Varnador Sutton v. Juval Scott ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 20, 2018*
Decided July 30, 2018
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18-1571 Appeal from the United
States District Court for the
VARNADOR SUTTON, Southern District of Indiana,
Plaintiff-Appellant,
Indianapolis Division.
v.
No. 1:17-cv-01777-RLY-DML
JUVAL O. SCOTT and Richard L. Young, Judge.
JOHANNA M. CHRISTIANSEN,
Defendants-Appellees.
Order
The judgment following Varnador Sutton’s conviction for health-care fraud, 18
U.S.C. §1347, included more than $3 million in restitution and an order forfeiting his
property to pay some of that obligation. See Fed. R. Crim. P. 32.2(e)(1)(B). The forfeited
property was sold. Years later Sutton sued his lawyers for malpractice, contending that
* After examining the briefs and the record, we have concluded that oral argument is unnecessary.
See Fed. R. App. P. 34(a)(2)(C).
No. 18-1571 Page 2
they should have challenged the forfeiture as part of his criminal appeals. The district
court entered summary judgment, ruling that the suit is untimely.
Sutton took two direct appeals, neither of which entailed a challenge to the forfei-
ture. The first led to a remand for resentencing, 582 F.3d 781 (7th Cir. 2009), and the sec-
ond to an order affirming the revised sentence. United States v. Sutton, No. 09-4140 (7th
Cir. July 13, 2011) (nonprecedential disposition). Sutton’s lawyer on the first appeal was
Juval Scott, a federal defender; his lawyer on the second was Johanna Christiansen, also
a federal defender. Sutton asserts that he directed each lawyer to contest the forfeiture
and that each refused, telling Sutton that there was no non-frivolous basis for an appel-
late contest.
Sutton then acted on his own to oppose the forfeiture, but his requests have come to
naught. See Sutton v. United States, No. 14-2290 (7th Cir. Mar. 20, 2015) (nonprecedential
disposition). Next Sutton sued Scott and Christiansen. The district court concluded that
a tort claim against the lawyers accrued at the latest when each stopped representing
Sutton (2010 for Scott, 2011 for Christiansen). Applying the two-year statute of limita-
tions in the Federal Tort Claims Act, 28 U.S.C. §2401(b), the district court found the suit
untimely.
Reliance on §2401(b) was a misstep. That provision applies to a “tort claim against
the United States”, which this suit is not. Scott and Christiansen were federal employees
when they represented Sutton, and they could have asked the Attorney General to sub-
stitute the United States as the defendant under the Westfall Act. 28 U.S.C. §2679(c), (d).
But they did not make such a request, so the suit remained one against them personally
rather than one against the United States. See Sullivan v. Freeman, 944 F.2d 334, 337 (7th
Cir. 1991). Section 2401(b) is accordingly irrelevant, and the period of limitations must
come from state law—here Indiana’s, for Scott and Christiansen both represented Sut-
ton in Indiana.
Indiana allows two years for legal-malpractice suits. Ind. Code §34-11-2-3. The time
starts with the plaintiff’s discovery of the injury. Godby v. Whitehead, 837 N.E.2d 146,
150–51 (Ind. App. 2005). When each defendant told Sutton that forfeiture would not be
raised as an appellate issue, Sutton knew that the point likely would be lost; and the in-
jury was realized no later than when this court affirmed the judgment without raising
forfeiture on its own initiative. These events all occurred more than two years before
Sutton filed the current suit.
Sutton tells us that he did not discover his injury until he learned in 2015 that his
claim directly against the United States was unavailing—that the objection to the forfei-
No. 18-1571 Page 3
ture, which was part of the criminal judgment, had to occur in the criminal case. But by
his own admission Sutton knew that this was a potential issue in the criminal appeals.
He asked his lawyers to present it. They refused—not because the argument should be
made in a separate suit, but because the arguments that Sutton wanted to make would
have been frivolous. Thus he discovered his loss no later than July 13, 2011, when his
criminal judgment, including the forfeiture, was affirmed.
According to Sutton the Journey’s Account Statute in Indiana, Ind. Code §34-11-8-1,
gives him time to file a new suit after prior litigation has been dismissed. He asserts that
the dismissal of his suit against the United States in 2015 opened a new window for liti-
gation. But the Journey’s Account Statute applies only if the new suit asserts “funda-
mentally the same claim”, Eads v. Community Hospital, 932 N.E.2d 1239, 1245 (Ind. 2010),
against the same defendants, Torres v. Parkview Foods, 468 N.E.2d 580, 582 (Ind. App.
1984) (construing the current law’s predecessor). This suit does not meet that descrip-
tion. The suit against the United States sought to rescind the forfeiture; this suit seeks
damages for an accomplished loss. And a tort action against one’s lawyers is not re-
motely the “same claim” against the same party as a substantive dispute with one’s
original adversary.
AFFIRMED