Hilda Solis v. Current Development Corporatio ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-1228 & 08-2254
H ILDA L. S OLIS, Secretary of Labor,
United States Department of Labor,
Plaintiff-Appellee,
and
C ONSULTING F IDUCIARIES, INCORPORATED ,
Appellee,
v.
C URRENT D EVELOPMENT C ORPORATION and
G EORGE P. K LEIN , JR.,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 1792—Sidney I. Schenkier, Magistrate Judge.
A RGUED D ECEMBER 1, 2008—D ECIDED M ARCH 5, 2009
Before B AUER, R OVNER, and E VANS, Circuit Judges.
E VANS, Circuit Judge. George Klein, the trustee of his
company’s employee benefit plans, agreed to terminate
2 Nos. 08-1228 & 08-2254
and distribute the plans’ assets to its participants in
order to settle a lawsuit with the Department of Labor.
But instead of marking the end of his scrape with the
Department, the consent decree proved to be only the
beginning. Klein and his wife were also participants in
the plans, and Klein finagled the termination so that
they would receive more than their fair share. The De-
partment, unwilling to let him off the hook, asked the
magistrate judge (Sidney I. Schenkier, sitting with the
consent of the parties), who had entered the consent
decree, to intercede. The judge did just that, removing
Klein as the trustee, forcing the sale of property formerly
owned by the plans, and ordering Klein to make restor-
ative payments. Klein now appeals these decisions.
George Klein apparently is the president and sole
stockholder of Current Development Corporation (CDC),
a real estate acquisition and development company. CDC
sponsored two employee benefit plans that are covered
by the Employee Retirement Income Security Act, 29
U.S.C. § 1002(3) (ERISA), which were administered and
controlled by Klein. Both Klein and CDC are defendants
in this case, but for simplicity’s sake, and because they
are essentially the same, we will refer to both as Klein.
From what we can glean from the record, Klein’s prob-
lems started with his failure to timely submit some
annual reports to the Department of Labor. The problems
snowballed from there. The Department first filed suit in
the district court because Klein dipped into the plans’
funds to pay the legal expenses for his unsuccessful
defense in the related administrative action. Klein and
Nos. 08-1228 & 08-2254 3
the Department reached a settlement in that case, which
was embodied in a consent decree. In it, the parties ac-
knowledged that Klein had paid back the legal fees and
Klein agreed to terminate the plans, distributing the
assets—nearly $900,000 and a vacant parcel of land in
Westmont, Illinois—to the plan participants. The consent
decree enjoined Klein from violating his fiduciary
duties under ERISA, and, as is common in consent
decrees, the court retained jurisdiction to enforce compli-
ance with the judgment.
To terminate the plans, Klein informed participants
that they could take their share of the assets in either cash
or in a combination of cash and a stake in the property
owned by the plans. Almost everyone opted to take cash
(one person elected to receive his share in a mixture of
cash and property), which left Klein and his wife with a
97 percent interest in the land. Meanwhile, and unbe-
knownst to the participants, Klein was negotiating with
the Village of Westmont to sell the property. Some
early negotiations had fallen by the wayside through no
fault of Klein’s, but by September 2005, the Village was
ready to buy the property for $2.3 million. Klein rejected
this offer and, three weeks later, cashed out the plan
participants (by then the two plans had merged). He
calculated these payments off of an earlier appraisal of
the property for $1.7 million dollars, without regard to
the Village’s offer for $600,000 more.
It wasn’t long before the Department got wind of Klein’s
negotiations with the Village so it filed a motion, arguing
that by low balling the value of the property Klein had
4 Nos. 08-1228 & 08-2254
shortchanged the participants who received their distrib-
utions in cash. Since the property was worth more than
the $1.7 million, and Klein and his wife all but owned it,
the calculations would give the Kleins more than they
deserved. The Department sought Klein’s removal as the
plan’s trustee, the appointment of an independent fidu-
ciary in his stead, and the distribution to the participants
of Klein’s ill-gotten gains. Over objections, the judge
concluded that Klein’s actions amounted to a breach of
his duty of loyalty to the participants. The judge removed
him as the trustee, appointed Consulting Fiduciaries, Inc.
(CFI) to be the independent fiduciary, and placed the
Westmont property in a constructive trust, under CFI’s
care. CFI continued to negotiate with the Village for the
sale of the property, and the two eventually settled on a
price tag of $2.6 million. Klein filed a series of unsuc-
cessful motions in hopes of stopping the sale, but
the court rejected them all.
