Lowe, George v. SRA/IBM-Macmillan ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-1888, 03-1954
GEORGE LOWE,
Plaintiff-Appellee, Cross-Appellant,
v.
MCGRAW-HILL COMPANIES, INC., et al.,
Defendants-Appellants, Cross-Appellees.
____________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 01 C 0058—Suzanne B. Conlon, Judge.
____________
ARGUED OCTOBER 28, 2003—DECIDED MARCH 15, 2004
____________
Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. An ERISA plan (the other defen-
dants can be ignored) appeals from the district judge’s im-
position, after an evidentiary hearing, of statutory penalties
and attorneys’ fees for failure to comply with the plaintiff’s
requests for plan documents. The plaintiff, George Lowe,
cross-appeals, challenging the judge’s order setting aside
under Rule 60(a) of the Federal Rules of Civil Procedure a
default judgment that she had entered in his favor earlier
2 Nos. 03-1888, 03-1954
and that was more favorable to him than the contested
judgment, entered later, from which the plan appeals.
The facts, as distinct from their interpretation, are not in
dispute. Lowe’s wife was a retired employee of a company
that was acquired by McGraw-Hill, and the company’s
retirement plan was merged into the McGraw-Hill plan. She
collected retirement benefits from the plan for several years,
and then died. Her executor informed the plan of her death,
whereupon payments ceased because the plan had in its
possession a form that indicated that she had chosen to take
her benefits as a single-life annuity, which meant that her
husband would not receive any benefits should he survive
her. For this cutting out of the spouse to be effective,
however, a waiver had to be signed by the spouse and the
signature either witnessed by a representative of the plan or
notarized. 29 U.S.C. § 1055(c)(2)(A)(iii); Lasche v. George W.
Lasche Basic Profit Sharing Plan, 111 F.3d 863, 866 (11th Cir.
1997). The waiver that the plan had was signed by Mr.
Lowe, all right, but his signature was neither witnessed nor
notarized.
Looking through his wife’s papers, Lowe found the
same form that his wife had signed, but on his copy there
was no check mark in the single-life annuity box, as there
was on the plan’s copy. On July 24, 1999, Lowe wrote the
plan requesting relevant documents, such as the retirement
plan itself. There was no response. In September Lowe
wrote again, and again got no response. He turned to the
Department of Labor for help. The Department requested
some of the documents from the plan. The plan complied
with the Department’s request three months later, but
without bothering to send copies to Lowe, who meanwhile,
on January 4, 2001, had brought this suit against the plan for
survivor benefits. Not until July 24, 2001, did the plan give
Lowe the documents he had requested, and at the same time
Nos. 03-1888, 03-1954 3
it acknowledged his right to survivor benefits of $277.90 a
month because his signature on the form waiving surviving
spouse’s rights had not been witnessed or notarized. By this
time Lowe had obtained a default order, but it was not until
March of 2003 that the judgment that the plan has appealed
was entered. The judgment awarded him survivor benefits
in the amount the plan had acknowledged owing him, plus
statutory penalties of $35,050 determined by multiplying
$50 a day by the 701 days that had elapsed between the
plan’s deadline (see next paragraph) for giving Lowe the
documents he had requested and the date on which it
finally did give them to him, and $19,274.64 in attorneys’
fees for his efforts in getting the plan to acknowledge at last
that it owed him survivor’s benefits. We shall discuss the
plan’s challenge to these awards first and then recount the
circumstances leading up to the cross-appeal. We note with
regret that the almost two-year interval between the entry
of the order of default and the entry of the final judgment,
in a case involving simple facts and modest stakes, argues
poor case management.
A failure to honor a request for plan documents by a
plan’s participant or beneficiary within 30 days of the re-
quest exposes the plan to a statutory penalty of $100 (now
$110) a day. 29 U.S.C. § 1132(c)(1); 29 C.F.R. § 2575.502c-1.
Because the statute provides no criteria to guide determina-
tion of the amount to be awarded within that limit, that
determination is left to the discretion of the district judge.
