NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 25, 2007*
Decided May 15, 2007
By the Court:
No. 06-3628
JOHN J. MILLER, Appeal from the United States
Plaintiff-Appellant, District Court for the Eastern
District of Wisconsin.
v.
No. 05-C-0828
DAVID W. ASBACH, et al.,
Defendants-Appellees. Lynn Adelman,
Judge.
ORDER
John Miller appeals from a grant of summary judgment in favor of several
federal officials he sued after his Chapter 13 bankruptcy case was dismissed. We
affirm.
Miller filed a petition for voluntary bankruptcy in 2004. After he failed to
attend a meeting with his creditors or make payments necessary to fund the plan of
reorganization, Louis Jones, the Chapter 13 Standing Trustee assigned to the case,
moved to dismiss the petition. In the motion, Jones noted that if no objection was
made within 20 days, the court could dismiss the case without a hearing. Miller
says that he did not receive the motion to dismiss because Jones sent it to the
wrong address. Twenty days passed without Miller filing anything, and the
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 06-3628 Page 2
bankruptcy judge dismissed the case. Miller moved for reconsideration, asserting
that he had not received notice of the motion to dismiss. The bankruptcy judge
denied his motion without prejudice to his right to re-file for bankruptcy. David
Asbach—the Assistant United States Trustee appointed to replace Jones, who had
died—issued Miller a check for $950, the total amount he paid under the plan of
reorganization. But Asbach mailed the check to the wrong address. When the
check was returned, he deposited it as unclaimed funds with the bankruptcy court’s
clerk’s office. The bankruptcy judge ordered that the $950 be turned over to the
trustee in a separate bankruptcy proceeding involving Miller, and when that case
was dismissed, the money was returned to Miller.1
Miller brought this suit in federal district court against Jones, Asbach, the
bankruptcy judge, and several other federal officials. The district judge found
Miller’s complaint “very confusing,” but liberally construed it to present tort and
constitutional claims, and then entered summary judgment for the defendants on
grounds that the tort claims were procedurally barred and the defendants were
entitled to immunity on the constitutional claims.
Miller filed a notice of appeal, but then moved to dismiss the appeal as to all
of the defendants except Jones and Asbach. We granted the motion, see Fed. R.
App. P. 42(b), and clarified that Jones, who died before this lawsuit was filed, was
not involved in the appeal.
Miller now challenges the district court’s conclusion that Asbach is entitled to
immunity from his constitutional claims. He argues that Asbach should have
alerted the bankruptcy court to the problem of the mail delivery, and that if he had,
“[t]hey could have saved my estate.” Asbach’s mishandling of the case, he urges,
violated his constitutional due process rights.
The district court properly concluded that Asbach is immune from liability for
Miller’s due-process claim. A claim against Asbach in his official capacity as an
Assistant United States Trustee is actually a claim against the United States over
which we lack subject matter jurisdiction. See Balser v. Dep’t of Justice, Office of
the U.S. Tr., 327 F.3d 903, 907 (9th Cir. 2003); In re Charges of Unprofessional
Conduct Against 99-37 v. Stuart, 249 F.3d 821, 824-25 (8th Cir. 2001). And a claim
against Asbach in his individual capacity is barred because his handling of the
returned check was within the judicial function of his role as Assistant United
States Trustee. See Balser, 327 F.3d at 909-10; Mullis v. U.S. Bankr. Ct. for the
Dist. of Nev., 828 F.2d 1385, 1390-91 (9th Cir. 1987); Ashbrook v. Hoffman, 617 F.2d
474, 476 (7th Cir. 1980). Although Miller plainly blames Asbach (and Jones) for the
1
See April 27, 2007 letter submitted as a supplemental filing on May 9, 2007,
explaining the bankruptcy court’s handling of the returned check.
No. 06-3628 Page 3
events that led to the dismissal of his bankruptcy petition, the proper place for him
to challenge their conduct was in the bankruptcy court, which considered his motion
to reconsider the dismissal and gave him the opportunity to re-file his bankruptcy
petition. The bankruptcy proceeding thus protected Miller’s due process rights, just
as the process is designed to do. See Balser, 327 F.3d at 910-11; Lonneker Farms,
Inc. v. Klobucher, 804 F.2d 1096, 1097 (9th Cir. 1986).
After briefing in this case was complete, Miller filed a “Motion to Object”
asking this court “to give me my money back for the mistakes of the Trustee’s.” For
the same reasons set forth above, this motion is denied.
AFFIRMED.