Thomas v. General Motors Acceptance Corp.

• Decision Date: 30 April 2002
• Docket Number: No. 01-3169.,01-3169.
• Citation: 288 F.3d 305
• Parties: Frank THOMAS, Plaintiff-Appellant, v. GENERAL MOTORS ACCEPTANCE CORP., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

288 F.3d 305

Frank THOMAS, Plaintiff-Appellant, v. GENERAL MOTORS ACCEPTANCE CORP., et al., Defendants-Appellees.

No. 01-3169.

United States Court of Appeals, Seventh Circuit.

Submitted December 18, 2001.

Decided April 30, 2002.

Rehearing Denied May 17, 2002.

Frank Thomas (submitted a brief), Matteson, IL, for plaintiff-appellant.

David B. Kahng (submitted a brief), McGuire, Woods, Battle & Boothe, Chicago, IL, for defendants-appellees.

Before POSNER, MANION, and ROVNER, Circuit Judges.

POSNER, Circuit Judge.

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

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

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

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

If it is a "mixed" question of law and fact or, the same thing under a different label, an "ultimate" question of fact — that is, if it is the application of a legal standard (such as negligence) to the pure facts (what the defendant did) to yield a legal conclusion (the defendant was or was not negligent) — then, again, except in those few, mainly constitutional cases in which the Supreme Court has decreed plenary review of such determinations, e.g., Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 431-36, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001); Ornelas v. United States, 517 U.S. 690, 697-99, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Meyer, 157 F.3d 1067, 1074 (7th Cir.1998); United States v. D.F., 115 F.3d 413, 417-18 (7th Cir.1997), the clear-error standard governs. E.g., Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 401-05, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 106 S.Ct. 1527, 89 L.Ed.2d 739 (1986); McAllister v. United States, 348 U.S. 19, 20-22, 75 S.Ct. 6, 99 L.Ed. 20 (1954); Malachinski v. Commissioner, supra, 268 F.3d at 507-08; United States v. Frederick, 182 F.3d 496, 499 (7th Cir.1999); Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 933 (7th Cir.1989) (en banc); Houston Exploration Co. v. Halliburton Energy Services, Inc., 269 F.3d 528, 531 (5th Cir.2001); Ogden v. Commissioner, 244 F.3d 970 (5th Cir.2001) (per curiam); Catalina Cruises, Inc. v. Luna, 137 F.3d 1422, 1425 (9th Cir.1998); contra, Consolidated Mfg. v. Commissioner, 249 F.3d 1231, 1236 (10th Cir.2001). The application of a legal rule or standard to the particular facts of particular cases will yield different outcomes from case to case depending on the facts of the individual case. So uniformity of outcome is unattainable; and as divergent applications of law to fact do not unsettle the law — doctrine is unaffected — a heavy appellate hand in these cases is unnecessary to assure the law's clarity and coherence.

Then too the court that finds the facts will know them better than the reviewing court will, and so its application of the law to the facts is likely to be more accurate. And in many cases the determination of a "mixed" question of fact and law reduces to a series of purely factual determinations — for example, in a negligence case, to a determination of the burden of precautions, the magnitude of the injury, the likelihood that the injury would occur if the defendant failed to take the precautions, and the relation among these variables, all of which are factual, and their relation to each other likewise. See, e.g., Halek v. United States, 178 F.3d 481, 484 (7th Cir.1999); Guardian Life Insurance Co. v. Weisman, 223 F.3d 229, 234 (3d Cir.2000); United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947) (L....