Petition for Writ of Certiorari — Cannon v. Loyola University of Chicago

86 -7 30 iy Segre Coat US. 7

aa |__OCT_2.4 1986

, JOSEPH F. SPANIOL, JR.

In The

t

Supreme Court of the United States

@ctober Term, 1986

GERALDINE G. CANNON,

Petitioner,

LOYOLA UNIVERSITY OF CHICAGO, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Joun M. Cannon

Attorney for Petitioner

Suite 1725

20 N. Wacker Dr.

Chicago, Illinois 60606

(312) 263-5163

October 1986

Pandick Technologies, Inc., Chicago @ (312) 236-0200

i

QUESTIONS PRESENTED

1. Whether the jurisdictional exception to dismissals

which operate as adjudications on the merits under Rule 41(b)

of the Federal Rules of Civil Procedure is limited to dismiss-

als for lack of subject matter jurisdiction to reach the merits

of any claim sought to be stated or for lack of jurisdiction to

decide whether any claim upon which relief may be granted

has been properly stated.

2. Whether a judgment affirmed, in part, for lack of

federal jurisdiction over legal claims for monetary relief by

reason of the Eleventh Amendment and, in part, on grounds

of laches as to the related equitable claims, constitutes a final

judgment on the merits and bars any further claims on the

same cause of action under the doctrine of res judicata.

[Note: Petitioner reserves the right to argue

Question 3 in the event certiorari is granted on either

or both of the above questions, but does not include

Question 3 among the reasons for the grant of cer-

tiorari.]

3. Whether affirmative answers to both of the above

questions are so clear as to warrant the imposition of sanc-

tions for maintaining this action, particularly where the district

court did not accept the respondents’ affirmative position on

the first question.

ii

PARTIES

The parties to the proceeding in the court of appeals were

the petitioner, Geraldine G. Cannon, and seven respondents:

Loyola University of Chicago (“Loyola”),

Northwestern University (“Northwestern”),

Rush-Presbyterian-St. Luke’s Medical Center (“Rush”),

Southern Illinois University (“S.J.U.”),

The University of Chicago (“Chicago”),

University of Health Sciences/The Chicago Medical

School (“Chicago Medical”), and

the board of trustees of the University of Illinois

(“Illinois”).

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........-2cccccecees i

ERE ES SH a eae ae il

ee ek wee a wee eew es iii

pO a a a ae iV

A rn ear a ee aa 2

NE a ge oe ee wy Oe Oe 2

ee Sa et a a ae 2

EE re re eee ee ee 3

REASONS FOR GRANTING THE WRIT .........--.-- 7

| The Decision Below Conflicts With Decisions Of

This Court And Of Other Courts Of Appeals On

The Jurisdictional Exception In Rule 41(b) ... 7

II. The Decision Below Presents An Important Ques-

tion Of Federal Law Under The Eleventh Amend-

ment That Should Be Settled By This Court .. 9

SS ete eel tee ob a b oe ae 6 6 8 11

APPENDIX

iv

TABLE OF AUTHORITIES

Cases: Page

Bel v. Mood, Fat UB: GTR CIS) on kk ewes ces 8

Cannon v. University of Chicago, et al., 406

F.Supp. 1257 (N.D. Ill. 1976), aff'd. 559 F.2d

1063 (7th Cir. 1977), rev’d. 441 U.S. 677 (1979),

dismissal on remand aff ’d.648 F.2d 1104 (7th

Cir. 1981) cert. denied 454 U.S. 1128 (1981)... 3-6

Cannon v. University of Health Sciences, et al., 710

oe oe ge 8 ee re ree 6

Carter v. Telectron, Inc., 554 F.2d 1369 (Sth

Cir. 1977), cert. denied 439 U.S. 1074 (1979) .. 7,8

Costello v. United States, 365 U.S. 265 (1960) .... 7,8

Edelman v. Jordan, 415 U.S. 651 (1974) ........ 9

Gaurdians Association of Police v. Civil Service

Commission of the City of New York, 463 U.S. 582

i . PEPE SEE eee ree Toe Ce ree eee 5

Green v. Mansour, __ U.S.__, 106 S.Ct. 423 (1985) 9

Johnston v. Earle, 245 F.2d 793 (9th Cir. 1957)... 7,8

Constitution and Statutes

U.S. Comst., Supremiety Clase 2. eee cs 9, 10

RC a <5 ae kk ee 3,0, 9, 10

amend: AV. ........ PS a eee 3-6

20 U.S.C. §1681 et seg., Title IX of the Education

FE ee 8 i ENE aes 2-6

29 U.S.C. $626, Age Discrimination in Employment

Pe EE A ew ee ee Ok EE 3,4

Ae Wass DOE 6 <5 3 €3 Wee wees 2

ae RE epee Care aire near OF ve 2,7,8

ES Soin x ay Woe kB ed ee ee 2

42 U.S.C. §295h-9, Section 9 of the Public Health

I I ik kh as Oe eee a ee 3,4

42 U.S.C. §1983, Civil Rights Act of 1871 ....... 3-6

42 U.S.C. §2000d et seq., Title VI of the Civil Rights

BUG TOE bbe ae eS ee ee 5

42 U.S.C. $6101 et seg., Age Discrimination Act of

i RE Se ae re era tree Rare kg Sn Pee 5, 6

Ill. Rev. Stat., Ch. 48, Sec. 884 et seq., ........ 3,4

Other ;

Me ee er ee 4

DCs eae ke ones se 2

PR ic noe is eR 3

PU SUNG 65 oe 6 6 eek ees 3,8

ME a 5 5 wo ee oe eA 5, 6

SINGS argu bs 2h wee ee et passim

IES os ks sa le Ae 5

9 Wright and Miller, Federal Practice and Procedure

RRO 4 ck BARRA ERS eke Oe 9

No.

