Dupuy v. McEwen

• Decision Date: 31 July 2007
• Docket Number: No. 07-1655.,07-1655.
• Citation: 495 F.3d 807
• Parties: Belinda DUPUY, et al., Plaintiffs-Appellants, v. Erwin McEWEN, Acting Director, Illinois Department of Children and Family Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

495 F.3d 807

Belinda DUPUY, et al., Plaintiffs-Appellants, v. Erwin McEWEN, Acting Director, Illinois Department of Children and Family Services, Defendant-Appellee.

No. 07-1655.

United States Court of Appeals, Seventh Circuit.

Submitted April 25, 2007.

Decided July 31, 2007.

Jack L. Block (submitted), Reed Smith, Jeffrey B. Gilbert, Johnson, Jones, Snelling, Gilbert & Davis, Robert E. Lehrer, Lehrer & Redleaf, Diane Redleaf, Redleaf

Law Firm, Chicago, IL, for Plaintiffs-Appellants.

William G. Sullivan (submitted), Martin, Brown & Sullivan, Jack J. Carriglio, Meckler, Bulger & Tilson, Chicago, IL, for Defendant-Appellee.

Before EASTERBROOK, Chief Judge, and POSNER and EVANS, Circuit Judges.

POSNER, Circuit Judge.

This class action suit by parents, now in its eleventh year, challenges a range of practices by the child-welfare agency of the State of Illinois that are claimed to infringe parental rights protected by the due process clause of the Fourteenth Amendment. The case has twice been before us. Dupuy v. Samuels, 397 F.3d 493 (7th Cir.2005), 465 F.3d 757 (7th Cir.2006). In the second case, while affirming a preliminary injunction because the defendant had not appealed from its entry (instead the plaintiffs had appealed, contending the injunction didn't go far enough — we rejected the contention), we expressed, by way of guidance for the trial on the merits (only a preliminary injunction had been granted), our doubt about its soundness. The preliminary injunction required administrative review before the child-welfare agency could offer parents a "safety plan" in lieu of removing a child that it suspected of being neglected or abused from its parent's custody. (The safety plan might, for example, require that one of the parents move out of the home until the question of abuse or neglect was resolved.) We pointed out that as long as the parents weren't coerced to accept a safety plan by being given false information about the consequences of refusing, there was no reason to require administrative or judicial review of the offer — it was just an offer, which the parents would not accept unless they thought it would make them better off to do so.

When the case resumed in the district court, the agency moved for summary judgment on the ground that there was no evidence of misrepresentation. The plaintiffs agreed, so the district judge entered summary judgment, but they appealed anyway and now oppose the defendant's motion for summary affirmance on the ground that the motion is not within any of the categories that United States v. Fortner, 455 F.3d 752, 754 (7th Cir.2006), deems appropriate for summary affirmance. They misread Fortner. The concern in that case was with an appellee's filing a motion for summary affirmance at the last minute, that is, right before the briefs on the merits were due to be filed. That made needless additional work for the appellant and for the court. There are situations (Fortner gives three examples) in which the last-minute filing is proper — suppose a case had just been decided by the Supreme Court that made affirmance a slam dunk. There would be no purpose in requiring full briefing.

The motion in this case was filed well before the appellant's brief was due, and the plaintiffs have had and taken an opportunity to respond. Remember that they conceded in the district court that they had no evidence that would satisfy the standard we set forth in our previous opinion. They do not retract that concession in their opposition to the motion but (besides expressing disagreement with our opinion without presenting any new argument) contend merely that some of the class members "lack education" or have "low intelligence." The class, however, is not limited to the uneducated or the unintelligent, and a plaintiff obviously cannot obtain class-wide relief for harms suffered by only some of its members. General Telephone Co. v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); Oshana v. Coca-Cola Co., 472 F.3d 506, 513-14 (7th Cir.2006).

The district judge's order that this appeal unavailingly challenges was one of several orders that she issued in an attempt to resolve three separate sets of claims pressed in this litigation; and it may provide helpful guidance to the district court to note our concern with the third order, which purports to retain jurisdiction of a terminated case. The three sets of claims are as follows: "Dupuy I" as we'll call it sought special procedures for child-care workers accused of abuse or neglect. Dupuy II complained that the safety plans had been coerced, and it is that set of claims that was before us in the prior appeal and is before us in this appeal. Dupuy III sought additional procedures for accused child-care workers.

The district judge first entered an order which stated that the Dupuy I and III claims were dismissed without prejudice, but in the next paragraph she stated that they "shall be dismissed with prejudice in accordance with the terms of the stipulation," that is, a settlement of those claims. It is apparent that she intended to dismiss with prejudice only the claims of the named plaintiffs, because they were the only parties to the settlement. Three days later, however, having meanwhile granted summary judgment on the Dupuy II claims, she entered a "termination order"...