Thomas, Frank v. Gen'l Motors Accepta

In the
United States Court of Appeals
For the Seventh Circuit

No. 01-3169

Frank Thomas,

Plaintiff-Appellant,

v.

General Motors Acceptance Corp., et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 8015--James H. Alesia, Judge.

Submitted December 18, 2001--Decided April 30, 2002

Before Posner, Manion, and Rovner, Circuit
Judges.

Posner, Circuit Judge. The plaintiff in
this ERISA suit for additional severance
pay appeals from the dismissal of the
suit with prejudice as a sanction for his
having misrepresented his financial
condition in his application to be
permitted to proceed in forma pauperis.
In response to the question on the
application whether he was expecting to
receive any money in the future, he
failed to state that he had just nine
days earlier directed the defendant to
distribute to him the $73,714 in his
vested company retirement account in a
lump sum minus applicable taxes. The
defendant sent him a check for $58,990,
the amount in the account minus taxes due
on it, three weeks after he filed the
suit and the application for leave to
proceed without paying the $150 filing
fee. He did not update his application.

Because the allegation of poverty was
false, the suit had to be dismissed; the
judge had no choice. 28 U.S.C. sec.
1915(e)(2)(A). The only question is
whether the judge abused his discretion
in making the dismissal with prejudice.
By doing this, he made dismissal a
sanction for the filing of a false
application. His authority to impose such
a sanction in an appropriate case is
beyond question. E.g., Mathis v. New York
Life Ins. Co., 133 F.3d 546, 547-48 (7th
Cir. 1997) (per curiam); Attwood v.
Singletary, 105 F.3d 610 (11th Cir. 1998)
(per curiam); Romesburg v. Trickey, 908
F.2d 258, 260 (8th Cir. 1990); Thompson
v. Carlson, 705 F.2d 868 (6th Cir. 1983)
(per curiam). Dismissal with prejudice
may have been the only feasible sanction
for this perjury designed to defraud the
government. Dismissal without prejudice
would have been no sanction at all,
unless perchance the statute of
limitations had run in the interim, which
it must not have done or the plaintiff
would not be complaining about the fact
that his suit was dismissed with
prejudice. And a monetary sanction would
probably be difficult to collect from a
litigant assiduous in concealing assets.
Even dismissal without prejudice wouldn’t
be much of a sanction unless the
plaintiff’s suit was a winner, or at
least had some settlement value, which it
may not have had.

But before concluding that the district
court should be affirmed, we should
consider what the standard of appellate
review is of dismissals with prejudice
under section 1915(e)(2)(A), an issue
left open in our previous cases. See
Hrobowski v. Commonwealth Edison Co., 203
F.3d 445, 448 (7th Cir. 2000); Mathis v.
New York Life Ins. Co., supra, 133 F.3d
at 547. We cannot find any cases in other
circuits addressing the issue.

The proper standard of review depends on
the character of the ruling sought to be
reviewed. If it is a ruling on a pure
question of law, review is plenary
because it is intolerable to have the law
differ from district judge to district
judge. Cook v. City of Chicago, 192 F.3d
693, 697 (7th Cir. 1999). If it is a pure
question of fact--a "who did what where
when and to whom" kind of question,
"pure" in the sense that no legal
knowledge or instruction is necessary to
answer it--then the correct standard is
clear error. E.g., Fed. R. Civ. P. 52(a);
Malachinski v. Commissioner, 268 F.3d
497, 505 (7th Cir. 2001); D’Alessio v.
N.Y. Stock Exchange, Inc., 258 F.3d 93,
98 (2d Cir. 2001).

