Levenstein, Joseph H v. Salafsky, Bernard

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 03-3637, 03-3653 & 04-1306

JOSEPH H. LEVENSTEIN,

Plaintiff-Appellant,

v.

BERNARD SALAFSKY, PATRICIA A. GILL,

and DAVID C. BROSKI,

Defendants-Appellees.

____________

Appeals from the United States District Court for

the Northern District of Illinois, Eastern Division.

Nos. 95 C 5524 and 97 C 3430—Blanche M. Manning, Judge.

____________

ARGUED SEPTEMBER 21, 2004—DECIDED JULY 11, 2005

____________

Before MANION, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge. In this case, we reach the

dénouement of the lawsuit that Dr. Joseph H. Levenstein

has been pursuing against three officials of the medical

school of the University of Illinois located in Rockford,

Illinois. When the case was last before this court, we

affirmed the district court’s interlocutory ruling that the

defendant university officials were not entitled to qualified

immunity. Levenstein v. Salafsky, 164 F.3d 345 (7th Cir.

1998) (Levenstein I). Eventually, the district court con-

2 Nos. 03-3637, 03-3653 & 04-1306

ducted a bench trial, after which it found that Levenstein

had not shown that he had been constructively discharged,

nor had he established an equal protection violation.

The court accordingly entered judgment in favor of the

defendants. This time it is Levenstein who is appealing. Al-

though we have no trouble imagining how a trier of fact

might have ruled in his favor, that is not the proper stand-

ard of review at this stage of the litigation. The district

court’s findings of fact were not clearly erroneous, nor do we

find legal error in its opinion. We therefore affirm.

I

Levenstein joined the medical school faculty of the

University of Illinois in Rockford in 1990, as a tenure-track

professor, after a distinguished career in South Africa that

we described in Levenstein I, 164 F.3d at 348. Before the

events giving rise to this lawsuit, he served as the head of

the Department of Family and Community Medicine (the

Department), first for the Rockford campus, and later for all

four University of Illinois campuses. He was granted tenure

in 1992. In 1994, Dean Bernard Salafsky, one of the

defendants and Levenstein’s immediate supervisor, rec-

ommended Levenstein for a Faculty of the Year Award and

nominated him for the Pugh Charitable Trust “Primary

Care Achievement Award.” In 1995, Levenstein became the

chair of the University of Illinois College of Medicine

Primary Care Institute.

Starting around the middle of 1994, however, two events

began to unfold: first, Levenstein and Salafsky had a falling-

out over the financing and management of the University’s

Medical Service Plan (MSP), which was a fund designed to

cover various medical school operating expenses like faculty

salaries and maintenance; second, in the spring of 1995,

defendant Patricia A. Gill, the Deputy Chancellor of

Affirmative Action Programs (AAP), received an anonymous

Nos. 03-3637, 03-3653 & 04-1306 3

letter from a medical student alleging that Levenstein had

sexually harassed her. Levenstein saw the University’s

response to the sexual harassment complaint as a veiled

effort to undermine his efforts to understand deficits in the

budgets of the MSP and the Department and to expose

financial mismanagement.

Briefly, the financial dispute began when Salafsky’s office

revealed in mid-1994 that the MSP might be facing a

cumulative deficit of an amount significantly greater than

its operational losses of approximately $280,000 in 1993 and

$260,000 in 1994. Over Salafsky’s objection, Levenstein led

the formation of an executive committee to serve as a

“watchdog” over Salafsky’s administration. Later that year,

Salafsky proposed the construction of a new specialty clinic

to be called the East Side Clinic. Levenstein and the other

watchdog committee members agreed that such a clinic

would be desirable, but questioned whether the MSP could

afford it and whether it could be justified from an educa-

tional standpoint. As time went on, Levenstein asked more

and more questions about the $400,000 MSP deficit and the

projected $500,000 departmental deficit, but Salafsky was

unresponsive. On April 19, 1995, the two had a confronta-

tion at an executive committee meeting. Dr. Frank

Chmelik, Chair of the Rockford MSP, approached Salafsky

in an effort to resolve the problem. Ominously, Salafsky told

Chmelik that “there was a much larger problem than this

that would become more obvious over the ensuing weeks.”

