United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 5, 1999 Decided November 12, 1999
No. 98-5443
Robert E. Hill,
Appellant
v.
William J. Henderson, Postmaster General,
United States Postal Service,
Appellee
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. s 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 dismiss-
al 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 gener-
ally 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. s 1404(a) (1994). It made no deter-
mination under Rule 54(b), yet plaintiff seeks review of the
dismissal. The issue is whether, simply because of the trans-
fer 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 re-
ceipt. 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 admin-
istrative 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 with-
out 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 pro-
ceedings by filing a civil action against the USPS in the
__________
1 In view of this wording, and the observation by the Northern
District of Illinois that all of the 18 PCES slots were filled with
white males like Hill, see id. at 492 n.9, we are uncertain why that
court, and evidently the USPS EEO Office as well, did not perceive
the initial complaint as alleging discrimination in the EAS selection
process. See id. at 495.
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. s 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. s 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.
s 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 reme-
dies--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 ac-
knowledged 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 al-
ready free to file a lawsuit. See 29 C.F.R. s 1614.408(b)
(allowing suit starting 180 days after filing of EEO com-
plaint). Hill then moved to have his remaining claims dis-
missed 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 inade-
quate 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 trans-
ferred 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 dis-
missal 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. Temporarily withholding re-
view of a dismissal of fewer than all the claims may eliminate
any need for appellate review (as where the recovery satisfies
the plaintiff), and may confine a package of related issues to
one court, one time. It is presumably this practical consider-
ation that has led most courts that have considered the
question to follow the path marked by Judge Hand. See, e.g.,
EEOC v. Northwest Airlines, Inc., 188 F.3d 695, 700 (6th Cir.
1999) (reviewing pre-transfer order of an out-of-circuit dis-
trict court granting summary judgment on one claim and
dismissing other claims); Chaiken v. VV Publishing Corp.,
119 F.3d 1018, 1025 n.2 (2d Cir. 1997) (same for dismissal of
two defendants for lack of personal jurisdiction); Mackens-
worth v. S.S. Am. Merchant, 28 F.3d 246, 249-52 (2d Cir.
1994) (same for rejection of motion to amend pleadings and a
motion to compel the defendant to abandon its defense
against plaintiff's claims); Tel-Phonic Servs., Inc. v. TBS
Int'l, Inc., 975 F.2d 1134, 1138 (5th Cir. 1992) (same for
dismissal of plaintiff's RICO claims); cf. Chapple v. Levinsky,
961 F.2d 372, 374 (2d Cir. 1992) (noting that dismissal of
certain defendants prior to transfer order could be appealed
to the circuit into which the case had been transferred);
Carteret Sav. Bank, FA v. Shushan, 919 F.2d 225, 228 (3d
Cir. 1990) (noting that a transfer order based on a finding by
the transferor court that it lacked personal jurisdiction could
be appealed at the conclusion of the case in the transferee
circuit).
Against these cases stands the analysis of the Tenth Circuit
in McGeorge v. Continental Airlines, Inc., 871 F.2d 952 (10th
Cir. 1989). A district court here had dismissed some of
plaintiff's claims and then transferred the case to the Western
District of Oklahoma, which dismissed the remainder. The
circuit court held that it had no jurisdiction over appeals from
the dismissals in the District of Columbia district court
because of 28 U.S.C. s 1294 (1994), which states that
appeals from reviewable decisions of the district ...
courts shall be taken to the courts of appeals as follows:
(1) From a district court of the United States to the
court of appeals for the circuit embracing the dis-
trict....
28 U.S.C. s 1294(1). The court saw this as "leav[ing] no
room for doubt that we do not have jurisdiction over the D.C.
appeal." 871 F.2d at 954. It contrasted the "reviewable
decisions" language of s 1294 with that of s 1291(a), afford-
ing review of all "final decisions." Since the decisions of the
District of Columbia district court were the sort of decisions
normally subject to eventual review (and thus, the court
assumed, "reviewable decisions"), and had plainly been issued
by a district court outside the Tenth Circuit, the court saw
s 1294 as flatly barring its review. It recognized that its
decision would create a "jurisdictional hiatus," id., for it
assumed that the orphaned claim dismissals would not qualify
for review in the D.C. Circuit because of the final judgment
requirement, id.
