(Defendant) John Glover Roberts Jr, United States Supreme Court et al Order to show cause (against) AFFIDAVIT FOR PROBABLE CAUSE: Issuance for International Arrest Warrant for criminal defendant Judge Charles R. Norgle (jurisdiction) of Northern District Federal Court of Illinois knowing and willing submitting judicial decrees containing false international slavery data 18 U.S.C. § 1001 against the (Plaintiffs) Negro DNA population fully on or about the date of July 6th 2005
Norgle -- In Re: African
American Slave Descendants, CV-02-7764(CRN) fraud of court RICO “enslavement wire
fraud overt acts” party to actually never set free (Plaintiffs) Negro slaves POW
of colonial (Defendant) confederate America fraud against civil war government records
scheme of things by “white persons” committed to these continue international RICO
inhumane crimes which includes falsely classifications
(Plaintiffs) Negro entire
populations as ancestors of colonial slavery, when this not the legal case (Defendants)
GOP political government continue imposing “Black Codes” (Defendants) Supreme
Court et al herein fully knowing (Defendants) Confederate State of Mississippi
was not in the (Plaintiffs) United States of America Union Government on or
about the dates of July 6th 2005 throughout February 6th 2013 criminal
defendant Judge Charles R. Norgle
18 U.S. Code § 242 -
Deprivation of rights under color of law did so willing conspirer with criminal
intent (RICO) cover-up, concealing, manufacturing international false slavery
data fraudulent artifacts judicial decree to occurred on or about July 6th of 2005 involving nine
slavery reparations class action lawsuits all under false slaver data against (Defendants)
corporations being heard in the Northern District Federal Court of Illinois
were criminal fraudulent dismissed by defendant Judge
Charles R. Norgle -- In Re: African American Slave Descendants, CV-02-7764(CRN)
False judicial statements (18 U.S.C. § 1001),
The (Plaintiffs) Deadria
Farmer-Paellmann lawsuits, filed between March 2002 and January 2003, (half/correct)
targeted 18 corporations for causing injuries plaintiffs suffer from as a
result of the enslavement of their ancestors, and for consumer fraud injuries
they recently incurred as a result of defendants making false statements about
their roles in slavery, (Defendants) GOP political government continue imposing
“Black Codes” threw their agent acting under color of law of the judicial government
defendant Judge Charles R. Norgle -- In Re: African
American Slave Descendants, CV-02-7764(CRN) False judicial statements (18
U.S.C. § 1001),
(Plaintiffs)
collective realleges and incorporates fully set forth all facts defendant Judge
Charles R. Norgle “knowing and willing” took the
Constitutional oath of office and “knowing and willing” took the judicial oath but
this only for white supremacy rules of laws overt acts of mail and wire fraud
usage in all “slavery data” notwithstanding defendant Judge Charles R. Norgle being
accused of a “white supremacy criminal person” acting under color of law on or
about the dates of “March 2002 and January 2003” criminally engaging in
international wire fraud concealing
(Defendants)
Confederate State of Mississippi was not in the (Plaintiffs) United States of
America Union Government on or about the dates of March
2002 and January 2003 against the “plaintiffs capture
negro slaves’ entire population” further having correct informed legal
knowledge, and educational knowledge of never being “Free Slaves” with same
rights as “white citizens” on or about the dates of
March 2002 and January 2003
further defendant Judge Charles R. Norgle acting under color of
law fraud of court against the “plaintiffs capture negro slaves entire
population” overt acts running current RICO human Traficant racial segregation
scheme of things against (Plaintiffs) Negro DNA entire population held captive
POW by such fraud of white supremacy as mention herein in collusion, complicity
false slavery data against (Plaintiffs) Deadria Farmer-Paellmann on or about the dates of March 2002, January 2003 and July
20th of 2005
“Fraud of Court” and absolute
corruption of obstruction of justice, false statements usage against Motion for
Reconsideration of Dismissal Order of defendant Judge Charles R. Norgle (Plaintiffs) Deadria Farmer-Paellmann, On behalf of
herself and as representative of her enslaved ancestors and all other persons
similarly situated, Plaintiff,v.Fleetboston Financial Corporation, Aetna Inc.,
Csx, and their predecessors, successors and/or assigns, and Corporate Does Nos.
1-100, Defendants. MDL-1491. Nos. 02 CV 7764 (CRN), 02 CV 7766 (CRN). United
States District Court, N.D. Illinois, Eastern Division. July 20, 2005
(Plaintiffs) collective
realleges and incorporates fully set forth all facts, the district court was
unquestionably fraudulent from the very start concealing the “white interest”
of being inhumane to said “Plaintiffs POW” Negro Slaves never set free, notwithstanding
defendant Judge Charles R. Norgle (RICO) scheme of things further including citing
continue colonial America case laws:
Lexecon Inc. v. Milberg
Weiss Bershad Hynes & Lerach, 523 U.S. 26, 28, 118 S.Ct. 956, 140 L.Ed.2d
62 (1998), to determine the merits of the suit. In re Carbon Dioxide Industry
Antitrust Litigation, 229 F.3d 1321, 1325-27 (11th Cir.2000); cf. Neirbo Co.
v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 167-68, 60 S.Ct. 153, 84 L.Ed.