Salafsky was referring to the anonymous harassment

complaint, which Gill had received only two days earlier, on

April 17. On April 27, Gill forwarded a copy of the letter to

Levenstein and to Salafsky. She advised Levenstein that

there would be no investigation unless the anonymous com-

plainant came forward. On May 1, a physician at Rockford

who had worked with Levenstein contacted Gill to report

inappropriate conduct by Levenstein. She, too, did not

reveal her identity to Gill until later, but she did pass along

4 Nos. 03-3637, 03-3653 & 04-1306

her complaint to her immediate supervisor. On May 8, two

more similar complaints came in, this time from two of

Levenstein’s departmental support staff. Salafsky was told

about the later complaints.

On May 11, Salafsky and the Associate Regional Dean,

Dr. Donald Wortmann, met with Levenstein to discuss the

sexual harassment complaints. They told him that if he did

not resign effective 5:00 pm that day, he would be sus-

pended with pay pending the outcome of an investigation.

As of the time of that meeting, no formal complaints had yet

been filed, although Salafsky knew both the identities of

some of the complainants and that they wished to pursue

formal charges. After hearing all of this, Levenstein

telephoned Gill to confirm what had been happening. At the

end of the day, Salafsky suspended Levenstein with pay as

promised.

The next day, Salafsky called a meeting of the faculty at

which he announced Levenstein’s suspension and the cir-

cumstances that had prompted it. He said, inaccurately,

that Gill had received four letters in the last month; in fact,

she had received only the one anonymous letter. Formal

letters were not long in coming, however. On May 17, the

author of the anonymous letter came forward, wrote a new

letter, and signed a formal complaint. The two support staff

members did likewise, and on May 21, the three women

filed a joint “Request for Action” form. With this in hand,

Gill opened an investigation.

On May 24, Gill informed Levenstein about the specifics

of the complaints and outlined the investigation process. He

was permitted to respond in writing to the allegations,

which he did, denying any sexually offensive conduct. Gill

completed her investigation on July 23. She submitted a

report concluding that Levenstein had violated the Univer-

sity’s sexual harassment policy to her supervisor, the head

of AAP. The supervisor agreed and made two recommen-

Nos. 03-3637, 03-3653 & 04-1306 5

dations in the alternative: either Levenstein should be re-

stricted for three years from exercising authority over

female subordinates, with the exception of restrictions on

classroom instruction, lecturing, and patient treatment; or,

if it was not possible to create an arrangement that per-

mitted him to perform fully as a member of the faculty, he

should be terminated.

Levenstein submitted an appeal from the AAP’s findings

and recommendations on August 9 to defendant David C.

Broski, the Chancellor of the University. Broski assembled

a three-person Faculty Appeal Panel with help from Gill to

handle the appeal. The panel conducted its own investi-

gation; it gave Levenstein the opportunity to comment on

various witness statements and to make a final statement.

Its report, issued on November 20, essentially agreed with

Gill’s initial conclusion that Levenstein had engaged in

offensive conduct. It made no recommendations for correc-

tive action, but it observed that the earlier recommendation

was contradictory and could not be carried out.

On December 21, 1995, Broski recommended to the

president of the University, James J. Stukel, that

Levenstein’s tenure should be reviewed “with the intent

to revoke.” Broski also advised President Stukel that

Levenstein had been placed on paid leave pending the out-

come of the investigatory proceedings. At the same time,

Broski notified Levenstein that he was relieved of his duties

as department head and that Broski had recommended to

Stukel that dismissal proceedings be commenced.

Stukel accepted that recommendation on January 6, 1996,

and concluded that Levenstein should remain suspended.

He communicated this to Levenstein, described the dis-

missal procedure, and indicated that he would seek the

advice of the Faculty Advisory Committee after he reviewed

the relevant materials. On February 7, 1996, he asked for

the Committee’s recommendation whether tenure revocation

6 Nos. 03-3637, 03-3653 & 04-1306

proceedings should begin. He also ordered that Levenstein

be given other duties, without changing his compensation

(which had remained in place throughout this period).

Charles Lane Rice, the Vice Dean of the College of Medi-

cine, assigned Levenstein the menial task of reviewing and

evaluating medical videotapes for content and accuracy.

