United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 12, 2021*

Decided March 16, 2021

Before

WILLIAM J. BAUER, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

Nos. 20-2987 & 20-2988

BARRY 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.

Nos. 19-cv-671-pp & 19-cv-1001-pp

Pamela Pepper,

Chief Judge.

O R D E R

Barry Smith, a convicted felon who has completed his sentence, has sued the 

United States Congress and Wisconsin’s legislature in an effort to overturn federal and 

state laws that restrict him from possessing firearms and holding elected office. The 

district court dismissed the suit. We affirm because Congress and the Wisconsin 

Legislature are not proper defendants, and, in any case, Smith’s claims are meritless. 

* We have agreed to decide the 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. FED. R. APP. P. 34(a)(2)(C). 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
Nos. 20-2987 & 20-2988 Page 2

The two cases in this consolidated appeal are the sixth and seventh in Smith’s 

quest to challenge his inability to own a gun or run for office. Smith was sentenced in 

1990 to one year in prison and four years of supervised release after a jury found him 

guilty of threatening to kill a federal judge. Although Smith has served his sentence, he

is subject to ongoing restrictions: Because of Smith’s felony record, both federal law and 

Wisconsin law prohibit him from possessing a firearm. 18 U.S.C. § 922(g); WIS. STAT.

§ 941.29. And the Wisconsin Constitution makes him ineligible to run for or hold 

elected office in the state. Wis. Const. Art. XIII, § 3. District courts and this court have 

rejected his five previous actions, all closely related, as meritless, frivolous, or even 

“absurd.” Smith v. United States, No. 08-cv-262 (E.D. Wis. Apr. 2, 2008), aff’d, Smith v. 

United States, No. 08-2205 (7th Cir. Nov 6, 2008); Smith v. President of the United States, 

No. 08-cv-956 (E.D. Wis. Nov. 10, 2008), aff’d, Smith v. President of the United States, 

No. 09-3419 (7th Cir. Jan. 25, 2010) (summarily affirming dismissal of “absurd” 

constitutional claims); Smith v. United States Congress, No. 13-cv-0206 (E.D. Wis. Apr. 18, 

2013); Smith v. United States, No. 17-cv-1419 (E.D. Wis. Jan. 29, 2018), aff’d, Smith v. 

United States, No. 18-2408, (7th Cir. Jan. 17, 2019), cert. denied, Smith v. United States, 

140 S. Ct. 220 (2019) (mem.); Smith v. United States, No. 18-cv-988, (E.D. Wis. Nov. 14, 

2019). The appellees have not defended the current cases based on claim preclusion, so 

we do not consider that defense.

We begin by describing the first case under appeal, No. 19-cv-671. Smith sued the

United States Congress and Wisconsin Legislature claiming that the elected-office and 

firearm prohibitions, Wis. Const. Art. XIII, § 3; 18 U.S.C. § 922(g); WIS. STAT. § 941.29,

are bills of attainder. The district court granted the defendants’ motions to dismiss. It 

ruled that Congress cannot be sued without its consent and has not waived immunity 

for suits over alleged civil-rights violations. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994).

And the Wisconsin Legislature, the court explained, is not a “person” under 42 U.S.C. 

§ 1983, so it is not subject to suit under that statute. Will v. Mich. Dep’t. of State Police, 

491 U.S. 58, 71 (1989). In any case, the court added, Smith would have lost on the merits:

This court has held that criminalizing a convicted felon’s possession of a firearm is not a 

bill of attainder. United States v. Hemmings, 258 F.3d 587, 594–95 (7th Cir. 2001). And the 

bar on felons holding elected office was not a bill of attainder as it did not determine 

guilt or inflict punishment. See Dehainaut v. Pena, 32 F.3d 1066, 1070 (7th Cir. 1994). 