Ziaee v. Vest, 916 F.2d 1204, 1210 (7th Cir. 1990); McDonald
v. Pension Plan of NYSA-ILA Pension Trust Fund, 320 F.3d
151, 163 (2d Cir. 2003). The judge did not abuse her discre-
tion in assessing a $50 a day penalty against the plan. The
plan’s delay in giving Lowe documents to which he was
clearly entitled was egregious, driving him to hire a lawyer
and entangling him in litigation culminating in an absurd
cross-appeal (of which more later). The offender—the
4 Nos. 03-1888, 03-1954
McGraw-Hill plan—is a substantial entity that cannot claim
to lack the resources necessary for processing document re-
quests expeditiously. Not that poverty would be a defense,
but it might—we do not hold that it would; the question is
not presented—be a mitigating circumstance. Cf. Hicks v.
Feiock, 485 U.S. 624, 638 n. 9 (1988); South Suburban Housing
Center v. Berry, 186 F.3d 851, 854-55 (7th Cir. 1999); Huber v.
Marine Midland Bank, 51 F.3d 5, 10 (2d Cir. 1995).
McGraw-Hill pleads for lenity on the ground that its
records concerning Mrs. Lowe were “in disarray” because
it had just acquired her employer and also that it thought
Mrs. Lowe had waived survivor benefits. Although Lowe’s
signature on the waiver form was not witnessed or nota-
rized, the employee of the plan who handled Lowe’s request
for documents thought that the attestation might be on
another page that had gotten lost in the shuffle. He never
bothered to tell Lowe this, however, and the “lost page”
never did turn up and so far as we know never existed. The
plan’s pleas for mercy are in any event in conflict with one
another, because the disorganization of its records should
have alerted it to the possibility that evidence that Lowe’s
signature had been notarized would never turn up. And
anyway doubt about the validity of the wife’s election does
not explain a failure to send Lowe a copy of the plan or
make any other response to him.
The plan’s only respectable argument against the penalty
ruling is that the judge made a factual error. She mistakenly
believed that Lowe had sent the plan his copy of his wife’s
form, the copy in which the box for electing a single-life
annuity had not been checked. Deference in appellate
review of a discretionary decision by the first-line decision-
maker presupposes that he has got the facts and the law
right. But if it is reasonably clear that correcting the error
would not lead to a different decision, the error is harmless
Nos. 03-1888, 03-1954 5
and the decision will stand. Kwasny v. United States, 823 F.2d
194, 196 (7th Cir. 1987). That is the case here. The reason the
plan could not lawfully deny survivor’s benefits to Lowe
was not that his copy of the form indicated that his wife had
intended him to have those benefits, for his copy might have
been erroneous or a fabrication, but that the plan’s copy was
missing an essential element of an effective waiver of a
survivor’s benefits, namely an attestation of Lowe’s signa-
ture. To have assumed that the missing attestation would
turn up and on that basis to decline even to communicate
with Lowe for nearly two years was not only unjustifiable,
but flagrantly so, and we cannot imagine that drawing a
minor factual error to the district judge’s attention would
have changed her decision. The McGraw-Hill plan can
consider itself lucky that only half the maximum penalty
was imposed. Compare Krueger Int’l, Inc. v. Blank, 225 F.3d
806, 811 (7th Cir. 2000); Law v. Ernst & Young, 956 F.2d 364,
375 (1st Cir. 1992). We add that the plan could have deter-
mined the significance of the judge’s factual mistake by
moving under Fed. R. Civ. P. 59 for reconsideration of her
decision.