In the meantime, Levenstein, frustrated by what he per-

ceived to be the slow pace of the proceedings, bias on the

part of decisionmakers, and the pretextual nature of the ac-

tions being taken against him, brought charges of academic

misconduct against Salafsky and other administrators at

the Rockford campus. The Faculty Advisory Committee

advised President Stukel that they would take up the ques-

tion of Levenstein’s termination after they had assessed

Levenstein’s charges against Salafsky.

The Committee’s result was partially favorable, partially

unfavorable to Levenstein. Although it reported on April 15

that it found no merit in Levenstein’s charges against

Salafsky, the next day it recommended to Stukel that he

should not pursue termination of Levenstein’s tenure. In-

stead, the Committee thought, the less drastic measures of

reassignment and rehabilitation were appropriate. In com-

ing to this recommendation, the Committee said that it

perceived “no room for serious contention” that “several” of

the charges against Levenstein were valid; nonetheless, it

also indicated that some of the charges were “not particu-

larly persuasive,” some of the conduct was not necessarily

wrongful, and in some instances Levenstein’s actions “may

be subject to an innocent interpretation.” The Committee

reported its strong reservations on the question whether the

allegations proved that Levenstein’s future performance

would be “professionally substandard.” The Committee did

not copy Levenstein or any other administrators on its

recommendation to Stukel, nor did Stukel tell Levenstein

the gist of the Committee’s findings.

Nos. 03-3637, 03-3653 & 04-1306 7

Before Stukel had a chance to make a decision on the

case, Levenstein pretermitted the process by tendering his

resignation in a letter dated April 23, 1996. Stukel ac-

cepted. Had Levenstein not resigned, Stukel would have

been free to accept, reject, or modify the Committee’s recom-

mendation. If he had chosen to pursue tenure termination,

University statutes provided for a hearing at which

Levenstein would have had an opportunity to present his

case and for an appeals process.

II

On September 27, 1995, while the University proceedings

we have just described were still underway, Levenstein filed

this lawsuit under 42 U.S.C. § 1983 against the Board of

Trustees of the University of Illinois, Salafsky, Gill, and

Broski. He later dropped his claims against the Board of

Trustees and filed an additional complaint in the district

court, but the cases were eventually consolidated both in

the district court and here, and so we treat them all as one.

After this court affirmed the district court’s decision re-

jecting the defendants’ claim of qualified immunity in

Levenstein I, the case continued on to the merits. On

February 4, 2002, the district court issued a memorandum

and order in which it found that genuine issues of fact ex-

isted on three questions: whether Levenstein’s procedural

due process rights had been violated; whether his suspen-

sion was really the result of the defendants’ animus and the

procedures a sham; and whether he had been the victim of

selective enforcement in violation of his equal protection

rights. In the same memorandum, however, the court found

that the defendants were entitled to qualified immunity

insofar as these claims were brought against them in their

individual capacities. It did so on the ground that

Levenstein could not show under these circumstances that

the defendants should have known that their actions were

8 Nos. 03-3637, 03-3653 & 04-1306

violating his rights. See Saucier v. Katz, 533 U.S. 194, 201

(2001). It properly noted that this court’s opinion in

Levenstein I was premised on the fact that the defendants’

initial motion was based exclusively on the pleadings, and

thus did not preclude the district court from revisiting the

immunity issue on the basis of a fuller record. See Behrens

v. Pelletier, 516 U.S. 299, 307 (1996).

After making that ruling, the court went on to hold a

bench trial. Although it did not spell out what relief was

still possible, the only thing could have been the prospective

injunctive relief of reinstatement that Levenstein had

requested. Levenstein originally brought his suit against

the three University defendants in both their official and

personal capacities. The qualified immunity ruling spelled

the end of his personal capacity claims for damages. As offi-

cials of the University of Illinois, which is functionally the

State of Illinois for purposes of § 1983, the defendants were

not “persons” who could be sued in their official capacity for

damages. See Will v. Mich. Dep’t of State Police, 491 U.S.

58, 71 (1989). Nevertheless, under the well-recognized

theory of Ex parte Young, 209 U.S. 123 (1908), Levenstein

was entitled to pursue injunctive relief against them for

actions they took in violation of his constitutional rights.

See Verizon Md., Inc. v. Pub. Serv. Comm. of Md., 535 U.S.