CFI also engaged an accounting firm to go through
CDC’s books to make sure that Klein’s previous with-
drawals from the plan were all on the up and up. Klein
objected to this investigation, but the court allowed it
to ensure that the sale proceeds would be fairly distrib-
uted. CFI eventually compiled a report (adopted in all
relevant parts by the Department of Labor) which recom-
mended that the court order Klein to restore $170,000 to
the plan. CFI’s submission included the accountant’s
report, which bolstered the recommendation with over
a hundred pages of supporting evidence. Klein objected
to some of the restorative payments and provided two
brief affidavits to support his position. The court, how-
Nos. 08-1228 & 08-2254 5
ever, agreed with the analysis of both CFI and the Depart-
ment and so it ordered Klein to repay the plan.
The court then asked the parties to weigh in on whether
the refund should be paid back with prejudgment inter-
est. Predictably, CFI and the Department thought
assessing interest was appropriate, and Klein disagreed.
Noting that prejudgment interest in ERISA cases is an
element of complete compensation, the court imposed
interest on the restorative payments. Klein filed a
motion to reconsider, taking issue with the interest rate
imposed, which the judge denied.
With all the dust settled, the judge turned to computing
the payments due to the participants. Pursuant to the
judge’s order, CFI calculated the final distribution
figures, taking into account the restorative payments
and fees that Klein had been ordered to pay. Klein
objected to the figures, claiming that CFI’s calculations
took an extra $140,000 from his accounts. Unpersuaded,
the court adopted CFI’s proposed distribution figures.
Ten days later, Klein repeated this same argument, to no
avail, in a motion to reconsider.
The first controversy we must address is jurisdic-
tional—and what a controversy it is. Our involvement
began with Klein’s notice of appeal challenging the
judge’s denial of his motion to reconsider the prejudgment
interest rate. The Department filed a motion to dismiss
the appeal, arguing that the judge’s decision was not
a final, appealable order, which we ordered taken with
the case. Meanwhile, the judge determined the final
payments to be made to the plan participants. Following an
6 Nos. 08-1228 & 08-2254
unsuccessful motion to reconsider, Klein filed a second
notice of appeal, challenging the court’s distribution
figures. We consolidated both of Klein’s appeals. With
all these fits and starts, it’s not surprising that the
parties have very different takes on the scope of our
jurisdiction.
Title 28 U.S.C. § 1291, of course, empowers us to
review a district court’s final decisions. The consent
decree, which wrapped up the Department’s initial suit,
was a final order. See Jones-El v. Berge, 374 F.3d 541, 543
(7th Cir. 2004). That means that the judge’s enforce-
ment orders are postjudgment orders. We treat each
postjudgment proceeding like a freestanding lawsuit and
look for the final decision in that proceeding to deter-
mine the scope of our review. Id.; Bogard v. Wright, 159
F.3d 1060, 1062 (7th Cir. 1998). This inquiry takes us into
“rocky terrain,” Jones-El, 374 F.3d at 543, since determining
what constitutes a final decision can be tricky. But the
impetus of the postjudgment proceedings is a good
place to start—an order that addresses all the issues
raised in the motion that sparked the postjudgment
proceedings is treated as final for purposes of section 1291.
JMS Dev. Co. v. Bulk Petroleum Corp., 337 F.3d 822, 825
(7th Cir. 2003).
These postjudgment proceedings began when the
Department filed a motion seeking Klein’s removal as
trustee and the redistribution of any of his ill-gotten
gains, and thus would not end until both issues were
addressed. Klein claims that both issues were resolved by
the time the judge ordered that he pay prejudgment
Nos. 08-1228 & 08-2254 7
interest, making his first notice of appeal timely. Up to
that point, the judge had removed Klein as the trustee,
replaced him with CFI, approved the sale of the property,
and ordered Klein to restore $170,000 to the plan.
Klein describes what was left to do—the final calculation
of the amount of money each former participant would
receive—as nothing more than a ministerial detail that
would not affect the finality of the court’s order. See
Dzikunoo v. McGaw YMCA, 39 F.3d 166, 167 (7th Cir. 1994).
