Hill, Robert E. v. Potter, Jack E.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1900
ROBERT E. HILL,
Plaintiff-Appellant,
v.
JACK E. POTTER, Postmaster General,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 00 C 3864—John W. Darrah, Judge.
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ARGUED JUNE 2, 2003—DECIDED DECEMBER 18, 2003
____________
Before POSNER, EASTERBROOK, and WILLIAMS, Circuit
Judges.
POSNER, Circuit Judge. This procedurally intricate liti-
gation began seven years ago when Robert Hill, a supervi-
sory employee of the Postal Service, brought suit in the
federal district court in Chicago, charging age, race, and sex
discrimination, plus retaliation for complaining about the
discrimination, all arising from his failure to obtain posi-
tions in either of two executive tiers in the Postal Ser-
vice—the Postal Career Executive Service (PCES) and the
Executive and Administrative Schedule (EAS). The follow-
ing year the district court dismissed the age, race, and sex
2 No. 02-1900
discrimination claims relating to the PCES, along with the
EAS-related age-discrimination claim, on the merits, and
dismissed the EAS-related race and sex claims, without
prejudice, on the ground that Hill had failed to exhaust his
administrative remedies. Hill v. Runyon, 959 F. Supp. 488(N.D. Ill. 1997). (To simplify exposition, we refer to the
claims that were dismissed with prejudice as the “PCES
claims,” and the EAS-related claims that were dismissed
without prejudice as the “EAS claims.”) Shortly afterwards,
with the consent of the Postal Service, the court granted
Hill’s request to dismiss his retaliation claim, also without
prejudice. That left nothing in the district court.
Hill went then to the EEOC in an attempt to exhaust his
remedies. It refused to give him any relief, on the ground
that he had failed to cooperate with it when he had first
filed charges with the agency, before filing suit, and that
once the suit was filed and decided it was too late for him to
try to exhaust his administrative remedies. He then filed a
new suit, this time in the federal district court in the District
of Columbia, choosing that venue because the Postal Service
had challenged the venue of his original suit (the judge in
his Chicago case had not decided the question of venue). In
the new suit Hill repeated the charges that the district court
in Chicago had dismissed without prejudice, which is to say
the EAS claims and the retaliation claim. He also repeated
the claims that the district court in Chicago had dismissed
on the merits; he added some other claims as well. The
district court in D.C. dismissed the EAS claims for failure to
exhaust and then transferred the rest of Hill’s case back to
the district court in Chicago. Hill v. Runyon, 12 F. Supp. 2d
30 (D.D.C. 1998).
Hill appealed to the D.C. Circuit, but it dismissed his
appeal because the district court’s ruling disposing of only
some of Hill’s claims was not a final judgment. Hill v.
No. 02-1900 3
Henderson, 195 F.3d 671 (D.C. Cir. 1999). Transfer orders,
including ones transferring a case for the convenience of the
parties and witnesses, 28 U.S.C. § 1404(a), are not ap-
pealable final decisions. E.g., Murphy v. Reid, 332 F.3d 82 (2d
Cir. 2003) (per curiam); In re Carefirst of Maryland, Inc., 305
F.3d 253, 256 (4th Cir. 2002); Ukiah Adventist Hospital v. FTC,
981 F.2d 543, 546 (D.C. Cir. 1992); Kotlicky v. U.S. Fidelity &
Guaranty Co., 817 F.2d 6, 7 n. 1 (2d Cir. 1987). The district
judge did not state the statutory basis for his transfer order,
but presumably it was section 1404(a), since most of the
witnesses and other evidence relating to Hill’s claim of
retaliation were in Chicago; and the court of appeals so
assumed. Hill v. Henderson, supra, 195 F.3d at 672.
So Hill was back in the district court in Chicago, which
last year dismissed his suit, ruling that his PCES and EAS
claims were barred by res judicata and that his retaliation
claim failed on the merits. This appeal followed. The judge
dismissed Hill’s other claims as well, on various grounds,
but Hill does not challenge their dismissal.
