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.