Self-Representation And A Maze Of Obtuse Federal Court Rules Yields Injustice

One problem with federal courts is they are too expensive and too difficult for average Americans to navigate.

And yet, they are the forum in the United States for deciding civil rights complaints. So average Americans, most of whom can’t afford to hire an attorney, have no choice but to represent themselves.

This situation creates predictable problems that are graphically illustrated in a recent decision of the U.S. Court of Appeals for the Seventh Circuit based in Chicago.

A three-judge 7^th Circuit panel complains that Edith McCurry, an African-American, filed lengthy and “rambling pro se complaints” alleging race, sex, disability and age discrimination against her former employer, Kenco Logistics Services, which handled management services for an Illinois warehouse owned by the candy maker, Mars, Inc.  McCurry, a former clerical employee in the plant’s human resources department, also argued Kenco and Mars conspired to violate her civil rights.

Kenco filed a pretrial motion to dismiss McCurry’s complaint because McCurry failed to follow local federal court Rule 7.1(D) which required her to answer every “material” and “immaterial” fact asserted in Kenco’s motion. U.S. Judge Colin S. Bruce interpreted all of Kenco’s facts as being admitted by McCurry. Then he dismissed her case.

Appeal Record Is Blank

McCurry secured counsel to file an appeal to the 7th Circuit, Jordan T. Hoffman, who appears to specialize in tax law.  

The 7^th Circuit panel upheld the dismissal of McCurry’s case in a decision in which it called Hoffman’s lengthy appeal “utterly frivolous” because it didn’t challenge Judge Bruce’s decision to enforce Rule 7.1(D). As a result, the panel said the appeal record technically contained no evidence to support her claims. Furthermore, the panel called Hoffman’s lengthy brief a “monstrosity” and ordered him “to show cause why he should not be sanctioned or otherwise disciplined.”

In oral arguments, a member of the appeals court panel almost immediately interrupted Hoffman and asked:  “Do you agree that Ms. McCurry did not comply with the local rules in responding to the summary judgment?”

Hoffman said McCurry “technically attempted to address [the rule] but she wasn’t able to.”  Regardless, he said, Judge Bruce should have given “deference” to the declarations and evidence in the case, including affidavits from both McCurry and her boss.

Never Posted the Position

The judge then expressed incredulity that McCurry complained she was a victim of race discrimination when she was not promoted to manager of the human resources department even though she had never applied for the job.

Hoffman responded the job was never posted, in violation of Kenco policy, and so McCurry was not given an opportunity to apply for the position.

“In addition,” he said, McCurry “had 15 years of experience doing HR activity related to benefits, discipline, hiring termination, leave of absence …” Hoffman argued that Kenco hired a white woman who was 17 years younger than McCurry who had only a couple of years of limited experience and no special HR certifications.

Kenco was represented by professional counsel, Julia  P. Argentieri , an associate of Jackson Lewis, a national law firm with an office in Chicago. Argentieri claimed that it was not a violation of Kenco’s policy to hire candidates without posting the position. Which, of course, begs the question of whether Kenco’s failure to have such a policy is evidence of discrimination.

Rule 7.1(D)

It is not a surprise that a former clerical worker failed to obey an obscure local procedural rule adopted by a U.S. District Court to supplement the national Federal Rules of Civil Procedure.

For the record, Rule 7.1(D)(1)(a)-(c) requires the plaintiff in response to a summary-judgment motion to “identify, in separate subsections: (1) the undisputed material facts; (2) the disputed material facts, (3) the disputed immaterial facts; (4) the undisputed immaterial facts; and (5) any additional material facts.”

There must be rules for a court system to operate efficiently but Rule 7.1(D) is not easy to understand and might even be unintelligible to a former clerical worker:

• The rule presumes that self-represented litigants, most of whom did not graduate from law school and/or conduct an appellate litigation practice in the 7^th Circuit, are aware of the rule.
• Even if aware that there are local rules, it is unlikely a self-represented litigant knows there is a specific rule outlining how to respond to a defendant’s dismissal motion.
• Self-represented litigants are unlikely to understand what constitutes a “material” and “immaterial” fact. This is a complex legal term. It basically refers to a fact that would make a difference to the outcome of the case.
• It  is not clear what Rule 7.1 means when it directs litigants to “identify, in separate subsections” the material and immaterial facts. This is the clause that apparently requires the plaintiff to deny or admit each fact, separately. Why don’t they just say that?

McCurry’s pleadings may be obtuse, hard to understand and, to some extent, unintelligible, but so are the Court rules.

The federal court system rakes in approximately $8 billion taxpayer dollars a year. Shouldn’t some of those billions be dedicated to improving the system by making it transparent and accessible to the people who pay the bills?

The Judges on the panel were Diane S. Sykes, who wrote the opinion, and Michael Y. Scudder, Jr., and Amy J. St. Eve. The case is McCurry v. Kenco Logistics Services, LLC., et al, No. 18-3206 (November 7, 2019). The 7th Circuit serves Illinois, Indiana and Wisconsin