If it is a "mixed" question of law and
fact or, the same thing under a different
label, an "ultimate" question of fact--
that is, if it is the application of a
legal standard (such as negligence) to
the pure facts (what the defendant did)
to yield a legal conclusion (the
defendant was or was not negligent)--
then, again, except in those few, mainly
constitutional cases in which the Supreme
Court has decreed plenary review of such
determinations, e.g., Cooper Industries,
Inc. v. Leatherman Tool Group, Inc., 532
U.S. 424, 431-36 (2001); Ornelas v.
United States, 517 U.S. 690, 697-99
(1996); United States v. Meyer, 157 F.3d
1067, 1074 (7th Cir. 1998); United States
v. D.F., 115 F.3d 413, 417-18 (7th Cir.
1997), the clear-error standard governs.
E.g., Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384, 401-05 (1990); Icicle
Seafoods, Inc. v. Washington, 475 U.S.
709 (1986); McCallister v. United States,
348 U.S. 19, 20-22 (1954); Malachinski v.
Commissioner, supra, 268 F.3d at 507-08;
United States v. Frederick, 182 F.3d 496,
499 (7th Cir. 1999); Mars Steel Corp. v.
Continental Bank N.A., 880 F.2d 928, 933
(7th Cir. 1989) (en banc); Houston
Exploration Co. v. Halliburton Energy
Services, Inc., 269 F.3d 528, 531 (5th
Cir. 2001); Ogden v. Commissioner, 244
F.3d 970 (5th Cir. 2001) (per curiam);
Catalina Cruises, Inc. v. Luna, 137 F.3d
1422, 1425 (9th Cir. 1998); contra,
Consolidated Mfg. v. Commissioner, 249
F.3d 1231, 1236 (10th Cir. 2001). The
application of a legal rule or standard
to the particular facts of particular
cases will yield different outcomes from
case to case depending on the facts of
the individual case. So uniformity of
outcome is unattainable; and as divergent
applications of law to fact do not
unsettle the law--doctrine is unaffected-
-a heavy appellate hand in these cases is
unnecessary to assure the law’s clarity
and coherence.

Then too the court that finds the facts
will know them better than the reviewing
court will, and so its application of the
law to the facts is likely to be more
accurate. And in many cases the
determination of a "mixed" question of
fact and law reduces to a series of
purely factual determinations--for
example, in a negligence case, to a
determination of the burden of
precautions, the magnitude of the injury,
the likelihood that the injury would
occur if the defendant failed to take the
precautions, and the relation among these
variables, all of which are factual, and
their relation to each other likewise.
See, e.g., United States v. Halek, 178
F.3d 481, 484 (7th Cir. 1999); Guardian
Life Insurance Co. v. Weisman Associates,
223 F.3d 229, 234 (3d Cir. 2000); United
States v. Carroll Towing Co., 159 F.2d
169, 173 (2d Cir. 1947) (L. Hand, J.).
One might suppose Rule 52(a) all by
itself compelled application of the
clear-error standard to an "ultimate"
finding of fact that was in truth merely
a composite of pure factfindings and thus
not a "mixed" question of fact and law at
all.

Finally, if the ruling under review is
judgmental, managerial, or otherwise
discretionary, rather than being either
legal or factual in character, such as
the choice of a sanction that will be
appropriate in light of the gravity of a
litigant’s or a lawyer’s misconduct,
review is for abuse of discretion, again
and for obvious reasons a deferential
standard. E.g., Cooter & Gell v. Hartmarx
Corp., supra, 496 U.S. at 404; Weibrecht
v. Southern Illinois Transfer, Inc., 241
F.3d 875, 883 (7th Cir. 2000); Kruger v.
Apfel, 214 F.3d 784, 786 (7th Cir. 2000)
(per curiam); Silvestri v. General Motors
Corp., 271 F.3d 583, 590 (4th Cir. 2001);
Webb v. District of Columbia, 146 F.3d
964, 971 (D.C. Cir. 1998).

To summarize, whereas review of rulings
on pure questions of law is plenary,
review of pure factfindings, of
applications of a legal standard to pure
facts, and of judgmental rulings is
deferential. All three of the deference
categories involve case-specific rulings,
which, even if they do not compose a
consistent pattern across similar cases
(the possibility inherent in deferential
appellate review-- deference implying
that the appellate court might well have
affirmed an opposite ruling by the
district court), do not unsettle the law
because the rulings set forth no general
propositions of law.

More than one of the four types of
ruling may be found combined, as this
case illustrates. The judge found that
the plaintiff had lied on the application
for leave to proceed in forma pauperis.
That was a finding of pure fact. But the
judge went on to find that the
plaintiff’s lie was so egregious that the
sanction of dismissal with prejudice was
appropriate. That was a classic
judgmental ruling. Our review of the
first finding is for clear error, and of
the second for abuse of discretion--the
normal standard for appellate review of
sanctions, as we have noted. Both are
deferential standards of review and, as a
practical matter, similar or even
identical in the amount of leeway they
give the district judge. United States v.
Hill, 196 F.3d 806, 808 (7th Cir. 1999);
Cook v. City of Chicago, supra, 192 F.3d
at 696; Johnson v. Trigg, 28 F.3d 639,
643-44 (7th Cir. 1994). As there was no
clear error and no abuse of discretion,
the judgment of the district court is

Affirmed.