We think Congress's distinction between "final decisions" in
s 1291 and "reviewable decisions" in s 1294 is consistent with
our view that the appealability of the claim dismissal here
flows to the transferee circuit. The Tenth Circuit seemingly
understood "reviewable decisions" to encompass every ruling
of a district court that might in due course ultimately pass
under the scrutiny of an appellate court. But the term is
susceptible to a narrower reading: decisions subject to review
at the time they are entered, namely, (a) final decisions, (b)
non-final decisions embraced by s 1292's provision for review
of certain types of interlocutory orders, (c) decisions treated
as final under the "collateral order" doctrine of Cohen v.
Beneficial Loan Corp., 337 U.S. 541, 546 (1949), and (d)
(perhaps) non-final decisions subject to immediate mandamus.
The McGeorge court pointed out that the district court here
could have cured the "jurisdictional hiatus" by entering an
order under Rule 54(b). 871 F.2d at 954. True enough, and
if we agreed with the court's reading of s 1294 we might be
especially inclined to agree with a district court's Rule 54(b)
certification that the circumstances presented a case where
there was "no just reason for delay": delay would, under the
Tenth Circuit's assumptions, mean complete exemption from
appellate review, and for no good reason. But that undesir-
able consequence, of course, turns on the Tenth Circuit's view
of s 1294, which we do not share. Moreover, we note that
under the McGeorge court's view, any non-final ruling that is
not eligible for Rule 54(b) treatment, and is not under one of
the exceptions for review of non-final decisions--e.g., a devas-
tating discovery order--would completely elude review.
In support of its reading of s 1294 the McGeorge court
cited cases in which various circuit courts of appeals had
found themselves without jurisdiction over district courts
outside of their circuit. 871 F.2d at 954. We find them all,
as well as the additional cases we have been able to discover,
distinguishable. Most do not really involve inter-circuit
transfer at all. C.P.C. Partnership v. Nosco Plastics, Inc.,
719 F.2d 400, 401 (Fed. Cir. 1983), involved the Federal
Circuit, which s 1294 explicitly excepts from its coverage;
the court ruled that it had no mandamus jurisdiction over a
motion to disqualify counsel because its jurisdictional grant
did not provide general supervisory authority over any dis-
trict court. In General Electric Co. v. Byrne, 611 F.2d 670,
672 (7th Cir. 1979), the court found itself without mandamus
jurisdiction over matters in a case that was slated for transfer
into the circuit, but had not been physically transferred. Two
cases arising out of the same multidistrict litigation, In re
Corrugated Container Antitrust Litigation, 620 F.2d 1086,
1090-91 (5th Cir. 1980), and In re Corrugated Container
Antitrust Litigation, 662 F.2d 875, 880-81 & nn.10-11 (D.C.
Cir. 1981), turn on a special grant of power by 28 U.S.C.
s 1407(b), enabling the transferee district court to "exercise
the powers of a district judge in any district for the purpose
of conducting pretrial depositions." Both hold that appeal
from a contempt order of a judge wielding that power goes to
the circuit where the deposition is being held. We regarded
the locus of appeal as controlled by s 1407(b)'s having effec-
tively transformed the out-of-circuit judge into an in-circuit
one. We noted the trade-off between the interests of secur-
ing uniformity of outcomes in the multidistrict litigation and
uniformity in decisions on depositions in the circuits where
they are held. Id. at 881 n.11. Finally, MacNeil Bros. v.
Cohen, 264 F.2d 186, 187 (1st Cir. 1959), simply rejects a
motion to transfer an appeal to another circuit, noting that
there is no equivalent of 28 U.S.C. s 1404(a) for transfers
from one court of appeals to another and expressing doubt
that the proposed transferee circuit could review decisions of
an out-of-circuit district court. Obviously McNeil Bros.--like
the other cases discussed above--in no way involves the issue
of how the appeals forum may shift after a proper s 1404(a)
transfer.
The remaining cases that deny reviewability of pre-transfer
orders in the transferee circuit are ones considering the
transfer orders themselves. See, e.g., Roofing & Sheet Metal
Serv. v. La Quinta Motor Inns, 689 F.2d 982, 986-87 (11th
Cir. 1982); Linnell v. Sloan, 636 F.2d 65, 67 (4th Cir. 1980).