635, 645 (2002); Kentucky v. Graham, 473 U.S. 159, 167

n.14 (1985). On September 5, 2003, the court ruled that

Levenstein had not demonstrated that he had been con-

structively discharged and that he had not met his burden

of showing a “class of one” equal protection violation.

On appeal, Levenstein first attacks the district court’s

conclusion that he failed to prove that the defendants were

“out to get him” and that the process they used was a sham.

He also argues that the court erred by failing to find that

his forced idleness, coupled with the sham procedures,

amounted to a constructive discharge, and by rejecting his

Nos. 03-3637, 03-3653 & 04-1306 9

equal protection claim. Finally, he cursorily takes issue

with the court’s decision with respect to the defendants’

qualified immunity.

III

A

We begin with the qualified immunity argument, since

Levenstein’s chances of any damages relief against the

individual defendants are dependent on this point. The

district court’s explanation of why it was conferring quali-

fied immunity was regrettably brief. Unfortunately, so was

Levenstein’s treatment of this point in his brief on appeal.

Indeed, it was so abbreviated that we are tempted to say

that he has forfeited the right to pursue this argument.

We have no need to explore the forfeiture issue, however,

for a straightforward reason. In the end, as the defendants

point out, it makes no difference to this case whether the

district court’s immunity ruling was correct or not. A proper

treatment of the qualified immunity issue requires the

court first to decide whether the officer’s conduct violated a

constitutional right, taking the facts in the light most

favorable to the party asserting the injury. Saucier, 533

U.S. at 201. If and only if so, then the court must determine

whether the right was clearly established in the light of the

specific context of the case. Id. Here, the court went on and

conducted a full bench trial for purposes of deciding

whether the defendants violated any of Levenstein’s

constitutional rights. It concluded, as we have already

noted, that they did not. If this decision was correct, then

there is nothing left of any potential damages claim in any

event. We therefore have no need to decide how clearly the

right to be free of sham proceedings and trumped-up

charges was as of 1995 and 1996. Levenstein’s case rises or

falls on the soundness of the district court’s analysis of the

merits.

10 Nos. 03-3637, 03-3653 & 04-1306

B

We begin our consideration of the merits with a reminder

about the standard of review, which is the biggest hurdle

that Levenstein must surmount. After a full bench trial, the

district court’s findings of fact may not be set aside unless

they are clearly erroneous. Cerros v. Steel Techs., Inc., 288

F.3d 1040, 1044 (7th Cir. 2002). This, as we have often

vividly reminded parties, is a highly deferential standard.

We review questions of law de novo; mixed questions of law

or fact that do not involve constitutional rights are normally

reviewed for clear error. See Thomas v. General Motors

Acceptance Corp., 288 F.3d 305, 307 (7th Cir. 2002).

Levenstein’s first argument applies, as he recognizes, to

both his due process and his equal protection claims. He

takes issue with the proposition that the defendants were

proceeding against him in good faith. It is true that the

district court made some findings that might be read as a

finding that the investigation was unobjectionable. It noted,

for instance, that the University was aware of a history of

informal sexual harassment complaints against Levenstein,

even though none of those complaints had resulted in

formal proceedings. (Findings of Fact ¶¶ 26-30.) It found

that the Faculty Appeal Panel (which did not include any of

the defendants) “consistently found Levenstein’s version of

events to be less credible than the complainants [sic].” (Id.

¶ 53.) Furthermore, and closer to the point, the court found

that the University provided many procedures that

Levenstein chose not to use (id. ¶ 77), and that Levenstein

was aware of those procedures. (Id. ¶ 78.) In the end, how-

ever, the court never came to any final conclusion about the

underlying motivations for the investigation.

Instead, the court found that in the final analysis, it was

not the University that deprived Levenstein of any property

right protected by the Constitution. It was he who chose to

submit his resignation just before President Stukel was

Nos. 03-3637, 03-3653 & 04-1306 11

about to decide how to proceed. He elected to forgo num-

erous procedures before entities including the University’s

Committee on Academic Freedom and Tenure and the

Board of Trustees. Levenstein offers no reason for us to

think that the Board, which had the ultimate responsibility

to decide what to do, was biased, or that either the Commit-

tee or the Board would have refused to listen to his argu-

ments about pretext and sham.