ERISA authorizes (with immaterial exceptions) the award
of reasonable attorneys’ fees to a prevailing plaintiff in a suit
for benefits. 29 U.S.C. § 1132(g)(1). Because the award will
be paid out of plan assets, to the possible harm of the other
participants and beneficiaries (vested benefits in ERISA
retirement plans are federally insured—but not fully, 29
U.S.C. §§ 1322, 1322a, 1322b; Nachman Corp. v. Pension
Benefit Guaranty Corp., 446 U.S. 359, 375 and n. 23 (1980);
Operating Engineers Local 139 Health Benefit Fund v. Gustafson
Construction Corp., 258 F.3d 645, 653 (7th Cir. 2001)), prevail-
ing plaintiffs in ERISA cases are not awarded attorneys’ fees
as a matter of course, as in civil rights litigation. Instead
they must show that the plan’s litigating position was not
“substantially justified.” Bittner v. Sadoff & Rudoy Industries,
6 Nos. 03-1888, 03-1954
728 F.2d 820, 830 (7th Cir. 1984). Some cases employ instead
a multifactor test to determine entitlement to attorneys’ fees
in ERISA cases. But as we pointed out in Bowerman v. Wal-
Mart Stores, Inc., 226 F.3d 574, 592-93 (7th Cir. 2000), the
factors in the test are used to structure or implement, rather
than to contradict, the “substantially justified” standard,
described in Little v. Cox’s Supermarkets, 71 F.3d 637, 644 (7th
Cir. 1995), as the “bottom-line” question to be answered
even when the more elaborate test is used. The only basis
the plan had for refusing to pay survivor’s benefits was that
Lowe’s signature might have been notarized on a sheet of
paper that has vanished. This “the dog ate my homework”
defense was no defense at all, In re Riggs, 240 F.3d 668,
670 (7th Cir. 2001), and so the plan’s position cannot be said
to have been substantially justified and Lowe was rightly
reimbursed for his attorney’s fees.
So the plan’s attack on the judgment fails, and we turn to
the cross-appeal. On April 17, 2001, three and a half months
after filing suit against the plan, Lowe, not yet represented
by counsel, filed a motion for an order of default, and also
for a default judgment that would require the plan to grant
him benefits of $3,200 per month, plus other monetary relief.
A week later the district judge granted the motion “in part,”
declining to enter a judgment—which obviously would
have been premature—but declaring a default and directing
Lowe to submit proof of the relief to which he was entitled.
The Federal Rules of Civil Procedure make a clear distinc-
tion between the entry of default and the entry of a default
judgment. The default is entered upon the defendant’s
failure to plead or otherwise defend, Fed. R. Civ. P. 55(a),
but if an evidentiary hearing or other proceedings are
necessary in order to determine what the judgment should
provide, such as the amount of damages that the defaulting
defendant must pay, those proceedings must be conducted
before the judgment is entered. See Rule 55(b)(2). This was
Nos. 03-1888, 03-1954 7
such a case, and so on June 4, 2001, the judge referred the
case to a magistrate judge for a settlement conference and a
determination of the benefits and other relief to which Lowe
was entitled. It was after this that the plan finally gave Lowe
the requested documents and acknowledged Lowe’s
entitlement to benefits. Proceedings continued in the district
court to fix the relief due Lowe, culminating in the March
2003 judgment that we have just upheld.
Meanwhile, however, on May 24, 2001, in between the
entry of the default and the reference to the magistrate
judge, the district court had entered a judgment order
awarding Lowe not only the $3,200 a month that he had
asked for ($90,000 of which had, according to him, already
accrued) in the motion for the entry of a default judgment
but also, as further requested in that motion, a $73,000
penalty, $30,000 in attorneys’ fees and costs, and other relief.
This judgment (another example of the poor case manage-
ment that has marked this wholly unnecessary litigation
throughout its tedious and protracted course) was docketed
on June 5, the day after the reference to the magistrate
judge. But apparently it was not sent to either party (worse
and worse), and was not discovered until February of 2003
(21 months later)—whereupon the plan successfully moved
the district judge to vacate the judgment order under Fed.
R. Civ. P. 60(a), as a clerical error. The order vacating the
judgment is the target of Lowe’s cross-appeal. He makes no
pretense of a substantive entitlement to the inflated relief
awarded by the default judgment, but contends that the
district court lacked the power to undo the windfall it had
unwittingly given him.