167 (1939) to determine the merits of the suit while
defendant Judge Charles R. Norgle with
(Defendant)
EASTERBROOK, Chief Judge, and (Defendant) POSNER and (Defendant) MANION,
Circuit Judges United States Court of Appeals Seventh Circuit conspirers to the
same false slavery data acting under color of law did so concealing on or about
the dates of March 2002, January 2003, July 20th of 2005 and December
13th of 2006
(Defendants)
Confederate State of Mississippi was not in the (Plaintiffs) United States of
America Union Government on or about the dates of said case law submitted on
the dates of Lexecon Inc. v. Milberg Weiss Bershad
Hynes & Lerach, 523 U.S. 26, 28, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998), to
determine the merits of the suit. In re Carbon Dioxide Industry Antitrust
Litigation, 229 F.3d 1321, 1325-27 (11th Cir.2000); cf. Neirbo Co. v.
Bethlehem Shipbuilding Corp., 308 U.S. 165, 167-68, 60 S.Ct. 153, 84 L.Ed. 167
(1939) submitted on all current to date |false slavery data” judicial decrees
against “Physical captive plaintiffs slaves being further criminally denied to
even obtain thew elusive Reparations for slavery on this twisted concept of
reparations to victims of slavery and/or their descendants statute of
limitation has somehow expire during the 1800s while “colonial confederate
state of Mississippi America never even been inn the (Plaintiffs) United States
of America Union government
defendant Judge Charles
R. Norgle with (Defendant) EASTERBROOK, Chief Judge, and (Defendant) POSNER and
(Defendant) MANION, Circuit Judges United States Court of Appeals Seventh
Circuit further conspirers to the same false slavery data acting under color of
law did so concealing on or about the dates of (a) throughout
(m) (Defendants) Confederate State of Mississippi was not in the
(Plaintiffs) United States of America Union Government on or about the dates of
said case law (a) throughout (m) submitted on the dates of:
(a) In
re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217,
1230-31 (9th Cir.2006); 15 Charles W. Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure § 3866 (2006)
(b) City
of Memphis v. Greene, 451 U.S. 100, 119-20, 101 S.Ct. 1584, 67 L.Ed.2d 769
(1981); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d
1189 (1968).
(c) Hagans
v. Lavine, 415 U.S. 528, 536-37, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974);
Turner/Ozanne v. Hyman/Power, 111 F.3d 1312, 1317 (7th Cir.1997); Crowley
Cutlery Co. v. United States, 849 F.2d 273, 276-77 (7th Cir.1988); Lovern v.
Edwards, 190 F.3d 648, 654-55 (4th Cir.1999).
(d) Ohio
ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74, 79-80, 50
S.Ct. 228, 74 L.Ed. 710 (1930); Pacific States Telephone & Telegraph Co.
v. Oregon, 223 U.S. 118, 133-50, 32 S.Ct. 224, 56 L.Ed. 377 (1912)
(e) James
R. Hackney, Jr., “The Jurisprudence of Slavery Reparations: Ideological
Conflict, African American Reparations, Tort Causation, and the Case for Social
Welfare Transformation,” 84 B.U.L.Rev. 1193 (2004).
(f) Kerwin
Kofi Charles & Erik Hurst, “The Correlation of Wealth Across Generations,”
111 J. Pol. Econ. 1155 (2003); Keith N. Hylton, “The Jurisprudence of Slavery
Reparations: Slavery and Tort Law,” 84 B.U.L.Rev. 1209, 1239-41 (2004)
(g) ConFold
Pacific, Inc. v. Polaris Industries, Inc., 433 F.3d 952, 957-58 (7th Cir.2006);
Charter Communications Entertainment I, DST v. Burdulis, 460 F.3d 168, 182
(1st Cir.2006); Kerr v. Charles F. Vatterott & Co., 184 F.3d 938, 944 (8th
Cir.1999); 1 Dan B. Dobbs, Dobbs Law of Remedies § 4. 1, pp. 551, 555 (2d ed.1993).
(h) Raines
v. Byrd, 521 U.S. 811, 818-19, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997); Sierra
Club v. Morton, 405 U.S. 727, 739-40, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).
(i) McConnell
v. FEC, 540 U.S. 93, 225-26, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003); Branton v.
FCC, 993 F.2d 906, 909 (D.C.Cir.1993).