Inu The

Supreme Court of the Wnited States

@ctober Term, 1986

GERALDINE G. CANNON,

Petitioner,

LOYOLA UNIVERSITY OF CHICAGO, et ai.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner, Geraldine G. Cannon, prays, that a writ of

certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Seventh Circuit in the

above — entitled case. No. 85-1987 (7th Cir. 1986).

2

OPINION BELOW

The opinion of the court of appeals is reported at 784 F.2d

777, and a copy of the slip opinion is set out in the Appendix

to this petition at A-1. The opinion of the district court is

reported at 609 F.Supp. 1010 (N.D. Ill. 1985).

JURISDICTION

The judgment of the court of appeals is dated

February 25, 1986. A timely petition for rehearing was denied

on April 3, 1986 and a supplemental petition for rehearing

filed with leave of court was denied on May 27, 1986. On

August 14, 1986, Justice Brennan signed an order extending

the time for filing this petition for writ of certiorari to and

including October 24, 1986. No. A-110. The jurisdiction of

this Court is invoked pursuant to 28 U.S.C. §1254(1).

STATEMENT OF THE CASE

Petitioner brought this action for breach of contract, as-

serting that each respondent’s former age criterion for admis-

sion to medical school violated the public policy set out in Title

IX of the Education Amendments of 1972 (“Title LX”), 20

U.S.C. $1681 et seq. She claimed that the illegal age criterion

should be excluded from the terms on which each respondent

had agreed to consider her application and that use of the age

criterion violated the agreement to observe Title [X in each

respondent’s federal funding contract. Jurisdiction in the dis-

trict court was based on 28 U.S.C. §§1331 and 1343 (4).

The district court dismissed the complaint, holding that

prior judgments in three related actions constitute a bar to the

present action on the basis of general preclusion principles and

awarded respondents their attorneys’ fees pursuant to Rule

11, Fed.R.Civ.P. The court of appeals affirmed holding that

the jurisdictional exception to dismissals which operate as ad-

judications on the merits under Rule 41(b), Fed.R.Civ.P., did

not apply to the dismissal of petitioner’s prior complaints for

failure to state a claim upon which relief could be granted

in federal court. It reasoned that the district court had sub-

ject matter jurisdiction to reach the merits of claims petitioner

3

had sought to state against Chicago and Northwestern in the

first two prior actions. It further reasoned that the ques-

tion of whether the prior complaints against those schools had

properly stated a claim upon which relief could be granted

must have been decided after and not before the court had

assumed jurisdiction over the controversy. App. at A-4 to

A-6. The court of appeals further held that partial sum-

mary judgments on grounds of laches in a third prior action

against the five other respondents, Chicago Medical, Loyola,

Rush, S.I.U. and Illinois, barred the present action against

them even though related legal claims for monetary relief

against S.I.U. and Illinois had been dismissed on the basis of

their jurisdictional immunity under the Eleventh Amendment.

App. at A-6 to A-8.*

The Prior Cases.

Petitioner had commenced the first two prior actions

against Chicago and Northwestern in the summer of 1975.

She claimed that the age criterion of each school, due

to its alleged disparate impact upon women, violated Title

IX and Section 799 of the Public Health Service Act, 42

U.S.C. §295h-9; and directly violated the Civil Rights Act

of 1871, 42 U.S.C. §1983, and the Equal Protection Clause

of the Fourteenth Amendment, the Age Discrimination in

Employment Act of 1967 (“ADEA”), 29 U.S.C. 8626, and

Ill.Rev.Stat Ch.48, Sec. 884 et seq., the Illinois Act to prohibit

unjust discrimination in employment because of age. The dis-

trict court dismissed the complaints because (1) there were

1The court of appeals did not repeat or rely upon the district

court’s improper and inaccurate application of general preclusion

principles on the basis of matters outside the complaint. Rule 12(b),

Fed.R.Civ.P., prohibits the consideration of matters outside the

pleading on a motion to dismiss for failure to state a claim upon

which relief may be granted without treatment of the motion as one

for summary judgment. Respondents’ Rule 12(b)(6) motions were

not so treated. Petitioner acknowledged that this action would be

barred if the district court’s statements on matters outside the plead-

ing were accurate. They were not.

4

no sufficient allegations of state action to support a claim

under §1983 and the Fourteenth Amendment; (2) no claim

was stated under the ADEA because the schools were not

primarily employers or employment agencies; and (3) no

private right of action existed under Title [IX or the Public

Health Service Act. With that dismissal of all federal claims

before trial, the district court did not exercise pendent juris-

diction to rule upon petitioner’s claims under state law.

