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Brief of Defendants-Appellees Aetna Inc., Brown Brothers Harriman & Co., Brown & Williamson Tobacco Corporation, Canadian National Railway Company, Csx Corporation, Fleetboston Financial Corporation, Jpmorgan Chase & Co., Lehman Brothers, Inc., Liggett Group Inc., New York Life Insurance Company, Norfolk Southern Railway Company, R.J. Reynolds Tobacco Company, the Society of Lloyd's, Union Pacific Railroad Company and Union Pacific Corporation

United States Court of Appeals, Seventh Circuit.


Deadria Farmer-Paellmann et al., Plaintiffs-Appellants,  v.  Brown & Williamson Tobacco Corp. et al., Defendants-Appellees;

Deadria Farmer-Paellmann, Plaintiff-Appellant,  v.  Brown & Williamson Tobacco Corp. et al., Defendants-Appellees;

Timothy Hurdle et al., Plaintiffs-Appellants,  v.  R.J. Reynolds Tobacco Company et al., Defendants-Appellees.

Nos. 05-3265, 05-3266, 05-3305. June 15, 2006.

Appeal from the United States District Court For the Northern District of Illinois, Eastern Division Case No. 02 C 7764 The Honorable Charles R. Norgle, Sr.

Circuit Rule 26. Disclosure Statements (Omitted)











I. Plaintiffs Lack Standing To Maintain This Action

A. The Complaints Allege No “Concrete and Particularized” Injury to Plaintiffs

1. The Complaints Allege No Injury that Plaintiffs Personally Suffered

2. The Complaints Allege No Injury that Plaintiffs Suffered as Purported “Consumers”

B. The Complaints Allege No Injury “Fairly Traceable” to These Defendants

C. Plaintiffs Have No Standing To Sue for Injuries to Their Ancestors

D. Plaintiffs Impermissibly Seek To Litigate a Generalized Grievance

II. The Statutes of Limitations Bar Plaintiffs' Claims

A. All Plaintiffs' Claims Are Barred by the Statutes of Limitations

B. Equitable Tolling Does Not Salvage Plaintiffs' Claims

III. Plaintiffs Raise Only Non-Justiciable Political Questions

A. The Political Question Doctrine Bars Plaintiffs' Claims, Despite Plaintiffs' Assertion that They Raise Only “Private” Claims

B. All Baker Factors Compel the Application of the Political Question Doctrine

1. First Baker Factor: The Reparations Issue Is Constitutionally and Historically Committed to the Representative Branches

2. Second Baker Factor: There Are No Judicial Standards To Resolve Plaintiffs' Claims

3. The Remaining Baker Factors Similarly Require Dismissal

C. The Political Question Doctrine Applies to Equitable Claims and to Claims Under State Consumer Protection Acts

IV. Plaintiffs Failed To State a Claim Upon Which Relief Can Be Granted

A. Plaintiffs Have Waived Any Argument Concerning the District Court's Dismissal for Failure To State a Claim

B. Plaintiffs Failed To State Claims for the Counts They Now Mention in Passing

V. The District Court Properly Dismissed the Hurdle Complaint and Denied the Hurdle Plaintiffs' Remand Motion









While Plaintiffs' Jurisdictional Statements correctly assert that this Court has jurisdiction, they are not complete and correct. Circuit R. 28(b).

This Court has jurisdiction pursuant to 28 U.S.C. § 1291 from the District Court's July 6, 2005 final judgment. Plaintiffs in Nos. 05-3265, 05-3266, and 05-3305 filed their respective notices of appeal on August 3, 4, and 5, 2005.

The District Court had jurisdiction in all the cases forming appeals 05-3265, 05-3266, and 05-3305 pursuant to 28 U.S.C. §§ 1331 and 1367 because the consolidated and amended complaints in Nos. 05-3265 and 05-3266 asserted claims for relief under 42 U.S.C. § 1982 and various treaties, cf. Bernstein v. Lind-Waldock & Co., 738 F.2d 179, 185 (7th Cir. 1984), and because the complaint in No. 05-3305 asserted claims implicating the federal common law, and the District Court had supplemental jurisdiction over the other claims forming part of the same case or controversy.

The District Court also had jurisdiction in all but one of the cases forming appeals 05-3265, 05-3266, and 05-3305 pursuant to 28 U.S.C. § 1332 because the matters in controversy each exceeded $75,000, exclusive of interests and costs, and were between citizens of different states or subjects of a foreign state. Plaintiffs are citizens of California (C. and T. Hurdle), Illinois (Hurdle-Toomey and Porter), Louisiana (Hill; A.H., A.L., and M. Miller; A., C.W., and I. Wall; C. Wall, Sr. and Jr.), Mississippi (Bankhead), New Jersey (Barber), New York (Carrington, Farmer-Paellman, and Madison), or Texas (Clark, B. McGee, I. McGee, and Wyatt-Kervin). Defendants (other than Brown Brothers Harriman, see Note 2, supra) are citizens or subjects of, or have principal places of business in, Canada (Canadian National), Connecticut (Aetna), Delaware (AIG, Brown & Williamson, FleetBoston, J.P. Morgan Chase, Lehman, Liggett, Loews, Union Pacific and Westpoint), Georgia (Southern Mutual and Westpoint), Florida (CSX), Kentucky (Brown & Williamson), Massachusetts (FleetBoston), Nebraska (Union Pacific), New York (AIG, JPMorgan Chase, Lehman, Loews, and N.Y. Life), North Carolina (Liggett and R.J. Reynolds), the United Kingdom (Lloyd's), Utah (Union Pacific), or Virginia (CSX and Norfolk Southern).

No New York Plaintiff sued any New York Defendant. Cases involving New York Plaintiffs suing non-New York Defendants, and cases involving non-New York Plaintiffs suing New York Defendants, were among those consolidated for pretrial proceedings after transfer by the Judicial Panel on Multidistrict Litigation. Such consolidation does not destroy diversity jurisdiction. See, e.g., Cella v. Togum Constructeur Ensemleier en Industrie Alimentaire, 173 F.3d 909, 912-13 (3d Cir. 1999). Moreover, the effort of Chester and Timothy Hurdle, Plaintiffs in No. 05-3305, to add a California entity, AFSA Data Corp., as a diversity-destroying Defendant in their First Amended Complaint was ineffective because they never obtained court approval for the joinder as required by 28 U.S.C. § 1447(e).



1. Whether Plaintiffs, who allege no concrete injury to themselves and no connection between themselves (or their ancestors) and Defendants, have standing to pursue claims arising from the institution of slavery.

2. Whether the District Court's decision not to toll statutes of limitations on equitable grounds was an abuse of discretion.

3. Whether Plaintiffs present only non-justiciable political questions, when slavery reparations have been resolved exclusively by Congress and the President for more than a century, and there are no judicially manageable standards to resolve Plaintiffs' claims.

4. Whether Plaintiffs' appeals fail in any event because Plaintiffs have not challenged the District Court's dismissal of their complaints on the independent ground of failure to state a claim.

5. Whether Plaintiffs in No. 05-3305 are entitled to proceed, notwithstanding the deficiencies in their action, because the District Court allegedly failed to recognize their counsel during a hearing, or denied as moot their motion to remand.



The Judicial Panel on Multidistrict Litigation transferred the underlying lawsuits, which seek reparations for slavery, to the United States District Court for the Northern District of Illinois for coordinated pretrial proceedings.

The District Court ordered Plaintiffs to file a single consolidated complaint, and all Plaintiffs but those in No. 05-3305 (the “Hurdle Plaintiffs”) complied with the District Court's order. After review, the District Court dismissed that consolidated complaint, along with the Hurdle Plaintiffs' Complaint (“the Hurdle Complaint”), without prejudice. See Jan. 26, 2004 Order [Hurdle App. 1-75]; Feb. 9, 2004 Hearing Tr. 12-15 [Hurdle App. 102-05]. Because the District Court had dismissed the Hurdle Complaint on multiple grounds, it denied as moot the Hurdle Plaintiffs' pending motion to remand.

The District Court then directed all Plaintiffs (including the Hurdle Plaintiffs) to file a single, consolidated amended complaint before April 5, 2004. All Plaintiffs but the Hurdle Plaintiffs complied with the District Court's directive by filing their Second Consolidated and Amended Complaint (“the Complaint”).

After review, the District Court on July 6, 2005, entered an Opinion and Order finally dismissing with prejudice all complaints. See Final Order [Appendix of Plaintiffs-Appellants in Appeal Nos. 05-3265 and 05-3266 (“App.”) 1]. Plaintiffs appeal portions of the District Court's Final Order.



Because Plaintiffs are appealing from the District Court's dismissal of their Complaints, the allegations of the Complaints constitute the relevant “facts” for these appeals. Cf. Jan. 26, 2004 Order 10-20 [Hurdle App. 10-20] (summarizing allegations); Final Order 22-33 [App. 22-33] (same).



The practice of slavery marked a deplorable period in our nation's history. As the District Court correctly found, however, grievances arising from that period cannot be heard in 2006 in a court of law. This is so for numerous reasons, each of which provides an independent basis for affirmance.