In the second case, No. 19-cv-1001, Smith argues generally that the defendants 

violated the Second, Thirteenth, and Fifteenth Amendments and that collateral 

consequences to a criminal conviction are per se unconstitutional. Regarding Congress, 

the district court again ruled that it had not waived its sovereign immunity and in any 
Nos. 20-2987 & 20-2988 Page 3

case the complaint failed to state a claim. For the Wisconsin Legislature, which had not 

entered an appearance (it tells us now that it was not properly served), the court 

dismissed the claims sua sponte as “so obviously frivolous that the court cannot exercise 

subject-matter jurisdiction over them.” Before the case ended, Congress moved to bar 

Smith from filing any further pro se lawsuits. The district court barred Smith from filing 

new suits based on his status as a descendant of slaves or as a convicted felon, a bar that 

he could move to rescind in three years. The court explained that Smith had abused the 

judicial process by relitigating essentially the same lawsuit despite multiple judges 

rejecting his claims, and the sanction was narrowly tailored to address Smith’s abusive 

practices. See Support Systems Intern., Inc. v. Mack, 45 F.3d 185, 186 (7th Cir. 1995).

On appeal, Smith renews several constitutional arguments. He attacks the

firearms restriction in 18 U.S.C. § 922(g) under the Second Amendment and as a bill of 

attainder; Wisconsin’s ban on felons holding office under the Fifteenth Amendment; 

and both laws under the Fourteenth Amendment as impermissible collateral 

consequences of convictions. In his reply brief, he asserts for the first time that the 

United States Congress waived its sovereign immunity in the Administrative Procedure 

Act, 5 U.S.C. § 702. 

We agree with the district court that Smith cannot challenge these laws by suing 

these appellees. The United States (and its legislative branch, Congress) cannot be sued 

without its consent. Meyer, 510 U.S. at 475; Bartley v. United States, 123 F.3d 466, 467 

(7th Cir. 1997). And Congress has not waived its immunity to suits based on alleged 

civil rights or constitutional violations. See Meyer, 510 U.S. at 477–78. Smith’s contrary 

argument about the Administrative Procedures Act, raised for the first time in his reply, 

comes too late. See Daugherty v. Page, 906 F.3d 606, 610 (7th Cir. 2018). In any event, 

Smith is mistaken that this Act authorizes suits against Congress—for one thing, 

Congress is not an administrative agency. See 5 U.S.C. § 702 (granting judicial review of

“agency action”). Likewise, the Wisconsin Legislature was not a proper defendant. As 

an arm of the state of Wisconsin, it is not a “person” subject to suit under 42 U.S.C. 

§ 1983. Will, 491 U.S. at 71; Sebesta v. Davis, 878 F.3d 226, 231 (7th Cir. 2017). Smith 

disclaims reliance on § 1983, but no other law could conceivably authorize relief.

For completeness, we note that we have previously upheld the challenged laws 

as constitutional. The federal and Wisconsin felon-dispossession statutes are reasonably 

related to an important government interest and do not violate the Second Amendment.

Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019). Moreover, § 922 is not a bill of attainder, 

Hemmings, 258 F.3d at 594–95, and the reasoning of Hemmings applies to the Wisconsin 
Nos. 20-2987 & 20-2988 Page 4

statute, § 941.29. Also, states may bar convicted felons from running for or holding 

elected office without running afoul of the Fourteenth or Fifteenth Amendments. 

See Parker v. Lyons, 757 F.3d 701, 707 (7th Cir. 2014). And Smith’s Thirteenth 

Amendment arguments are frivolous and reassert previously rejected claims. Quincy

Bioscience, LLC v. Ellishbooks, 961 F.3d 938, 940–41 (7th Cir. 2020). Last, collateral 

consequences are a recognized and valid part of the criminal justice process. See Spencer 

v. Kemna, 523 U.S. 1, 8 (1998) (presuming convictions carry collateral consequences as a 

matter of course); Eichwedel v. Curry, 700 F.3d 275, 279 (7th Cir. 2012) (same).

We end with two final matters. First, we need not address arguments that Smith 

forfeited either by failing to present them to the district court, Hess v. Bresney, 784 F.3d

1154, 1161 (7th Cir. 2015), or in his opening brief in this court, Daugherty v. Page, 

906 F.3d 606, 610 (7th Cir. 2018). Second, we agree with the district court that Smith has 

abused the judicial process. Accordingly, we sanction Smith with a fine of $2,000; if he 

does not pay this fine to the Clerk of this court within 14 days, we will enter an order

barring Smith from filing future litigation in any federal court in this circuit. See Support 

Systems Intern., 45 F.3d at 186. We will make exceptions, though, for criminal cases or 

applications for writs of habeas corpus. See id. at 186–87. Smith will have permission to 

move this court in three years to rescind that order.

AFFIRMED