Cannon v. University of Chicago et al., 406 F.Supp. 1257

(N.D.Ill. 1976). The court of appeals affirmed. 559 F.2d 1063

(7th Cir. 1977). Petitioner was granted a writ of certiorari on

the question of whether Title [IX authorized a private right

of action. This Court reversed and remanded, holding that

Title [IX did authorize a private right of action. 441 U.S. 677

(1979).

After remand, the district court again dismissed the ac-

tions on the ground that the complaints failed to allege specific

facts on which a finding of intentional discrimination could

be based pursuant to petitioner’s general allegation that the

schools’ conduct was “arbitrary and invidious”. (Unpublished

orders N.D.Ill.Nos. 75 C 2402 and 75 C 2724, May 23, 1980.)

The court of appeals affirmed the second dismissal. 648 F.2d

1104 (7th Cir. 1981). Contrary to the district court, however,

it held that the allegation of arbitrary and invidious conduct

was no longer applicable after the §1983 claims had been

dismissed. Jd. at 110. Also contrary to the district court,

it observed that while the liberal pleading requirements of

Rule 9(b), Fed.R.Civ.P., provide that intent may be pleaded

generally, the arbitrary and invidious language contained no

necessary implication of intentional discrimination Jbid.

Petitioner then moved for leave either to amend her com-

plaints or to present motions to amend in the district court

on the ground that she already had offered amendments alleg-

ing intentional discrimination against women under Title IX

in response to the schools’ district court argument that the

arbitrary and invidious allegation was no longer applicable.

p

The motion was denied without comment. Thereafter, this

Court denied certiorari to review the judgment and opinion of

the court of appeals which had focused primarily on the issue

of whether intentional discrimination was required to violate

Title IX. 454 U.S. 1128 (1981). Petitioner had maintained

that issue was premature because she proposed to meet the in-

tentional standard in the district court. On later appeals from

the denial of petitioner’s motions for relief from judgment in

order to amend under Rules 15(a) and 60(b), Fed.R.Civ.P.,

the court of appeals explained that amendment ordinarily is

not allowed after the affirmance of a judgment on appeal

and that, without leave of the appellate court, the district

court lacks jurisdiction to allow amendment. (Unpublished

orders 7th Cir. Nos. 82-1107 and 82-1120, May 13, 1982 and

October 6, 1982).

Meanwhile, petitioner had filed a single suit against

Chicago Medical, Loyola, Rush, S.I.U. and Illinois in 1979.

As in the suits against Chicago and Northwestern, she claimed

that denial of her medical school applications constituted

sex discrimination in violation of Title IX. She also claimed

that the schools’ age criteria for admission violated the Age

Discrimination Act of 1975, 42 U.S.C. §6101 et seq., and that

the two state schools, S.I.U. and Illinois, had violated §1983

and the Fourteenth Amendment.

The district court allowed petitioner to amend the com-

plaint pursuant to Rule 15(a), Fed.R.Civ.P., with an allega-

tion of intentional discrimination against women under Title

IX to cure the defect for which the court of appeals had af-

firmed the dismissal of the prior complaints against Chicago

and Northwestern. It held, however, that no relief against any

2 See, 648 F.2d at 1105.1. Thereafter, in Guardians Assn. of

Police v. Civil Service Comm. of the City of N.Y., 463 U.S.

582 (1983), this Court upheld an “effect” standard in the applicable

regulations under Title VI of the Civil Rights Act of 1964, 42

U.S.C. §2000d et seq., the legislation on which Title IX was pat-

terned.

6

of the schools could be had under the Age Discrimination Act,

as that Act had not yet taken effect at the time her applica-

tions were rejected. The district court further held that no

monetary relief could be obtained under Title [IX and that the

Eleventh Amendment barred the recovery of monetary relief

from S.I.U. and Illinois in federal court under §1983 and the

Fourteenth Amendment. The district court entered judgment

dismissing the legal claims for damages and granting partial

summary judgments on the remaining equitable claims against

each school. The partial summary judgments in favor of Rush,

Loyola and Chicago Medical were based on grounds of laches

and those in favor of S.I.U. and Illinois on grounds of moot-

ness. The district court also noted that all of the schools were

entitled to summary judgment for mootness on the Title IX

claims as well because they all had abolished age as a criterion

for admission to their 1980 and subsequent entering classes.

(Unpublished orders N.D.IIl.No.79 C 5009, October 13, 1981

and June 15, 1982).

The court of appeals affirmed the dismissal of legal claims

for monetary relief which were governed by the statute of

limitations on the same Title [IX and Eleventh Amendment

grounds as the district court had based such dismissal. The

court of appeals, however, affirmed the partial summary judg-

ments in favor of each school on the remaining equitable

claims solely on grounds of laches. It did not affirm the district

court’s ruling on mootness. Cannon v. University of Health

Sciences, et al., 710 F.2d 351 (7th Cir. 1983).

Since the court of appeals already had ruled in the first

two cases that amendment ordinarily is not allowed after the

affirmance of a dismissal on appeal, even where the same

amendment was concurrently allowed under Rule 15(a) in the

third related case which then was still in the district court, and

since petitioner could not request leave to amend after appeal

on the ground that the statute of limitations had expired on

her contract claims while she appealed the mootness ruling,

this action followed.