The plan argues that the order vacating the default judg-
ment is not appealable because it did not end the litigation
in the district court; that end did not come until the judg-
8 Nos. 03-1888, 03-1954
ment of March 2003, the month following the Rule 60(a)
order. The order’s lack of finality would not matter had
Lowe been purporting to appeal from the March 2003
judgment, since an appeal from a final judgment brings up
for review any previous order by the district court that
hasn’t become moot. But his notice of appeal designates the
order vacating the May 2001 judgment order as the decision
appealed from. The mistake is not fatal to our jurisdiction,
however. Chaka v. Lane, 894 F.2d 923 (7th Cir. 1990); Lumber-
men’s Mutual Ins. Co. v. Massachusetts Bonding & Ins. Co., 310
F.2d 627 (4th Cir. 1962); see Foman v. Davis, 371 U.S. 178,
181-82 (1962); In re Grabill Corp., 983 F.2d 773, 775-76 (7th
Cir. 1993); Young v. Gordon, 330 F.3d 76, 80 (1st Cir. 2003).
The notice specified the wrong order but it was apparent to
everyone that Lowe meant to challenge the March 2003
judgment and have it replaced by the May 2001 judgment,
which was larger. Of course it is tempting to nail Lowe to a
formality, since it is on the basis of a procedural formality
that he seeks to retain a judgment to which he is not entitled
in any sense rooted in substantive justice. But the cases do
not permit so free-wheeling an exercise of equitable discre-
tion.
So we proceed to the merits of the judge’s order setting
aside the earlier judgment. Remember that the later judg-
ment, the one entered in March of 2003, awarded Lowe in
benefits not $3,200 a month but less than $300, not $73,000
in penalties but $35,000, not $30,000 in attorneys’ fees but
$19,000. Lowe’s appeal does not challenge these numbers.
But he says that the earlier judgment, the judgment of May
2001, was not a clerical error, but a mistake, and Rule
60(b)(1) allows relief from a mistaken judgment only within
a year of its entry. What is more, Rule 55(c) authorizes the
setting aside of a default judgment only under Rule 60(b),
and not under Rule 60(a).
Nos. 03-1888, 03-1954 9
He is right that what the district court did in entering the
default judgment does not fit under Rule 60(a). Not because
it was not inconsequential. Although most clerical errors are
inconsequential—an example is that paragraph 8 of the
default judgment is followed by a paragraph also numbered
8—not all are. The defining element is not that the error was
trivial, but that the parties knew that it was by pure inad-
vertence, rather than a mistaken exercise of judgment, that
an error had crept into the judgment or other judicial record.
Examples are Esquire Radio & Electronics, Inc. v. Montgomery
Ward & Co., 804 F.2d 787, 795-96 (2d Cir. 1986), where Rule
60(a) was used to change the judgment from $269,689.89 to
$296,689.89, and McNamara v. City of Chicago, 138 F.3d 1219,
1221 (7th Cir. 1998), where the rule was used to replace
“Chicago Police Department” with “Chicago Fire Depart-
ment” in one sentence of the opinion. In such cases the
correction restores the original meaning of the judgment
known to both parties. Brandon v. Chicago Board of Education,
143 F.3d 293, 295 n. 2 (7th Cir. 1998); Charles v. Daley, 799
F.2d 343, 347 (7th Cir. 1986); United States v. Griffin, 782 F.2d
1393, 1396-97 (7th Cir. 1986). The error in entering the
default judgment sought by Lowe and believed by him to be
something to which he was entitled was not of that kind.
The judgment gave him exactly what he sought. Had he
known about it, he would not have thought that he was the
beneficiary of a mistake, as when one cashes a $10 check
and the teller gives you $100. Had he known about the entry
of the default judgment, he would doubtless have been
puzzled by what would have struck him as an unexplained
change of heart by the judge, who, shortly before, in enter-
ing the default, had declined to enter a default judgment.
But he was not represented by counsel at the time and the
ways of courts are often a mystery to the laity.