First, Plaintiffs fall far short of meeting both constitutional and prudential standing requirements. Without alleging any connection between themselves and Defendants, Plaintiffs seek redress for events between 1619 and 1865, involving not themselves but their ancestors, and for post-emancipation slavery through the 1930s. Plaintiffs do not allege that they personally suffered any injury that is fairly traceable to any Defendant. Rather, they seek - in direct contravention of the law of standing - to assert a generalized, class-based grievance.

Second, each claim has been time-barred for many decades. Plaintiffs' allegations do not support equitable tolling of the statutes of limitations.

Third, Plaintiffs present only non-justiciable political questions. During and immediately after the Civil War, and up to the present, the subject of redress to former slaves has been handled exclusively by Congress and the President. Given this history, there is no question that the issue of slavery reparations is constitutionally committed to the political branches of the federal government. Moreover, because Plaintiffs' allegations are so sweeping, the connections between the parties so tenuous, and the events in question so remote, there are no judicially discoverable and manageable standards for the Court to apply in addressing these claims. Courts, therefore, consistently have declined to address reparations for former slaves through litigation.

Fourth, Plaintiffs failed to state a claim upon which relief could be granted. Plaintiffs do not challenge on appeal the District Court's dismissal of their Complaints on this ground. This concession requires affirmance of the District Court's decision.



Plaintiffs' Briefs do not provide a complete and accurate statement of the standard of review. Although this Court reviews de novo most aspects of the District Court's grant of a motion to dismiss, as well as the District Court's denial of a motion to remand, the Court reviews under a clearly erroneous standard the District Court's denial of equitable relief. See Bensman v. United States Forest Serv., 408 F.3d 945, 964 (7th Cir. 2005); Montenegro v. United States, 248 F.3d 585, 594 (7th Cir. 2001), overruled on other grounds by Ashley v. United States, 266 F.3d 671 (7th Cir. 2001). Moreover, the Court reviews allegations of judicial misconduct under an abuse of discretion standard. See, e.g., United States v. Murzyn, 631 F.2d 525, 533 (7th Cir. 1980) (finding the district court acted “within its discretion” after reviewing “the long list of alleged examples of misconduct”); United States v. Laurins, 857 F.2d 529, 537 (9th Cir. 1988).


I. Plaintiffs Lack Standing To Maintain This Action.

The burden to establish standing rests with Plaintiffs. See Perry v. Vill. of Arlington Heights, 186 F.3d 826, 829 (7th Cir. 1999). Like other courts that have considered this issue, the District Court correctly held that descendants of enslaved African Americans lack standing to sue for the historical wrongs of slavery.

The “irreducible constitutional minimum of standing” requires injury in fact, causation, and redressability. Perry, 186 F.3d at 829 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). In addition to these constitutional requirements, the “[s]tanding doctrine embraces several judicially self-imposed limits on the exercise of federal jurisdiction, such as the general prohibition on a litigant's raising another person's legal rights, [and] the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches.” Allen v. Wright, 468 U.S. 737, 751 (1984). Plaintiffs assert that, because their claims are equitable in nature, a flexible approach to standing is somehow appropriate. See Pl. Br. 13. However, standing requirements for equitable claims are no less exacting than for claims at law. See City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983); Sierakowski v. Ryan, 223 F.3d 440, 442-43 (7th Cir. 2000).

The Complaints fall far short of satisfying these standing requirements. As the District Court held, they are “totally devoid of allegations of concrete, specific, ascertainable injury to the Plaintiffs or corresponding conduct committed by Defendants,” Final Order 82 [App. 82]; see also Jan. 26, 2004 Order 57 [Hurdle App. 57], and thus fail the first two elements required under Article III. Further, they impermissibly attempt to assert the legal rights of absent third parties (Plaintiffs' ancestors) and to litigate a “generalized grievance” in violation of prudential limitations on standing. See Final Order 52-54 [App. 52-54]; Jan. 26, 2004 Order 35-37 [Hurdle App. 35-37]. Plaintiffs offer no basis for this Court to reach a different conclusion.

A. The Complaints Allege No “Concrete and Particularized” Injury to Plaintiffs.

The most basic requirement for access to the courts, often described as “injury in fact,” requires a plaintiff to “show that he personally has suffered some actual or threatened injury,” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (quotation omitted), that is “concrete and particularized” and “not conjectural or hypothetical,” Plotkin v. Ryan, 239 F.3d 882, 885-86 (7th Cir. 2001). The Complaints do not satisfy this fundamental requirement.

1. The Complaints Allege No Injury that Plaintiffs Personally Suffered.

The Complaints focus on conditions generally applicable to all African Americans. See, e.g., Compl. ¶ 114 (African Americans suffer “daily indignities from the legacy of slavery”); Hurdle Compl. ¶ 29 (African Americans “lag behind whites according to every social yardstick”). They do not allege concrete personal injuries to each of the named Plaintiffs. The District Court concluded that exposure to general social and economic inequities is not an “injury in fact” under Article III. See Final Order 45-46 [App. 45-46]; Jan. 26, 2004 Order 28-29 [Hurdle App. 28-29]; see also Cato v. United States, 70 F.3d 1103, 1109-10 (9th Cir. 1995) (same); Bell v. United States, No. Civ. A. 301CV0338D, 2001 WL 1041792, at (N.D. Tex. Aug. 31, 2001); Langley v. United States, No. C 95-4227 SBA, 1995 WL 714378, at (N.D. Cal. Nov. 30, 1995); Mahone v. United States, No. C-94-1337 DLJ, 1994 WL 225095, at (N.D. Cal. May 9, 1994). Plaintiffs do not challenge this conclusion.

The non-Hurdle Plaintiffs argue that, as descendants of enslaved African Americans, they have suffered one supposedly concrete injury for standing purposes - denial of “the ability to inherit the lost wages and earnings” of their ancestors. Pl. Br. 15. However, their Complaint offers no facts that support this assertion. For example, the Complaint alleges that Plaintiff Hanna Hurdle-Toomey's father was enslaved from approximately 1855 to 1861 when he was between ten and sixteen years old. See Compl. ¶¶ 78-82. Thereafter, he lived the remaining seventy-four years of his life as a free man until his death in 1935 at the age of ninety. See id. The Complaint says nothing about what assets (if any) Hurdle-Toomey's father had at the time of his death, how such assets were distributed (e.g., will, intestacy), or whether Hurdle-Toomey was a beneficiary of her father's estate. Plaintiffs' allegations of “lost inheritance” are thus nothing more than “conclusory allegations unsupported by any factual assertions [that] will not withstand a motion to dismiss.” Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981), aff'd, 460 U.S. 325 (1983); see also Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429, 432 (7th Cir. 1978) (The Court “is not required to accept legal conclusions that may be alleged or that may be drawn from the pleaded facts.”).

Moreover, “[m]ere speculation is not enough to establish an injury in fact.” Wis. Right to Life, Inc. v. Schober, 366 F.3d 485, 489 (7th Cir. 2004). The District Court accurately characterized Plaintiffs' claims of lost inheritance as “conjectural” and “speculat[ive].” Final Order 44 [App. 44]; Jan. 26, 2004 Order 27 [Hurdle App. 27]. Indeed, this supposed injury is based on the assumptions that Plaintiffs' ancestors, if not enslaved prior to Emancipation in 1865, would have (i) accumulated assets during this period, (ii) which they would not have used or disposed of during their lifetimes, (iii) which upon their deaths would have passed on to their descendants rather than others, and (iv) which would have been preserved (often through several generations of descendants) and ultimately passed into the hands of these particular Plaintiffs. Plaintiffs' claims of lost inheritance thus waft “into the area of speculation and conjecture” beyond the bounds of Article III jurisdiction. Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (quoting O'Shea v. Littleton, 414 U.S. 488, 497 (1974)). Indeed, even a potential heir's interest in the existing assets of a living ancestor is considered a “bare expectancy” that is “of no legal significance.” See In re Va. Elec. & Power Co., 539 F.2d 357, 367 (4th Cir. 1976). Plaintiffs' “interest” in unidentifiable assets that their ancestors may or may not have possessed can be no greater than a bare expectancy and cannot confer standing.

Plaintiffs urge that the threshold standing requirements are “exceedingly low,” Pl. Br. 20, and cite cases they say show that many different types and magnitudes of injury can confer standing. See Pl. Br. 14-17. In the cases cited by Plaintiffs, however, the litigants - unlike Plaintiffs here - pleaded facts, not just conclusions, establishing that they had suffered concrete and particularized legally cognizable injuries. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 440 (1972) (healthcare provider convicted under criminal statute being challenged as unconstitutional); Griswold v. Connecticut, 381 U.S. 479, 480-81 (1965) (same); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 280 n.14 (1978) (student denied opportunity to compete for all 100 places in medical school class and denied admission); Rosner v. United States, 231 F. Supp. 2d 1202, 1203-04 (S.D. Fla. 2002) (plaintiffs' own personal property seized; plaintiffs' standing not challenged or discussed). In Japan Whaling Association v. American Cetacean Society, 478 U.S. 221 (1986), which Plaintiffs repeatedly cite, plaintiff association's “injury in fact” was not even challenged, as it had “undoubtedly” alleged facts demonstrating that its members would be specifically and perceptibly harmed by the challenged agency action. Id. at 230 n.4. These cases demonstrate that Plaintiffs must assert facts - not conclusory allegations - that they personally have suffered a concrete injury - not a hypothetical or speculative one - of some type or magnitude. The Complaints fail to do so.