>

REASONS FOR GRANTING THE WRIT

The Court should grant this petition for a writ of certiorari

for two reasons that the Court has traditionally found com-

pelling. First, the decision of the court of appeals, limiting

the jurisdictional exception in Rule 41(b) to dismissals for lack

of subject matter jurisdiction to reach the merits of any claim

sought to be stated or for lack of jurisdiction to decide whether

any claim upon which relief may be granted had been properly

stated, has decided a federal question in a way in conflict with

the decision of this Court in Costello v. United States, 365

U.S. 265 (1961). Such limitation also conflicts with decisions

of the Fifth and Ninth Circuits in Carter v. Telectron, Inc.,

554 F.2d 1369 (Sth Cir. 1977), cert. denied 439 U.S. 1074

(1979), and Johnston v. Earle, 245 F.2d 793 (9th Cir. 1957).

Second, the court of appeals has decided an important ques-

tion of federal law under the Eleventh Amendment which has

not been, but should be, settled by this Court.

I. The Decision Below Conflicts With Decisions Of This

Court And Of Other Courts Of Appeals On The

Jurisdictional Exception In Rule 41(b).

The court of appeals based its holding that the juris-

dictional exception to dismissals which operate as adjudica-

tions on the merits under Rule 41(b) is not applicable to

the dismissal of petitioner’s prior claims against Chicago and

Northwestern on two grounds. Both grounds conflict with the

decision of this Court in Costello and with the decisions of the

Fifth and Ninth Circuits in Carter and Johnston.

First, the court of appeals held that the di trict court

had subject matter jurisdiction to reach the merits of the

claims petitioner had sought to state against Chicago and

Northwestern under 28 U.S.C. §1331. App. at A-6. That

is clearly correct. It was also clearly true that the district

court had subject matter jurisdiction to reach the merits of

the claims sought to be stated in the prior actions involved

in Costello, Carter and Johnston. Indeed, this Court squarely

held in Costello that the jurisdictional exception in Rule 41(b)

is not limited to prior judgments which are void or subject

8

to collateral attack for lack of jurisdiction over the person or

subject matter. 365 U.S. at 285.

Second, the court of appeals held that the dis-

missal of petitioner’s prior complaints against Chicago and

Northwestern was an adjudication on the merits because the

question of whether the complaints stated a cause of action on

which relief could be granted must have been decided after and

not before the court had assumed jurisdiction over the con-

troversy, citing Bell v. Hood, 327 U.S. 678, 681-82 (1945). It

was also true that the question of whether the prior complaints

involved in Costello, Carter and Johnston had stated a claim

upon which relief could be granted must have been decided

after and not before the courts had assumed jurisdiction over

those controversies. Nevertheless, this Court in Costello and

the Fifth and Ninth Circuits in Carter and Johnston all held

that dismissal of the prior complaints for failure to state a

claim upon which relief could be granted resulted in a lack of

jurisdiction and did not bar further claims on the same cause

of action under the doctrine of res judicata.

The decision of this Court in Bell did not involve either

Rule 41(b) or the doctrine of res judicata. Accordingly, Bell

can provide only obiter dictum in support of the decision

below. The Ninth Circuit in Johnston held that failure of

a complaint to state a proper claim under the laws of the

United States required dismissal for lack of jurisdiction under

28 U.S.C. §1331. The jurisdiction of a court under Bell even

to consider whether it had jurisdiction was expressly distin-

guished. 245 F.2d at 795-96. In Carter the Fifth Circuit held

that failure to state a proper claim under federal civil rights

law has the effect of depriving federal courts of subject mat-

ter jurisdiction “and renders the court powerless to make a

decision on the merits” thus requiring dismissal “for lack of

jurisdiction” under Rule 41(b). 554 F.2d at 1370.

“If a dismissal is for a defect in pleadings that does

not reach the merits, as is generally true for a dis-

missal under Rule 12(b)(6), it is inconsistent with the

9

whole spirit of the rules to regard the dismissal as an

adjudication upon the merits.”

9 Wright and Miller, Federal Practice and Procedure §2373

p.239.

II. The Decision Below Presents An Important Question

of Federal Law Under The Eleventh Amendment

That Should Be Settled By This Court.

The Eleventh Amendment decisions of this Court have

balanced the limitation on the judicial power of the United

States with the requirements of the Supremacy Clause.

Recently, in Green v. Mansour, —__U.S.__, 106 S.Ct. 423

(1985), the Court considered the potential effect of the

doctrine of res judicata based on a federal decision for prospec-

tive relief under the Supremacy Clause on the issue of liability

resulting in an “end run” around the Eleventh Amendment

and Edelman v. Jordan, 415 U.S. 651 (1974), by reducing

a later state court action for damages to a mere accounting

proceeding. This case presents a direct extension of that con-

cern.

