Bethesda Lutheran Homes and Services, Inc. v. Gerald Born

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-4016, 99-4135
Bethesda Lutheran Homes
and Services, Inc., et al.,
Plaintiffs-Appellants/Cross-Appellees,
v.
Gerald Born, et al.,
Defendants-Appellees,
and
Thomas Schleitwiler, et al.,
Cross-Appellants.
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 99-C-427-S--John C. Shabaz, Chief Judge.
Argued September 7, 2000--Decided January 25, 2001
Before Bauer, Posner, and Evans, Circuit Judges.
Posner, Circuit Judge. This dispute is before us
for the third, and we trust last, time. See
Bethesda Lutheran Homes & Services, Inc. v.
Leean, 122 F.3d 443 (7th Cir. 1997), 154 F.3d 716
(7th Cir. 1998). In the first round, Bethesda, a
private residential institution in Wisconsin for
the mentally retarded, along with several current
and would-be residents, brought suit under 42
U.S.C. sec. 1983 against a number of Wisconsin
state and local officials, plus Jefferson County,
where Bethesda’s facility is located, challenging
provisions of the federal Medicaid regulations,
and state law governing the establishment of
Wisconsin residency, as violations of the
constitutional right to travel. The Medicaid
provisions at issue (cited at 122 F.3d 447)
authorized states that participate in the
Medicaid program (half of the expense of which is
defrayed by the federal government, the other
half by the state) to decline to provide
assistance to otherwise eligible persons who are
not residents of the state, or even to residents
who have gone out of state for care, unless the
state of residency is unable to provide the
services they need. These provisions discouraged

-- 1 of 7 --

certain nonresidents of Wisconsin from seeking
medical care in Wisconsin. That state would have
no obligation to enroll them in its Medicaid
program, while the state of their residency,
provided it was capable of treating them in-
state, would have no obligation to reimburse
their treatment costs in Wisconsin. They would be
stuck in their home state.
All this would not have mattered had Wisconsin
allowed these nonresidents to become residents.
But the state law also challenged by the
plaintiffs prevented this. And although this
joint federal-state discouragement of medical-
care shopping might well have powerful fiscal or
other social merits to recommend it, we held that
the one-two punch violated the Constitution and
must be enjoined. We also held, however, that the
plaintiffs could not obtain monetary relief from
the defendant state officials insofar as they had
been sued in their official capacity, since such
suits are deemed to be suits against the state
itself, thus bringing the Eleventh Amendment into
play. We remanded for the entry of the injunction
and for consideration of the other relief sought
by the plaintiffs and not barred by the Eleventh
Amendment.
The injunction was duly entered on remand.
Bethesda thus became entitled to Medicaid
reimbursement of future expenses incurred by it
in serving these individuals, but not to
reimbursement of expenses incurred before the
legal bars were removed by our decision; that
would have been monetary rather than injunctive
relief. The only monetary relief sought on remand
was against Jefferson County and was turned down
by the district court on the ground that a
municipal government cannot be held liable in
damages under section 1983 if it committed the
acts of which the plaintiff complains under the
compulsion of federal and state law. In their
second appeal the plaintiffs, while accepting the
principle on which they had been denied damages,
challenged its application to the facts, arguing
that the officials of Jefferson County had wanted
to deny these plaintiffs benefits regardless of
federal or state law. Affirming the judgment for
Jefferson County, we held that the county
officials’ state of mind was irrelevant in a case
such as this where the officials were given no
latitude by state or federal law to grant the
benefits sought; their state of mind played no
causal role in their actions.
In struggling against the proposition that
Jefferson County was off the hook by virtue of
having acted under the compulsion of state law,
the plaintiffs had intimated that the county had
not been compelled after all. We had said the

