UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


HILL, ROBERT E.

v.

HENDERSON, WILLIAM J


98-5443a

D.C. Cir. 1999


*	*	*


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


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


* * *


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 




__________

n 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


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)


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


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


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,


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


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


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


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 




__________

n 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.