Transfer orders under s 1404 are not final appealable orders,
nor, generally speaking, reviewable collateral orders. Ukiah
Adventist Hospital v. FTC, 981 F.2d 543, 546 (D.C. Cir. 1992).
Commonly, however, courts of appeal in the circuit of origin
entertain mandamus petitions to review such orders, certainly
for legal infirmity, and in some circuits, for abuse of discre-
tion. See In re Scott, 709 F.2d 717, 719 (D.C. Cir. 1983); 15
Charles Alan Wright et al., Federal Practice and Procedure
s 3855 (1986 & Supp. 1999) (collecting cases from every
circuit).
Once a case is transferred most circuits have found that
they lack jurisdiction to review a transfer order from a court
outside of their circuit upon final judgment. See In re
Brisco, 976 F.2d 1425, 1426 (D.C. Cir. 1992) (noting that
absent exceptional circumstances a transfer order should not
be reviewed by transferee circuit and "therefore may effec-
tively become immune from appellate scrutiny"); TEC Floor
Corp. v. Wal-Mart Stores, Inc., 4 F.3d 599, 602 (8th Cir.
1993) (finding that the court lacked jurisdiction to review the
transfer order of a court outside of its circuit); Moses v.
Business Card Express, Inc., 929 F.2d 1131, 1136 (6th Cir.
1991) (same); Reyes v. Supervisor of the DEA, 834 F.2d 1093,
1095 (1st Cir. 1987) (same); Roofing & Sheet Metal Serv., 689
F.2d at 986-87 (same); Linnell, 636 F.2d at 67 (same); Purex
Corp. v. St. Louis Nat'l Stockyards Co., 374 F.2d 998, 1000
(7th Cir. 1967) (same). But a few have asserted at least some
degree of reviewability in the transferee circuit. Thus Nas-
cone v. Spudnuts, Inc., 735 F.2d 763, 773 n.9 (3d Cir. 1984),
said that on final judgment a transferee court could deter-
mine whether venue did lie in the transferee court, citing
Hoffman v. Blaski, 363 U.S. 335, 340 n.9 (1960), discussed
below. See also American Fidelity Fire Ins. Co. v. United
States Dist. Ct., 538 F.2d 1371, 1377 n.4 (9th Cir. 1976)
(refusing to grant mandamus because a transfer order is
reviewable after final judgment even if transferor court was
not within its circuit); Magnetic, 178 F.2d at 868-70 (same).
A possible explanation for finding transfer orders non-
reviewable in the transferee circuit is that such orders are
usually effectively subject to immediate review via mandamus
in the circuit of the transferring court. They may thus
immediately become "reviewable decisions" under s 1294. In
any event, a party transferred against its will can indirectly
secure at least partial review of the transfer in the transferee
circuit by filing a motion for retransfer, the denial of which is
clearly reviewable by the court of appeals of the transferee
district. See, e.g., Nascone, 735 F.2d at 765-66; Linnell, 636
F.2d at 67; Purex Corp., 374 F.2d at 1000. Although at the
time of a motion to retransfer the transfer order would be law
of the case binding the second district court (in the absence of
clear error or manifest injustice, see Chrysler Credit Corp. v.
Country Chrysler, 928 F.2d 1509, 1518 (10th Cir. 1991)), the
court of appeals in the transferee circuit would not be bound
by the decision of either lower court. Indeed, in Hoffman v.
Blaski, 363 U.S. 335 (1960), the Supreme Court affirmed a
transferee circuit's grant of mandamus to correct the trans-
feree district court's denial of such a motion, saying that the
"question of that court's jurisdiction still remained subject to
attack as of right on appeal to the [transferee circuit court]
from any final judgment in the action." Id. at 341 n.9; see
also Nascone, 735 F.2d at 772 n.7 (noting that when the
Supreme Court said "jurisdiction" it plainly referred to inade-
quacies of venue rather than of subject matter jurisdiction).2
In short, transfer orders themselves have engendered a com-
plex and somewhat conflicting pattern of reviewability that
does not appear to contradict our--and the other circuits'--
view that reviewability of pre-transfer orders shifts to the
transferee circuit.