2. The Complaints Allege No Injury that Plaintiffs Suffered as Purported “Consumers.”

Similarly, Plaintiffs fail to allege that they have suffered a concrete personal injury as “consumers.” Plaintiffs contend that they “have been denied accurate information as to defendants' past involvement in slave trading, financing, insuring, and employment,” Pl. Br. 15; see also Hurdle Compl. ¶¶ 72-73. But they fail “to allege that Defendants have any cognizable duty to reveal any such information,” Final Order 49 [App. 49]; see also Jan. 26, 2004 Order 32 [Hurdle App. 32], or that Plaintiffs have “any concomitant right to obtain such information,” Final Order 49 [App. 49]. Just last year, this Court reiterated that informational deprivations of the type claimed by Plaintiffs are insufficient to constitute “injuries in fact” unless disclosure of the information at issue is required by federal statute (or possibly by federal regulation or policy of a federal agency). See Bensman, 408 F.3d at 955-60 (agency's denial of information did not create injury in fact sufficient to confer standing). Plaintiffs thus fail to allege a concrete and particularized “informational injury” for Article III purposes. See id.

Further, as the District Court held, Plaintiffs' allegations of “intentional misrepresentations” by Defendants are nothing more than “unsupported conclusions wrapped in legally significant terms” that are insufficient to create standing. Final Order 49-50 [App. 49-50]; see also Jan. 26, 2004 Order 32 [Hurdle App. 32]; Briscoe, 663 F.2d at 723; Mitchell, 573 F.2d at 432.

Finally, the additional argument, see Pl. Br. 16, Hurdle Br. 13, 19, that certain state consumer protection statutes allow Plaintiffs to maintain this federal court action without alleging an injury to themselves is unavailing. See Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1021-22 (9th Cir. 2004) (California's consumer protection statute does not alter the standing requirements in federal court); Rifkin v. Bear Stearns & Co., 248 F.3d 628, 631-32 (7th Cir. 2001) (state legislatures may not expand the jurisdiction of federal district courts); see also Avery v. State Farm Mut. Auto. Ins. Co., 835 N.E.2d 801, 858-59 (Ill. 2005) (plaintiff bringing Illinois consumer fraud act claim must plead and prove “actual damage”).

In sum, the District Court correctly concluded that the “injuries alleged in Plaintiffs' status as consumers of Defendants do not establish a legally cognizable injury.” Final Order 49 [App. 49]; Jan. 26, 2004 Order 32 [Hurdle App. 32].

B. The Complaints Allege No Injury “Fairly Traceable” to These Defendants.

The Complaints also fail to demonstrate the second requirement of Article III standing - that Plaintiffs' alleged injury “can be fairly traced to the challenged action of the defendant and not from the independent action of some third party not before the court.” Perry, 186 F.3d at 829 (citing Lujan, 504 U.S. at 560-61). Plaintiffs “fail to allege any conduct by the ... specifically named Defendants that individually affected any of the Plaintiffs,” Final Order 51 [App. 51]; Jan. 26, 2004 Order 34 [Hurdle App. 34], or “any of the Plaintiffs' ancestors,” Final Order 44 [App. 44]; Jan. 26, 2004 Order 28 [Hurdle App. 28], although they demand disgorgement from these present-day companies. See Pl. Br. 11-12; Hurdle Br. 3. The Complaints were properly dismissed on this independent basis.

Plaintiffs' only response to this standing defect is a complaint that the District Court applied too stringent a test. See Pl. Br. 18-19. But the District Court's Order recites and correctly applies the well-settled “fairly traceable” standard, see Final Order 44-45, 51 [App. 44-45, 51], ruling that Plaintiffs' allegations are wholly deficient:

The allegations of Plaintiffs' [Complaint] do not link these Defendants to the alleged harm. Plaintiffs fail to allege any facts in their Complaint that directly link the specifically named Defendants to the alleged injuries suffered by the Plaintiffs; nor does the Plaintiffs' Complaint allege a direct connection between any of the named Defendants and any of the Plaintiffs' ancestors.

Final Order 44 [App. 44].

Equally unavailing is Plaintiffs' response that “defendants' unjust enrichment is [] ‘causally connected’ and ‘fairly traceable’ to the factual predicates of the complaint.” Pl. Br. 19 (emphasis added). That argument, of course, does not satisfy the requirement of an injury fairly traceable “to the challenged action of the defendant.” Wis. Right to Life, 366 F.3d at 489 (emphasis added) (quotation omitted). Further, the Hurdle Plaintiffs' suggestion that, “[w]ith discovery and sufficient resources, plaintiffs and non- plaintiffs can demonstrate their injury by these defendants,” Hurdle Br. 16, is likewise inadequate. Standing is a threshold requirement for justiciability. See Wolf v. Fed. Rep. of Germany, 95 F.3d 536, 544 (7th Cir. 1996).

Plaintiffs' consumer protection claims also fail this second prong of Article III. Nineteen of the twenty-one Plaintiffs do not even make a bare allegation that they are “consumers” of any named Defendant. The Complaint's vague assertion that “[s]ome or all the Plaintiffs are presently consumers of defendants,” Compl. ¶ 103, is belied by the fact that, although the Complaint alleges that two Plaintiffs had a relationship with two Defendants, neither of those Plaintiffs sued the Defendant with which they claim to have done business.

Plaintiffs therefore argue that this Court should create an exception to the “traditional test” by easing the “fairly traceable” element of Article III standing. See Pl. Br. 19. Plaintiffs note that some state courts have relaxed the causation requirement in certain tort contexts. See id. (citing, e.g., Summers v. Tice, 33 Cal. 2d 80, 86-88 (1948)); see also Hurdle Br. 17 (“the Hurdles complaint requested the court to apply mass tort theories”). But, as the Supreme Court responded in rejecting a similar plea:

The short answer to this suggestion is that the requirement of an Art. III “case or controversy” is not merely a traditional “rule of practice,” but rather is imposed directly by the Constitution. It is not for this Court to employ untethered notions of what might be good public policy to expand our jurisdiction in an appealing case.

Whitmore, 495 U.S. at 161. Just as prior plaintiffs seeking slavery reparations have failed to meet the “fairly traceable” prong of Article III, see, e.g., Cato, 70 F.3d at 1110; Bey v. U.S. Dep't of Justice, No. 95 CIV. 10401, 1996 WL 413684, at (S.D.N.Y July 24, 1996); Hamilton v. United States, No. C-94-1540-CAL, 1994 WL 412433, at (N.D. Cal. Aug. 1, 1994), Plaintiffs here likewise cannot meet this requirement.

C. Plaintiffs Have No Standing To Sue for Injuries to Their Ancestors.

A few named Plaintiffs seek to litigate alleged injuries to their ancestors. See Compl. ¶¶ 81, 83; Hurdle Compl. ¶ 67. The District Court correctly held that constitutional and prudential standing limitations - as well as state law prohibitions - also foreclose these third-party claims. See Final Order 53 [App. 53]; Jan. 26, 2004 Order 35-36 [Hurdle App. 35-36].

Although these Plaintiffs seek to stand in the shoes of their ancestors, as discussed supra, their Complaints fail to allege any “direct connection between any of the named Defendants and any of the Plaintiffs' ancestors.” Final Order 44 [App. 44]; see also Jan. 26, 2004 Order 28 [Hurdle App. 28]. The Complaints thus fail to establish that these Plaintiffs' ancestors would have had standing to sue any named Defendant. Because Plaintiffs' ancestors could not have sued these Defendants directly, there can be no third-party suit on their behalf.

In any event, prudential standing limitations and state-law prohibitions would preclude Plaintiffs from litigating the claims of their now-deceased ancestors. As discussed supra, these Plaintiffs have not suffered an injury in fact themselves. The absence of a cognizable injury to these Plaintiffs precludes them from asserting the rights of their ancestors. See Massey v. Helman, 196 F.3d 727, 739-40 (7th Cir. 2000). Moreover, the well-established rule in Illinois (and elsewhere) is that “the executor or administrator of a decedent's estate has standing to file suit on behalf of the decedent, but the legatees, heirs, and devisees have no such standing.”McGill v. Lazzaro, 416 N.E.2d 29, 31 (Ill. App. Ct. 1980) (affirming dismissal of action brought by decedent's children for lack of standing). None of the Plaintiffs alleges such a relationship. Although two Plaintiffs alleged that they are seeking to become administrators of their ancestors' estates, see Compl. ¶¶ 81, 83, they do not currently possess standing to pursue their ancestors' claims. See Perry, 186 F.3d at 830 (standing “must exist at the commencement of the suit”). Accordingly, these Plaintiffs have no third-party standing to maintain this action on behalf of their ancestors. Patterson v. United States, No. C. 95-4146 SBA, 1995 WL 714372, at n.4 (N.D. Cal. Nov. 30, 1995) (alleged slave descendant “lacks standing to assert constitutional deprivations suffered by his ancestors”).

