Beatrice BOYER, et al., Plaintiffs-Appellants, Cross-Appellees, v. BNSF RAILWAY COMPANY, doing business as Burlington Northern and Santa Fe Railway Company, Defendant-Appellee, Cross-Appellant.
Nos. 14-3131 & 14-3182
United States Court of Appeals, Seventh Circuit.
August 9, 2016
832 F.3d 699
III. Conclusion
Ten years ago the first ALJ to address O‘Connor-Spinner‘s impairments committed errors that prompted us to return the case to the Agency with simple instructions. And six years after our remand the matter remains unresolved because the new ALJ failed to comply with our instructions. Accordingly, we VACATE the judgment of the district court and REMAND the case to the Agency for further consideration. On remand the ALJ should determine what limitations are caused by O‘Connor-Spinner‘s “major depression, recurrent severe” and fully explore with a vocational expert the effect of those limitations on O‘Connor-Spinner‘s ability to engage in competitive employment.
Barry Deacon, Deacon Law Firm, Jonesboro, AR, Timothy R. Thornton, Jonathan P. Schmidt, Briggs & Morgan, P.A., Minneapolis, MN, for Defendant-Appellee.
Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
ON PETITION FOR REHEARING AND REHEARING EN BANC
ROVNER, Circuit Judge.
In his petition for rehearing, attorney Christopher D. Stombaugh argues for the first time that this court lacks the authority under
It is exceedingly late in the day to be making this argument, in view of the fact that the defendant has been seeking section 1927 sanctions for the plaintiffs’ forum-shopping (among other grounds) since the outset of this litigation. See Shields v. Ill. Dep‘t of Corrections, 746 F.3d 782, 800-01 (7th Cir. 2014) (Tinder, J., concurring) (collecting cases observing that arguments first raised in a petition for rehearing are considered waived, or, at best, forfeited, and therefore subject to limited review for plain error only). We may assume arguendo that we should treat Stombaugh‘s argument as forfeited rather than waived, as it addresses our authority to sanction him, and consider whether a serious injustice occurred that demands correction. See Packer v. Indiana Univ. Sch. of Medicine, 800 F.3d 843, 849 (7th Cir. 2015) (plain error in civil context is reserved for truly extraordinary circumstances).
Notwithstanding any limitation imposed by section 1927 itself, we are not convinced that we were wholly without authority to sanction Stombaugh. We note first that our decision to sanction Stombaugh was based not on anything he may have done “in the runup to litigation,” Bender, 436 F.3d at 751, but for his abuse of the judicial process itself, see id. Nor did we sanction Stombaugh for what he did in another case, but rather what he did in the instant litigation, which happened to originate in state court. See Raymark Indus., Inc. v. Baron, 1997 WL 359333, at *7 n.10 (E.D. Pa. June 23, 1997) (“The purpose of § 1927 is frustrated by the imposition of sanctions in two distinct cases, not in two different courts.“); Robertson v. Cartinhour, 883 F.Supp.2d 121, 130 (D.D.C. 2012) (stressing that court was imposing sanctions “based only on [counsel‘s] conduct in this case“) (emphasis ours). It is an interesting question whether the decision to file the case in state court is beyond the scope of section 1927, in view of the fact that the case was removable when filed and in fact was immediately removed by the defendant. Compare GRID Sys. Corp. v. John Fluke Mfg. Co., 41 F.3d 1318, 1319 (9th Cir. 1994) (per curiam) (section 1927 does not authorize sanctions for filing state court lawsuit, later removed, during pendency of previously-filed federal suit and related arbitration, when “[t]he suit filed in state court [was] an entirely separate action not subject to the sanctioning power of the district court“); and Smith v. Psychiatric Solutions, Inc., 864 F.Supp.2d 1241, 1269 (N.D. Fla. 2012) (counsel cannot be sanctioned pursuant to section 1927 for conduct in state court prior to removal), j. aff‘d, 750 F.3d 1253 (11th Cir. 2014), with In re Auction Houses Antitrust Litigation, 2004 WL 2624896, at *8 (S.D.N.Y. Nov. 18, 2004) (section 1927 sanctions imposed on federal class member who, without opting out of class action settlement, instead filed individual suit in state court, compelling defendants to remove state suit and have it transferred to district where class action pending); and Pentagen Techs. Int‘l Ltd. v. United States, 172 F.Supp.2d 464, 473-74 (S.D.N.Y. 2001) (section 1927 sanctions imposed for filing of serial lawsuits in both state and federal forums in effort “to evade previous rulings” and resulting in “needless occupation of judicial resources“), aff‘d, 63 Fed.Appx. 548 (2d Cir. 2003) (unpublished). Assuming that section 1927 does not permit us to shift to Stombaugh the limited costs that BNSF occurred during the very brief time the case was pending in state court, it is not obvious that the burden of having the case transferred from the Eastern District of Arkansas to the Western District of Wisconsin following removal would be beyond the authority conveyed by section 1927 to redress, as obtaining the transfer indubitably did occur in federal court. See Smith, 864 F.Supp.2d at 1269; Butcher v. Lawyers Title Ins. Corp., 2005 WL 2242881, at *1 (W.D. Mich. Sept. 12, 2005). Apparently Stombaugh is of the view, however, that this is fruit of the poisonous tree, so to speak; if the filing of the case in state court itself cannot be addressed under section 1927, then neither can any of the subsequent efforts (post-removal) by the defense to have the case relocated to an appropriate forum be compensated. By contrast, had Stombaugh chosen to file the case in federal court in Arkansas, presumably the entirety of the burden imposed on BNSF to have the case transferred to an appropriate forum would be compensable under the statute.
Even if we assume that Stombaugh is correct in his understanding of section 1927, it is not beyond our inherent
We therefore invoke our inherent authority as an alternate ground for our decision to impose sanctions on Stombaugh. We note that Stombaugh has long had notice of the conduct on which BNSF sought sanctions, and he has had multiple opportunities, both in the district court and this court, to make his case against the award of sanctions. He is in no material way prejudiced, consequently, by a change in the source of authority we rely on to justify our decision. See Tate v. Ancell, 551 Fed.Appx. 877, 892 (7th Cir. 2014) (non-precedential decision); Jolly Grp., Ltd. v. Medline Indus., Inc., 435 F.3d 717, 720 (7th Cir. 2006).
Nor has Stombaugh been deprived of due process because no evidentiary hearing was held on the question of sanctions, as he also suggests in his petition. He has had a meaningful opportunity to be heard on the question of sanctions, see Tate, 551 Fed.Appx. at 892, and he cites no factual matter material to our decision to sanction him that requires an evidentiary hearing to resolve, see Hill v. Norfolk & W. Ry. Co., 814 F.2d 1192, 1201 (7th Cir. 1987). There is no dispute as to what Stombaugh did; the only question is whether he should be sanctioned for it, and that question has been thoroughly litigated.
The petition for rehearing is therefore granted to the limited extent that we now modify our opinion of June 1, 2016, by citing our inherent authority to sanction counsel for misconduct as an alternative ground for our decision to impose sanctions on Stombaugh. No judge in active service having called for a vote on Stombaugh‘s request for rehearing en banc, that request is denied.