That’s a stretch. The payments were one of the twin
purposes of the suit and involved millions of dollars, to
be divvied up amongst nearly 40 beneficiaries. Deter-
mining the payments wasn’t a matter of simply plugging
numbers into a court-approved equation, as Klein
would have us believe. The parties had, and indeed
continue to have, substantial disagreements regarding
the figures. Therefore, we conclude that the postjudg-
ment proceedings were not final until the court deter-
mined the distribution figures. Since Klein filed a timely
notice of appeal following that decision, we have juris-
diction to consider this appeal.
The Department agrees that the order regarding the
distribution figures is final and appealable but argues
that the court’s earlier orders—including its decision to
remove Klein as the trustee, impose a constructive trust
on the property, and appoint CFI as the independent
fiduciary—were final and appealable when issued.
Because Klein didn’t file notices of appeal following these
decisions, the Department argues that we lack juris-
diction to address challenges to these issues. We dis-
agree. Klein was entitled to wait until the proceedings
8 Nos. 08-1228 & 08-2254
were over and then appeal, bringing before us all the
nonmoot interlocutory rulings adverse to him, including
those that the Department now claims are outside of our
jurisdiction. Pearson v. Ramos, 237 F.3d 881, 883 (7th Cir.
2001). To hold otherwise would invite litigants to
appeal every procedural order that follows the entry of a
consent decree, resulting in “an unmanageable prolifera-
tions of appeals.” Alliance to End Repression v. City of
Chicago, 356 F.3d 767, 773 (7th Cir. 2004).
Our jurisdiction is secure, but before we can turn to the
merits we must tackle one more issue—the standard of
proof required in this case. Klein characterizes the pro-
ceeding as one for civil contempt and therefore reasons
that the Department must prove that he violated the
consent decree by clear and convincing evidence. See
Prima Tek II, L.L.C. v. Klerk’s Plastic Indus., B.V., 525 F.3d
533, 542 (7th Cir. 2008). By failing to hold the Depart-
ment to this heightened standard, Klein contends that the
court committed reversible error. This argument is a
nonstarter. The Department never sought a finding that
Klein was in civil contempt, nor did the judge make
such a finding. Nor, for that matter, did Klein ever
assert before the judge that this heightened standard
should apply. Klein can run afoul of the consent decree
without subjecting himself to a contempt order—not all
violations of a consent decree amount to civil contempt.
See id. And in any event there is ample evidence to
meet even this heightened burden of proof. Most of the
court’s conclusions were based on undisputed material
facts, and to the extent there were disputes, the Depart-
ment provided overwhelming support for its position in
Nos. 08-1228 & 08-2254 9
the face of Klein’s anemic evidence (more on this later). See
Ridge Chrysler Jeep, LLC v. DaimlerChrysler Fin. Servs. Ams.
LLC, 516 F.3d 623, 625-26 (7th Cir. 2008) (declining to
weigh in on a dispute regarding the burden of proof
because the court’s findings would “suffice on any stan-
dard”).
Finally, then, to the merits. Klein first wages a series
of attacks on the court’s finding that he breached his
duty of loyalty to the plans. He begins by asserting that
the court violated his right to due process when it
reached this conclusion without holding an evidentiary
hearing. One slight problem: Klein never asked for an
evidentiary hearing. During oral argument, counsel for
Klein explained that he assumed such a request was
unnecessary. The right to an evidentiary hearing can be
forfeited if the litigant fails to timely raise the issue, United
States v. Downs, 123 F.3d 637, 644 (7th Cir. 1997), and
Klein makes no attempt to identify a plain error that
would justify our intervention. Moore v. Tuleja, 546 F.3d
423, 430 (7th Cir. 2008). What’s more, “even for the most
important decisions, an evidentiary hearing is required
only if there are material factual disputes,” Wozniak v.
Conry, 236 F.3d 888, 890 (7th Cir. 2001), and while Klein
identifies some factual ambiguities in the record, none
of those potential disputes are material.
Klein also maintains that the consent decree put him
in an untenable dilemma, with conflicting duties of
loyalty. If he valued the property too high, then those
who elected to take their share in property would be
shortchanged if the property eventually sold for less. If
10 Nos. 08-1228 & 08-2254
he valued the property too low, than the participants
who elected to receive cash would get less than their
fair share, since the property could be sold for more.