(j) Holmes
v. Securities Investor Protection Corp., 503 U.S. 258, 268-69, 112 S.Ct. 1311,
117 L.Ed.2d 532 (1992); Blue Shield of Virginia v. McCready, 457 U.S. 465,
476-77, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982); Israel Travel Advisory Service,
Inc. v. Israel Identity Tours, Inc., 61 F.3d 1250, 1257 (7th Cir.1995);
Allegheny General Hospital v. Philip Morris, Inc., 228 F.3d 429, 435 (3d
Cir.2000).
(k) Valley
Forge Christian College v. Americans United for Separation of Church &
State, Inc., 454 U.S. 464, 473, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Morlan
v. Universal Guaranty Life Insurance Co., 298 F.3d 609, 621 (7th Cir.2002);
Illinois Department of Transportation v. Hinson, 122 F.3d 370, 373 (7th
Cir.1997); People Organized for Welfare & Employment Rights (P.O.W. E.R.)
v. Thompson, 727 F.2d 167, 173 (7th Cir.1984); Abraham v. Intermountain Health
Care Inc., 461 F.3d 1249, 1268 (10th Cir.2006).
(l) Edgar
J. McManus, Black Bondage in the North 174 (1973); Kenneth M. Stampp, The
Peculiar Institution: Slavery in the AnteBellum South 397 (1956).
(m) Kasky v. Nike, Inc., 27 Cal.4th 939, 119 Cal.Rptr.2d 296, 45 P.3d 243, 248 (Cal.2003); Price v. Philip Morris, Inc., 219 Ill.2d 182, 302 Ill.Dec. 1, 848 N.E.2d 1, 19 (Ill.2005); Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 267 Ill.Dec. 14, 776 N.E.2d 151, 154-55 (Ill.2002); Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1185 (3d Cir.1993).
United States Court of Appeals,Seventh
Circuit.
IN RE: AFRICAN-AMERICAN SLAVE DESCENDANTS
LITIGATION. Appeals of Deadria Farmer-Paellmann, et al., and Timothy Hurdle, et
al.
Nos. 05-3265, 05-3266, 05-3305.
Decided: December 13, 2006
Before EASTERBROOK, Chief Judge, and
POSNER and MANION, Circuit Judges. Bruce I. Afran (argued), Carl J. Mayer,
Princeton, NJ, Roger S. Wareham (argued), Wareham Law Office, Brooklyn, NY,
Benjamin O. Nwoye, Nwoye & Associates, Chicago, IL, Barbara K. Ratliff
(argued), Los Angeles, CA, for Plaintiffs-Appellants. Andrew R. McGaan,
Kirkland & Ellis, Chicago, IL, Owen C. Pell (argued), White & Case, New
York, NY, Andrew L. Sandler, Skadden, Arps, Slate, Meagher & Flom Llp,
Washington, DC, Alan S. Madans (argued), Rothschild, Barry & Myers,
Chicago, IL, Thomas F. Gardner, Jones Day, Chicago, IL, Heidi K. Hubbard,
Williams & Connolly, Washington, DC, Christina M. Tchen, Ryan J. Rohlfsen,
Skadden, Arps, Slate, Meagher & Flom Llp, Chicago, IL, James A. Fletcher,
Fletcher & Sippel, Chicago, IL, Michael T. Novak, Homewood, IL, Debra
Torres, Fried, Frank, Harris, Shriver & Jacobson, New York, NY, John H.
Beisner, O'Melveny & Meyers, Washington, DC, Maya M. Eckstein, Hunton &
Williams, Richmond, VA, for Defendants-Appellees.
Nine suits were filed in federal district
courts around the country seeking monetary relief under both federal and state
law for harms stemming from the enslavement of black people in America. A
tenth suit, by the Hurdle group of plaintiffs, makes similar claims but was
filed in a state court and then removed by the defendants to a federal district
court. The Multidistrict Litigation Panel consolidated all the suits in the
district court in Chicago for pretrial proceedings. 28 U.S.C. § 1407. Once
there, the plaintiffs (all but the Hurdle plaintiffs, about whom more shortly)
filed a consolidated complaint, and since venue in Chicago was proper and in
any event not objected to by the parties (other than the Hurdle group, whose
objection we consider later in the opinion), the district court was
unquestionably authorized, notwithstanding Lexecon Inc. v. Milberg Weiss
Bershad Hynes & Lerach, 523 U.S. 26, 28, 118 S.Ct. 956, 140 L.Ed.2d 62
(1998), to determine the merits of the suit. In re Carbon Dioxide Industry
Antitrust Litigation, 229 F.3d 1321, 1325-27 (11th Cir.2000); cf. Neirbo Co.
v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 167-68, 60 S.Ct. 153, 84 L.Ed.
167 (1939).
