Filed: May 09, 2013
Latest Update: Feb. 12, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 May 9, 2013* Decided May 9, 2013 Before WILLIAM J. BAUER, Circuit Judge RICHARD A. POSNER, Circuit Judge DANIEL A. MANION, Circuit Judge No. 13-1016 KIMBERLY SUTHERLAND, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 11 C 4663 MICHELE M. LEONA
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 May 9, 2013* Decided May 9, 2013 Before WILLIAM J. BAUER, Circuit Judge RICHARD A. POSNER, Circuit Judge DANIEL A. MANION, Circuit Judge No. 13-1016 KIMBERLY SUTHERLAND, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 11 C 4663 MICHELE M. LEONAR..
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NONPRECEDENTIAL DISPOSITION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 May 9, 2013*
Decided May 9, 2013
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 13‐1016
KIMBERLY SUTHERLAND, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 11 C 4663
MICHELE M. LEONART, Administrator,
United States Drug Enforcement Robert M. Dow, Jr.,
Administration, et al., Judge.
Defendants‐Appellees.
O R D E R
Kimberly Sutherland, a retired attorney, appeals the dismissal of her petition for
mandamus, see 28 U.S.C. § 1361, seeking to compel federal and state officials to investigate
and prosecute “systemic health care fraud”–including fraudulent billing practices and
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 13‐1016 Page 2
opiate diversion–following a visit she made to the emergency room of a local hospital for a
foot injury. We affirm.
Sutherland’s petition arises out of her emergency room visit to Northwestern
Memorial Hospital that resulted in what she describes as fraudulent billing and falsification
of patient records. She brought this action against DEA Administrator Michele Leonhart,
F.B.I. Director Robert Mueller III, U.S. Attorney General Eric Holder, Illinois Attorney
General Lisa Madigan, and Illinois Governor Patrick Quinn. She alleged that state and
federal agencies under the defendants’ control failed to properly investigate her
complaints, and sought a writ of mandamus compelling them to remedy the problem. She
also alleged that the Illinois defendants aided and abetted violations of federal law by
failing to enforce Illinois statutes, see 210 ILCS 88/5(b)(4)–(5); 410 ILCS 50/3(b), and she
sought a writ of mandamus compelling these defendants to remedy that problem as well.
The district court dismissed the petition. The court concluded that (1) Sutherland
could not meet the exacting standards for mandamus because she could not identify any
legal duty that the federal defendants were required to perform, and (2) the Eleventh
Amendment barred her claims against the state defendants. The court then denied
Sutherland’s motion to reconsider, adding that her proposal to amend her complaint to
allege federal‐question jurisdiction would be futile.
On appeal, Sutherland maintains that she had a right to compel the federal
defendants to enforce the federal laws and regulations she says were violated. See 18 U.S.C.
§ 1347(a); 21 U.S.C. §§ 801–971; 21 C.F.R. § 1306.4; 21 C.F.R. § 1306.07(c); 21 C.F.R. §
1306.11(d)(1). As the district court explained, however, Sutherland has not identified any
nondiscretionary duty that the federal defendants were required to perform. Pittston Coal
Grp. v. Sebben, 488 U.S. 105, 121 (1988) (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984));
Ahmed v. Depʹt of Homeland Sec., 328 F.3d 383, 387 (7th Cir. 2003). Absent legal constraints on
an agency’s discretion, mandamus relief is an inappropriate remedy to compel an agency to
investigate or prosecute violations of the substantive laws it enforces. See Wayte v. United
States, 470 U.S. 598, 607–08 (1985); Heckler v. Chaney, 470 U.S. 821, 831, 832–33 (1985); Deloria
v. Veterans Admin., 927 F.2d 1009, 1013–14 (7th Cir. 1991).
Sutherland next argues that her claims against the state defendants fall within the
exception to Eleventh Amendment immunity set forth in Ex Parte Young, 209 U.S. 123,
159–60 (1908). That exception allows state officials to be sued for injunctive relief for
violations of federal law. See Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1639
(2011); Council 31 of the Am. Fed’n of State, Cnty., and Mun. Emps., AFL‐CIO v. Quinn, 680 F.3d
875, 882 (7th Cir. 2012). But as the district court correctly determined, the gravamen of
Sutherland’s claim is that the state defendants failed to carry out their duties under Illinois
No. 13‐1016 Page 3
law by not enforcing Illinois statutes (she labeled her claims against the state officials
“Pendant Count under Illinois Law”) and she seeks an order requiring them to do so–a
request that is not cognizable in federal court. See Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 106 (1984). And although she does allege that state officials assisted violations
of federal healthcare law, see 18 U.S.C. § 1347; 21 U.S.C. §§ 801–971, those allegations are
based only on the officials’s purported failure to perform duties under Illinois law.
Finally Sutherland maintains that the district court should have granted her leave to
amend her complaint to clarify that she alleged that the state defendants violated federal
law. But we agree with the district court that amendment would be futile because, as with
the federal defendants, Sutherland has not identified a nondiscretionary duty for the state
defendants to enforce the laws she seeks enforced.
We have considered Sutherland’s other arguments, and none merits further
discussion. The judgment of the district court is AFFIRMED.