This argument, however, misses the point. All the plan
participants would have benefitted from a distribution
based on an accurate valuation of the property, which
Klein failed to do. During the negotiations, Klein
rejected one of the Village’s early offers for $2.3 million
because it fell so far below the market value of the
property that he feared accepting it might constitute a
breach of his fiduciary duties. Klein may have been
grandstanding, but that rejection invites an obvious
question: If Klein really thought that $1.7 million was a
fair price for the property, why didn’t he jump at the
Village’s offer for $2.3 million? The court settled
this conundrum by concluding that Klein purposefully
undervalued the property by using the $1.7 million ap-
praisal to ensure that he and his wife, who pretty
much owned the whole thing, would receive a wind-
fall profit. We agree with this assessment—an accurate
valuation of the property would have taken into account
the Village’s offers. As a fiduciary of the plan, Klein was
required to discharge his duties “solely in the interest of
the participants,” 29 U.S.C. § 1104(a)(1), and seeking
benefit for himself at the expense of the participants
falls short of this duty.
But even if we bought Klein’s catch-22 argument, the
court’s conclusion would still stand. As a fiduciary, Klein
was required to “communicate material facts affecting
the interests of beneficiaries.” Anweiler v. Am. Elec. Power
Serv. Corp, 3 F.3d 986, 991 (7th Cir. 1993); see also Bowerman
Nos. 08-1228 & 08-2254 11
v. Wal-Mart Stores, Inc., 226 F.3d 574, 590 (7th Cir. 2000).
The duty to communicate exists when a participant “asks
fiduciaries for information, and even when he or she
does not.” Anweiler, 3 F.3d at 991. The ongoing negotia-
tions with the Village had a profound impact on the
value of the plan’s assets. They provided concrete
evidence suggesting that the market value of the
property was well above the value listed in the last ap-
praisal and that the property, though not as liquid as
cash, could be quickly sold. This information was vital,
particularly when the plan was being terminated and
participants needed to chose how they would receive
their take. But instead of sharing this information, Klein
kept it under wraps. There is no excuse for this conceal-
ment.
Klein tries to get around these facts by arguing that his
breach caused no harm to the plan participants, noting
that there is no evidence that his failure to disclose the
details of the negotiations with the Village would have
affected the participants’ decisions to forgo receiving a
stake in the property. See Kannapien v. Quaker Oats Co., 507
F.3d 629, 639 (7th Cir. 2007) (requiring a showing that a
breach of an ERISA fiduciary’s duties caused harm). This
argument, too, misses the mark. The participants who
elected to receive their share in cash were shortchanged
by Klein’s decision to calculate the payments based on
the $1.7 million appraisal. If Klein had been forthcoming
about the negotiations and made an honest valuation of
the property, the plan participants would have had
reliable information upon which to make their elec-
tion—be it all cash or a combination of cash and a property
interest.
12 Nos. 08-1228 & 08-2254
Klein next challenges the court’s order requiring him to
restore $170,000 to the plan—money used to pay legal
expenses accumulated in his defense of the Department’s
administrative action and an IRS audit, to subsidize the
salaries of full-time CDC employees, and to defray over-
head costs that overlapped with CDC. Before getting into
the nitty-gritty, Klein levels two general arguments
against this order. First, he argues that CFI exceeded
the scope of its duties by investigating the propriety of
Klein’s prior withdrawals from the plans. This argument
is both odd and unsuccessful. For starters, the court
explicitly authorized CFI to conduct this investigation.
To the extent that Klein is suggesting that the judge
lacked the authority to order such an investigation, he
is also off base. The consent decree required Klein to
terminate the plans, in accordance with the fiduciary
duties he owed its participants, and the judge retained
jurisdiction to make sure this was done. Plundering
the plans for his own purposes would shortchange the
participants, in contravention to Klein’s fiduciary duties,
and the court was entitled to authorize an investigation to
make sure that the participants received their fair share.
Secondly, Klein argues that the court made a “unilateral
determination” when it ordered him to repay the money
without first conducting an evidentiary hearing. Klein’s
description of the court’s decision is misleading. After
CFI submitted its report regarding the prior withdrawals,
Klein was given the opportunity to rebut the recommenda-
tions. He disputed some of CFI’s recommendations but, as
we have said, he never requested an evidentiary hearing.
Because he forfeited his right to a hearing by failing to
Nos. 08-1228 & 08-2254 13
request one and because he had an ample opportunity to
respond to CFI’s recommendations, we see no error in
the court’s course of action.
Having cleared the brushwood, we turn to the heart of
Klein’s dispute with the order for restorative payments.
