In re: Charles Walker

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 11, 2014 *
Decided December 12, 2014
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 14‐1241
In the matter of:
CHARLES WALKER,
Debtor,
Appeal of:
MARILYN O. MARSHALL,
Trustee.
Appeal from the United States Bankruptcy
Court for the Northern District of Illinois,
Eastern Division.
No. 13‐42168
Timothy A. Barnes,
Bankruptcy Judge.
O R D E R
On the same day but several hours after he filed his Chapter 13 bankruptcy
petition, Charles Walker completed the credit counseling required under 11 U.S.C.
§ 109(h)(1). That statute requires that credit counseling be completed “during the
180‐day period ending on the date of filing the petition.” 11 U.S.C. § 109(h)(1). Marilyn
Marshall, the Chapter 13 Trustee assigned to Walker’s petition, moved to dismiss the
* 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. A PP. P.
34(a)(2).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 14‐1241 Page 2
petition, arguing Walker had to complete credit counseling before filing. The bankruptcy
court disagreed, ruling that the statute permitted a debtor to complete credit counseling
after filing as long as it was completed the same day. Marshall sought and received from
us permission to appeal this ruling, and we appointed an amicus to defend the
bankruptcy court’s decision. But between the time that the Trustee appealed and we
certified this appeal, the bankruptcy court dismissed Walker’s petition on an
independent ground: his failure to pay filing fees. Walker is not participating in the
appeal and does not contest the dismissal. Based on that dismissal and Walker’s
acquiescence, the amicus asks us to dismiss this appeal as moot. We agree and dismiss
this appeal.
A case is moot when a court cannot possibly give the appellant, should she
prevail, any relief. Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013). That is the case here. The
Trustee seeks reversal of the bankruptcy court’s order declining to dismiss Walker’s
petition. But because that court has dismissed Walker’s petition on the independent and
unchallenged ground that he failed to pay filing fees, we cannot give the Trustee any
further relief. See Belda v. Marshall, 416 F.3d 618, 619–21 (7th Cir. 2005) (interpretation of
bankruptcy code provisions rendered moot when underlying petition was later
dismissed by bankruptcy court because debtor was in default on required payments and
did not appeal that dismissal). Dismissal of this appeal vindicates the principle that
interlocutory appeals in general are mooted once the district court has dismissed the
underlying action. See In re Caribbean Tubular Corp., 813 F.2d 533, 534–35 (1st Cir. 1987)
(collecting cases and applying the principle in the bankruptcy context).
The Trustee replies with two arguments, but neither is persuasive. First she
argues that, despite the dismissal, under 11 U.S.C. § 362(c)(3)(A) Walker’s case remains
pending for one year after dismissal. But § 362(c)(3)(A) merely states that if Walker seeks
bankruptcy protection again within a year of his dismissal, then the automatic stay
protecting his assets is limited to 30 days. It does not keep his case pending during the
year following dismissal. See In re Zarnel, 619 F.3d 156, 163 (2d Cir. 2010).
Second the Trustee argues that the issue of when credit counseling must be
completed is “capable of repetition yet evading review,” see United States v. Juvenile Male,
131 S.Ct. 2860, 2865 (2011) (per curiam), so an exception to mootness applies here. She
explains that she has sought dismissal under § 109(h)(1) for tardy credit counseling over
250 times this year. Six of those cases presented the same issue as Walker’s case—credit
counseling occurred on the same day but after the moment of filing. “Typically,” she

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No. 14‐1241 Page 3
continues, these cases (many of them pro se) may be dismissed on other grounds, but
“sometimes” they “survive dismissal.”
This exception to mootness does not apply here. To be “capable of repetition yet
evading review” a case must: (1) be too short in duration to allow for a decision on the
merits and (2) the same plaintiff must have a reasonable expectation of suffering the same
harm again. Murphy v. Hunt, 455 U.S. 478, 482 (1982); Stotts v. Cmty. Unit Sch. Dist. No. 1,
230 F.3d 989, 991 (7th Cir. 2000). Both elements are missing in this case.
The first element is not met because, as the amicus points out, the dismissal of
another bankruptcy case, In re Arkuszewski, 507 B.R. 242 (Bankr. N.D. Ill. 2014), presents a
live version of the issue mooted here. There, a bankruptcy court dismissed a petition on
the ground on which the bankruptcy judge in Walker’s case refused to dismiss (that
credit counseling on the same day but after filing renders a debtor ineligible to file). The
debtor has appealed that case to the Northern District of Illinois, where it is now
pending. See In re Arkuszewski, No. 14 C 3086 (appeal filed N. D. Ill. Apr. 29, 2014). The
bankruptcy court has stayed its proceedings during the appeal, see Arkuszewski, No.
13‐45595 (Bankr. N.D. Ill. Apr. 10, 2014). Therefore the likelihood that Arkuszewski’s
appeal will elude review by a mootness‐causing‐dismissal is minimized.
The Trustee’s argument also fails on the second element of the mootness
exception. The likelihood that Walker will file another petition presenting the same issue
of the timing of credit counseling is nothing more than a “theoretical possibility.”
Murphy, 455 U.S. at 482; Belda, 416 F.3d at 620. It is irrelevant that six other cases to which
the Trustee has been assigned this year presented the same issue and yet were dismissed
on independent grounds. The inquiry into the second element of the mootness exception
concerns only the parties in this case. See Murphy, 455 U.S. at 482; Weinstein v. Bradford,
423 U.S. 147, 148–49 (1975).
DISMISSED.

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