Arsberry v. State of Illinois

• Decision Date: 19 March 2001
• Docket Number: DEFENDANTS-APPELLEES,No. 00-1777,PLAINTIFFS-APPELLANTS,00-1777
• Citation: 244 F.3d 558
• Parties: (7th Cir. 2001) KATIE ARSBERRY, ET AL.,, v. STATE OF ILLINOIS, ET AL.,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 558

244 F.3d 558 (7th Cir. 2001)

KATIE ARSBERRY, ET AL., PLAINTIFFS-APPELLANTS, v. STATE OF ILLINOIS, ET AL., DEFENDANTS-APPELLEES.

No. 00-1777

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Argued December 5, 2000

Decided March 19, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 C 2457--William J. Hibbler, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Stephen G. Seliger (argued), Seliger, Elkin & Dolan, James G. Bradtke, Soule & Bradtke, Chicago, IL, Michael E. Deutsch, Center For Constitutional Rights, New York City, for plaintiffs-appellants.

Erik G. Light, Mary E. Welsh (argued), Office of the Attorney General, Civil Appeals Division, Paul A. Castiglione (argued), Office of the State's Attorney of Cook County, Charles H.R. Peters (argued), Roger Pascal, Schiff, Hardin & Waite, Leslie M. Smith, Kirkland & Ellis, Ross B. Bricker, Jenner & Block, Gary Senner, Sonnenschein, Nath & Rosenthal, Chicago, IL, Thomas F. Downing, Office of the State's Attorney of DuPage County, Wheaton, IL, Patricia J. Lord, Kane County States Attorney, Geneva, IL, Jay M. Vogelson, Stutzman & Bromberg, Dallas, TX, for defendants-appellees.

Before Posner, Easterbrook, and Evans, Circuit Judges.

Posner, Circuit Judge.

This is a suit by Illinois prison and jail inmates, inmates' family members (and other intimates of the inmates), and a public-interest law firm that specializes in the defense of inmates on death row in Illinois. Grounded in 42 U.S.C. sec. 1983, the Sherman Act, and Illinois state law, the suit attacks the practice by which each prison and jail grant one phone company the exclusive right to provide telephone service to the inmates in return for 50 percent of the revenues generated by the service. The suit claims that the rates for the service, which are collect only and are contained in tariffs filed by the phone companies with the Federal Communications Commission and the Illinois Commerce Commission, are exorbitant, being far higher than required to cover the costs involved in providing phone service to inmates. The plaintiffs seek damages and injunctive relief against the phone companies and the state agencies and officials responsible for the arrangements with the companies. The district court dismissed the suit as beyond its jurisdiction by reason of the filed-rate and primary-jurisdiction doctrines.

There are a number of jurisdictional bars or quasi-jurisdictional bars (by the latter term we mean defenses that a court can invoke even if the defendant has not done so, see, e.g., Higgins v. Mississippi, 217 F.3d 951 (7th Cir. 2000)) to various pieces of this suit, quite apart from the ones identified by the district court. The State of Illinois is not a person within the meaning of section 1983. E.g., id. at 953; Will v. Michigan Dept. of State Police, 491 U.S. 58, 66 (1989). The individual defendants have qualified immunity from the damages claims, given the novelty of the suit. The law firm has no standing to sue because there is no indication that it has suffered any detriment from the high price of its phone conversations with its clients; the cost of these phone calls is, at least so far as its counsel is aware, an expense that the firm is reimbursed for by the state or federal government. And the inmate plaintiffs are barred from suing because they have failed to exhaust their administrative remedies, as required by the Prison Litigation Reform Act. 42 U.S.C. sec. 1997e(a); Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000); Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 535-38 (7th Cir. 1999); Nyhuis v. Reno, 204 F.3d 65, 71 (5th Cir. 2000); Alexander v. Hawk, 159 F.3d 1321, 1323-28 (11th Cir. 1998); Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998) (per curiam). The plaintiffs say they have no such remedies against exorbitant phone bills, but the cases we have cited reject a "futility" exception to the requirement of exhaustion. We have left open the possibility of an exception to the exception for cases in which the only relief sought is monetary and is beyond the power of the prison authorities to give. Davis v. Streekstra, 227 F.3d 759 (7th Cir. 2000). That possible exception is unavailable to these plaintiffs, because they are seeking injunctive as well as monetary relief.

