surprising information; it was Musa’s own testimony in the form of an interrogatory response regarding his numerous bank accounts. He did not object to its introduction during trial. Second, Sturm’s proposed testimony would not have “contradicted” or “impeached” the Commissioner. The exhibit was introduced to show that Musa was not forthcoming with his earlier accountant, J & M, regarding the existence of his numerous bank accounts. Sturm’s proposed testimony about the purpose of those accounts would not have contradicted Musa’s failure to disclose those accounts (and we wonder what admissible evidence Sturm might have been able to offer about Musa’s purposes before Musa hired him). Third, Musa already had a chance to question Sturm about the bank accounts. Finally, even if the Tax Court might have abused its discretion — and it did not — the denial was harmless. There is not a “significant chance” that permitting Sturm to testify would have changed the outcome of the case. See Old Republic Ins. Co. v. Employers Reinsurance Corp., 144 F.3d 1077, 1082 (7th Cir. 1998). The court made numerous other findings to support its fraud determination.

The judgment of the Tax Court is AFFIRMED.