D. Plaintiffs Impermissibly Seek To Litigate a Generalized Grievance.

Plaintiffs plead grievances that could be voiced by any African American. This contravenes the prudential rule barring adjudication of “generalized grievances.” SeeValley Forge, 454 U.S. at 475. The essence of Plaintiffs' dispute - that African Americans “lag behind whites according to every social yardstick: literacy, life expectancy, income and education,” Hurdle Compl. ¶ 29 - is precisely the type of “abstract question[] of wide public significance” that should be left to the political branches. Valley Forge, 454 U.S. at 475; see also § I.A.1, supra (no personal injury); § III, infra (political question doctrine). The Complaints were properly dismissed on this basis as well. See Final Order 54 [App. 54]; Jan. 26, 2004 Order 36-37 [Hurdle App. 36-37]; see also Cato, 70 F.3d at 1109-10; Mahone, 1994 WL 225095, at


II. The Statutes of Limitations Bar Plaintiffs' Claims.

A. All Plaintiffs' Claims Are Barred by the Statutes of Limitations.

The District Court correctly concluded that the Complaint fails for the additional and independent reason that all the claims are time-barred. Plaintiffs' claims arise out of the institution of slavery, which Plaintiffs acknowledge ended in 1865. See, e.g., Compl. ¶ 5 (millions enslaved from 1619 to 1865). Plaintiffs' claims accrued, in almost all cases, by 1865. Therefore these claims, which are at a minimum decades old, see id. ¶ 92 (Cain Wall, Sr., alleging that he was “enslaved through 1960's”), and in most cases more than a century old, see id. ¶ 5, are barred by the statutes of limitations in every jurisdiction.

The District Court's decision is not novel. Many complaints seeking reparations have been dismissed on limitations grounds. See, e.g., Deutsch v. Turner Corp., 317 F.3d 1005, 1028-29 (9th Cir.) (World War II reparations claim barred by statute of limitations), amended by 324 F.3d 692 (9th Cir. 2003); Hair v. United States, 52 Fed. Cl. 279, 282 (2002) (same); Hohri v. United States, 847 F.2d 779 (Fed. Cir. 1988) (same), aff'd, 350 F.3d 1253 (Fed. Cir. 2003); Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 469 (D.N.J. 1999) (same); Sampson v. Fed. Rep. of Germany, 975 F. Supp. 1108, 1122 (N.D. Ill. 1997) (same), aff'd, 250 F.3d 1145 (7th Cir. 2001); Cato v. United States, No. C94-01228CW, 1994 U.S. Dist. LEXIS 7908 (N.D. Cal. June 7, 1994) (slavery reparations complaint time-barred), aff'd on alternative grounds, 70 F.3d 1103, 1107-08 n.6 (9th Cir. 1995). The same result should be affirmed here.

B. Equitable Tolling Does Not Salvage Plaintiffs' Claims.

Because the statutes of limitations on Plaintiffs' claims expired decades ago, Plaintiffs try to invoke the doctrine of equitable tolling to save their claims. Equitable tolling “permits a plaintiff to sue after the statute of limitations has expired if through no fault or lack of diligence on his part he was unable to sue before, even though the defendant took no active steps to prevent him from suing.” Singletary v. Cont'l Ill. Nat'l Bank & Trust Co. of Chicago, 9 F.3d 1236, 1241 (7th Cir. 1993) (citing Heck v. Humphrey, 997 F.2d 355, 357 (7th Cir. 1993), aff'd, 512 U.S. 477 (1994); Smith v. City of Chicago Heights, 951 F.2d 834, 839-40 (7th Cir. 1992); Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990)). To invoke this doctrine, a plaintiff must show that, despite the exercise of reasonable diligence, the essential information “necessary to decide whether the injury is due to wrongdoing and, if so, wrongdoing by the defendant” could not be obtained. Smith, 951 F.2d at 839; see Cada, 920 F.2d at 450. Equitable tolling must be applied cautiously and sparingly. Ciers, 675 N.E.2d at 214; United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000).

Plaintiffs first argue that equitable tolling should apply because their ancestors were denied “effective access to the courts during the decades following the Civil War and through the holding in Brown v. Board of Education [347 U.S. 483 (1954)].” Pl. Br. 31. In other words, Plaintiffs argue that a lack of access to the courts in the ninety-year span from the end of the Civil War and before Brown in 1954 should require tolling of the statutes of limitations for yet another fifty years after Brown - or more than eight times the longest statute of limitations on any claim. See Final Order 87-88 [App. 87-88].

Plaintiffs' argument fails. Most fundamentally, Plaintiffs have not alleged that any Plaintiff, or any Plaintiffs ancestor, was denied access to any particular court. Instead, Plaintiffs argue that the District Court's “assumption that the freed slaves were invested with the power to seek judicial redress appears to rest on the strength of a single case, Johnson v. McAdoo, 45 App. D.C. 440, 441 (D.C. 1916).” Pl. Br. 25. They then argue that McAdoo was a “failed singularity,” id. at 26, intimating that no one since has tried to bring a slavery reparations suit. This simply is not true. Other such suits have been brought since McAdoo, and all have been dismissed on statutes of limitations or other grounds. See, e.g., Bey v. United States, No. 02-705 (W.D. Pa. Oct. 31, 2002) (report and recommendation), adopted No. 02-705 (W.D. Pa. Dec. 19, 2002) (memorandum order); Berry v. United States, No. C-94-0796-DLJ, 1994 WL 374537 (N.D. Cal. July 1, 1994); Cato, 1994 U.S. Dist. LEXIS 7908; Powell v. United States, No. C 94-01877 CW, 1994 U.S. Dist. LEXIS 8628 (N.D. Cal. June 20, 1994); Lewis v. United States, No. C 94-01380 CW, 1994 U.S. Dist. LEXIS 7868 (N.D. Cal. June 7, 1994); Lloyd v. United States, No. C 94-01192 CW, 1994 U.S. Dist. LEXIS 7869 (N.D. Cal. June 7, 1994); Jackson v. United States, No. C 94-01494, 1994 U.S. Dist. LEXIS 7872 (N.D. Cal. June 7, 1994).

Cases in which courts applied equitable tolling, moreover, can be easily distinguished. For example, in Rosner v. United States, 231 F. Supp. 2d 1202 (S.D. Fla. 2002), upon which Plaintiffs rely, the court applied equitable tolling because the government induced the plaintiffs in that suit, who repeatedly requested information from the government, into allowing the filing deadline to pass by claiming that the stolen property at issue in the case was unidentifiable and unreturnable. Id. at 1209. Here, Plaintiffs have not alleged that Defendants engaged in any similar misconduct.

Plaintiffs also assert that equitable tolling should apply because, even though they were aware of their ancestors' enslavement, they only recently obtained information about “who were those responsible for and unjustly enriched by [their ancestors'] enslavement.” Pl. Br. 33. But Plaintiffs do not explain how their lack of this historical information caused them to delay seeking redress in court or why this information still does not appear in their Complaints. Instead Plaintiffs' Complaint vaguely states that “despite efforts [nowhere described], the plaintiffs have been unable to secure records from a number of defendants.” Compl. ¶ 253. As this Court has succinctly observed, “[v]ictims of wrongful acts who want to extend a statute of limitations against defendants who have not actively tried to delay being sued must show that they acted as expeditiously as was feasible in the circumstances.” Singletary, 9 F.3d at 1244.

Here, Plaintiffs have not even attempted to allege that they acted diligently. Plaintiffs have not described any efforts whatsoever taken during the 1950s, 1960s, 1970s, 1980s, or 1990s to learn this allegedly necessary information. Equitable tolling simply cannot excuse Plaintiffs' delay. See Fid. Nat'l Title Ins. Co. of N.Y., 436 F.3d at 839 (noting that an extension based on equitable tolling “is limited to the time necessary to find such additional information as the plaintiff absolutely needs in order to be able to file a suit”).

Plaintiffs seek to compel Defendants to defend a suit based on events that occurred more than 140 years ago. Given the prejudice from this delay, laches alone would bar Plaintiffs' claims. See Sundance Homes Inc. v. County of DuPage, 746 N.E.2d 254, 262 (Ill. 2001). The difficulty in reconstructing relevant information more than a century after the events at issue is a fundamental reason for enforcing statutes of limitations, not a justification for ignoring them. See Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314 (1945) (Statutes of limitations are “practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost.”).

In sum, Plaintiffs' conclusory allegations offer no basis for tolling the statutes of limitations. If cognizable claims ever existed, they expired long ago.


III. Plaintiffs Raise Only Non-Justiciable Political Questions.

A. The Political Question Doctrine Bars Plaintiffs' Claims, Despite Plaintiffs' Assertion that They Raise Only “Private” Claims.

The District Court's conclusion that Plaintiffs present non-justiciable political questions was both correct and entirely consistent with a long line of federal precedent developed in other reparations cases. See, e.g., Alperin v. Vatican Bank, 410 F.3d 532, 562 n.20 (9th Cir. 2005) (dismissing a World War II slavery reparations claim for political question considerations and citing In re African-American Slave Descendants Litig., 304 F. Supp. 2d 1027, 1056-63 (N.D. Ill. 2004)), cert. denied, 126 S. Ct. 1141 & 1160 (2006); Cato v. United States, 70 F.3d 1103 (9th Cir. 1995) (dismissing slavery reparations claims); Anderman v. Fed. Rep. of Austria, 256 F. Supp. 2d 1098, 1113-15 (C.D. Cal. 2003); Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424 (D.N.J. 1999) (dismissing restitution, unjust enrichment, and quantum meruit claims for slave labor); Burger-Fischer v. Degussa AG, 65 F. Supp. 2d 248, 281-82 (D.N.J. 1999) (same).