If the Chicago district court’s 1997 decision was a final
judgment, the dismissal by that decision of Hill’s PCES
claims on the merits was indeed res judicata. Hill argues
that the 1997 judgment was merely an interlocutory ruling
in a lawsuit that did not conclude until the judgment
entered by the district court in Chicago last year. Hill would
be right if the district court in 1997, while ruling on the
merits of the PCES claims, had stayed Hill’s other claims to
permit him to try to exhaust his remedies (unless the court
had entered a Rule 54(b) judgment on the PCES claims,
which would have permitted an immediate appeal from
their dismissal). Then, after striking out in the District of
Columbia, Hill could have resumed the Chicago litigation
and, if he lost, could on appeal have challenged any of the
4 No. 02-1900
rulings the court had made in 1997. But in fact the 1997
decision disposed of the entire lawsuit, and was therefore a
final decision.
It is true that insofar as that decision dismissed the EAS
claims without prejudice for failure to exhaust, and the
retaliation claim on Hill’s own motion to dismiss that claim
without prejudice, a resumption of the litigation in some
form could be anticipated. But such an anticipation does not
deprive a judgment of finality. United States v. Wallace &
Tiernan Co., 336 U.S. 793, 794 n. 1 (1949); Trustees of Pension,
Welfare & Vacation Fringe Benefit Funds of IBEW Local 701 v.
Pyramid Electric, 223 F.3d 459, 464 (7th Cir. 2000); Mirpuri v.
ACT Mfg., Inc., 212 F.3d 624, 631 (1st Cir. 2000). It’s not like
dismissing just the complaint and not the suit, Furnace v.
Board of Trustees, 218 F.3d 666, 669-70 (7th Cir. 2000); United
States v. City of Milwaukee, 144 F.3d 524, 529 n. 7 (7th Cir.
1998), or dismissing a suit with leave to reinstate it, as in
Principal Mutual Life Ins. Co. v. Cincinnati TV 64 Limited
Partnership, 845 F.2d 674, 676 (7th Cir. 1988); see also Blanco
v. United States, 775 F.2d 53, 56 (2d Cir. 1985). The test for
finality is not whether the suit is dismissed with prejudice
or without prejudice, on the merits or on a jurisdictional
ground or on a procedural ground such as failure to exhaust
administrative remedies when exhaustion is not a jurisdic-
tional requirement. The test is whether the district court has
finished with the case. Shah v. Inter-Continental Hotel Chicago
Operating Corp., 314 F.3d 278, 281 (7th Cir. 2002); Health Cost
Controls of Illinois, Inc. v. Washington, 187 F.3d 703, 707 (7th
Cir. 1999); Hunt v. Hopkins, 266 F.3d 934, 936 (8th Cir. 2001).
Often it is possible that a dismissed case will resume in one
form or another, especially if the dismissal is based on a
jurisdictional or procedural defect. Yet in countless cases a
dismissal for failure to exhaust state judicial remedies
(for example, in a habeas corpus case) or administrative
No. 02-1900 5
remedies (for example, in a prisoner civil rights suit) has
been appealed as a final judgment. E.g., Dixon v. Page, 291
F.3d 485, 488 (7th Cir. 2002); Sceifers v. Trigg, 46 F.3d 701,
702-03 (7th Cir. 1995); United States ex rel. Burbank v. Warden,
535 F.2d 361, 363 (7th Cir. 1976); Ray v. Kertes, 285 F.3d 287,
291 (3d Cir. 2002); Phillips v. Vasquez, 56 F.3d 1030, 1032-33
(9th Cir. 1995).
