Jay Vermillion v. Corizon Health, Inc. ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1517
JAY F. VERMILLION,
Plaintiff-Appellant,
v.
CORIZON HEALTH, INC., PAUL TALBOT, and RUBY BEENY,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16-cv-01723-JMS-DLP — Jane E. Magnus-Stinson, Chief Judge.
____________________
SUBMITTED OCTOBER 19, 2018 — DECIDED OCTOBER 24, 2018
____________________
EASTERBROOK, Circuit Judge, in chambers. This case came
to my a[ention, as motions judge, when the appellees
sought permission to file a brief containing more words than
the 14,000 permi[ed by Fed. R. App. P. 32(a)(7) and Circuit
Rule 32(c). Jay Vermillion, the appellant, represented that his
brief contains fewer than 14,000 words, after excluding the
portions not counted by Rule 32(f). But appellees reported
that their count of his brief came to 16,850 words. They
sought parity and then some: 17,258 countable words for
their brief.
2 No. 18-1517
This court’s staff checked and found 16,522 countable
words in Vermillion’s brief. Instead of adding words to ap-
pellees’ brief, I struck Vermillion’s, ordered him to file a new
brief with fewer than 14,000 words, and directed him to ex-
plain why he should not be penalized for falsely represent-
ing that his original brief complied with the word limits.
Vermillion’s response asks me to reinstate his brief. He
says that he started with a word count of 15,315, reported by
the “Properties” panel in Microsoft Word, and subtracted
the words in the cover, table of authorities, and other por-
tions that do not count against the total. Finding that the
count remained over 14,000, “Vermillion then discovered
that Rule 32(f) does not specifically include the [brief’s] ref-
erences to the Record and Appendix toward the word-
count” (Response at 6). He estimated that about 2,000 words
in his brief cited the record and appendix. With these ex-
cluded, the count is well under 14,000 words. So, he insists,
his brief complies with the rules and must be accepted.
Two problems dog this line of argument.
First, the “Properties” panel in Microsoft Word is not de-
signed to count all words in a document. The program’s
“Word Count” panel includes footnotes, which the “Proper-
ties” panel omits. Footnotes count toward the word limit, see
DeSilva v. DiLeonardi, 185 F.3d 815 (7th Cir. 1999), and Ver-
million’s brief contains about 1,000 words in footnotes. There
may be other differences between the “Properties” panel and
the “Word Count” panel, but this one big difference shows
why the count must start with the “Word Count” panel.
Second, the fact that Rule 32 does not “specifically in-
clude” any category of words does not imply that they don’t
No. 18-1517 3
count toward the limit. Rule 32(f) does not mention citations
to the record or appendix, but neither does it mention cita-
tions to judicial decisions and law reviews. Rule 32(a)(7) sets
a limit on the entire brief—statements of fact, summaries of
the district court’s or agency’s opinions, substantive legal
arguments, citations, quotations, footnotes, and everything
else—with the exception of the items excluded by Rule 32(f),
which reads:
In computing any length limit, headings, footnotes, and quota-
tions count toward the limit but the following items do not:
• the cover page;
• a corporate disclosure statement;
• a table of contents;
• a table of citations;
• a statement regarding oral argument;
• an addendum containing statutes, rules, or regulations;
• certificates of counsel;
• the signature block;
• the proof of service; and
• any item specifically excluded by these rules or by local rule.
So the fact that Rule 32(f) does not mention citations hardly
justifies their exclusion from the word count. Only those
ma[ers that are mentioned in Rule 32(f)’s list are excluded.
Everything else counts. (Neither the Rules of Appellate Pro-
cedure nor the Circuit Rules “specifically” excludes citations
of any kind.)
Because Vermillion’s brief did not comply with the rules,
my order striking it stands. He must file a new brief with
fewer than 14,000 countable words. The count must start
with the software’s “Word Count” panel and include foot-
notes. Only those items listed in Rule 32(f) may be excluded.
4 No. 18-1517
Once Vermillion has filed a complying brief, appellees
too will be subject to the 14,000 word limit. I will not allow
them any more words than Vermillion receives. Circuit Rule
32(c), which affords everyone 1,000 more words than the cap
in Rule 32(a)(7), reflects a view that 14,000 suffices for all but
the rare cases with lengthy trials, complex administrative
records, or multiple complex issues. This appeal is not in any
of those categories.
Vermillion is litigating without the aid of counsel, and his
response to my order shows that he tried to comply in good
faith, although he misunderstood both Rule 32(f) and the
right place to start in Microsoft Word. No sanction—beyond
the work needed to prepare and file a compliant brief—is
appropriate. The order to show cause is discharged.
By separate order, the court will reset the dates for both
sides’ briefs.