We are also persuaded that a district
court to which a case is transferred under section 1407 can rule on a motion to
dismiss the case even if the plaintiff has not agreed to let the court decide
the merits. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460
F.3d 1217, 1230-31 (9th Cir.2006); 15 Charles W. Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure § 3866 (2006). While it is
true that the Supreme Court held in the Lexecon case that a transfer under
section 1407 does not authorize the district court to retain the case for
trial, the Court left open the question whether pretrial proceedings, which are
the business (the exclusive business) of the transferee court, include rulings
on dispositive pretrial motions, such as motions to dismiss. But the Court
hinted that they do include them. Section 1407(a) states that “each action so
transferred [by the multidistrict litigation panel] shall be remanded by the
panel at or before the conclusion of such pretrial proceedings to the district
from which it was transferred unless it shall have been previously terminated.”
Concerning this “provision of § 1407(a) limiting the Panel's remand
obligation to cases not ‘previously terminated’ during the pretrial period,”
the Court remarked that “this exception to the Panel's remand obligation
indicates that the Panel is not meant to issue ceremonial remand orders in
cases already concluded by summary judgment, say, or dismissal,” 523 U.S. at
37, 118 S.Ct. 956 (emphasis added)-implying that the transferee court can
indeed decide the entire case at the pretrial stage.
And rightly so. The duty to conduct the
pretrial proceedings in a multidistrict litigation entails the transferee
court's ruling on a host of pretrial motions, many of which, whether or not
formally dispositive, can shape the litigation decisively. There is no reason
to exclude from the court's authority rulings on motions to dismiss-especially
a motion to dismiss on the ground that there is no federal jurisdiction. It
would be odd to require a court to transfer a case to another federal court
when it was apparent that neither court had jurisdiction over the case.
Were it not for the Hurdle suit, we
wouldn't have to decide whether the district judge could have dismissed the
transferred suits had the parties not agreed, by filing a new complaint, to his
retaining them after completion of pretrial proceedings. But the Hurdle
plaintiffs did not agree, so we cannot duck the question.
The suits are a series of mostly identical
class actions on behalf of all Americans descended from slaves with whom one or
more of the defendants or their corporate predecessors may have been directly
or indirectly involved. The consolidated complaint (the Hurdle complaint is
similar, so need not be discussed separately) alleges the following facts, for
which we do not vouch, but merely summarize, the complaint having been
dismissed before the truth or falsity of the allegations was determined.
The defendants are companies or the
successors to companies that provided services, such as transportation,
finance, and insurance, to slaveowners. At least two of the defendants were
slaveowners; the predecessor of one of the bank defendants once accepted 13,000
slaves as collateral on loans and ended up owning 1,250 of them when the
borrowers defaulted, and the predecessor of another defendant ended up owning
346 slaves, also as a consequence of a borrower's default. Even before the
Thirteenth Amendment, slavery was illegal in the northern states, and the complaint
charges that the defendants were violating the laws of those states in
transacting with slaveowners. It also claims that there were occasional
enslavements long after the passage of the Thirteenth Amendment and that some
of the defendants were complicit in those too. By way of relief, the
complaint seeks disgorgement to the class members of the profits that the
defendants obtained from their dealings with slaveowners.
The legal basis for the plaintiffs'
federal claim is 42 U.S.C. § 1982, which provides that “all citizens of the
United States shall have the same right, in every State and Territory, as is
enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and
convey real and personal property.” See City of Memphis v. Greene, 451 U.S.
100, 119-20, 101 S.Ct. 1584, 67 L.Ed.2d 769 (1981); Jones v. Alfred H. Mayer
Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). A claim based on a
federal statute invokes the federal-question jurisdiction of the federal
courts. But since most of the conduct of which the plaintiffs complain
occurred prior to the passage of the Thirteenth Amendment, and indeed prior to
the Civil War, section 1982 does not provide a sturdy basis for the retention
of federal jurisdiction over the plaintiffs' nonfederal claims. A frivolous
federal law claim cannot successfully invoke federal jurisdiction. Hagans v.
Lavine, 415 U.S. 528, 536-37, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); Turner/Ozanne
v. Hyman/Power, 111 F.3d 1312, 1317 (7th Cir.1997); Crowley Cutlery Co. v.
United States, 849 F.2d 273, 276-77 (7th Cir.1988); Lovern v. Edwards, 190 F.3d
648, 654-55 (4th Cir.1999). So it cannot provide a perch on which to seat
nonfederal claims in the name of the federal courts' supplemental jurisdiction,
28 U.S.C. § 1367. And very few of the plaintiffs have a nonfrivolous claim
under section 1982.
But with one exception, all the nonfederal
claims are within the federal diversity jurisdiction and so do not require a
federal-law handle. The exception is Richard E. Barber, Sr.'s suit; for both he
and Brown Brothers, one of the defendants in his suit, are citizens of New
Jersey. Since he thus cannot invoke diversity as a basis for federal
jurisdiction and does not have a colorable section 1982 claim (in fact he makes
no section 1982 claim at all), his suit must be dismissed for want of federal
jurisdiction without regard to the other challenges that the defendants mount
to federal jurisdiction over these suits.