Generally, federal courts may entertain actions under the

Supremacy Clause for prospective relief from future violation

of federal laws, but actions for retrospective monetary relief

for past violations are barred by the Eleventh Amendment. A

dicision on the merits in a federal action for prospective relief

could have a res judicata effect on the issue of liability in a

later state court action for retrospective relief. Under Green,

however, when a claim for prospective relief becomes moot,

declaratory or notice relief which can impact only on a later

state court action is barred by the Eleventh Amendment.

In this case the affirmative defense of laches was sustained

with respect to petitioner’s prior claims for prospective relief

against S.I.U. and Illinois under $1983 and the Fourteenth

Amendment. That defense, however, could not have been

asserted with respect to petitioner’s related legal claims which

are governed by the statute of limitations. The application, if

any, of the doctrine of res judicata under such circumstances

10

has not been, but should be, settled by this Court.

Petitioner submits that, contrary to the decision of the

court of appeals, an Eleventh Amendment dismissal of legal

claims by a federal court remains a dismissal “for lack of

jurisdiction” and does not operate as an adjudication on the

merits under Rule 41(b). There is no federal interest in the

defense of laches sufficient to invoke the Supremacy Clause in

controlling the outcome of a later proceeding, state or federal,

under the doctrine of res judicata.

Respondents’ position on the questions presented, includ-

ing the imposition of sanctions, was based primarily on the

burden this litigation has placed on them. Petitioner, however,

has been subjected to the burden of the same litigation. A

decision on the substantive merits of petitioner’s civil rights

claims has been avoided thus far because the district court

granted respondents’ motions to dismiss some or all of the

claims against each of them on grounds which petitioner could

not cure by amendment or refiling. The court of appeals af-

firmed the prior judgments, but on grounds which she could so

cure.* While respondents have the right to raise every pleading

objection available, they can hardly complain of the burden

their pursuit of such objections has engendered, particularly

since petitioner offered to meet each objection to the suf-

ficiency of her allegations as soon as the objection was raised.

3 See, the statement of The Prior Cases at 3 to 6 supra.

11

CONCLUSION.

For the foregoing reasons, this petition for a writ of cer-

tiorari should be granted.

Respectfully Submitted,

JOHN M. CANNON

Attorney for Petitioner

Suite 1725

20 N. Wacker Dr.

Chicago, Illinois 60606

(312) 263-5163

October 1986

ne

wens. oer oe

.

Pg Oe eg ee ey fee eT

teeta

APPENDIX

Page

OPINION OF CourRT OF APPEALS FILED ON

Pe ee, OOO cba cca hee whe Cee eka be A-1

JUDGMENT OF CourRT OF APPEALS ENTERED ON

Pe Oe SO sn oe a ee ee OE Oe eo A-10

ORDER DENYING PETITION FoR REHEARING ON

FP Be SE os oe ke aK Seo a Sea es A-11

ORDER DENYING SUPPLEMENTAL PETITION FOR

REHEARING ON May 27, 1986................ A-12

ie

Lj

ve

\

A-1

In the

United States Court of Appeals

For the Seventh Cirrntt

No. 85-1987

GERALDINE G. CANNON,

Plaintiff-Appellant,

vs.

LOYOLA UNIVERSITY OF CHICAGO, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 84 C 8063—Marvin E. Aspen, Judge.

ARGUED JANUARY 8, 1986—DecIDED Fesruary 25, 1986

Before BAUER, Woop and CorFrey, Circuit Judges.

BAUER, Circuit Judge. Plaintiff Geraldine Cannon,

(“Mrs. Cannon”), brought suit against seven defendant

medical schools claiming that each medical school’s denial

of her application was a breach of contract because such

action was unlawful under Title IX of the Education

Amendments of 1972 (“Title IX’’), 20 U.S.C. § 1681 et seq.

The district court dismissed the complaint, holding that

judgments entered against Mrs. Cannon and in favor of

the universities in three iond Suits constitute a bar to

the present action. We affirm the judgment of the dis-

trict court including its award of attorney fees and costs

plus the costs of this appeal to defendants.

a

| A-2

. No. 85-1987

I.

Mrs. Cannon applied for admission to the 1975 enter-

‘ing class at each of the defendant medical schools; Loyola

University of Chicago; Northwestern University; Rush

Presbyterian-St. Lukes Medical Center; Southern Illinois

University; University of Health Sciences/The Chicago

Medical School; The University of Chicago and The Uni-

— Illinois. Each of the schools denied her applica-

tion. The present appeal marks the plaintiff’s thirteenth

time she has been before the court to obtain judicial relief

from the decisions of the universities not to admit her

to medical school ten years ago.

In July of 1975, Mrs. Cannon first brought suits against

the University of Chicago (‘“‘Chicago”) and Northwestern

University (“Northwestern”), which were consolidated in

the district court and on later appeals. In these actions

Mrs. Cannon claimed that Chicago and Northwestern ap-

plied an age criterion in rejecting her application that

itself violated the Age Discrimination in Employment Act

of 1967 (‘‘ADEA”’), 29 U.S.C. § 626, or that, due to its

alleged disparate impact upon women, violated the Civil

Rights Act of 1871, 28 U.S.C. § 1983, Title IX and/or

Section 799 of the Public Health Service Act 42 U.S.C.