Transfers by the Judicial Panel on Multidistrict Litigation
under s 1407 have received special treatment that is also
consistent with our view of s 1294. The practice has favored
certification by the transferee court of potentially outcome-
determinative rulings for immediate, consolidated appeal un-
der 28 U.S.C. s 1292(b) or Fed. R. Civ. P. 54(b), before the
cases are returned to their courts of origin. See In re
Korean Air Lines Disaster of September 1, 1983, 829 F.2d
1171, 1180 (D.C. Cir. 1987) (en banc) (Ginsburg, J., concur-
ring); FMC Corp. v. Glouster Eng'g Co., 830 F.2d 770, 771-72
(7th Cir. 1987); see also In re Food Lion, Inc., 73 F.3d 528,
533 (4th Cir. 1996) (discussing the use of Rule 54(b)). An
appeal before re-transfer enhances the likelihood of achieving
the coordination benefits sought by s 1407 (the "just and
__________
2 If the party transferred against its will to a new court failed
to move for retransfer, the omission might waive any claim on the
subject. See Texas Mun. Power Agency v. EPA, 89 F.3d 858, 867
(D.C. Cir. 1996) (per curiam).
efficient conduct" of multidistrict actions), as the circuit of the
s 1407 transferee court can give the issues a unified treat-
ment, and its interlocutory decision is likely to be accepted as
binding law of the case once the cases are transferred back to
their courts of origin. See In re Korean Air Lines, 829 F.2d
at 1180. In appeals such as Hill's, by contrast, the appeal's
being towed along to the transferee circuit normally carries
the greatest probability of conserving judicial resources.
In FMC Corp., the Seventh Circuit ruled that an appeal
certified under s 1292(b) in a s 1407 case by the district
court of consolidation must proceed in the circuit court for
that district, rather than the court of appeals that would have
jurisdiction on re-transfer. See 830 F.2d at 772. This corre-
sponds with our reading of s 1294, for on certification the
appealed decision becomes a "reviewable decision" that
s 1294 requires to be reviewed in the circuit for the issuing
district court. Of course if there is no s 1292(b) certification,
or if it is rejected by the court of appeals, the issue would
potentially return to the court of appeals for the district court
where the action began, as one of the cases cited in FMC
Corp. held. See Allegheny Airlines, Inc. v. LeMay, 448 F.2d
1341, 1344-45 (7th Cir. 1971) ("The transferor court when the
case is returned to it is, in our opinion, in the position of a
third court on a second change of venue and takes the case
with all of its errors, if any, that may have fastened on the
carcase theretofore.").
Although it is our considered view that appellate jurisdic-
tion will arise on the issuance of a final judgment by the
Northern District of Illinois, we recognize that the Seventh
Circuit might regard the Tenth Circuit view as more convinc-
ing. Would that leave Hill bereft of appellate review on
Count One? We think not, because whatever the Seventh
Circuit's analysis, a decision of a court of coordinate status is
entitled to be considered "law of the case." Christianson v.
Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (stating
that courts should be loathe to disturb the decision of a
coordinate court unless the initial decision was "clearly erro-
neous and would work a manifest injustice").
Finally, it emerged at oral argument that in the case's first
appearance in the Northern District of Illinois the govern-
ment moved for dismissal on the ground that proper venue
for the now dismissed claim did not lie in that court (whereas
it did in the District of Columbia). The district court there
never ruled on the motion, and of course in the district court
here there was no occasion for the government to make such
a motion. If venue provisions in fact bar adjudication of
Count One in the district court in Illinois, the prospect of
achieving the full economies of the final judgment rule might
begin to wane; for reversal of the dismissal would open up
the prospect of separate litigations here and in Illinois. Of
course there would have been, through that point, only one
appeal. But if the destiny of this case entails litigation in two
circuits, separation under Rule 54(b) might make sense. In
fact, because the district court has not yet sent the files to the
Northern District of Illinois, it could hereafter enter a Rule
54(b) order. Alternatively, of course, either the government
might waive any venue defense to Count One in the Northern
District of Illinois, or the district court might revoke its as yet
unconsummated transfer order. On the present record, how-
ever, the appeal must be
Dismissed.