It is settled that the applicability of the political question doctrine turns on the nature of the claims asserted, not the identity of the litigants. See Renne v. Geary, 501 U.S. 312, 316 (1991); United States v. Munoz-Flores, 495 U.S. 385, 393-94 (1990). Thus, the claims here are not immunized against dismissal on political question grounds simply because Plaintiffs characterize them as “private.” Final Order 57 [App. 57]. See also Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1918); Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of Petroleum Laden Aboard Tanker Dauntless Colocotronis, 577 F.2d 1196, 1201-02 (5th Cir. 1978). However described, these claims demand restitution for the enslavement of Plaintiffs' alleged ancestors pursuant to what were then recognized public laws and policies. The District Court correctly determined that this is not a justiciable question. Final Order 61 [App. 61].

The political question doctrine is rooted in the separation of powers set out in Article II of the Constitution. In cases stretching even further back than Marbury, the Supreme Court consistently has re-confirmed that certain political choices or policy decisions are committed to Congress or the Executive, rather than to the Judiciary. See, e.g., Munoz-Flores, 495 U.S. at 396; Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230 (1986); Allen v. Wright, 468 U.S. 737, 750 (1984); Baker v. Carr, 369 U.S. 186, 209 (1962); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 169-70 (1803); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 259-60 (1796).

Plaintiffs do not (and cannot) dispute what is established law. Rather, they seek to evade precedent by arguing about terminology. Plaintiffs' use of the terms “disgorgement” and “restitution,” rather than “reparations,” however, does not affect the outcome. As the District Court noted, “courts have consistently held that claims seeking restitution for forced labor are claims for reparations” implicating the political question doctrine. Final Order 59-60 [App. 59-60].

B. All Baker Factors Compel the Application of the Political Question Doctrine.

Plaintiffs further argue that their claims are not political questions merely because they arise in a “politically charged context.” Pl. Br. 48. The District Court, however, expressly recognized that the political question doctrine does not arise simply because an issue has “political implications” or “significant political overtones.” Final Order 55-56 [App. 55-56]. It dismissed Plaintiffs' claims after correctly applying the political question doctrine as elaborated in Baker v. Carr, 369 U.S. at 217, and later case law. Baker identified six factors, the presence of any of which independently supports a conclusion that a non-justiciable political question was at issue. All six Baker factors were implicated here, and Plaintiffs' Complaints thus raise only political questions, not justiciable questions.

1. First Baker Factor: The Reparations Issue Is Constitutionally and Historically Committed to the Representative Branches.

The District Court concluded that the complex and wrenching policy decisions setting the terms under which the Civil War was concluded and a lasting Union secured (which explicitly included what to do about redress to former slaves) were committed to, and actually addressed by, the political branches as a matter of constitutional design and historical fact, thus implicating the first and arguably most significant of the Baker factors. Final Order 56 [App. 56] (citing Vieth v. Jubelirer, 541 U.S. 267, 278 (2004)). The subject of reparations to former slaves was constitutionally committed to these branches as part of their power to make war and to set the conditions of peace, including the settling of any property, reparations, or amnesty claims. See Final Order 68 [App. 68] (“It was the President and Congress who prosecuted the military and political aspects of the Civil War, ultimately leading to the conclusion of the war.”); Baker, 369 U.S. at 211-14. Such war powers “are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.” Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952).

The District Court carefully reviewed the historical record of the Legislative and Executive Branches' consideration of reparations at the end of Civil War, Final Order 62-68 [App. 62-68], and concluded that:

In this case, there is a strong historical record indicating that the relief sought, reparations to former slaves following the Civil War, was considered and rejected by the Representative Branches in lieu of other forms of relief. This relief came in many forms, including wartime and post-war legislation, civil rights legislation, and constitutional amendments - all intended to ensure the liberty of the newly freed slaves and benefit them generally.


In conclusion, based on the historical record presented here, it is clear that both during and after the Civil War the issue of reparations to former slaves was one committed to the Representative Branches of the federal government. It was the President and Congress who prosecuted the military and political aspects of the Civil War, ultimately leading to the conclusion of the war. With a goal of preserving the Union and securing an acceptable and lasting peace, it again was the President and Congress who chose to amend the Constitution and enact civil rights legislation in an effort to provide legal equality to the newly freed slaves. Although the Representative Branches decided to take this particular course of conduct in lieu of providing reparations to former slaves, the historical record clearly demonstrates that the Constitution commits this decision to the Representative Branches.

Final Order 62, 68 [App. 62, 68]. The Supreme Court has specifically acknowledged the relevance of history to the political question doctrine. Baker, 369 U.S. at 211-12; see also Made in the USA Found. v. United States, 242 F.3d 1300, 1311 n.27 (11th Cir. 2001).

Plaintiffs offered nothing below or to this Court to contradict the uncontroverted historical record. Rather, Plaintiffs quibble with its implications by contending that the failure to offer slave reparations somehow shows that this issue was not committed to the Executive and Legislative Branches. To the contrary, the Legislative and Executive Branches expressly and affirmatively decided not to provide slave reparations and relied instead on other remedial measures. Congress and the President deliberately rejected reparations and instead adopted the Freedman Bureau Acts, the Reconstruction Acts, and the Reconstruction-era constitutional amendments for the benefit of freed slaves and the Union. Final Order 62-68 [App. 62-68] (and authorities cited therein).

The political question doctrine specifically precludes courts from second-guessing those policy judgments to eschew slavery reparations. See Cato, 70 F.3d at 1110 (affirming dismissal of slavery reparations claims “to prevent judicial second guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort”) (internal quotations omitted) (quoting Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987)); Lowry v. Reagan, 676 F. Supp. 333, 338 (D.D.C. 1987) (citing Riegle v. Fed. Open Mkt. Comm., 656 F.2d 873, 881 (D.C. Cir. 1981)). The District Court correctly attributed finality to those past legislative decisions, stating that “[i]t is not the province of this Court to say that more could have been done in the past, as such questions are in the nature of political questions committed to the Representative Branches.” Final Order 68 [App. 68].

The judiciary has wisely and consistently refused to accept repeated invitations to inject itself into the decisions made in ending the Civil War and compensating and protecting former slaves. See Georgia v. Stanton, 73 U.S. (6 Wall.) 50, 54-55, 61-62 (1867); Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 499-501 (1866); Cato, 70 F.3d at 1105. Plaintiffs offer nothing to justify a different conclusion in this case. See also Alperin, 410 F.3d at 560 (discussing the court's deference to political decisions not to pursue reparations after World War II); Burger-Fischer, 65 F. Supp. 2d at 284. Indeed, even contemporary legislative attempts to study the possibility of reparations have failed to garner Congressional consensus. See H.R. 40, Commission to Study Reparation Proposals for African Americans Act 109th Cong. (2005); Rep. John Conyers, Briefing (April 6, 2005), available at http:// (H.R. 40 was introduced in every Congress since 1989 and has never become law).

2. Second Baker Factor: There Are No Judicial Standards To Resolve Plaintiffs' Claims.

The District Court also correctly concluded that there is “a lack of ‘judicially discoverable and manageable standards' for resolving” these claims. Final Order 69-71 [App. 69-71]. Whatever the nomenclature - reparations, restitution, disgorgement - it remains true that:

• The claims relate to alleged conduct that occurred centuries ago and over a span of centuries as well. The District Court correctly noted that “the court is ill-equipped to determine many issues posed in a dispute covering a period of almost 400 years.” Final Order 69 [App. 69].

• It is not clear what level of relationship to a slave ancestor would be required for recovery. The District Court correctly noted that the claims raised issues of “consanguinity” in the absence of any legislative roadmap to address them. Final Order 69 [App. 69].

• The claims were asserted against Defendants with varying degrees of challenged conduct and simply on the basis of their alleged current existence, with no regard to their most probable participation in the slave economy. The District Court correctly noted that the claims raised issues of “apportionment of liability given the multiple generations associated with the litigation.” Final Order [App. 69].

Thus, the District Court concluded that the claims were not susceptible of judicial resolution. This conclusion has been likewise reached in similar cases. See, e.g., Hwang Geum Joo v. Japan, 172 F. Supp. 2d 52, 66-67 (D.D.C 2001), aff'd, 332 F.3d 679 (D.C. Cir. 2003), vacated on other grounds, 542 U.S. 901 (2004); Burger-Fischer, 65 F. Supp. 2d at 284.

The District Court was therefore on solid footing in concluding that it would not simply use the rhetoric of tort and contract law to recast Reconstruction-era national policy in the absence of any legislative standard on which to premise that determination. See Bancoult v. McNamara, 445 F.3d 427, 434 (D.C. Cir. 2006) (“We could not ‘recast[] foreign policy and national security questions in tort terms,’ as that would require the court ‘to define the standard for the government's [foreign military policy].’ ”) (first alteration in original, citations omitted); Alperin, 410 F.3d at 552-53.

