Barry J. Smith, Sr. v. UNITED STATES CONGRESS and WISCONSIN LEGISLATURE

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 19, 2023*
Decided May 22, 2023
Before
DIANE P. WOOD, Circuit Judge
JOHN Z. LEE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-2592
BARRY J. SMITH, SR.,
Plaintiff-Appellant,
v.
UNITED STATES CONGRESS and
WISCONSIN LEGISLATURE,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 19-cv-1001-pp
Pamela Pepper,
Chief Judge.
O R D E R
For more than a decade, Barry Smith has sued federal, state, and local
governments challenging laws that restrict him from possessing firearms and holding
elected office. In its order dismissing this suit against the United States Congress and
the Wisconsin Legislature, the district court barred Smith from filing any further suits in
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

-- 1 of 3 --

No. 22-2592 Page 2
the Eastern District of Wisconsin based on his status as “a descendant of slaves” or as a
convicted felon. We affirmed without disturbing the filing bar, and fined Smith $2,000.
Smith v. United States Congress, 840 F. App’x 31, 34 (7th Cir. 2021), cert. denied, 142 S. Ct.
398 (2021). More than two years later, Smith filed a motion for relief in the district court
under Federal Rule of Civil Procedure 60(b)(4) and (6), arguing that the court lacked
authority to impose a filing bar. The court denied the motion because it was untimely
and stated no basis for relief. We affirm and again sanction Smith for his abuse of the
judicial process.
On appeal, Smith argues that his post-judgment motion was timely. But a Rule
60(b) motion must be made “within a reasonable time,” and we agree with the district
court that Smith’s delay of over two and a half years is not reasonable. See Braun v.
Village of Palatine, 56 F.4th 542, 554 (7th Cir. 2022) (Rule 60(b) motion filed fifteen months
after dismissal order “was hardly filed ‘within a reasonable time.’”). Smith points out
that he was barred from seeking to modify or rescind the filing restriction for three
years, and he filed his motion before the expiration of that period. But we fail to see
how that addresses the reasonableness of his delay.
Smith also asserts that the court did not have authority to impose a filing bar
because it lacked subject-matter jurisdiction over his claims. But even if the court lacked
jurisdiction, it had the authority to sanction Smith. See, e.g., Matos v. Richard A. Nellis,
Inc., 101 F.3d 1193, 1196 (7th Cir. 1996) ("[M]isconduct in federal litigation may lead to
sanctions even if the court lacked subject-matter jurisdiction.”); Wojan v. Gen. Motors
Corp., 851 F.2d 969, 971–73 (7th Cir. 1988) (discussing court’s “inherent prerogative to
supervise conduct of parties appearing before” it, including by imposing sanctions,
even in absence of subject-matter jurisdiction). Moreover, we already have explained to
Smith that the time for challenging the validity of the filing bar was on direct appeal.
See Smith v. Cmty. Care, Inc., No. 20-3363, 2022 WL 1436799, at *1 (7th Cir. May 6, 2022),
reh’g and reh’g en banc denied, (7th Cir. June 3, 2022), cert. denied, 143 S. Ct. 374 (2022).
Arguments suitable for direct appeal do not invoke “exceptional circumstances”
warranting the extraordinary remedy of relief under Rule 60(b). See Banks v. Chi. Bd. of
Educ., 750 F.3d 663, 668 (7th Cir. 2014).
Lastly, we turn to Smith’s history of vexatious litigation. The district court
imposed the filing bar against Smith due to his abusive litigation practices: Over the
years, Smith has filed seven closely related federal actions and appeals that were
rejected by district courts and this court as “meritless, frivolous, or even absurd.”
See Smith, 840 F. App'x at 32 (collecting cases). After he appealed from the district

-- 2 of 3 --

No. 22-2592 Page 3
court’s dismissal of his complaint in this case, we fined Smith $2,000 for his abuse of the
judicial process. Id. at 34. But Smith has paid that fine and continues filing meritless
actions and appeals. This includes an attempt to sue a private company based on claims
arising out of his status as a descendant of slaves. See Compl. Smith v. Cmty. Care, Inc.,
No. 20-cv-1482 (E.D. Wis. Sept. 22, 2020). When the court dismissed his suit for violating
the filing bar, Smith sought to amend his complaint to replace “Black descendants of
American slaves” with “American Negro.” The court rejected the attempt to circumvent
the filing bar “by replacing the violating phrase but maintaining its spirit.” Order
denying leave to amend, Smith, No. 20-cv-1482 (E.D. Wis. Dec. 1, 2020). We affirmed.
Smith, 2022 WL 1436799, at *1.
The $2,000 sanction was clearly insufficient to deter Smith’s improper conduct,
and so now we fine him $5,000 for his continued vexatious litigation. See Reed v. PF of
Milwaukee Midtown, LLC, 16 F.4th 1229, 1232 (7th Cir. 2021) (new filing bar justified with
continued frivolous suits). Within fourteen days of this order, Smith must tender a
check payable to the clerk of this court for the full amount of the sanction. Further, the
clerks of all federal courts in this circuit shall return unfiled any papers submitted either
directly or indirectly by or on behalf of Smith unless and until he pays the full sanction
that has been imposed against him. See In re City of Chicago, 500 F.3d 582, 585–86 (7th
Cir. 2007); Support Sys. Int’l, Inc. v. Mack, 45 F.3d 185, 186 (7th Cir. 1995). This filing bar
excludes criminal cases and applications for writs of habeas corpus. See Mack, 45 F.3d at
186–87.
If Smith, despite his best efforts, is unable to pay in full all outstanding sanctions,
he is authorized to submit to this court a motion to modify or rescind this order no
earlier than two years from the date of this order. See id. at 186; City of Chicago, 500 F.3d
at 585–86. We note that this sanction has no effect on the filing bar imposed by the
district court.
AFFIRMED

-- 3 of 3 --