Hill v. Henderson

• Citation: 195 F.3d 671
• Decision Date: 12 November 1999
• Docket Number: No. 98-5443,98-5443
• Parties: (D.C. Cir. 1999) Robert E. Hill, Appellant v. William J. Henderson, Postmaster General, United States Postal Service, Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 671

195 F.3d 671 (D.C. Cir. 1999)

Robert E. Hill, Appellant v. William J. Henderson, Postmaster General, United States Postal Service, Appellee

No. 98-5443

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 5, 1999

Decided November 12, 1999

Appeal from the United States District Court for the District of Columbia(No. 97cv02365)

Waite P. Stuhl argued the cause for appellant. With him on the briefs was Ernest C. Hadley.

Eric M. Jaffe, Assistant U.S. Attorney, argued the cause for appellee. With him on the briefs were Wilma A. Lewis, U.S. Attorney, and Mark E. Nagle and R. Craig Lawrence, Assistant U.S. Attorneys.

Before: Edwards, Chief Judge, Wald and Williams, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge:

A district court order dismissing one of several claims or parties is not a "final decision" qualifying for immediate appeal under 28 U.S.C. § 1291-unless the district court expressly determines "that there is no just reason for delay" and enters judgment under Fed. R. Civ. P. 54(b). The logic of this deferral of review is that, on net, it economizes on judicial resources. In some cases, to be sure, the deferred review will generate a need for new and duplicative proceedings that immediate review would have avoided. But if review is deferred, it is less likely that the appellate court will face overlapping issues and circumstances on two occasions, and often the issues involved in the dismissal will be mooted by the outcome on the other counts (such as settlement or recovery by plaintiff of full compensation).Rule 54(b) provides an escape hatch, enabling the district court to make such a partial disposition a "final judgment."See, e.g., Justice v. Pendleton Place Apartments, 40 F.3d 139, 142 (6th Cir. 1994) (noting that interrelated claims are generally not appropriate for 54(b) certification because remaining claims will force the same issues to be reheard and future proceedings may moot the issues certified for appeal).

Here a district court dismissed Count One of the plaintiff's four-count complaint and ordered the remainder of the case transferred to the district court for the Northern District of Illinois under 28 U.S.C. § 1404(a) (1994). It made no determination under Rule 54(b), yet plaintiff seeks review of the dismissal. The issue is whether, simply because of the transfer order, we nonetheless have a "final judgment" reviewable in this circuit. The alternative is that the potential for appellate review of the one-count dismissal goes along with the rest of the case, with review occurring in the Seventh Circuit when and if the ordinary prerequisites of appellate review should be satisfied. Given the strong policy against piecemeal appeals we find that there is no final decision and thus dismiss the appeal.

* * *

In 1992 and 1993, the United States Postal Service ("USPS") restructured its executive level workforce. Robert Hill was employed as "General Manager, Real Estate," in the Chicago office of the Illinois Facilities Service Center. His position was classified in the USPS's top executive tier: the Postal Career Executive Service ("PCES"). As part of the restructuring, he was removed from his job and placed on temporary detail. When the USPS filled its new positions, Hill was not selected for any of the new PCES jobs, nor was he offered a position in the tier below the PCES known as the Executive and Administrative Schedule ("EAS"). He filed a formal complaint of discrimination dated May 10, 1993, which was received by the USPS Equal Employment Opportunity ("EEO") Office on May 17, 1993. His complaint alleged that "[a]ll of the selectees for the various positions were younger than Mr. Hill, and many of the selectees were of a different race, color, and sex than Mr. Hill." Hill v. Runyon, 959 F. Supp. 488, 493 (N.D. Ill. 1997).¹

On November 18, 1993, 185 days after his complaint was received, the USPS EEO Office officially acknowledged receipt. On December 8, 1993 the EEO Office first requested Hill's assistance in clarifying the issues raised therein. In the next two years, Hill sought to have his complaint heard by the Merit Systems Protection Board and by an EEOC administrative judge, largely ignoring the USPS EEO Office's requests for additional information. On February 16, 1996, after both the MSPB and the EEOC found themselves without jurisdiction to hear Hill's claims, he returned to the USPS EEO Office and began to cooperate with its investigation. On April 3, 1996, however, he abandoned administrative proceedings by filing a civil action against the USPS in the district court for the Northern District of Illinois, alleging discrimination on the basis of race and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (1994), and discrimination on the basis of age in violation of the Age Discrimination in Employment Act ("ADEA") of 1976, 29 U.S.C. § 633a (1994). On May 11, 1996 the USPS EEO Office dismissed Hill's administrative complaint because of his decision to initiate a civil action. See 29 C.F.R. § 1614.107(c) (1999).