What is true is that a litigant is not permitted to obtain an
immediate appeal of an interlocutory order by the facile
expedient of dismissing one of his claims without prejudice
so that he can continue with the case after the appeal is
decided. West v. Macht, 197 F.3d 1185 (7th Cir. 1999); South
Austin Coalition Community Council v. SBC Communications
Inc., 191 F.3d 842, 844 (7th Cir. 1999); JTC Petroleum Co. v.
Piasa Motor Fuels, Inc., 190 F.3d 775, 776-77 (7th Cir. 1999);
Horwitz v. Alloy Automotive Co., 957 F.2d 1431, 1435-36 (7th
Cir. 1992); American States Ins. Co. v. Dastar Corp., 318 F.3d
881, 891-92 (9th Cir. 2003); Rebecca A. Cochran, “Gaining
Appellate Review by ‘Manufacturing’ a Final Judgment
Through Voluntary Dismissal of Peripheral Claims,” 48
Mercer L. Rev. 979 (1997). But, as in United States v.
Kaufmann, 985 F.2d 884, 890-91 (7th Cir. 1993), and James v.
Price Stern Sloan, Inc., 283 F.3d 1064 (9th Cir. 2002), that is
not the proper characterization of Hill’s motion to dismiss
his claim of retaliation. The record is clear that the reason
for the request to dismiss was to avoid two trials, by joining
the claim to the EAS claims that had been dismissed for
failure to exhaust, after exhausting those claims.
Moreover, the ground on which the district judge had
dismissed the EAS claims without prejudice was not that
Hill was entitled to a belated attempt to exhaust his admin-
istrative remedies, but that Pack v. Marsh, 986 F.2d 1155(7th Cir. 1993), had held that a district court has no sub-
6 No. 02-1900
ject matter jurisdiction of an unexhausted claim. After the
district judge rendered her decision in 1997, we overruled
Pack v. Marsh, holding that failure to exhaust is not a juris-
dictional defect, albeit it is a reason for dismissal. Gibson v.
West, 201 F.3d 990, 994 (7th Cir. 2000). It is unfortunate that
Gibson was not decided before 1997, for the district judge’s
ruling dismissing the EAS claims without prejudice may
have led Hill to think he could still exhaust his administra-
tive remedies. But the EEOC was entitled to conclude that
when he tried, it was too late. Normally one must exhaust
before rather than after suing. See Brown v. General Services
Administration, 425 U.S. 820, 831-33 (1976); Gibson v. West,
supra; Rann v. Chao, 346 F.3d 192 (D.C. Cir. 2003). Title VII
does not authorize the filing of suit until the plaintiff has
exhausted his administrative remedies, 42 U.S.C. § 2000e-
16(c), which means not until he has received a right-to-sue
letter from the EEOC, signifying that the EEOC will not
provide him with any relief. If plaintiffs could sue before
then, the time of the courts and of lawyers would be wasted
with cases that ended up being resolved or abandoned at
the administrative level. Tolbert v. United States, 916 F.2d
245, 249 n. 1 (5th Cir. 1990) (per curiam); Wade v. Secretary of
Army, 796 F.2d 1369, 1376-78 (11th Cir. 1986); Purtill v.
Harris, 658 F.2d 134, 138 (3d Cir. 1981).
If, however, through ignorance of proper procedures a
plaintiff jumps the gun, suing before he has exhausted
his administrative remedies, it does not follow that his
suit must be dismissed with prejudice, cf. Walker v.
Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002), which would
preclude its reinstatement. It can be dismissed as premature,
at least if the opposing party has not been harmed by the
premature filing of the suit, and hence without prejudice.
Mitchell v. Chapman, 343 F.3d 811, 821 (6th Cir. 2003); Boos v.
Runyon, 201 F.3d 178, 183-84 (2d Cir. 2000); Criales v.