But since these various grounds do not dispose of all the plaintiffs or all the defendants, we proceed to consider whether the district court was right to think that the filed-rate and primary-jurisdiction doctrines place the entire suit outside the jurisdiction of the district court. The filed-rate doctrine, which is based both on historical antipathy to rate setting by courts, deemed a task they are inherently unsuited to perform competently, and on a policy of forbidding price discrimination by public utilities and common carriers, forbids a court to revise a public utility's or (as here) common carrier's filed tariff, which is to say the terms of sale that the carrier has filed with the agency that regulates the carrier's service. AT&T Co. v. Central Office Telephone, Inc., 524 U.S. 214, 223 (1998); Maislin Industries, U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 126 (1990); Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, 577-78 (1981); Cahnmann v. Sprint Corp., 133 F.3d 484, 487 (7th Cir. 1998); Wegoland Ltd. v. Nynex Corp., 27 F.3d 17 (2d Cir. 1994). A customer or competitor can challenge the tariff before the agency itself, and if disappointed with the agency's response can seek judicial review, 47 U.S.C. sec.sec. 204(a) (2)(C), 402, but it cannot ask the court in any other type of suit (such as this civil rights and antitrust suit) to invalidate or modify the tariff. Nor can it seek damages based on the difference between the actual tariff and a hypothetical lawful tariff. That would require the court to determine the lawful tariff, and this is not regarded as a proper judicial function. Wegoland Ltd. v. Nynex Corp., supra, 27 F.3d at 19-21.

The plaintiffs deny that they are challenging tariffs. They say their objection is to the deals by which the correctional authorities in Illinois have granted exclusive rights to telephone companies in return for what the plaintiffs characterize as kickbacks. They want to dissolve the deals in the hope that competition among phone companies will lead companies to file prison tariffs that have lower rates. They point out that a conspiracy to file (or not file) particular tariffs is not insulated by the filed-rate doctrine from attack under the antitrust laws or other sources of independent rights, Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 422 and n. 28 (1986); United States v. Radio Corp. of America, 358 U.S. 334, 346-47 (1959); Georgia v. Pennsylvania Railroad Co., 324 U.S. 439, 455 (1945); United States v. Pacific & Arctic Ry. & Navigation Co., 228 U.S. 87, 104-05 (1913); City of Mishawaka v. Indiana & Michigan Electric Co., 560 F.2d 1314, 1323 (7th Cir. 1977); Town of Norwood v. New England Power Co., 202 F.3d 408, 419-20 (1st Cir. 2000); Barnes v. Arden Mayfair, Inc., 759 F.2d 676, 679 (9th Cir. 1985), provided that only injunctive relief is sought. Square D Co. v. Niagara Frontier Tariff Bureau, Inc., supra; Keogh v. Chicago &amp Northwestern Ry., 260 U.S. 156 (1922). Such an attack does not seek to invalidate any tariff, but merely to create an environment in which the regulated firm is more likely to file a tariff that contains terms more favorable to customers. Whether what the plaintiffs are attacking here is aptly described as a "conspiracy" remains to be considered; provisionally, however, the suit is not barred by the filed-rate doctrine.

The doctrine of primary jurisdiction is not a bar either. The doctrine is really two doctrines. In its central and original form, in which it is more illuminatingly described, however, as "exclusive agency jurisdiction," it applies only when, in a suit involving a regulated firm but not brought under the regulatory statute itself, an issue arises that is within the exclusive original jurisdiction of the regulatory agency to resolve, although it will usually be subject to judicial review. United States v. Western Pacific R.R., 352 U.S. 59, 64 (1956); Cahnmann v. Sprint Corp., supra, 133 F.3d at 487; Advance United Expressways, Inc. v. Eastman Kodak Co., 965 F.2d 1347, 1352-53 (7th Cir. 1992); City of Peoria v. General Electric Cablevision Corp., 690 F.2d 116, 121-22 (7th Cir. 1982). When such an issue arises, the suit must stop and the issue must be referred to the agency for resolution. If the agency's resolution of the issue does not dispose of the entire case, the case can resume subject to judicial review of that resolution along whatever path governs review of the agency's decisions, whether back to the court in which the original case is pending or, if the statute governing review of the agency's decisions designates another court, to that court. Id. at 122; 2 Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise sec. 14.1, pp. 272-80 (3d ed. 1994).

If the plaintiffs in this case wanted to get a rate change, the version of the doctrine that we have described would kick in; but they do not, so it does not. Eventually they want a different rate, of course, but at present all they are seeking is to clear the decks--to dissolve an arrangement that is preventing the telephone company defendants from competing to file tariffs more advantageous to the inmates. We are oversimplifying, because the complaint includes a claim under the Federal Communications Act, 47 U.S. sec.sec. 151 et seq., that the phone companies charge unreasonably high rates and also engage in rate discrimination. These claims are squarely within the FCC's jurisdiction, but have been forfeited. They are not mentioned in the plaintiffs' opening briefs, and are merely brushed in their reply...