The district court observed that Levenstein was not

bringing an independent claim based on his suspension.

The fact that he was receiving full pay throughout the

period of the University’s investigation may explain this

decision. No matter. Upsetting and unpleasant though it

surely would be to be the victim of false accusations of

sexual misconduct from someone whose secret agenda was

eliminating a critic, those accusations had not yet led the

University to terminate Levenstein’s position. The only

question remaining with respect to the due process part of

the case, to which we now turn, is whether the district court

was mistaken to reject the constructive discharge argu-

ment.

C

The Supreme Court recently had occasion to address the

topic of constructive discharge in the context of a Title VII

hostile-environment claim. See Pennsylvania State Police v.

Suders, 124 S. Ct. 2342, 2347 (2004). The question whether

the plaintiff had suffered a constructive discharge was

important because it determined whether the employer was

entitled to raise an affirmative defense to the charge.

Suders held that in order to establish a constructive

discharge, such a plaintiff had to prove both harassing

behavior sufficiently severe or pervasive to alter the condi-

tions of her employment, and that “the abusive working

environment became so intolerable that her resignation

12 Nos. 03-3637, 03-3653 & 04-1306

qualified as a fitting response.” Id. at 2347. Although

Levenstein’s case relies on the due process clause rather

than Title VII, the general approach to constructive dis-

charge outlined in Suders is equally applicable here. For

him, the central issue is whether, as he asserts, it was the

University that deprived him of his protected property

interest in his tenured position on the faculty, or if, as the

district court concluded, he chose to leave.

Levenstein relies on this court’s decision in Parrett v. City

of Connersville, 737 F.2d 690, 694 (7th Cir. 1984), in which

we held that an employee is constructively discharged if

“his working conditions were made so miserable that he was

forced to quit.” In Parrett, we found that standard met when

a police detective was literally forced to sit in a windowless

room that was formerly a broom closet and spend his entire

shift with nothing to do. In Levenstein’s view, his situation

was identical in all material respects: he was put in a state

of enforced idleness for almost a year, he was physically

barred from campus, he was humiliated by Salafsky’s

statements and his removal as department head, and he

was given the demeaning task of reviewing dusty old

medical videotapes. He concludes that all of this, coupled

with the alleged sham investigative procedures, amounted

to a constructive discharge.

We put to one side the investigative procedures, which we

have already found had not run their course and thus

cannot be labeled as “sham” taken as a whole. We see a

subtle but important difference in the way that the Su-

preme Court phrased the test for a constructive discharge

in Suders and the phrase Levenstein has taken from our

Parrett opinion. One could read the excerpt from Parrett as

establishing a purely subjective test for constructive

discharge, because only the employee would know how

miserable the working conditions made her feel. The Suders

test, in contrast, is an objective one, as the Supreme Court

made clear:

Nos. 03-3637, 03-3653 & 04-1306 13

Under the constructive discharge doctrine, an em-

ployee’s reasonable decision to resign because of unen-

durable working conditions is assimilated to a formal

discharge for remedial purposes. . . . The inquiry is

objective: Did working conditions become so intolerable

that a reasonable person in the employee’s position

would have felt compelled to resign?

124 S. Ct. at 2351 (citation omitted).

A number of facts lead us to answer that question in the

negative. First, even Levenstein concedes that the allega-

tions had been made against him, and that investigations

were proceeding. Once such a process starts, for whatever

reason, it is incumbent on the University to decide whether

the complaints have merit, and if so, to decide what remedy

is appropriate. If the complaints were made in bad faith or

cannot be supported by the facts, the accused professor will

be exonerated, which is the best that can be done even if he

might have wished that the process had never begun in the

first place. Second, unlike the policeman in Parrett,

Levenstein’s reassignment was explicitly temporary, pend-

ing the outcome of the investigation. Third, while eleven and

a half months may have seemed like an eternity to

Levenstein, in the real world it was not so long that his

resignation could be called reasonable. The Supreme Court

has acknowledged that at some point a delay in the ter-

mination process might become a constitutional violation.

See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547

(1985). There, however, the Court found that a nine-month

adjudicatory period was not per se unconstitutionally long,

and it noted that the delay appeared to stem in part from

the thoroughness of the procedures. The latter can also be

said about Levenstein’s case, and we do not see a difference

of constitutional magnitude between nine months and

twelve months, in the context of the elaborate procedural

protections enjoyed by tenured university professors.