-- 2 of 7 --

opposite in our first opinion--specifically, that
state law had forbade the county to certify the
plaintiffs as county residents, a prerequisite to
their being entitled under Wisconsin law to
Medicaid benefits. In the second appeal the
plaintiffs simply ignored that ruling. (They
continue a pattern of selective forgetfulness in
this round as well, failing even to cite our
second opinion.) Yet that earlier ruling was the
law of the case, and if the plaintiffs wanted us
to depart from it they had to acknowledge the
ruling and give reasons for our abandoning it.
This they had failed to do, thus bringing into
play the principle that "unchallenged
determinations in a previous decision in the same
case unquestionably bind the court in a
subsequent appeal." 154 F.3d at 719.
Rather than accept the second decision, Bethesda
brought a new case, the one before us today.
Damages are sought in this case against the
officials of the state and of Jefferson County
who refused Medicaid benefits to the eight
individuals who are coplaintiffs with Bethesda,
several but not all of whom were plaintiffs in
the previous suit, the one that was before us in
the two previous appeals. The contention in the
present suit is that the Medicaid regulations
challenged in the previous suit, rather than
unconstitutionally authorizing the defendants to
deny benefits to nonresidents, as the plaintiffs
had argued in that suit and we had agreed, had
commanded them to pay those benefits, and it was
in defying the command that the defendants had
violated the plaintiffs’ right to travel. The
district court dismissed the new suit primarily
on the ground that the defendants were entitled
to a qualified (that is, good-faith) immunity
from a suit for damages, as no rule of law that
was clearly established when they acted forbade
them to deny benefits to nonresident patients at
Bethesda’s facility. The judge found it
unnecessary to reach most of the other grounds
for dismissal urged by the defendants.
The plaintiffs have appealed; and the defendants
cross-appeal from the district court’s refusal to
impose sanctions on the plaintiffs under Rule 11
of the Federal Rules of Civil Procedure. The
judge thought the plaintiffs entitled to bring
this suit for the purpose of urging us to
overrule our previous decisions holding that
state and federal law had unconstitutionally
prevented the award of benefits. Unless we do so,
the Eleventh Amendment, the principle that a
county is not suable under 42 U.S.C. sec. 1983 in
respect of acts done by it under compulsion of
state or federal law, and the principle of
qualified immunity combine to bar the plaintiffs
from obtaining any monetary relief.

-- 3 of 7 --

The appeal is frivolous on so many grounds that
it is difficult to know where to begin. If the
plaintiffs in this second suit were identical to
the ones in the first, or in privity with those
plaintiffs, then it would be obvious that the
present suit was barred by the principle of res
judicata, because the claim in the two suits is
the same--that the state and county officials had
denied the plaintiffs Medicaid benefits in
violation of law. Not that all the arguments are
the same, but for purposes of res judicata a
claim is not an argument or a ground but the
events claimed to give rise to a right to a legal
remedy, e.g., United States v. County of Cook,
167 F.3d 381, 383 (7th Cir. 1999); Brzostowski v.
Laidlaw Waste Systems, Inc., 49 F.3d 337, 339
(7th Cir. 1995); Prochotsky v. Baker & McKenzie,
966 F.2d 333, 335 (7th Cir. 1992); Wilkins v.
Jakeway, 183 F.3d 528, 535 (6th Cir. 1999); Woods
v. Dunlop Tire Corp., 972 F.2d 36, 39 (2d Cir.
1992), and they are the same in the two suits.
The plaintiffs are not identical, but this turns
out to make no difference. First, insofar as
Bethesda is concerned and those individual
plaintiffs who were plaintiffs in the first suit
as well, they cannot avoid the bar of res
judicata by bringing in additional plaintiffs.
Dreyfus v. First National Bank, 424 F.2d 1171,
1175 (7th Cir. 1970); United States ex rel.
Robinson Rancheria Citizens Council v. Borneo,
Inc., 971 F.2d 244, 249 (9th Cir. 1992). The
defense of res judicata is not avoided by
joinder. Second, the newly added individuals (and
this is doubtless true of the overlapping
individual plaintiffs as well, though that is
unnecessary to decide) are not proper parties,
because they lack standing to sue, having no
stake in the litigation. As the plaintiffs’
lawyer acknowledged at argument, any recovery of
benefits in this suit will go to Bethesda, which
incurred the expenses of serving the individual
plaintiffs until the injunction that was issued
on remand from the first appeal gave them
prospective relief. The plaintiffs are indigent,
and Bethesda does not claim to be entitled to
obtain any money from them, so it is not as if
they were seeking monetary relief in order to
satisfy a debt to Bethesda. They are seeking no
relief.
So the suit is barred by res judicata, but it is
also barred by the doctrine of judicial estoppel:
a party that has won a suit on one ground may not
turn around and in another case obtain another
judgment on an inconsistent ground. E.g., Saecker
v. Thorie, No. 00-2257, 2000 WL 1810097, at *4
(7th Cir. Dec. 12, 2000); Moriarty v. Svec, 233
F.3d 955, 962 (7th Cir. 2000); Lydon v. Boston