With the Rule 60(a) door thus shut, however, the law
would be exposed as indeed “a ass—a idiot,” as Mr. Bumble
10 Nos. 03-1888, 03-1954
called it in Oliver Twist, if the district judge’s mistake could
not be corrected under Rule 60(b). Since no one knew about
the May 2001 judgment until the case was about to be
resolved on the basis of the March 2003 judgment, no one
was harmed by the judgment; no one relied on it. The
reason for the one-year deadline in Rule 60(b)(1) for setting
aside judgments based on “mistake, inadvertence, surprise,
or excusable neglect” is that people justifiably rely on
judgments that they have obtained and that have become
final. See In re Met-L-Wood Corp., 861 F.2d 1012, 1019 (7th
Cir. 1988); Metlyn Realty Corp. v. Esmark, Inc., 763 F.2d 826,
830-31 (7th Cir. 1985); United States v. Griffin, supra, 782 F.2d
at 1397-98; Blue Diamond Coal Co. v. Trustees of UMWA
Combined Benefit Fund, 249 F.3d 519, 528-29 (6th Cir. 2001).
And, as Holmes pointed out long ago, reliance grows with
time. O.W. Holmes, “The Path of the Law,” 10 Harv. L. Rev.
457, 477 (1897). Security of property rights and other
holdings—and a legal judgment is a form of property right,
McCullough v. Virginia, 172 U.S. 102, 123-24 (1898); Hoyt
Metal Co. v. Atwood, 289 F. 453, 454-55 (7th Cir. 1923);
Johnston v. Cigna Corp., 14 F.3d 486, 490-91 (10th Cir.
1993)—would be greatly undermined if a judgment could be
challenged a decade or more after it had been entered, on
the ground that the judge had been mistaken to render it.
There is no deadline in Rule 60(a), but it should be clear
from our earlier discussion that clerical errors within the
rule’s meaning are not the kind of error that invites reliance,
because they do not deceive either party concerning the
content of the judgment; and so a deadline is not important
to protect reliance.
Two other subsections of Rule 60(b) besides subsection
(1)—the subsections that allow relief on the basis of newly
discovered evidence (2) or of fraud (3)—also carry a one-
year deadline. But the other three subsections—the judg-
ment is void, the judgment has been satisfied, released,
Nos. 03-1888, 03-1954 11
or reversed, or there is “any other reason justifying relief
from the operation of the judgment” (4), (5), (6)—have no
deadline. Allegations of fraud or of the discovery of new
evidence seek to reopen the merits of the judgment and if
they could be made at any time, judgments would be
insecure. But as in the case of a clerical error, the fact that a
judgment is void or that it has been released or reversed can
be determined without an evidentiary inquiry. That takes
care of subsections (1) through (5) and leaves, as the only
possible basis for setting aside the default judgment in this
case, (6): “any other reason justifying relief from the opera-
tion of the judgment.”
This catch-all or safety-valve provision, Merit Ins. Co. v.
Leatherby Ins. Co., 714 F.2d 673, 682 (7th Cir. 1983); Claremont
Flock Corp. v. Alm, 281 F.3d 297, 299 (1st Cir. 2002), mustn’t
be allowed to override the one-year limitation in Rules
60(b)(1), (2), and (3). “[A] party who failed to take timely
action due to ‘excusable neglect’ may not seek relief more
than a year after the judgment by resorting to subsection
(6).” Pioneer Investment Services Co. v. Brunswick Associates
Limited Partnership, 507 U.S. 380, 393 (1993); see also Central
States, Southeast & Southwest Areas Pension Fund v. Central
Cartage Co., 69 F.3d 1312, 1315 (7th Cir. 1995); In re Met-L-
Wood Corp., supra, 861 F.2d at 1018; Home Port Rentals, Inc. v.
Ruben, 957 F.2d 126, 133 (4th Cir. 1992). What then is its
scope? The first five subsections seem to cover the water-
front. The only work left for (6) to do is to allow judgments
to be set aside, without limitation of time, when the circum-
stances of its invocation are “extraordinary.” Liljeberg v.
Health Services Acquisition Corp., 486 U.S. 847, 863 n. 11
(1988); Klapprott v. United States, 335 U.S. 601, 613 (1949)
(plurality opinion); Community Dental Services v. Tani, 282
F.3d 1164, 1169-70 (9th Cir. 2002); Hess v. Cockrell, 281 F.3d
212, 215-16 (5th Cir. 2002); see also Ackermann v. United
States, 340 U.S. 193, 202 (1950); Cashner v. Freedom Stores,
12 Nos. 03-1888, 03-1954
Inc., 98 F.3d 572, 579-80 (10th Cir. 1996). This is fuzzy, and
in tension with the cases that say that Rules 60(b)(1) and
60(b)(6) are mutually exclusive. But the purpose of a catch-
all provision, as the term implies, is to avoid tying one’s
hands in advance, which a rule would do and only a loose
standard would securely avoid doing.