14 Nos. 03-3637, 03-3653 & 04-1306

We conclude that a person who is on leave with pay, with

a temporary (though unsatisfying) reassignment pending an

investigation of serious job misconduct, who resigns rather

than waits for the conclusion of reasonable prescribed due

process procedures of the institution, has not from an

objective standpoint been constructively discharged. Indeed,

to treat any reasonable pre-termination suspension with pay

as a constructive discharge would create considerable

tension with Supreme Court decisions like Loudermill, 470

U.S. 544-45 (expressly stating that a suspension with pay

prior to a pre-termination hearing is a valid option for a

state employer). See also Gilbert v. Homar, 520 U.S. 924,

929 (1997) (holding that suspensions without pay are also

possible under some circumstances). However distasteful

his temporary situation was, Levenstein’s working con-

ditions had not become so intolerable that a reasonable

employee in his position would have felt compelled to re-

sign. There is an inherent tension for any employee who is

undergoing the kind of investigation that follows complaints

of sexual harassment or other inappropriate conduct.

Nothing in Suders equates this kind of tension with the in-

tolerable working conditions that give rise to a constructive

discharge or undermines the general Loudermill rule.

We therefore agree with the district court’s conclusion

that Levenstein was not constructively discharged from the

University. He voluntarily resigned, and thus the defen-

dants acting in their official capacities did not deprive him

of any protected property interest.

D

Levenstein’s final theory relies on the “class of one” equal

protection cases. See Village of Willowbrook v. Olech, 528

U.S. 562 (2000). Olech recognizes that a plaintiff states an

equal protection claim where she “has been intentionally

treated differently from others similarly situated and . . .

Nos. 03-3637, 03-3653 & 04-1306 15

there is no rational basis for the difference in treatment.”

Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir.

2001) (citing Olech, 528 U.S. at 564). We have recognized

that a person may also state a claim under a “class of one”

theory by showing that “the government is treating un-

equally those individuals who are prima facie identical in

all relevant respects, and that the cause of the differential

treatment is a ‘totally illegitimate animus toward the

plaintiff by the defendant.’ ” See Nevel v. Village of

Schaumberg, 297 F.3d 673, 681 (7th Cir. 2002); Albiero, 246

F.3d at 932; Esmail v. Macrane, 53 F.3d 176, 180 (7th Cir.

1995).

The district court rejected this theory because Levenstein

failed to identify another similarly situated individual who

was treated differently. He asserts that there is no need to

point to such an individual if one is proceeding under the

“illegitimate animus” approach. This, however, mistakes

what we said in Albiero, and (worse) is inconsistent with

the Supreme Court’s description of the theory in Olech.

Olech requires a showing of how the other similarly situ-

ated individuals have been treated. Albiero follows that

guidance by requiring the plaintiff to demonstrate how he

was unfavorably treated as compared with others who are

otherwise identical to him. After the plaintiff shows the

differential treatment, he must then prove that it flows

from an illegitimate animus, not from inadvertence or some

kind of permissible governmental classification.

Even if we credited Levenstein’s testimony that numerous

other individuals who were accused of sexual harassment

were not suspended pending an investigation or were not

investigated at all, that would not be enough to prove this

claim. First, this is far from a showing that these other

individuals were identical to him in all relevant respects.

See, e.g., Grayson v. O’Neill, 308 F.3d 808, 819 (7th Cir.

2002). Second, the district court found that the University

had ample reason to investigate him apart from any

16 Nos. 03-3637, 03-3653 & 04-1306

illegitimate animus, in the form of the oral and written

complaints it had received, both in the spring of 1995 and

earlier. He has not convinced us that the district court

clearly erred in finding those facts.

IV

When all is said and done, both Levenstein and the

defendant university officials had their day in court. With

all the evidence before it, the court concluded that

Levenstein was not constructively discharged, and thus that

no action of the University deprived him of a protected

property right. It also concluded that Levenstein had not

proven that he was singled out for unfavorable disparate

treatment in violation of his equal protection rights. We

therefore AFFIRM the judgment of the district court. We also

DENY the defendants’ motion to strike Levenstein’s brief as

unnecessary.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-11-05