The district judge ruled that by virtue of
both the political-question doctrine and the requirement of standing to sue
derived from Article III of the Constitution, there was no federal jurisdiction
over any of the suits and that in any event they had no merit because the
applicable statutes of limitations had lapsed and anyway the complaint failed
to state a claim. 375 F.Supp.2d 721 (N.D.Ill.2005). The dismissal was with
prejudice. But if the judge was correct that there is no jurisdiction, he
should have dismissed the suits without prejudice and thus not decided their
merits.
The political-question doctrine bars the
federal courts from adjudicating disputes that the Constitution has been
interpreted to entrust to other branches of the federal government. The
earliest and still the best example is Luther v. Borden, 48 U.S. (7 How.) 1, 12
L.Ed. 581 (1849). Rhode Island had not adopted a new constitution after the
break with England, but instead continued to govern itself under its colonial
charter. Restive citizens convened a constitutional convention not authorized
by the charter. The convention adopted a new constitution to which the
charter government refused to submit, precipitating rebellion and the
establishment in 1842 of a rival state government. The Supreme Court refused to
decide which of the two competing governments was the legitimate one. It
would have been exceedingly difficult to gather and assess, by the methods of
litigation, the facts needed for such a decision. Id. at 41-42. It would
have been even more difficult to formulate a legal concept of revolutionary
legitimacy to guide the decision. Formulating and enforcing a remedy would
have presented additional stumbling blocks. The case simply exceeded judicial
capabilities. So the Court left the
matter to the President, to whom Congress had delegated the duty of resolving
it. Id. at 43; see also Ohio ex rel. Bryant v. Akron Metropolitan Park
District, 281 U.S. 74, 79-80, 50 S.Ct. 228, 74 L.Ed. 710 (1930); Pacific
States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118, 133-50, 32 S.Ct.
224, 56 L.Ed. 377 (1912).
A case that sought reparations for the wrong
of slavery would encounter similar obstacles, but the plaintiffs have been
careful to cast the litigation as a quest for conventional legal relief. All
they are asking the federal judiciary to do is to apply state law (plus the one
federal statute, 42 U.S.C. § 1982) to the defendants' conduct. They face, of
course, formidable obstacles, quite apart from the severely limited
applicability of section 1982. To name just one of those obstacles, it is
highly unlikely that antebellum laws in northern states were intended to confer
financial or other benefits on the twenty-first century descendants of slaves. But
the obstacles to the vindication of the plaintiffs' legal claims have the form
at least of conventional defenses to a lawsuit. If one or more of the
defendants violated a state law by transporting slaves in 1850, and the
plaintiffs can establish standing to sue, prove the violation despite its
antiquity, establish that the law was intended to provide a remedy (either
directly or by providing the basis for a common law action for conspiracy,
conversion, or restitution) to lawfully enslaved persons or their descendants,
identify their ancestors, quantify damages incurred, and persuade the court to
toll the statute of limitations, there would be no further obstacle to the
grant of relief.
But we think that the district court was
correct, with some exceptions to be noted, in ruling that the plaintiffs lack
standing to sue. It would be impossible by the methods of litigation to
connect the defendants' alleged misconduct with the financial and emotional
harm that the plaintiffs claim to have suffered as a result of that conduct.
See generally James R. Hackney, Jr., “The Jurisprudence of Slavery Reparations:
Ideological Conflict, African American Reparations, Tort Causation, and the
Case for Social Welfare Transformation,” 84 B.U.L.Rev. 1193 (2004). For
example, Aetna is alleged to have written several insurance policies on slaves
in the 1850s in violation of state law applicable to the company, and to have
obtained premiums from the insureds-the slaveowners-that (we'll assume)
exceeded the cost of the insurance to Aetna (its expenses plus the payment of
proceeds if the insured event came to pass). The plaintiffs argue that
Aetna's net income from this insurance was a wrongful profit that the company
should be ordered to restore to the plaintiff classes.
If the insurance business was competitive
back then (and the plaintiffs do not argue that it was not), Aetna did not
profit in an economic sense from the transactions of which the plaintiffs
complain (its “profit” would just be its cost of equity capital), and in any
event it would have distributed any profits from the transactions to its
shareholders long ago. All that to one side, there is a fatal disconnect
between the victims and the plaintiffs. When a person is wronged he can seek
redress, and if he wins, his descendants may benefit, but the wrong to the
ancestor is not a wrong to the descendants. For if it were, then (problems of
proof to one side) statutes of limitations would be toothless. A person whose
ancestor had been wronged a thousand years ago could sue on the ground that it
was a continuing wrong and he is one of the victims.
The plaintiffs introduce another claim of
injury by asserting that had the defendants refused to violate their own
states' laws by doing business with slaveowners, there would have been less
slavery because the refusal would have been tantamount to subjecting the
slaveowners to a partial boycott. That would have raised their costs, and, by
making slavery less profitable, might have reduced the amount of it. (“Might,”
not “would,” because the higher costs might simply have depressed the price of
a slave.) And had there been less slavery, the argument continues, some of
the ancestors of the members of the plaintiff classes would not have been
slaves, but instead free laborers, and they would have had some disposable
income part of which they might have saved rather than spent, and left to their
heirs.