§ 295h-9. The district court dismissed Mrs. Cannon’s com-

plaint because (1) there were no sufficient allegations of

State action to support an action under § 1983; (2) no claim

upon which relief could be granted could be stated under

the ADEA because the universities were neither employ-

ers nor employment os and (3) no private right of

action existed under Title IX or the Public Health Ser-

vice Act. We affirmed. Plaintiff sought and was granted

a writ of certiorari limited solely to the question of the

existence of a private right of action under Title 1X. The

Supreme Court reversed and remanded the case, holding

pry private right of action under Title IX was autho-

rized.

Upon remand, Chicago and Northwestern moved to dis-

miss the complaints on the ground that they failed to state

A-3

No. 85-1987 3

a claim upon which relief could be granted in that no alle-

tion of “purposeful” discrimination as required by Title

X was set forth. The district court held these motions

in abeyance while conducting a six day evidentiary hear-

ing upon Mrs. Cannon’s petition for a preliminary injunc-

tion. The tition was denied, and we affirmed the denial

on April 25, 1980.

On May 23, 1980, the district court granted the univer-

sities’ motions and dismissed the complaints on the ground

that plaintiff failed to state a claim because she failed to

allege that the defendants had purposefully discriminated

against her because of her sex. We affirmed, holding that

a violation of Title IX required purposeful discrimination.

Plaintiff then moved for leave to either amend her com-

plaints or to present motions to amend in the district

court. We denied the motion. Plaintiff then filed petitions

for writs of mandamus and certiorari, both of which were

denied by the Supreme Court in 1981.

Mrs. Cannon filed a single suit against the remaining

five defendants, Loyola University of Chicago (‘‘Loyola”’),

Rush-Presbyterian St. Luke’s Medical center (‘‘Rush”’),

University of Health Sciences/Chicago Medical School (“‘Chi-

cago Medical’’), Southern Illinois University (“S.I.U.”) and

the University of Illinois (“Illinois”). As in the earlier suits

against Chicago and Northwestern, Mrs. Cannon claimed

that these five universities’ denial of her medical school

application constituted sex discrimination in violation of

Title IX. Mrs. Cannon also claimed that each defendant

violated the Age Discrimination Act of 1975, 42 U.S.C.

§§ 6101-6107, and that S.I.U. and Illinois had violated the

Civil Rights Act of 1871, 28 U.S.C. § 1983.

The district court held that no relief against any of the

defendant universities could be had under the Age Dis-

crimination Act, as that Act had not yet taken effect at

the time her applications were rejected. The district court

further held that no monetary relief could be obtained

from any of the defendants under Title IX, and that the

Eleventh Amendment barred the recovery of monetary

A-4

4 No. 85-1987

relief against S.I.U. and Illinois. The district court entered

summary judgment in favor of all five universities, basing

those in favor of Rush, Loyola and Chi Medical on

grounds of laches and those in favor of S.I.U. and Illinois

on grounds of mootness. We affirmed the judgments in

favor of all defendants, but as to those in favor of S.I.U.

and Illinois solely on grounds of laches. Mrs. Cannon’s

present suit, which we now address on appeal, alleges that

= gy schools are liable for breach of contract under

itle IX.

II.

The dismissal of plaintiffs prior suits against Chicago

and Northwestern for failure to state a claim upon which

relief could be granted are judgments on the merits and

constitute a res judicata bar as to those two schools in

the action below.

Under the doctrine of res judicata, a decision in an

earlier action will constitute a complete bar to a later ac-

tion if (1) the parties to the later suit are the same as

or in privity with those in the earlier suit, (2) the later

suit alleges the same cause of action as the earlier suit,

and (3) a court of competent jurisdiction entered a valid

final judgment on the merits in the earlier suit. Federated

Department Stores v. Moitie, 452 U.S. 394, 398 (1981);

Mandarino v. Pallard, 718 F.2d 845, 849 (7th Cir. 1983),

cert. denied, 105 S.Ct. 116 (1984).

Mrs. Cannon does not dispute the first two requirements

for ye prone of res judicata—identity of parties and iden-

tity of causes of action. Both Chicago and Northwestern

were parties in the prior action. Although Mrs. Cannon’s

theory of relief has changed slightly, her complaint is

based on the same facts as her previous suits. Mrs. Can-

non claimed a right to relief directly under Title [X in

the first two suits, while here Mrs. Cannon claims that

defendants’ alleged violation of Title IX constituted a

breach of contract. Thus, while the theory of relief may

have changed, the cause of action remains the same.

A-5

No. 85-1987 5

Cemer v. Marathon Oil Co., 583 F.2d 830 (6th Cir. 1978).

Each suit sought to remedy the same single alleged wrong.

The third requirement under the doctrine of res judi-

cata, that a court of competent jurisdiction entered a valid

final judgment on the merits in the earlier suit, is the

only requirement that Mrs. Cannon disputes. The only

issue raised is whether the dismissals of Mrs. Cannon’s

prior suits against Chicago and Northwestern were judg-

ments on the merits. The district court dismissed Mrs.

Cannon’s prior actions against Chicago and Northwestern

pursuant to Rule 12(bX6) for failure to state a claim upon

which relief could be ted. We affirmed on that basis.