Klein first takes issue with the court’s order requiring
him to return $25,000 in legal expenses used to defend
himself before the Department of Labor and IRS. Klein
disagrees with CFI’s characterization of the expenses and
argues that the attorneys were actually billing for work
related to the plan’s administration. CFI provided the
court with copies of the attorneys’ contemporaneous time
entries and billing records, which indicated otherwise.
And the only evidence Klein provided to support his
contention was a very brief declaration—just seven sen-
tences long—written by one of the attorneys whose bills
were at issue. In that declaration, the attorney, ignoring the
contemporaneous records, stated that his work was
“related to services [he] rendered as Trustee and not for
legal services,” without any elaboration as to what those
services were. The attorney’s declaration, which is
nothing but a bald assertion, removed by years from the
events being described, does not outweigh the numerous
bills and records that supported the court’s finding. See
Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 887 (7th
Cir. 1998) (noting that an affiant’s bald assertion of the
general truth of a particular matter does not create a
factual dispute).
The court also ordered Klein to repay $60,000 that he
used to pay full-time employees of CDC and overhead
14 Nos. 08-1228 & 08-2254
costs, such as telephone bills, copier charges, and pur-
chases of office supplies, that overlapped with CDC. ERISA
prohibits a fiduciary from transacting with interested
parties, such as CDC. 29 U.S.C. §§ 1102(14)(C), 1106(a)(1),
(b)(1). There is an exemption from this bar which allows
a fiduciary to contract or make reasonable arrangements
with a party in interest for “office space, or legal, account-
ing, or other services necessary for the establishment or
operation of the plan, if no more than reasonable compen-
sation is paid therefor.” 29 U.S.C. § 1108(b)(2). Klein does
not deny that he made these payments using the plan’s
assets but claims that this exemption applies because he
sought reimbursement only for administrative expenses
tied to running the plans.
But the record belies his argument. When CFI asked
for evidence that the overhead costs paid for were in
fact used by the plan, Klein provided nothing. He did
provide a declaration from an accountant—one of the
employees whose salary was subsidized—who stated
that he spent part of his time working on the plan, al-
though he failed to state with any level of specificity the
services he had rendered. In that declaration he estimated
the amount of time he had spent on plan matters, nearly a
decade after he had done the work. And although some
of the accountant’s time records (submitted to the court
by CFI) suggest that he was working on plan matters for
a tiny fraction of the time he was receiving the subsidy,
that is not enough. The statute requires that the services
be pursuant to a contract or a reasonable arrangement,
that they are necessary for the plan’s operation, and that
they cost no more than what’s reasonable. 29 U.S.C.
Nos. 08-1228 & 08-2254 15
§ 1108(b)(2); Chao v. Malkani, 452 F.3d 290, 296 (4th Cir.
2006). There is no evidence that these conditions were
met. Without more, we are left with overwhelming evi-
dence supporting the court’s conclusion that Klein’s
withdrawals were prohibited by ERISA.
Klein also challenges the court’s conclusion that he
must restore $17,000 in appraisal and legal fees, which
he maintains were spent on zoning and condemnation
issues with regard to the property. Again, Klein provided
no evidence to support this assertion. And even more
devastating, Klein dipped into the plan to pay these fees
long after the court removed him as the trustee. Klein
makes no effort to confront the timing of the payments,
and we find no error in the judge’s conclusion that, to
the extent Klein was spending money after he was re-
moved as trustee, he was doing so “on his own watch
and for his own purposes.”
Next, Klein argues that the court erred when it
imposed a constructive trust on the entire property, not
just Klein’s interest. Klein held 67 percent of the
property following the termination of the plan and his
wife held another 30 percent, leaving 3 percent in the
hands of one of the other participants. Klein argues that
neither his wife nor the participant should have had
their interest in the property impaired without being
joined in the case.
Even before we can reach the merits of this argument,
Klein faces a couple of insurmountable problems. As an
initial matter, while Klein urges that the rights of his
wife and the former participant have been adversely
16 Nos. 08-1228 & 08-2254
affected, he has never explained why he, and not they, is
in the best position to protect those interests. Massey v.
Wheeler, 221 F.3d 1030, 1035 (7th Cir. 2000) (“[C]laims
are best prosecuted by those who actually have been
injured, rather than by someone in their stead.”). What’s
more, Klein did not raise this argument until nine months
after the judge imposed the constructive trust on the
property. He first aired the argument in a motion to
reconsider that order, in hopes of staving off the then-
impending sale of the property. The argument was one
sentence long, devoid of any citations to legal authority.
