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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1987
- **Citation:** 479 U.S. 1033

## Text

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

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wens. oer oe

.

Pg Oe eg ee ey fee eT

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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 -

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2303%3A1. Public record. Not legal advice.