In the typical “extraordinary” case, illustrated by both
Liljeberg and Kapprott, there just is no way the party seeking
to set aside the judgment could have discovered the ground
for doing so within a year of its entry. See Pioneer Investment
Services Co. v. Brunswick Associates Limited Partnership, supra,507 U.S. at 393; Claremont Flock Corp. v. Alm, supra, 281 F.3d
at 299-300; 12 James Wm. Moore, Moore’s Federal Practice §
60.48[3][b], [c] (3d ed. 2003). This is such a case, with the
added wrinkle that the district judge’s mistake could not
have invited or received any reliance by the party in whose
favor the mistaken judgment was entered, because Lowe
didn’t know he had a judgment, so could hardly have relied
on it and his subsequent conduct showed that he did not
rely on it. And nothing would have alerted the plan to the
entry of a default judgment, when, as required by Fed. R.
Civ. P. 55, the judge had directed the parties to determine
the damages to which Lowe was entitled—the damages that
would be ordered in a judgment to be entered when they
were determined.
For completeness, we note the plan’s alternative argument
that the district judge was entitled to set aside the May 2001
judgment, irrespective of Rule 60(b), because it was
nonfinal. The second paragraph 8 of the judgment states:
“For punitive damages as the Court deems just and proper.”
Apparently this means that the judge was to award Lowe
punitive damages in an amount to be determined by her, in
addition to the statutory penalty of $73,000. The total
damages not having been determined, the judgment order
was not a final, appealable judgment. Liberty Mutual Ins. Co.
Nos. 03-1888, 03-1954 13
v. Wetzel, 424 U.S. 737, 744 (1976); JMS Development Co. v.
Bulk Petroleum Corp., 337 F.3d 822, 825-27 (7th Cir. 2003);
Mercer v. Magnant, 40 F.3d 893, 896 (7th Cir. 1994); General
Motors Corp. v. New A.C. Chevrolet, Inc., 263 F.3d 296, 311 n.
3 (3d Cir. 2001). Rule 60(b) is applicable only to “final”
judgments. Kapco Mfg. Co. v. C & O Enterprises, Inc., 773 F.2d
151, 153-54 (7th Cir. 1985); Prudential Real Estate Affiliates,
Inc. v. PPR Realty, Inc., 204 F.3d 867, 880 (9th Cir. 2000);
Greene v. Union Mutual Life Ins. Co. of America, 764 F.2d 19,
22 (1st Cir. 1985). (Rule 60(a) contains no such limitation.)
No Rule 60(b) order is required to set aside a merely
interlocutory order. See, e.g., Fed. R. Civ. P. 55(c).
It is true that nowhere in ERISA is there authorization for
an award of punitive damages. Civil penalties are obtain-
able in a suit by a plan participant or beneficiary, 29 U.S.C.
§§ 1132(a)(1)(A), (c), and that is the basis on which Lowe
sought $73,000 in penalties. But neither these sections nor
any other section of ERISA authorizes awarding punitive
damages over and above the specified civil penalties. See
Mertens v. Hewitt Associates, 508 U.S. 248, 255-63 (1993);
Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 148
(1985); Harsch v. Eisenberg, 956 F.2d 651, 660-61 (7th Cir.
1992); Kleinhans v. Lisle Savings Profit Sharing Trust, 810 F.2d
618, 626-27 (7th Cir. 1987); Ford v. Uniroyal Pension Plan, 154
F.3d 613, 617-19 (6th Cir. 1998). But that is just to say that
any award of punitive damages made pursuant to the de-
fault judgment would have been reversed. An interlocutory
order is not rendered final by a prediction, however firmly
grounded, that the proceedings remaining in the district
court will lead nowhere.
AFFIRMED.
14 Nos. 03-1888, 03-1954
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-15-04