It was not until Klein’s second motion to reconsider that
he supported his argument with any legal authority or
reasoning. The court does have broad discretion to
revisit its interlocutory orders, Santamarina v. Sears, Roebuck
& Co., 466 F.3d 570, 571 (7th Cir. 2006), but we find no
abuse of that discretion here. Motions to reconsider are
granted for “compelling reasons,” such as a change in
the law which reveals that an earlier ruling was erroneous,
id., not for addressing arguments that a party should
have raised earlier. Klein was not entitled to a second—or
in his case, a third—bite at the apple.
For the same reason, we reject Klein’s argument that the
prejudgment interest rate imposed on the restorative
payments was too high. In response to a court order, CFI
and the Department recommended that interest be as-
sessed, but because CDC’s records were too sketchy to
glean the rates of return the plan had earned in the
past, they recommended that the court impose a rate
based on the one used to calculate underpayments of
federal income taxes. See 26 U.S.C. § 6621. Klein objected
Nos. 08-1228 & 08-2254 17
only to the imposition of interest, making no mention of
the proposed rate or the plan’s historical rate of return.
Klein made a strategic choice to go all or nothing, a bet
that turned out to be bad. The judge sided with the De-
partment, and after noting that Klein had made no objec-
tion to the proposed interest rate, he accepted the De-
partment’s recommendation. Klein then filed a motion to
reconsider, in which he raised, for the first time, an argu-
ment against the proposed rate of interest. This was too
little, too late. Motions to reconsider empower the court
to change course when a mistake has been made, they
do not empower litigants to indefinitely prolong a case by
allowing them to raise their arguments, piece by piece.
That leaves Klein’s final argument. To end this
labyrinthian proceeding, the court had to add up all the
fees, reimbursements, and sales proceeds and divvy
them up amongst the participants. Klein maintains that
the court’s final figures erroneously deducted an extra
$140,000 from his account. This dispute stems from a
mortgage that Klein took out on the property when he
was terminating the plan. Because the majority of the
plan’s assets were tied up in the property, there wasn’t
enough cash on hand to pay all the participants who
elected to receive their distributions in cash. In order to
give each participant their share, in the form that they
requested, Klein took out a loan, using the property as
collateral. Of that loan, $140,000 was allocated to pay the
participants at termination, which the court concluded was
a legitimate use of the funds. For the final leg of the
proceedings, CFI crunched the numbers to provide the
judge proposed distribution figures. In doing so, CFI
18 Nos. 08-1228 & 08-2254
created various spreadsheets, one of which included a
column titled “Recognize Sales Proceeds Used to Pay
Distributions from 2nd Mortgage.” That column added
up to $140,000, the amount of the loan apportioned to pay
the participants. Klein argues that by including this
column in its calculations, CFI forced him to pay the
participants twice: once when the plan was terminated
and again at the end of the postjudgment proceedings.
CFI and the Department deny Klein’s charge, claiming
that the column was necessary for accounting purposes.
If Klein is right, then we should be able to track that
$140,000 difference in CFI’s final proposed figures and
his own. But, as the judge noted when he rejected this
same argument, “[t]he numbers don’t tie out.” Klein’s first
set of proposed figures gave him $270,000 more than
what the Department had allocated, which goes well
beyond compensating Klein for what was allegedly
swiped from his account. After the court rejected his
challenge, Klein filed a motion to reconsider and
explained that his first figures did not include deductions
for the expenses that the court had ordered him to
pay. Attached was a new spreadsheet, which made a
deduction under a column labeled “Adjustment to
match amount available to distribute.” That figure
doesn’t line up with anything in the Department’s calcula-
tions and is $160,000 less than the total deductions that
the Department proposed. This leaves us comparing
apples to oranges. Klein gets more money under his
calculations, but there is no way for us to attribute this
difference to the alleged double payment. We defer to the
court’s factual findings unless there is clear error, Girl
Nos. 08-1228 & 08-2254 19
Scouts of Manitou Council, Inc. v. Girl Scouts of the U.S.A.,
Inc., 549 F.3d 1079, 1087 (7th Cir. 2008), and nothing in
Klein’s muddled figures convinces us that such an error
was made.
Accordingly, the Department of Labor’s motion to
dismiss is G RANTED . We D ISMISS appeal no. 08-1228 for
lack of jurisdiction and A FFIRM appeal no. 08-2254.
3-5-09