But this causal chain is too long and has
too many weak links for a court to be able to find that the defendants' conduct
harmed the plaintiffs at all, let alone in an amount that could be estimated
without the wildest speculation. It is impossible to determine how much, if
any, less slavery there would have been had the defendants not done business
with slaveowners, what effect a diminution of slavery would have had on
bequests by ancestors of the class members, and how much of the value of those
bequests would have trickled down to the class members.
Suppose a class member could prove that he
was descended from one of the slaves insured by Aetna or transported by the
Union Pacific Railroad (another defendant) or bought with money lent to the
buyer by the predecessor of the JPMorgan Chase Bank (still another defendant),
and that these transactions were illegal and that the descendants of slaves are
among the people whom the laws were intended to protect. Had he not been
insured or transported or bought with a bank loan, how would the financial
welfare of his remote descendant be affected? Would the ancestor have been
freed, or perhaps never enslaved in the first place? As the plaintiffs stress,
slavery was profitable; is it conceivable that slaveholders would have been
unable to insure, transport, and finance the purchase of slaves if northern
companies had been excluded from the provision of these services or had refused
to violate their states' laws that sought to keep them from providing the services?
Even if compliance with those laws would
have curtailed slavery and even if it could be shown (it could not be) that as
a result of that hypothetical curtailment a plaintiff's remote ancestor would
not have been a slave but instead a free laborer, how could the wages that the
ancestor would have earned as a free laborer be shown to have influenced the
wealth of his remote descendant? Economists actually study such issues, under
the rubric of “intergenerational mobility,” see, e.g., Kerwin Kofi Charles
& Erik Hurst, “The Correlation of Wealth Across Generations,” 111 J. Pol.
Econ. 1155 (2003); Keith N. Hylton, “The Jurisprudence of Slavery Reparations:
Slavery and Tort Law,” 84 B.U.L.Rev. 1209, 1239-41 (2004), but these are
studies of aggregate effects, not of the effects of particular acts, affecting
particular individuals, on the wealth of specific remote descendants. There
is no way to determine that a given black American today is worse off by a
specific, calculatable sum of money (or monetized emotional harm) as a result
of the conduct of one or more of the defendants.
Nor are the problems of measuring and
tracing elided by recasting the relief sought as restitution rather than
damages. Restitution-the transfer of the wrongdoer's gain to his victim-is an
alternative to damages, the monetization of the victim's loss. ConFold
Pacific, Inc. v. Polaris Industries, Inc., 433 F.3d 952, 957-58 (7th Cir.2006);
Charter Communications Entertainment I, DST v. Burdulis, 460 F.3d 168, 182 (1st
Cir.2006); Kerr v. Charles F. Vatterott & Co., 184 F.3d 938, 944 (8th
Cir.1999); 1 Dan B. Dobbs, Dobbs Law of Remedies § 4. 1, pp. 551, 555 (2d
ed.1993). It is a sensible remedy for egregious misconduct because it makes
the conduct worthless to the defendant by taking away his profit even if it
exceeds the loss to the plaintiff. But it presupposes an injury-it is a
remedy for a legal wrong-and there is no way in which to determine what if any
injury the defendants inflicted on the members of the plaintiff classes.
And again, if there were a legal wrong, it
would not be a wrong to any living persons unless they were somehow the
authorized representatives to bring suits on behalf of their enslaved
ancestors. With some exceptions to be noted, the plaintiffs are suing to
redress harms to third parties (their ancestors), without being authorized to
sue on behalf of those parties. It is like a suit by a descendant of a Union
soldier, killed in battle, against a Civil War era gun manufacturer still in
business that sold guns to the Confederacy in violation of federal law. A
federal court could not entertain the suit because the plaintiff would be
unable to prove a harm to an interest of his (such as his bank account) that
the law protects. Raines v. Byrd, 521 U.S. 811, 818-19, 117 S.Ct. 2312, 138
L.Ed.2d 849 (1997); Sierra Club v. Morton, 405 U.S. 727, 739-40, 92 S.Ct. 1361,
31 L.Ed.2d 636 (1972). It is possible that had the ancestor not died when he
did he would have become a wealthy person and left bequests so immense that his
remote descendant, the plaintiff, would have inherited more money from his
parents or grandparents than he actually did. But that is too speculative an
inquiry to provide a basis for a federal suit. See McConnell v. FEC, 540 U.S.
93, 225-26, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003); Branton v. FCC, 993 F.2d
906, 909 (D.C.Cir.1993).
The two cases just cited, and others,
treat remoteness as a limitation on Article III standing. Still other cases
treat it as a nonjurisdictional limitation on who may sue in federal court-but
still a limitation. Holmes v. Securities Investor Protection Corp., 503 U.S.