-- 4 of 7 --

Sand & Gravel Co., 175 F.3d 6, 12-13 (1st Cir.
1999). The plaintiffs argued in the first suit
that the relevant Medicaid regulations and
Wisconsin state law were unconstitutional. Having
won that suit to the extent of getting the legal
obstacles to Medicaid reimbursement removed, they
could not turn around and in the next suit seek
additional relief by arguing that the regulations
and state law were constitutional after all and
compelled the defendants to grant them benefits.
It does not matter that the plaintiffs did not
win everything they sought in their first suit.
They won a judgment, and cannot now seek another
judgment on an inconsistent ground. The doctrine
of judicial estoppel would not apply to a new
party, one that had not benefited from the
judgment in the previous suit, but we have seen
that the only new plaintiffs in this, the second
suit, are actually not parties to it because they
have no stake in its outcome.
The plaintiffs point out that the defendants did
not argue judicial estoppel in the district
court. But the doctrine is for our protection as
well as that of litigants, and so we are not
bound to accept a waiver of it. In re Cassidy,
892 F.2d 637, 641 (7th Cir. 1990); Motley v. New
Jersey State Police, 196 F.3d 160, 163 (3d Cir.
1999); cf. Rissetto v. Plumbers & Steamfitters
Local 343, 94 F.3d 597, 601 (9th Cir. 1996); 18
Moore’s Federal Practice sec. 134.34[1] (3d ed.
2000); but cf. United States for Use of American
Bank v. C.I.T. Construction Inc., 944 F.2d 253,
258 (5th Cir. 1991) (waiver binding except in
"egregious" case). Its purpose is to protect the
judicial system from being whipsawed with
inconsistent arguments and to discourage the form
of fraud that consists of withholding your best
ground in the first of a series of suits because
it is helpful to your opponent in that suit
hoping to win that suit on a different ground and
then spring your inconsistent best ground in a
later suit in order to obtain additional relief.
There is more. The premise of the present suit
is that our previous decisions were wrong. The
plaintiffs argue that because there are new
parties, the previous decisions are not binding.
That premise is wrong, as we have seen, but
forget that. The plaintiffs’ lawyer does not
understand the doctrine of stare decisis. It is
res judicata that bars the same party from
relitigating a case after final judgment, and the
doctrine of law of the case that counsels
adherence to earlier rulings in the same case.
E.g., Vidimos, Inc. v. Wysong Laser Co., 179 F.3d
1063 (7th Cir. 1999); United States v. Becerra,
155 F.3d 740, 753 n. 15 (5th Cir. 1998); United
States v. Unger, 700 F.2d 445, 450 (8th Cir.
1983). It is stare decisis that bars a different