3. The Remaining Baker Factors Similarly Require Dismissal.

The remaining Baker factors canvassed by the District Court, Final Order 71-73 [App. 71-73], independently compel the application of the political question doctrine to these claims. As the District Court observed:

Plaintiffs require the court to criticize or question actions or decisions or policies made by the Representative Branches over a period spanning more than a century. Given our constitutional structure, policy determinations of this type are for elected officials, not the courts. Moreover, during and after the bloodiest war in this country's history, the Representative Branches grappled with these issues while simultaneously trying to conclude the war and ensure lasting peace. Allowing Plaintiffs, through private litigation, to seek reparations for wrongs committed prior to and during the Civil War clearly expresses a lack of respect for the Representative Branches and their attempted resolution of such issues over the past century and one-half.

Final Order 72 [App. 72].

A judicial determination here would necessarily tread on decisions made by the political branches in the wake of the bloodiest war in the nation's history. In words that could, with suitable changes, apply no less to the aftermath of the Civil War, the court in Burger-Fischer stated:

In effect, plaintiffs are inviting this court to try its hand at refashioning the reparations agreements which the United States and other World War II combatants ... forged in the crucible of a devastated post-war Europe and in the crucible of the Cold War. ... [T]his is a task which the court does not have the judicial power to perform.


For a court now, in the light of the diplomatic history of the last fifty years, to structure a reparations scheme would be to express the ultimate lack of respect for the executive branch....

Burger-Fischer, 65 F. Supp. 2d at 282-84.

Finally, a reparations decision by any court today would be a pronouncement by one “department” of government on the very question addressed by the legislative branches a century and a half ago. See id. at 284-85.

C. The Political Question Doctrine Applies to Equitable Claims and to Claims Under State Consumer Protection Acts.

Plaintiffs cannot overcome the political question doctrine by calling their claims “equitable.” Equitable arguments regarding political questions are appropriately addressed to Congress and the President, not to the courts, and are insufficient to create jurisdiction where, as here, it is lacking. Indeed, the Supreme Court long ago acknowledged that the political question doctrine could also render equitable claims non-justiciable. See Z. & F. Assets Realization Corp. v. Hull, 311 U.S. 470 (1941) (affirming dismissal on political question grounds of an action that sought to enjoin awards made by an Executive Branch commission established pursuant to the Treaty of Versailles ending World War I). Other federal courts have likewise acknowledged the applicability of the political question doctrine to equitable claims. See, e.g., 767 Third Ave. Assocs. v. Consulate Gen. of the Socialist Fed. Rep. of Yugo., 218 F.3d 152, 161 (2d Cir. 2000) (dismissing landlord's equitable claim on political question grounds, because the tenant was a foreign sovereign); Sevilla v. Elizalde, 112 F.2d 29, 32 (D.C. Cir. 1940) (“ ‘[T]he rights in danger [triggering judicial power] ... must be rights of persons or property, not merely political rights, which do not belong to the jurisdiction of a court, either in law or equity.’ ”) (quoting Stanton, 73 U.S. (6 Wall.) at 76).

Consumer protection act claims are similarly subject to the political question doctrine. The District Court correctly concluded that the nature of Plaintiffs' claims, even under the strained assertion that they are in part consumer protection act claims, are rooted in an underlying controversy that raises political questions under Baker. There is simply no basis to conclude that state consumer protection statutes could reverse a federal Executive or Congressional judgment about slave reparations, or overcome the political question bar.

In sum, the District Court was entirely justified in concluding that “Plaintiffs' Complaint implicates all of the factors established by the Supreme Court identifying a non-justiciable political question.” Final Order 75-76 [App. 75-76] (emphasis added). Nothing in Plaintiffs' Briefs justifies a different conclusion.


IV. Plaintiffs Failed To State a Claim Upon Which Relief Can Be Granted.

A. Plaintiffs Have Waived Any Argument Concerning the District Court's Dismissal for Failure To State a Claim.

Plaintiffs have not challenged the District Court's rulings that the Complaints failed to state a claim. Indeed, Plaintiffs have not even mentioned, let alone attempted to demonstrate the sufficiency of, most of the counts of their Complaints. Plaintiffs' Briefs are silent on the following counts: conspiracy, conversion, replevin, 42 U.S.C. § 1982, intentional infliction of emotional distress, negligent infliction of emotional distress, and a claim for an accounting (Hurdle Complaint). Plaintiffs have thus waived any appeal on these counts.

With respect to their claim for unjust enrichment, Plaintiffs mention it in passing but make no effort to demonstrate that it was sufficiently pleaded. See Pl. Br. 30, 34, 36-37, 38-39. The same holds true for the remaining counts under the consumer protection statutes of New York, Texas, Illinois, Louisiana, New Jersey, and California (non-Hurdle Complaint) and California only (Hurdle Complaint). See Pl. Br. 13; Hurdle Br. 3. Neither brief makes any attempt even to match the allegations of the Complaints against the governing law of the subject states, let alone to demonstrate the legal sufficiency of the counts as pleaded.

Defendants demonstrated below that each count in the Complaint and the Hurdle Complaint failed to state a claim. See Final Order 76-82 [App. 76-82]; Jan. 26, 2004 Order 54-57 [Hurdle App. 54-57]. Plaintiffs' failure to raise any argument about these rulings on appeal provides an independent basis for affirmance. See United States v. Harris, 394 F.3d 543, 559 (7th Cir. 2005) (arguments not raised in appellants' opening brief are waived), cert. denied, 126 S. Ct. 288 (2005); see also Hart v. Transit Mgmt. of Racine, Inc., 426 F.3d 863, 867 (7th Cir. 2005) (“Arguments that first appear in a reply brief are deemed waived....”).

B. Plaintiffs Failed To State Claims for the Counts They Now Mention in Passing.

Even if Plaintiffs' passing references to unjust enrichment and to state consumer protection statutes were sufficient to avoid waiver, the District Court's decision that these claims were insufficient as a matter of law should be affirmed.

Unjust enrichment requires allegations that a specific defendant received a specific benefit belonging to the plaintiff. See, e.g., HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 545 N.E.2d 672, 679 (Ill. 1989) (under Illinois law, a plaintiff must plead “that the defendant has unjustly retained a benefit to the plaintiffs detriment”); TRW Title Ins. Co. v. Sec. Union Title Ins. Co., 153 F.3d 822, 828 (7th Cir. 1998) (same); Willis v. Ventrella, 674 So. 2d 991, 995 (La. Ct. App. 1996) (Louisiana law); Eli Lilly & Co. v. Roussel Corp., 23 F. Supp. 2d 460, 496 (D.N.J. 1998) (New Jersey law); Fordice Constr. Co. v. Cent. States Dredging Co., 631 F. Supp. 1536, 1538-39 (S.D. Miss. 1986) (Mississippi law); Kaye v. Grossman, 202 F.3d 611, 616 (2d Cir. 2000) (New York law); Norman Owen Trucking, Inc. v. Morkoski, 506 S.E.2d 267, 273 (N.C. Ct. App. 1998) (North Carolina law); Jupiter Enters., Inc. v. Harrison, No. 05-00-01914-CV, 2002 WL 318305, at (Tex. App. Mar. 1, 2002) (unpublished decision) (Texas law). Plaintiffs failed to allege how they themselves are entitled to the unspecified benefits Defendants allegedly received. As the District Court ruled, Plaintiffs' Complaint contains wholly conclusory allegations that Defendants benefited from the pre-Civil War economy without identifying any particular illicit transactions, any parties to those transactions, any benefits conferred, or the relationship between those alleged benefits and these particular Plaintiffs. Final Order 78 [App. 78]; Compl. ¶¶ 174, 244. Indeed, Plaintiffs have pled no connection between themselves or their ancestors and Defendants. Thus, the District Court did not err in dismissing Plaintiffs' unjust enrichment claim. This result does not change because unjust enrichment claims sound in equity. See O'Shea v. Littleton, 414 U.S. 488, 499 (1974) (“[E]ven if [the Court] were inclined to consider the complaint as presenting an existing case or controversy, [it] would firmly disagree ... that an adequate basis for equitable relief ... ha[s] been stated.”); City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (claim failed to meet strict requirements of equity).

Plaintiffs also failed to state claims under the consumer protection statutes of Illinois, Louisiana, New Jersey, New York, Texas, and California. The statements alleged to be “consumer fraud” are public statements made by a few Defendants in reference to this litigation, denying Plaintiffs' allegations, or indicating that a Defendant's relationship with its alleged 1790s predecessor is “very distant.” See Compl. ¶¶ 246, 251, 254, 257. Plaintiffs cannot have suffered any redressable injury as a result of Defendants' unwillingness to agree publicly with Plaintiffs' claims against them.

Indeed, Plaintiffs' allegations are self-defeating: the fact that Plaintiffs continued to pursue this litigation confirms that, even if Defendants' statements had been incorrect (and they were not), Plaintiffs were not dissuaded from pursuing this lawsuit or otherwise “misled” or harmed by the statements. Moreover, although Plaintiffs now assert vaguely that they “patronized” unspecified Defendants based on alleged “false disclosures,” Pl. Br. 38, Plaintiffs have not alleged facts sufficient to show that they relied on any specific misrepresentations in deciding to patronize any particular Defendant, or suffered any actual, concrete harm as a result of that patronage. Plaintiffs therefore failed to state a claim. See Avery v. State Farm Mut. Auto. Ins. Co., 835 N.E.2d 801, 859 (Ill. 2005) (misrepresentation must have caused “actual damage”), cert. denied, 126 S. Ct. 1470 (2006); Thiedemann v. Mercedes-Benz USA, LLC, 872 A.2d 783, 792-93 (N.J. 2005) (misrepresentation must have caused “ascertainable loss”); Nelson v. Regions Mortg., Inc., 170 S.W.3d 858, 862 (Tex. App. 5th Dist. 2005) (damage is an essential element of a misrepresentation claim); Melino v. Equinox Fitness Club, 778 N.Y.S.2d 2, 3 (App. Div. 2004) (same); Inka's S'Coolwear, Inc. v. School Time, L.L.C., 725 So. 2d 496, 501 (La. Ct. App. 1998) (misrepresentation must have caused “ascertainable loss of money or movable property”) (quotation omitted).