No. 02-1900 7
American Airlines, Inc., 105 F.3d 93, 95 (2d Cir. 1997);
Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346,
1351 (9th Cir. 1984); Henderson v. Eastern Freight Ways, Inc.,
460 F.2d 258, 260 (4th Cir. 1972) (per curiam); but see Tolbert
v. United States, supra, 916 F.2d at 249-50. Gibson v. Wade, in
holding that failure to exhaust administrative remedies is
not a jurisdictional defense, did not hold or suggest that
dismissal on that ground must always be with prejudice.
The point would be obvious if, promptly waking up to his
failure to exhaust, a plaintiff voluntarily moved to dismiss
his case.
These cases do not help Hill. His problem was not that he
jumped the gun but that he refused to cooperate with the
EEOC. That was a failure to exhaust, Rann v. Chao, supra, 346
F.3d at 195-97; Martinez v. Department of U.S. Army, 317 F.3d
511, 512 (5th Cir. 2003); Jasch v. Potter, 302 F.3d 1092, 1094
(9th Cir. 2002)—but a worse form of it than merely inadver-
tent inaction. The EEOC didn’t have to give him another
chance.
Since the decision by the district judge in the District
of Columbia was not a final, appealable judgment, it is
reviewable by the court having appellate jurisdiction over
the transferee court that did render the final judgment. Jones
v. Infocure Corp., 310 F.3d 529, 534 (7th Cir. 2002). The court
that rendered the final judgment was the district court in
Chicago, and appeals from the final judgments of that court
go to this court. We can be brief in discussing the merits of
the appeal. Hill’s claims divide into three. First is the PCES
claims. They were rejected by the district court in Chicago
in 1997, which entered a final judgment, appealable but not
appealed, with prejudice; Hill was barred by res judicata
from seeking to relitigate that ruling. Second is the EAS
claims. The district court in the District of Columbia cor-
rectly rejected them because of Hill’s failure to exhaust his
8 No. 02-1900
administrative remedies. And third is the retaliation claim,
on which the district judge granted summary judgment for
the Postal Service. Hill has forfeited any challenge to that
ruling in this court by failing to explain, with citation to
relevant legal materials, such as cases, statutes, and regula-
tions, why he thinks the ruling was in error.
For completeness we add that even though the EAS claims
were dismissed in 1997 without prejudice, and even though
“without prejudice” is a signal that a dismissal does not
have a preclusive effect in future litigation, Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 396 (1990); Marques v. Federal
Reserve Bank of Chicago, 286 F.3d 1014, 1016 (7th Cir. 2002);
EEOC v. W.H. Braum, Inc., 347 F.3d 1192, 1201-02 (10th Cir.
2003); Dozier v. Ford Motor Co., 702 F.2d 1189, 1194 (D.C. Cir.
1983)—indeed, that is the purpose of the formula—there is
an important and applicable exception. Remember that the
reason the claims were dismissed without prejudice was
that back in 1997 it was believed that a district court did not
acquire jurisdiction over a Title VII case unless the plaintiff
had exhausted his administrative remedies. Dismissals for
want of subject-matter jurisdiction are always denominated
without prejudice, because they signify that the court did
not have the power to decide the case on the merits. But
they are preclusive with respect to the jurisdictional ruling,
Okoro v. Bohman, 164 F.3d 1059, 1063 (7th Cir. 1999); Magnus
Electronics, Inc. v. La Republica Argentina, 830 F.2d 1396, 1400
(7th Cir. 1987); Pohlmann v. Bil-Jax, Inc., 176 F.3d 1110, 1112
(8th Cir. 1999); Kasap v. Folger Nolan Fleming & Douglas, Inc.,
166 F.3d 1243, 1248 (D.C. Cir. 1999); Jarvis v. Nobel/Sysco Food
Services Co., 985 F.2d 1419, 1425 (10th Cir. 1993), as other-
wise the plaintiff would be free to refile the identical case in
the same court. The determination that Hill had failed to
exhaust his administrative remedies was thus preclusive
with respect to an attempt by him to relitigate the question
No. 02-1900 9
whether he had exhausted his administrative remedies
before filing his first suit.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-18-03