In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1524

ALEXANDER BLANEY,

Plaintiff-Appellant,

v.

TOGO D. WEST, JR., Secretary
of the Department of the Army,

Defendant-Appellee.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98 C 18--Rudolph T. Randa, Judge.


Argued November 3, 1999--Decided April 12, 2000



  Before POSNER, Chief Judge, COFFEY and ROVNER,
Circuit Judges.

   ROVNER, Circuit Judge. Alexander Blaney filed an
age discrimination suit against the Department of
the Army, but failed to properly serve the
defendant. The district court dismissed the case
sua sponte because of the service defect. Blaney
sought to correct the problem by refiling and
reserving the suit, but the statute of
limitations had passed, and that suit was
dismissed as well. Blaney followed up with a Rule
60(b)(4) motion for the first suit, claiming the
judgment was void because he had not received
notice before the court entered the dismissal.
The district court denied the motion and Blaney
appeals. We affirm.
I.

  Blaney, a 54-year-old disabled veteran, applied
for a number of warehouse positions with the
Department of the Army in 1990. Blaney believed
he was more qualified for the jobs than the 39-
year-old and 41-year-old men who were eventually
hired for two of the positions, and Blaney
therefore decided to sue the Army. For seven
years, he proceeded pro se through the
administrative processes of both the Army and the
EEOC, receiving unfavorable rulings in both of
those forums. The EEOC issued its final
administrative denial on December 5, 1997,
sending Blaney a right-to-sue letter detailing
the procedure for him to follow if he wished to
pursue a claim against the government in federal
court. Blaney doubted his ability to proceed pro
se at that point, and hired an attorney to file
the suit. Blaney’s counsel filed the suit on
January 9, 1998.

  Unfortunately, Blaney’s counsel had never sued
a federal government agency before, and when it
came time to serve the defendant, counsel
misapprehended part of the right-to-sue letter.
The letter advised:

If you file a civil action, YOU MUST NAME AS THE
DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE
OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD,
IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME
AND OFFICIAL TITLE.

R. 1, attachment (emphasis in original). Counsel
read this statement in conjunction with Rule 4 of
the Federal Rules of Civil Procedure, and decided
that service was governed by Rule 4(e), "Service
Upon Individuals Within a Judicial District of
the United States." Using this rule as his guide,
counsel served Togo West, the Secretary of the
Department of the Army. He filed proof of service
with the trial court and sent a courtesy copy to
the Office of General Counsel, Department of the
Army, at the Pentagon.

  On March 25, 1998, after 60 days passed from
the time of service, and having received no
answer or response of any kind from the
defendant, counsel filed a motion for entry of
default judgment based on the non-appearance of
the defendant. A few weeks later, counsel
received a letter from the local United States
Attorney’s office, explaining that counsel had
improperly served the government. The letter,
which was also delivered to the district court,
explained that the plaintiff had not effected
service properly under Rule 4(i), "Service Upon
the United States, and Its Agencies,
Corporations, or Officers." Rule 4(i) required
the plaintiff to serve the United States Attorney
in the district in which the case was filed, and
also required the plaintiff to serve the Attorney
General of the United States, neither of which
Blaney had accomplished. The letter indicated
that the U.S. Attorney’s office had reviewed the
court file and was aware of Blaney’s motion for
a default judgment, which was improper in light
of the plaintiff’s failure to properly serve the
government. The letter anticipated that Blaney’s
counsel would withdraw the application for
default judgment, and would serve the United
States properly with copies of the summons and
complaint pursuant to Rule 4(i).
  Inexplicably, Blaney’s counsel did not
investigate further. He believed that service was
proper, that the letter from the U.S. Attorney’s
office constituted an appearance, and that
withdrawing the application for a default motion
would essentially resurrect the Army’s defense
after Blaney had already obtained a judgment.
Counsel also mistakenly believed that if there
was a defect in the proof of service or the
motion for a default judgment that he had filed
with the district court, the court would have
rejected those documents. Encouraged by the
silence of the district court and confident of
his interpretation of the right-to-sue letter,
Blaney’s counsel did nothing for two months. In
early June 1998, counsel suddenly began to
consider the possibility that the government was
right, and that he should have served the
government using Rule 4(i) instead of 4(e). But
still, counsel did nothing. In mid-June, he
called the Assistant United States Attorney who
authored the letter and left a message suggesting
that some progress could be made on the case and
that the parties could perhaps enter into a
stipulation. The AUSA did not respond to the
message and a few weeks later, on June 30, 1998,
the district court dismissed the case sua sponte
for failure to serve the defendant.