V. The District Court Properly Dismissed the Hurdle Complaint and Denied the Hurdle Plaintiffs' Remand Motion.

The District Court's dismissal of the Hurdle Complaint should be affirmed for the separate and independent reason that the Hurdle Plaintiffs did not challenge on appeal the District Court's ruling on the merits and thus have waived any such challenge. Harris, 394 F.3d at 559; see also § IV.A, supra. Instead the Hurdle Plaintiffs challenge the District Court's handling of their Complaint by asserting that the District Court failed to address their separate Complaint, failed to consider their motion to remand, and refused to recognize their attorney at a January 2004 status conference. As discussed below, the Hurdle Plaintiffs' arguments lack both a factual basis and legal merit.

First, the District Court did not fail to consider the Hurdle Complaint. The District Court explicitly stated that its ruling encompassed the Hurdle Plaintiffs. Feb. 9, 2004 Hearing Tr. 13-15 [Hurdle App. 103-05]. That ruling addressed the arguments advanced by the Hurdle Plaintiffs in their opposition to Defendants' motion to dismiss. See Jan. 26, 2004 Order 37-53 (political question doctrine), 65-73 (statute of limitations) [Hurdle App. 37-53, 65-73]. The District Court's handling of the Hurdle Complaint was well within the broad discretion granted to it to manage this multidistrict litigation. See, e.g., In re Orthopedic Bone Screw Prod. Liab. Litig., 79 F.3d 46, 48 (7th Cir. 1996); MANUAL FOR COMPLEX LITIGATION (FOURTH) § 20.132 (2004).

Second, the District Court did not fail to consider the Hurdle Plaintiffs' remand motion. The District Court expressly denied the motion as moot in light of its determination that the Hurdle Complaint should be dismissed. Feb. 9, 2004 Hearing Tr. 12-15 [Hurdle App. 102-05]. The District Court's decision to dismiss, rather than remand, the Hurdle Complaint was entirely appropriate because this case, like all the African-American Slave Descendants' Litigation, involves a wholly meritless claim. Cf. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88-89 (1998). Dismissal of the Hurdle Complaint is appropriate for the additional reason that dismissal in the state court is a certainty, and remand therefore would be futile. See Deutsch, 317 F.3d at 1029-30; Bi v. Union Carbide Chems. & Plastics Co., 984 F.2d 582, 586-87 (2d Cir. 1993); see also E.F. Hutton & Co. v. Hadley, 901 F.2d 979, 987 (11th Cir. 1990) (directing the district court to dismiss cases removed to federal court on diversity grounds where Article III standing requirements were not satisfied). To the extent Seventh Circuit law would require an outcome different from the dismissal that would be required under Ninth Circuit law (the law of the transferor forum), Ninth Circuit law should govern. Cf. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 40 (1998) (holding that cases comprising a multidistrict litigation proceeding must be remanded to their originating court when pretrial proceedings have run their course); Eckstein v. Balcor Film Investors, 8 F.3d 1121, 1127 (7th Cir. 1993) (recognizing that, under certain circumstances, “[w]hen the law of the United States is geographically non-uniform, a transferee court should use the rule of the transferor forum”).

Finally, the District Court did not engage in judicial misconduct or cause the Hurdle Plaintiffs any prejudice. See United States v. Verser, 916 F.2d 1268, 1273 (7th Cir. 1990) (finding the court's conduct did not “create[] the degree of potential prejudice necessary to constitute judicial misconduct”); Hansen v. Comm'r, 820 F.2d 1464, 1467 (9th Cir. 1987). The Hurdle Plaintiffs' judicial misconduct claim is based on their allegation that the District Court refused to recognize their counsel at the close of the morning session of a January 26, 2004 status conference. Hurdle Br. 5, 20. However, counsel for the Hurdle Plaintiffs could have attended the afternoon session of that status conference (instead, she elected to return to California), or she could have appeared at the February 9, 2004 status conference (she did not). See Hurdle Br. 5-6; Feb. 9, 2004 Hearing Tr. 15-16 [Hurdle App. 105-06]; Ratliff Decl. 2-3 [Hurdle App. 190-91]. The Hurdle Plaintiffs, moreover, never raised the issue with the District Court, thereby waiving any challenge they might have had to the District Court's conduct. See United States v. Ruzzano, 247 F.3d 688, 694 (7th Cir. 2001) (holding a defendant waived recusal argument because he “fail [ed] altogether to raise it at the district court level”); Carter v. Moore, 165 F.3d 1071, 1077 (7th Cir. 1998). Under these circumstances, this Court should decline even to consider the baseless judicial misconduct allegations advanced by the Hurdle Plaintiffs. See, e.g., Chicago v. Matchmaker Real Estate Sales Ctr., Inc., 982 F.2d 1086, 1101 (7th Cir. 1992) (declining to consider an “unsupported” judicial bias claim because such claims “are very serious and should never be cast without substantiation”) (quotation omitted).



For the foregoing reasons, this Court should affirm the decision of the District Court.




On June 6, 2006, Loews Corporation filed its motion for non-involvement, seeking confirmation that it need not participate in this appeal. By order dated June 9, 2006, appellants have until June 21, 2006 to respond to Loews' motion for non-involvement. Given that Loews' motion for non-involvement will not be decided before this brief is due, Loews joins in this brief subject to and without waiving all points raised in its motion for non-involvement. Specifically, appellants' failure to mention Judge Norgle's separate ruling regarding Loews in their opening briefs demonstrates their abandonment of any claims against Loews on appeal. Fed. R. App. P. 28(a); Duncan v. Wisconsin Dept. of Health and Family Servs., 166 F.3d 930, 934-35 (7th Cir. 1998) (“[A] party must develop any arguments it wishes this court to consider in its appellate brief, or they will be deemed waived or abandoned.”); Federal Trade Comm'n v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1026 (7th Cir. 1988) (“The failure to raise a matter in the opening brief is not cured by addressing the issue in the reply brief.”).


The District Court confirmed in a July 11, 2005 Minute Entry (July 11, 2005 Not. of Docket Entry [Hurdle App. 76]), that its final judgment disposed of the entirety of the African-American Slave Descendants Litigation, including the complaint filed by Plaintiffs in No. 05-3305. See Rosser v. Chrysler Corp., 864 F.2d 1299, 1304-05 (7th Cir. 1989) (exercise of appellate jurisdiction proper where district court intended to terminate action). “Hurdle App.” refers to the Short Appendix and the Separate Appendix of Plaintiffs-Appellants Timothy Hurdle et al. in Appeal No. 05-3305, which are consecutively paginated.


In one case that is a part of Appeal No. 05-3265 (Richard E. Barber v. New York Life Ins. et al., 02 CV 2084 (CRN) (D.N.J.)), Plaintiff invoked the District Court's diversity jurisdiction based on an erroneous allegation that one defendant, Brown Brothers Harriman & Co., is a corporation when it is, in fact, a partnership containing some members who are not diverse from plaintiff Barber. Brown Brothers Harriman is deemed a citizen or subject of, or has a principal place of business in, Connecticut, Illinois, Massachusetts, New Jersey, New York, North Carolina, Pennsylvania, and the United Kingdom, and is therefore diverse from the Louisiana plaintiffs whose action also is a part of Appeal No. 05-3265 (Raymond Johnson v. Aetna Life Ins. Co. et al., 2:02-2712 (E.D. La.)). Although it appears from the handwritten documents filed with the initial complaint in the Johnson action that at least one plaintiff may have been non-diverse from Brown Brothers Harriman, the only remaining plaintiffs in the action are from Louisiana.


It is unclear whether Plaintiffs sued Union Pacific Railroad Company or Union Pacific Corporation, so the citizenships of both are provided.


Plaintiffs failed to properly serve many of the Defendants. By joining in this brief, Defendants do not concede that they were properly served with the complaints below, and they do not waive any jurisdictional arguments they may have. Moreover, because the complaint in 05-3305 was not served on any Defendants named in that action, only Aetna, FleetBoston, and New York Life, the three Defendants that removed the action to federal court, join in the portions of this brief addressing that complaint.


Several named Plaintiffs allege that they personally were held against their will and forced to work without compensation by unidentified parties in the early decades of the last century. See Compl. ¶¶ 91-100; Pl. Br. 7. Their Complaint, however, does not allege any conduct by any of the named Defendants that affected any of these individuals in that connection. See Final Order 40 n.22, 43 n.23, 44-45 [App. 40 n.22, 43 n.23, 44-45]. Thus, as the District Court held, the failure to meet the “fairly traceable” requirement for Article III standing is shared equally by this group. See id. Plaintiffs did not challenge this conclusion.