-- 5 of 7 --

party from obtaining the overruling of a
decision. The existence of different parties is
assumed by the doctrine, rather than being
something that takes a case outside its reach. Of
course, stare decisis is a less rigid doctrine
than res judicata. But it is not a noodle. For
the sake of law’s stability, a court will not
reexamine a recent decision (our previous
decisions are two and three years old,
respectively) unless given a compelling reason to
do so. E.g., Joy v. Penn-Harris-Madison School
Corp., 212 F.3d 1052, 1066 (7th Cir. 2000);
Snajder v. INS, 29 F.3d 1203, 1207 (7th Cir.
1994); In re Patterson, 825 F.2d 1140, 1147 (7th
Cir. 1987); Thomas E. Hoar, Inc. v. Sara Lee
Corp., 900 F.2d 522, 527 (2d Cir. 1990); Brewster
v. Commissioner, 607 F.2d 1369, 1373 (D.C. Cir.
1979) (per curiam). The reason might be a
legislative change, a change in applicable
regulations, a judicial decision dealing with a
related or analogous issue, a change in the
social or economic context of the issue, or some
other important new information. Patterson v.
McLean Credit Union, 491 U.S. 164, 173-74 (1989);
United States v. Aman, 31 F.3d 550, 554 (7th Cir.
1994); Stewart v. Dutra Construction Co., 230
F.3d 461, 467 (1st Cir. 2000); Critical Mass
Energy Project v. NRC, 975 F.2d 871, 876 (D.C.
Cir. 1992) (en banc). The plaintiffs point to
nothing of that kind. They make the same
arguments that were made by the same counsel when
rehearing of our first decision was sought.
The ground on which the district court dismissed
the claim for damages against the defendants in
their personal capacities, qualified immunity,
was solid too. (The claims against them in their
official capacity are barred by the Eleventh
Amendment and, regarding those defendants who are
employees of Jefferson County, by our previous
affirmance of the dismissal of the claim for
damages against the county.) Before we upheld the
constitutional challenge in the first suit there
was no case authority that made it unreasonable
for the defendants to assume the
constitutionality of their actions. Even more
clearly, they had no obligation to foresee and
accept the argument now made by the plaintiffs,
which is that the regulations that the plaintiffs
challenged in the previous suit actually
compelled the defendants to grant the benefits
sought rather than operating as a roadblock to
those benefits. An argument that the plaintiffs’
lawyer didn’t think good enough to make in the
first suit is now said to be so obviously sound
that the defendants were clearly unreasonable to
have failed to govern their behavior by it!
And for completeness we add that even if we were
minded to consider the plaintiffs’ new

-- 6 of 7 --

substantive arguments, we would reject them. The
principal argument is that 42 C.F.R. sec.
435.403(m), which provides that "where two or
more states cannot resolve which State is the
State of residence, the State where the
individual is physically located is the State of
residence," clearly required Wisconsin to
recognize the plaintiffs as citizens of
Wisconsin. The precise meaning of this regulation
is unclear, and we can find no cases interpreting
it, but it clearly did not require the defendants
to award benefits to these nonresidents on the
ground that the regulation made them residents.
For there is no indication of a dispute with
another state. It is true that Illinois provided
a document to some of the plaintiffs stating that
they were not residents of Illinois, but it did
so, as the accompanying correspondence made
clear, as an accommodation to these plaintiffs,
to help them to obtain Medicaid benefits in
Wisconsin. There is no evidence that Illinois and
Wisconsin actually disagree over, let alone that
they cannot resolve, the issue of which state the
plaintiffs are residents of. If Illinois’
"helpful" action triggered the regulation, it
would empower any state, without evidence,
argument, or formalities, to force any other
state to treat the first state’s residents at no
expense to the "exporting" state, provided only
the residents were willing to travel to the other
state for treatment.
We come last to the issue of sanctions. The
appeal, as we have said, is frivolous; but so was
the suit. Not because a party should be
sanctioned for seeking a change in law, in this
case a change in our ruling in the first appeal,
but because, whatever the possible merit of the
suit, it should have been obvious to any lawyer
that relief was barred on multiple grounds,
including res judicata, the Eleventh Amendment,
judicial estoppel, and qualified immunity. So
clear is this that we think it was unreasonable
for the district court to deny relief under Rule
11. That denial is reversed and the matter
returned to the district court for the assessment
of a proper sanction. In addition we direct
Bethesda to show cause within 21 days why
sanctions for the filing of a frivolous appeal
should not be imposed under Rule 38 of the
Federal Rules of Appellate Procedure and section
1927 of the Judicial Code.
Affirmed in Part, Reversed in Part,
Remanded with Directions, and
Order to Show Cause Issued.

-- 7 of 7 --