The Supreme Court denied certiorari. Under Rule 41(b)

of the Federal Rules of Civil Procedure the district court’s

a we were adjudicated on the merits. Rule 41(b) pro-

vides that:

“(Unless the court in its order for dismissal other-

wise specifies, a dismissal under this subdivision and

any dismissal not provided for in this rule, other than

a dismissal for lack of jurisdiction, for improper venue,

or for failure to join a party under Rule 19, operates

as an adjudication upon the merits.”

A dismissal for failure to state a claim under Rule 12(bX6)

is a dismissal within the meaning of Rule 41(b) and there-

fore constitutes an adjudication on the merits. Federated

Department Stores, Inc. v. Moitie, 452 U.S. 394 at n.3

(1981); Bell v. Hood, 327 U.S. 678, 682 (1945); Rinehart

v. Locke, 454 F.2d 315, (7th Cir. 1971).

Mrs. Cannon seeks to avoid this result by arguing that

the district court dismissal for failure to state a claim

resulted in a lack of federal jurisdiction. Essentially, Mrs.

Cannon argues that jurisdiction in the prior actions against

Chicago and Northwestern was based on 28 U.S.C. § 1343.

Since Section 1343 grants jurisdiction only over ‘‘any civil

action authorized by law,” Mrs. Cannon argues that a

Rule 12(bX6) dismissal results in there being no action

“authorized by law” and thus results in a lack of federal

court jurisdiction.

6 No. 85-1987

Mrs. Cannon’s argument is without merit for two rea-

sons. First, Mrs. Cannon sought equitable relief and dam-

s of $15,000 in her prior suits against Chicago and

Northwestern. Hence, the district court had subject mat-

ter jurisdiction under Section 1331 to reach the merits

of the complaint.

Second, long standing Supreme Court precedent sup-

ports defendants’ position that Mrs. Cannon’s prior dis-

missal for failure to state a claim was an adjudication on

the merits. In Bell v. Hood, supra, plaintiff alleged viola-

tions of her Fourth and Fifth Ame nt rights. The dis-

trict court dismissed for lack of subject matter jurisdiction

under Section 1331 because of its view that no recovery

could be had. The circuit court affirmed, and the Supreme

Court reversed, stating:

“Jurisdiction, therefore, is not defeated as respon-

dents seem to contend, by the possibility that the

averments might fail to state a cause of action on

which petitioners could actually recover. For it is well

settled that the failure to state a proper cause of ac-

tion calls for a judgment on the merits and not for

a dismissal for want of jurisdiction. Whether the com-

laint states a cause of action on which relief could

granted is a question of law and just as issues

of fact it must be decided after and not before the

Court has assumed jurisdiction over the controversy.”

327 U.S. at 681-82.

Thus, Mrs. Cannon’s attempt to characterize the dismissal

of her prior action for failure to state a claim as “‘juris-

dictional” is precluded by long standing Supreme Court

precedent.

ITI.

The prior judgments in favor of Loyola, Rush, Chicago

Medical, S.I.U. and Illinois are also final adjudications on

the merits, and bar Mrs. Cannon's suit against these uni-

versities.

A-7

No. 85-1987 7

As with her claims against Chicago and Northwestern,

Mrs. Cannon does not dispute that the first two require-

ments for res judicata—identity of parties and identity

of cause of action—have been met by the prior judgments

in favor of Chicago Medical, Rush, Loyola, S.I.U. and IIli-

nois. Mrs. Cannon argues only that the prior judgments

against these defendants were not final judgments on the

merits. Quite plainly, the judgment, both as entered by

the district court, and this court, disposed of all of the

claims asserted against all of the defendants in that ac-

tion. Indeed, were this not the case, Mrs. Cannon could

not have appealed that judgment to this court since the

court would have lacked jurisdiction under 28 U.S.C.

§ 1291 to hear the appeal.

As stated above, Mrs. Cannon brought a claim of un-

lawful discrimination under the Age Discrimination Act

of 1975, 42 U.S.C. § 1601 et seg. against all defendants.

These claims were dismissed for failure to state a claim

upon which relief could be granted. The district court lim-

ited Mrs. Cannon’s claim to an action for equitable relief

and entered s judgment in favor of defendants in

Mrs. Cannon’s Title IX claim on the basis of laches. Her

Section 1983 claim against S.I.U. and Illinois was dis-

missed on the basis of laches as well.

In a second order, dated June 15, 1983, the district court

vacated the prior order to the extent it ted judgment

on the Section 1983 claims against S.I.U. and Illinois on

grounds of laches. In that same order, the district court

held that Mrs. Cannon was barred by the Eleventh Amend-

ment from recovering damages from S.I.U. or Illinois, and

that her claims for equitable relief under Section 1983

were moot.

We affirmed the judgments entered against Mrs. Can-

non, but in regard to the Section 1983 claims against

S.1.U. and Illinois did so only on the grounds of laches.

For purposes of applying the doctrine of res judicata

it is this court’s prior ruling that is controlling.

8 No. 85-1987

‘“‘A judgment affirmed on appeal has a conclusive effect,

but if the appellate court on grounds that dif-

fer from those relied on by the lower court, the con-

clusiveness of the judgment as res judicata and as

collateral estoppel are determined by the appellate

a IB Moore’s Federal Practice § 0.4162] at

18.

