Christopher J. Howard v. Anthony Wills

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 19, 2023 *
Decided January 26, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-1328
CHRISTOPHER J. HOWARD,
Plaintiff-Appellant,
v.
ANTHONY WILLS,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 3:21-cv-00719-SMY
Staci M. Yandle,
Judge.
* The appellee was not served with process and is not participating in this appeal.
We have agreed to decide the case without oral argument because the brief and record
adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. Fed. R. App. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 22-1328 Page 2
O R D E R
Christopher Howard, an Illinois prisoner, appeals the district court’s denial of his
motion to set aside the judgment. See FED. R. C IV. P. 60(b)(1). Because Howard has not
identified a mistake in that judgment, we affirm.
Howard sued his warden under the Federal Tort Claims Act, asserting that he
was unlawfully seized in violation of his Fourth Amendment rights. At screening, the
district court dismissed his complaint with prejudice for failure to state a claim.
See 28 U.S.C. § 1915A. The district court concluded that Howard could not sue his
warden under the Act, which does not provide for suits against state officials, and that
even if Howard could be understood to state a constitutional claim under 42 U.S.C.
§ 1983, his suit would be untimely. Howard then tried to revive his case by filing an
amended complaint that named the United States as a defendant. 1 The district court
construed this pleading as a motion to alter or amend the judgment under Federal Rule
of Civil Procedure 59(e) and denied it.
Howard appealed. Litigants generally must file a notice of appeal within 30 days
of either the entry of judgment or the order they seek to appeal, see FED. R. A PP. P.
4(a)(1)(A), and Howard appealed 40 days after the order he sought to challenge (the
denial of his Rule 59(e) motion). He nevertheless argued that he should have had
60 days to appeal under Federal Rule of Appellate Procedure 4(a)(1)(B) because, in his
view, the United States was a party to his case. Without commenting on that argument,
we dismissed his appeal because he filed it more than 30 days after the order he sought
to challenge.
1 This was improper. The Federal Employees Liability Reform and Tort
Compensation Act of 1988, also known as the Westfall Act, modifies the Federal Tort
Claims Act and sets forth the procedure under which the Attorney General may
substitute the United States as a defendant in place of a federal employee. 28 U.S.C.
§ 2679(c)-(d); Linder v. United States, 937 F.3d 1087 (7th Cir. 2019). For the United States
to be substituted as the proper defendant and the Federal Tort Claims Act to apply, the
Attorney General must certify that the employee was acting within the scope of his
employment at the time the alleged tort occurred. Id. Here, however, no such
certification has occurred.

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No. 22-1328 Page 3
Howard then returned to the district court and asked it to set aside its judgment
under Federal Rule of Civil Procedure Rule 60(b)(1) on grounds that his appeal was
dismissed based on a “mistake.” The district court denied this motion as well.
Howard now appeals again, arguing that we made a “mistake” by dismissing his
prior appeal as untimely. He maintains that he filed that appeal within the 60 days
afforded him because the United States was a party. See FED. R. A PP. P. 4(a)(1)(B).
But Howard may not rely on Rule 60(b)(1) to challenge our dismissal of his prior
appeal. That rule allows a district court to correct its own errors. See Kemp v. United
States, 142 S. Ct. 1856, 1865 (2022); Mendez v. Republic Bank, 725 F.3d 651, 659 (7th Cir.
2013). Accordingly, the district court properly denied Howard’s Rule 60 motion.
AFFIRMED

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