  Blaney did not appeal that dismissal and did
not file a Rule 59(e) motion to alter or amend
the judgment. Although the statute of limitations
had run, Blaney’s counsel refiled the case the
very next day, believing the statute of
limitations had been tolled by the filing of the
original complaint. The refiled case was assigned
to a different district court judge. This time,
Blaney served the government pursuant to Rule
4(i), and the government promptly moved to
dismiss the case on the grounds that more than 90
days had passed since the issuance of the right
to sue letter. The second district court granted
this motion to dismiss in October 1998. A few
days later, Blaney filed a Rule 60(b)(4) motion
in the first case, contending that the judgment
was void because it was entered without notice
and an opportunity to respond and therefore was
entered without due process. The first district
court denied the motion, and it is that denial
that Blaney appeals here.

II.

  Blaney frames the issues on appeal as two-fold:
first, he contends that the district court abused
its discretion by failing to find that the June
30, 1998 judgment, dismissing the case sua
sponte, was void as a matter of law. Second,
Blaney charges that the district court abused its
discretion by failing to fully consider and
sufficiently balance the equities, which he
claims favored allowing him to re-serve the
complaint, under Panaras v. Liquid Carbonic
Industries Corp., 94 F.3d 338 (7th Cir. 1996).
The government counters that the judgment was not
void because Blaney was on notice from the
government that he had failed to effect proper
service, and that he had an opportunity to
respond after the court entered the judgment but
declined to use that opportunity. The government
also contends that Blaney did not preserve the
second issue because he did not appeal the
district court’s original sua sponte dismissal
within the time allotted by the Federal Rules of
Appellate Procedure. According to the government,
Blaney may not therefore raise his Panaras
argument in this Court, but may appeal only the
denial of the Rule 60(b)(4) motion.

  Blaney cites Panaras for the proposition that
the district court must consider whether a
permissive extension of time is warranted under
the equities even when the plaintiff cannot show
good cause for failure to effect proper service.
Panaras indeed holds that even absent a showing
of good cause, the district court must still
consider whether a permissive extension of time
is warranted. 94 F.3d at 341. That case also sets
forth certain factors the district court may want
to consider in exercising its discretion,
including whether the statute of limitations
would bar any refiled action. Blaney argues that
the district court did not fully consider the
equities, instead focusing its attention only on
the factors that disfavored a permissive
extension. Blaney urges us to find that the
district court abused its discretion by not
considering the facts in Blaney’s favor, namely
that he is a disabled veteran, that his counsel’s
mistake was made in good faith, that he proceeded
for seven years pro se only to have his case
dismissed on a technicality. But the government
is correct. Blaney did not preserve this issue
because he did not appeal the district court’s
June 30, 1998 ruling. See Browder v. Director,
Dept. of Corrections of Illinois, 434 U.S. 257,
263 n.7 (1978) (appeal from denial of Rule 60(b)
motion does not bring up the underlying judgment
for review). Instead, he chose to refile the
action even though the statute of limitations had
passed. He did not bring a Rule 59(e) motion,
which would have tolled the time for him to file
his appeal. See Mares v. Busby, 34 F.3d 533, 535
(7th Cir. 1994). He waited until the second
district court dismissed the second action, and
then took his chances on a Rule 60(b)(4) motion.
He is now limited to that motion as to what he
may argue before this Court.
  His Rule 60(b)(4) motion is as ill-fated as his
Panaras argument. Rule 60(b)(4) provides that a
court may relieve a party from a final judgment
if the judgment is void. "A judgment is not void
unless the court that rendered it lacked
jurisdiction or acted in a manner inconsistent
with due process of law." Webb v. Dick James
Ford, 147 F.3d 617, 622 (7th Cir. 1998).
Generally, we review the district court’s Rule
60(b) decisions for abuse of discretion. See
Bally Export Corp. v. Balicar, Ltd., 804 F.2d
398, 400 (7th Cir. 1986). However, for a Rule
60(b)(4) motion, district courts have little
leeway. Once a district court decides that the
underlying judgment is void, the trial judge has
no discretion and must grant the appropriate
60(b) relief. Id. It is a per se abuse of
discretion to deny a Rule 60(b)(4) motion when
the trial court has no jurisdiction over the
action. See also United States v. Indoor
Cultivation Equipment from High Tech Indoor
Garden Supply, 55 F.3d 1311, 1316-17 (7th Cir.
1995) (broad discretion ordinarily applicable in
Rule 60 (b) motions does not apply to 60(b)(4)
motions; because void judgments are legal
nullities, district courts have little leeway and
if the underlying judgment is void, it is a per
se abuse of discretion for a district court to
deny a movant’s motion to vacate the judgment
under Rule 60(b)(4)). Blaney contends that the
judgment here is void because it was entered
without notice and an opportunity to be heard.
The rule under which the district court dismissed
provides:

If service of the summons and complaint is not
made upon a defendant within 120 days after the
filing of the complaint, the court, upon motion
or on its own initiative after notice to the
plaintiff, shall dismiss the action without
prejudice as to that defendant or shall direct
that service be effected within a specified time;
provided that if the plaintiff shows good cause
for the failure, the court shall extend the time
for service for an appropriate period.

Fed. R. Civ. Pro. 4(m). Blaney posits that under
the plain language of this rule, the district
court was required to notify him before it
dismissed the lawsuit, and that due process
additionally required that he be given an
opportunity to respond.

  The government responds that its letter sufficed
as notice to Blaney that service had not been
effected properly, and that the judgment itself
also fulfilled the notice requirement. Blaney
could have responded once the judgment was
entered by filing a motion to reconsider,
according to the government. Two other circuits
have held that when a plaintiff has an
opportunity to request reconsideration, the
plaintiff is not prejudiced by the district
court’s failure to provide advance notice of its
intention to dismiss for defective service. See
Ruiz Varela v. Sanchez Velez, 814 F.2d 821, 823
(1st Cir. 1987) (trial court’s order of dismissal
itself gives plaintiff notice and an opportunity
to respond where plaintiff had an opportunity to
file and did file a motion for reconsideration
following dismissal for defective service); Whale
v. United States, 792 F.2d 951, 952-53 (9th Cir.
1986) (plaintiff not prejudiced by lack of notice
when plaintiff had an adequate opportunity to
demonstrate good cause in Rule 60(b) motion
following dismissal). But see Smith-Bey v. Cripe,
852 F.2d 592, 593 (D.C. Cir. 1988) (sua sponte
dismissal for failure to effect service without
actual or constructive notice as to impending
dismissal was error where plaintiff did not move
for reconsideration because of pro se status, and
thus had no real opportunity to respond).
Although we agree that the better course is for
the district court to give actual notice before
entering an order dismissing the case, we join
the First and Ninth Circuits in finding that
where the plaintiff was not prejudiced by the
lack of notice, the error is harmless. See Ruiz
Varela, 814 F.2d at 823.

  In the instant case, Blaney had two
opportunities to ask the court to reconsider its
decision. He could have filed a Rule 59(e) motion
to alter or amend the judgment within 10 days of
the entry of the judgment. He chose not to do so.
He also had an opportunity under Rule 60(b) to
ask the court to relieve him from a final
judgment, and he did take advantage of that
opportunity, filing a motion under Rule 60(b)(4).
The district court considered Blaney’s arguments
in full, noting that Blaney conceded he did not
have good cause for his failure to properly
effect service, and noting that the statute of
limitations had run. The district court was not
persuaded on balance that Blaney should be
relieved of the judgment because he inexplicably
ignored the letter from the U.S. Attorney’s
office explaining his error and continued to
"affirmatively neglect" his obligation under Rule
4. Because Blaney was not prejudiced by the
district court’s failure to provide notice before
the dismissal, we find that the error was
harmless. The lack of notice before the entry of
the judgment certainly did not rise to the level
of a violation of due process in this case
because Blaney received notice from the judgment
itself and had ample opportunity after the entry
of the judgment to make his case to the district
court. Therefore, the judgment was not void.
AFFIRMED.