Under this analysis, the district courts’ dismissal of Mrs.

Cannon’s ADEA claim for failure to state a claim upon

which relief could be granted was clearly a decision on

the merits of that claim. The holding of Bell v. Hood that

a dismissal for failure to state a claim calls for judgment

on the merits is directly applicable.

The disposition of Mrs. Cannon’s Title IX and Section

1983 claims on grounds of laches is equally a judgment

on the merits. In McCrocklin v. Fowler, 411 F.2d 580 (7th

Cir. 1969), we held that the district court correctly dis-

missed a suit because a privy of the plaintiff had brought

a prior action on the same claim in the Court of Claims,

and the prior action had been dismissed on the basis of

the statute of limitations and laches. The district court

noted that “the prior suit in the Court of Claims was on

the merits” and we affirmed. Thus, all three requirements

for application of res judicata have been met. The pres-

ent sult is barred and was properly dismissed by the dis-

trict court.

IV.

The district court did not abuse its discretion when it

awarded defendants their fees on the motion to dismiss.

We are in complete agreement with the district court that

Mrs. Cannon’s filing of a complaint in this action was an

egregious and blatant violation of Rule 11 of the Federal

Rules of Civil Procedure. Under Rule 11 an attorney's

signature on a pleading

constitutes a certificate by him that he has read the

pleading . . . that to the best of his knowledge, in-

formation and belief formed after reasonable inquiry

A-9

No. 85-1987 Gq

it is = grounded in fact and is warranted by ex-

isting law or a good faith argument for extension,

modification or reversal of existing law and that it

is not interposed for any improper purpose.

Mrs. Cannon’s claim is barred by well established prin- .

ciples of res judicata, as enunciated by the United States

Supreme Court. Mrs. Cannon’s ten year history of litiga-

tion demonstrates her penchant for harassing the defen-

dants. a a re 0 of rigendbac — the court is

expressly given the power to aw € opposing party

his costs, including attorney fees, incurred by reason of

the violation. It is only fair that Mrs. Cannon bear the

attorney fees and costs plus the costs of this appeal that

her penchant for litigation has caused non profit institu-

tions of higher learning for far too long.

For the foregoing reasons the judgment of the district

court is

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA 60054—Midwest Law Printing Co., Inc., Chicago—2-25-86—450

A-10

JUDGMENT - ORAL ARGUMENT

United States Court Of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

February 25, 1986.

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. HARLINGTON WOOD, JR., Circuit Judge

Hon. JOHN L. COFFEY, Circuit Judge

a

GERALDINE G. CANNON, Appeal from the United

Plaintiff-Appellant, States District Court

for the Northern Dis-

trict of Illinois, Eastern

vs. q Division.

No. 84 C 8063

LOYOLA UNIVERSITY OF —

CHICAGO, et al., Judge Marvin E. Aspen

Defendants-Appellees.

This cause was heard on the record from the United States

District Court for the Northern District of Illinois, Eastern

Division, and was argued by counsel.

On consideration whereof, IT IS ORDERED AND

ADJUDGED by this Court that the judgment of the said District

Court in this cause appealed from be, and the same is hereby

AFFIRMED, with costs, in accordance with the opinion of this

Court filed this date.

A-11

United States Court Of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

April 3, 1986.

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. HARLINGTON WOOD, JR., Circuit Judge

Hon. JOHN L. COFFEY, Circuit Judge

a

GERALDINE G. CANNON,

Plaintiff-Appellant,

Appeal from the United

vs. States District Court

for the Norther Dis-

trict of Nlinois, Eastern

LOYOLA UNIVERSITY OF cee.

CHICAGO, et al.,

Defendants-Appellees.

a

ORDER

On consideration of the petition for rehearing filed in

the above entitled cause by Geraldine G. Cannon, Plaintiff-

Appellant, and all of the judges on the original panel have

voted to deny a rehearing and suggestion for rehearing en banc.

Accordingly,

IT IS ORDERED that the aforesaid petition for rehearing

and suggestion for rehearing en banc be, and the same is hereby

DENIED.

A-12

United States Court Of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

May 27, 1986.

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. HARLINGTON WOOD, JR., Circuit Judge

Hon. JOHN L. COFFEY, Circuit Judge

5

GERALDINE G. CANNON, Appeal from the United

PTT, & States District Court

Plaintiff-Appellant, for the Northern Dis-

trict of Illinois, Eastern

vs. . Division.

No. 84 C 8063

LOYOLA UNIVERSITY OF ae

CHICAGO, Marvin E. Aspen,

Defendants-Appellees. Judge.

ORDER

On consideration of the petition for rehearing and sugges-

tion for rehearing en banc filed in the above entitled cause by

Geraldine G. Cannon, plaintiff-appellant, no judge in active ser-

vice has requested a vote thereon, and all of the judges on the

Original panel have voted to deny the petition for rehearing and

suggestion for rehearing en banc. Accordingly,

IT IS HEREBY ORDERED that the aforesaid petition for

rehearing and suggestion for rehearing en banc be and the same

is hereby DENIED.

ee -