258, 268-69, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992); Blue Shield of Virginia v.
McCready, 457 U.S. 465, 476-77, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982); Israel
Travel Advisory Service, Inc. v. Israel Identity Tours, Inc., 61 F.3d 1250,
1257 (7th Cir.1995); Allegheny General Hospital v. Philip Morris, Inc., 228
F.3d 429, 435 (3d Cir.2000). Another group of cases would deem the suit
barred by Article III because one function of the Article III standing doctrine
is to prevent parties with slight interests in a litigation from crowding those
who have the main interests. Valley Forge Christian College v. Americans
United for Separation of Church & State, Inc., 454 U.S. 464, 473, 102 S.Ct.
752, 70 L.Ed.2d 700 (1982); Morlan v. Universal Guaranty Life Insurance Co.,
298 F.3d 609, 621 (7th Cir.2002); Illinois Department of Transportation v.
Hinson, 122 F.3d 370, 373 (7th Cir.1997); People Organized for Welfare &
Employment Rights (P.O.W. E.R.) v. Thompson, 727 F.2d 167, 173 (7th Cir.1984);
Abraham v. Intermountain Health Care Inc., 461 F.3d 1249, 1268 (10th
Cir.2006). In our hypothetical case of the Union soldier, the litigant with the
paramount interest in the case would be his estate and the damages that the
estate could recover would include whatever amount of money he would have
wanted his descendant to inherit. If the descendant could sue the tortfeasor
directly for that amount (or for the tortfeasor's profit, in a suit for
restitution), there would be either double recovery or an impossible task of
allocating the monetary recovery between the descendant and the estate.
A few of the plaintiff's claims, however,
as we noted at the outset, are claims of subjection to involuntary servitude
after it was outlawed by the Thirteenth Amendment, and indeed into the
twentieth century. Cain Wall, Sr. claims that “during the time that [he] was
enslaved”-which he contends extended into the 1960s-“one or more of the
defendants were doing business in Mississippi or Louisiana. Some of the
defendants had reason to know of the enslavement of Cain Wall and yet failed to
take steps to eliminate same, while they continued to inure benefits from the
illegal, but sanctioned system of servitude post-emancipation.” But there is
no claim that the defendants subjected Wall (or any other class member) to
involuntary servitude or did anything to perpetuate or exacerbate his
condition. The claim is that they took no steps to free him. The briefs
suggest no basis for thinking that there is any kind of Good Samaritan legal
duty to eliminate a violation of the Thirteenth Amendment committed by someone
else.
The limitations that Article III places
on the right to sue in a federal court require us to affirm (though striking
“with prejudice”), on the basis of lack of standing, the greater part of the
district court's judgment. But there are three qualifications. First,
although most of the plaintiffs and class members are suing as descendants
rather than as representatives of their ancestors' estates authorized to sue on
those ancestors' behalf, a few do claim to be suing in such a representative
capacity. It is highly unlikely that the estate of anyone who died a century
or more ago, or indeed more than half a century ago (for although many former
slaves survived into the twentieth century, very few would still have been
alive 50 years ago, which is to say in 1956, 91 years after the end of the Civil
War), has not yet been closed. But the district judge accepted that the
purported representatives had a right to sue on behalf of their ancestors, and
the defendants offer only a perfunctory rebuttal. We shall assume without
deciding that some of the plaintiffs are legal representatives of their slave
ancestors. These plaintiffs not only escape the objection to standing that
the suits seek damages for injuries actually suffered by third parties (the
ancestors-no longer third parties, but the real parties in interest, merely
represented by the plaintiffs), but have less to prove. They just have to prove
the injury to the ancestors; the trickle-down question is elided.
In all likelihood it would still be
impossible for them to prove injury, requiring as that would connecting the
particular slavery transactions in which the defendants were involved to harm
to particular slaves. But in any event, suits complaining about injuries that
occurred more than a century and a half ago have been barred for a long time by
the applicable state statutes of limitations. It is true that tolling
doctrines can extend the time to sue well beyond the period of limitations-but
not to a century and more beyond. Slaves could not sue, and even after the
Thirteenth Amendment became effective in 1865 suits such as these, if brought
in the South, would not have received a fair hearing. However, some northern
courts would have been receptive to such suits, and since the defendants are
(and were) northern companies, venue would have been proper in those states.
Even in the South, descendants of slaves have had decades of effective access
to the courts to seek redress for the wrongs of which they complain. And it's
not as if it had been a deep mystery that corporations were involved in the
operation of the slave system. See, e.g., Edgar J. McManus, Black Bondage in
the North 174 (1973); Kenneth M. Stampp, The Peculiar Institution: Slavery in
the AnteBellum South 397 (1956).
The second qualification concerns a
claim, rather buried in the complaint but not forfeited, that in violation of
state fraud or consumer protection law members of the plaintiff classes have
bought products or services from some of the defendants that they would not
have bought had the defendants not concealed their involvement in slavery.