After discovery, the district court granted the USPS's motion for summary judgment on Hill's Title VII and ADEA claims related to the PCES positions. It also dismissed without prejudice his claims related to the EAS positions on the ground that he had not exhausted administrative remedies--based on his failure to cooperate with the USPS EEO Office. See Hill, 959 F. Supp. at 489-90. We note that the non-cooperation necessarily began only after that office acknowledged receipt of his EEO complaint; that in turn occurred more than 180 days after the filing of the EEO complaint. Thus the asserted non-cooperation occurred in a period when, under the applicable regulations, Hill was already free to file a lawsuit. See 29 C.F.R. § 1614.408(b) (allowing suit starting 180 days after filing of EEO complaint). Hill then moved to have his remaining claims dismissed without prejudice, so that he might return to the USPS EEO Office and cure his failure to exhaust; the district court granted the request.

On April 24, 1997 Hill asked the USPS EEO Office to reopen its proceedings, but on July 14, 1997 it declined to do so because it found that Hill could not cure his prior failure to exhaust.

Hill filed this action in the district court here on October 10, 1997, alleging race, sex, and age discrimination related to the EAS selection process and retaliation for his pursuit of EEO claims. The district court dismissed Hill's EAS claim because it found that his failure to exhaust his administrative remedies was not subject to cure. For the finding of inadequate exhaustion the court evidently relied on the decision of the Northern District of Illinois, presumably on the view that issue preclusion made it conclusive against Hill. Hill filed a timely notice of appeal. The district court also issued an order to show cause why the action should not be transferred to the Northern District of Illinois, and later ordered the transfer. Hill has not sought review of that order.

* * *

We start with our own precedent. In Reuber v. United States, 773 F.2d 1367 (D.C. Cir. 1985), the district court dismissed the entire case against one of several defendants and transferred the rest of the case to another district (in our case necessarily out-of-circuit). Despite the absence of a Rule 54(b) order, we found that the dismissal of the party was a final judgment reviewable here. We saw the issue only as one of timing, assuming that if we treated the dismissal order as non-final it would mature into finality, in this circuit, when the transferee court disposed of the rest of the case. We said rhetorically that surely Rule 54(b) could not require the plaintiff to await the end of proceedings in the transferee court "before pursuing in our circuit the question of whether [the dismissed defendant] may be sued here." Id. at 1368 (emphasis added). On that assumption, the probability of two appeals on overlapping facts and issues was about equally great whichever choice the court made; the only consequence of refusing to treat the dismissal as a final judgment would have been to delay the appeal in our circuit. The court did not mention the possibility that appeal of the dismissal would flow to the transferee circuit; that, as Judge Hand put it, "[t]he review of any order of the district court in a transferred cause, made before transfer, is within the jurisdiction of the court of appeals of the circuit to which the cause has been transferred." Magnetic Eng'g & Mfg. Co. v. Dings Mfg. Co., 178 F.2d 866, 870 (2d Cir. 1950). Under that view, of course, it is possible to fully accomplish the purposes of the final judgment rule.

Reuber is still good law in this circuit; gaps in a decision's reasoning do not destroy its precedential value. But at the same time, when we are asked to extend Reuber from dismissal of a party to dismissal of a claim, its reasoning does not bar us from considering the real-world alternatives. Thus we do consider the prospect of review in the transferee circuit (if the issue is not mooted or abandoned).

We think that dismissals of claims and parties are properly distinguished for these purposes. The efficiencies sought to be achieved by the final judgment rule seem more likely to be accomplished if a claim dismissal tags along with the transfer than if a party dismissal does. With claims as opposed to parties there are greater probabilities that circumstances will moot dismissal of the appeal (e.g., by overall settlement, or by a recovery on one of the claims that effectively compensates plaintiff for loss under the dismissed claim), and that issues between the two (hypothetical) appeals will overlap.

In fact, there seems no great reason to suppose that insistence on the ordinary final judgment rule is unsuitable in the context of claim transfer....