Plaintiff Marcelle Porter claims to be a customer of JPMorgan Chase, see Compl. ¶ 83, but, as shown by the caption, did not include that company among the three Defendants she sued; Plaintiff Ina McGee claims to be a customer of Aetna, see Compl. ¶ 89, but did not include that company among the four Defendants she sued.


Plaintiffs incorrectly argue that, in McMahon v. Eli Lilly & Co., 774 F.2d 830 (7th Cir. 1985), this Court allowed the personal injury claims of a DES plaintiff to proceed despite the absence of a causal connection to the defendant. See Pl. Br. 19. In fact, the question in McMahon was whether sufficient proof was adduced at trial that the specific defendant at issue manufactured the specific DES ingested by plaintiff. See id. at 834.


Though not pleaded in the Complaint joined by Plaintiff Farmer-Paellman, and therefore not properly before the Court, Plaintiffs' Brief asserts that one of Farmer-Paellman's great-great grandfathers had the same first name as an insured (by Aetna) African American who was enslaved prior to Emancipation. See Pl. Br. 6, 22. Even if the possibility that these men were the same person had been pleaded, it would not establish standing. See Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 45 (1976) (plaintiffs lack standing where “[s]peculative inferences are necessary to connect their injury to the challenged actions of [defendants]”). Moreover, even if there was a connection between her ancestor and a named Defendant, Farmer-Paellmann has not alleged facts showing that she personally has suffered a concrete injury, or that she possesses a legally sufficient relationship to pursue her great-great grandfather's supposed claim - both requirements for third-party standing. See § I.C, infra.


Moreover, any slavery-related claims held by Plaintiffs' ancestors would have accrued no later than the enactment of the Thirteenth Amendment in 1865, and such claims generally would have abated no later than the dates of their deaths many decades ago. See Compl. ¶¶ 78, 83; Hurdle Compl. ¶ 36. “At common law, when a person died any personal tort causes of action which he might have had died with him.” Burgess v. Clairol, Inc., 776 F. Supp. 1278, 1283 (N.D. Ill. 1991). Although states have now modified this universal common-law rule by enacting survival acts, such acts were not enacted until long after 1865. See, e.g., Sullivan v. Delta Air Lines, Inc., 935 P.2d 781, 786 (Cal. 1997) (California survival act not enacted until 1949).


California law sometimes permits the institution of suit by a decedent's successor-in-interest in the absence of a personal representative of the estate, but any such purported successor-in-interest must first file an affidavit or declaration in the form specified by Cal. Code Civ. Proc. § 377.32. See Cal. Code. Civ. Proc. § 377.11. None of the Plaintiffs has done so, nor have Plaintiffs even alleged the facts that would be necessary to do so.


The District Court's ruling applies equally to the Hurdle Complaint; however, the Hurdle Plaintiffs have not challenged the District Court's ruling that the claims at issue are time-barred.


The District Court's opinion sets forth the limitations periods applicable to Plaintiffs' claims. See Final Order 87-88 [App. 87-88]. As the District Court noted, the longest limitations period for any of the claims is six years. Id.


Equitable tolling is the subject of some conflict under Illinois authorities. The Illinois Supreme Court has stated that equitable tolling may be appropriate if “the defendant has actively misled the plaintiff.” Clay v. Kuhl, 727 N.E.2d 217, 223 (Ill. 2000) (citing Ciers v. O.L. Schmidt Barge Lines, Inc., 675 N.E.2d 210, 214 (Ill. App. Ct. 1996)). By contrast, this Court has noted that the Clay standard is more akin to equitable estoppel; equitable tolling does not “require that the defendant have borne any responsibility,” but instead focuses on whether “despite the exercise of reasonable diligence [the plaintiff] cannot discover his injurer's ... identity within the statutory period.” Fid. Nat'l Title Ins. Co. of N.Y. v. Howard Sav. Bank, 436 F.3d 836, 839 (7th Cir. 2006). As discussed in this § II.B and in the District Court's opinion, neither equitable tolling nor equitable estoppel applies in this case. See Final Order 97 [App. 97].


While Plaintiffs argued to the District Court that the discovery rule, the continuing violation doctrine, and equitable estoppel also should allow their time-barred claims to go forward, Plaintiffs failed to raise these arguments in their opening appellant brief and, therefore, waived them. See Kauthar SDN BHD v. Sternberg, 149 F.3d 659, 668 (7th Cir. 1998) (“We consistently have held that a party's failure to address a claim in its opening brief results in a waiver of that issue.”). As the District Court held, none of these doctrines can revive Plaintiffs' claims in any case. See Final Order 93, 95, 97 [App. 93, 95, 97].


Relying on one inapposite case in which none of the Baker factors was satisfied (see Kadic v. Karadzic, 70 F.3d 232, 249-50 (2d Cir. 1995)), Plaintiffs have attempted to create a “seventh” factor by arguing that the District Court erred in failing to request a “Statement of Interest” from the Executive and Legislative Branches and in refusing to infer that the political question doctrine did not apply here because a Statement was not sought. A “Statement of Interest” is not a prerequisite for the application of the political question doctrine. See, e.g., Cato, 70 F.3d at 1106; Burger-Fischer, 65 F. Supp. 2d at 282-84.


Alexander v. Oklahoma, cited by the Hurdle Plaintiffs (Hurdle Br. 18), provides no support for Plaintiffs' argument. In Alexander, plaintiffs sued the state and city, among others, for alleged violations stemming from the 1921 Tulsa Race Riot. No. 03-C-133-E, 2004 U.S. Dist. LEXIS 5131, at (N.D. Okla. Mar. 19, 2004), aff'd, 382 F.3d 1206 (10th Cir. 2004), cert. denied, 544 U.S. 1044 (2005). In determining that the political question doctrine did not apply to the case before it, the Alexander court distinguished the facts of this case, in which dismissal under the political question doctrine was appropriate, noting that Congress had addressed comprehensively the issue of slavery, while no comparable steps had been taken with respect to the Tulsa Race Riot. Id. at


Plaintiffs' only reference to the District Court's dismissal for failure to state a claim is their perfunctory speculation that the court drew “conclusions as to the quality of the ... evidence” and thus purportedly did not apply the proper standard. See Pl. Br. 21. But the District Court's Order recites and applies the proper standard, ruling that Plaintiffs' allegations were deficient. See Final Order 77 [App. 77] (reciting Supreme Court standard that “[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations”) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)); id. at 78 (“The broad allegations of Plaintiffs' Complaint fail....”); id. (“Plaintiffs' Complaint fails to allege....”); id. at 80 (“Plaintiffs fail to allege ....”); id. (“Plaintiffs, however, still fail to allege ....”); id. at 82 (“In short, Plaintiffs fail to present a well-pleaded complaint....”).


Apart from Plaintiffs' failure to state any cause of action (and their waiver of this issue on appeal), this litigation seeks to enlist modern legal theories to impose liability for pre-1865 conduct that - while both illegal and abhorrent by our own standards - is not (and cannot be) alleged to have been unlawful where and when it took place. But “the principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal,” Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994) (quotation omitted), and indeed is a bedrock of constitutional due process. Even in the immediate aftermath of the Civil War, the Supreme Court specifically rejected as unconstitutional the application of Reconstruction-era state constitutional provisions that retroactively treated lawful pre-1865 slavery-related transactions as void ab initio. White v. Hart, 80 U.S. (13 Wall.) 646, 653-54 (1872); Cf. Osborn v. Nicholas, 80 U.S. (13 Wall.) 654, 661-63 (1872) (“Though contrary to the law of nature [slavery] was recognized by the law of nations.”).


The Hurdle Plaintiffs did not bring an unjust enrichment claim.


The alleged “misrepresentations” also are privileged from suit as pertaining to litigation. See, e.g., Skopp v. First Fed. Sav., 545 N.E.2d 356, 360-61 (Ill. App. Ct. 1989).


Because the Hurdle Complaint arises from the same facts and asserts the same legal theories as the Complaint, the arguments discussed above, addressing standing, political question, statute of limitations, and the legal sufficiency of the claims asserted, apply with equal force to the Hurdle Complaint.


See Jan. 26, 2004 Order 56-57 [Hurdle App. 56-57] (“This is not a case where the plaintiff has been tripped up by ‘mere technicalities,’ but rather, the plaintiff has omitted the gravamen of his complaint.”) (quoting Kyle v. Morton High Sch., 144 F.3d 448, 457 (7th Cir. 1998)).


As the Steel Co. Court and concurring Justices recognized, federal courts may sometimes dispense with the rule that standing is a “threshold question that must be resolved in [plaintiffs'] favor before proceeding to the merits.” See Steel Co., 523 U.S. at 88-89; id. at 110-11 (O'Connor, J., concurring) (recognizing exceptions to the general rule that courts should be certain of their jurisdiction before reaching the merits of the case); id. at 111 (Breyer, J., concurring) (“The Constitution does not impose a rigid judicial ‘order of operations,’ when doing so would cause serious practical problems.”). Accordingly, the Seventh Circuit rule generally requiring remand, Smith v. Wis. Dep't of Agric., 23 F.3d 1134, 1139 (7th Cir. 1994), should have no application here.