This claim has nothing to do with ancient violations and indeed would be
unaffected if the defendants' dealings with slaveowners had been entirely
legal. It is a complaint of consumers' being deceived because sellers have
concealed a material fact. The injury is the loss incurred by buying
something that one wouldn't have bought had one known the truth about the
product.
It is true that under no consumer
protection law known to us, whether a special statute or a doctrine of the
common law of contracts or torts, has a seller a general duty to disclose every
discreditable fact about himself that might if disclosed deflect a buyer. To
fulfill such a duty he would have to know much more about his consumers than he
possibly could. But the plaintiffs are charging the defendants with
misrepresenting their activities in relation to slavery. A seller who learns
that some class of buyers would not buy his product if they knew it contained
some component that he would normally have no duty to disclose, but fearing to
lose those buyers falsely represents that the product does not contain the
component, is guilty of fraud. An example would be a manufacturer who
represented that his products were made in the United States by companies that
employ only union labor, whereas in fact they were made in Third World
sweatshops. See Kasky v. Nike, Inc., 27 Cal.4th 939, 119 Cal.Rptr.2d 296, 45 P.3d
243, 248 (Cal.2003); Price v. Philip Morris, Inc., 219 Ill.2d 182, 302 Ill.Dec.
1, 848 N.E.2d 1, 19 (Ill.2005); Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 267
Ill.Dec. 14, 776 N.E.2d 151, 154-55 (Ill.2002); Lightning Lube, Inc. v. Witco
Corp., 4 F.3d 1153, 1185 (3d Cir.1993).
We do not offer an opinion on the merits
of the consumer protection claims, but merely reject the district court's
ruling that they are barred at the threshold.
The third qualification concerns the
Hurdle suit and is related to the second qualification. Unlike the other
plaintiffs, the Hurdle plaintiffs didn't want to remain in the district court
in Chicago. They wanted to return to the California district court from which
their case had been transferred to Chicago for pretrial proceedings, when the
pretrial proceedings concluded. Actually they wanted to return to the
California state court from which the defendants had removed their case to the
district court, but that is an issue for that district court to resolve if and
when the case is returned. As we pointed out at the beginning of this
opinion, the district court, as the transferee court in a transfer pursuant to
28 U.S.C. § 1407, was authorized to rule on a motion to dismiss the Hurdle
suit. But though the district judge in the exercise of that power rightly
dismissed so much of that suit as attacks wrongs done to the plaintiffs'
ancestors, the Hurdle plaintiffs are among the plaintiffs who have consumer
protection claims as well. As to them there will be further pretrial
proceedings, and they will be conducted in Chicago. So the Hurdle plaintiffs
can't go back to California, at least not yet.
To summarize, the district court's
dismissal, for want of standing, of all but the claims brought by legal
representatives of slaves plus the consumer protection claims is modified to be
a dismissal without prejudice, and as so modified is affirmed. (Barber's suit
is dismissed, also without prejudice, for want of diversity.) The dismissal
of the claims brought by the plaintiffs who claim to be legal representatives
is affirmed, but on the merits (statute of limitations) and so with prejudice.
The dismissal of the consumer protection claims is reversed and the case
remanded to the district court for further proceedings on those claims
consistent with this opinion. The district court is authorized to retain
those claims for the duration of the litigation, except in the case of the
Hurdle plaintiffs, as to whom the court is authorized only to conduct pretrial
proceedings under 28 U.S.C. § 1407.
Modified And Affirmed, In Part; Reversed
In Part And Remanded.
POSNER, Circuit Judge.
Subscribed and sworn before Public Notary Public on this _____ day of __________ 2021
Estate of Louis Charles Hamilton II Cmdr. US Navy MSS (Pro Se Plaintiff) 2724 61st Street, Suite 1-B17, Galveston, TX 77551
CC: Queen Elizabeth II, Princess Elizabeth Alexandra Mary, Prince William, Duke of Cambridge, KG, KT, PC, ADC (William Arthur Philip Louis) Prince Henry of Wales, KCVO, (Henry Charles Albert David), Prime Minister Boris Johnson The British Consulate 1301 Fannin Street #2400 Houston Texas 77002-7014
CC: Director of the Federal Bureau of Investigation Christopher A. Wray, FBI Headquarters 935 Pennsylvania Avenue, NW Washington, D.C. 20535-0001
CC: United Nations Secretary-General António Guterres United Nations Headquarters 405 East 42nd Street, New York, NY, 10017
CC: Joseph Robinette Biden Jr. 46th and current “President of the United States 1600 Pennsylvania Avenue NW, Washington, DC 20500
CC: International Criminal Court “Honorable Mrs. Fatou Bensouda
#ICC #Honorable #Ms #Fatou #Bensouda #pursuant #to #Nuremberg #Nazi #Criminals #Trials #™Cmdr. #Bluefin
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