In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2503

James E. Davis,

Plaintiff-Appellee,

v.

Byron Streekstra and Randy Olesen,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 98-C-305--Lynn Adelman, Judge.

No. 00-2577

Floyd R. Romatowski,

Plaintiff-Appellee,

v.

Roman Kaplan,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 98-C-518--Lynn Adelman, Judge.

Submitted August 23, 2000--Decided September 7, 2000

 Before Easterbrook, Manion, and Diane P. Wood, Circuit

Judges.

 Easterbrook, Circuit Judge. "No action shall be

brought with respect to prison conditions . . .

by a prisoner confined in any jail, prison, or

other correctional facility until such

administrative remedies as are available are

exhausted." 42 U.S.C. sec.1997e(a). Three courts

of appeals have held that this law, part of the

Prison Litigation Reform Act, does not require

exhaustion when a prisoner seeks financial relief

and the prison’s internal grievance system does
not award money damages. Whitley v. Hunt, 158

F.3d 882, 886-87 (5th Cir. 1998); Lunsford v.

Jumao-As, 155 F.3d 1178 (9th Cir. 1998); Garrett

v. Hawk, 127 F.3d 1263, 1266 (10th Cir. 1997).

These courts reason that remedies are unavailable

when the prisoner wants a form of relief that

administrators never provide. Three circuits

disagree and hold that exhaustion is required no

matter what remedy the prisoner seeks, and no

matter what remedies the administrative process

affords. Nyhuis v. Reno, 204 F.3d 65 (3d Cir.

2000); Wyatt v. Leonard, 193 F.3d 876 (6th Cir.

1999); Alexander v. Hawk, 159 F.3d 1321 (11th

Cir. 1998). These circuits conclude that, if the

administrative process holds out a prospect of

some remedy, prisoners cannot take a shortcut to

court by insisting on a different kind of relief.

This circuit has agreed with the latter group

when the conditions about which the prisoners

complain still exist--for then the prison could

afford relief in kind, even if not in cash, and

could alter the conditions of which the prisoner

complains; both steps could affect the amount of

damages if any turn out to be required--but has

reserved the question whether exhaustion is

required if the injury lies wholly in the past,

and no relief other than money is conceivable.

Perez v. Wisconsin Department of Corrections, 182

F.3d 532, 536-37 (7th Cir. 1999). In the two

cases now on appeal the district court resolved,

in favor of the no-exhaustion view, the question

reserved in Perez. (It did not embrace the view,

accepted by Nussle v. Willette, 2000 U.S. App.

Lexis 21431 (2d Cir. Aug. 24, 2000), that

sec.1997e(a) does not apply to claims of injury

from transient events, no matter what remedies

the administrative process employs. But see 18

U.S.C. sec.3626(g)(2) (another part of the PLRA

defining "prison conditions" as including "the

effects of actions by government officials on the

lives of persons confined in prison", and

McCarthy v. Bronson, 500 U.S. 136 (1991), holding

that claims arising from medical treatment

concern "prison conditions" for purposes of 28

U.S.C. sec.636(b)(1)(B).) Defendants have

appealed, asking us to side with Nyhuis, Wyatt,

and Alexander.

 What the defendants want us to review, however,

is an abstract question of law, not the outcome

of the prisoners’ suits. Defendants appealed as

soon as the district judge denied their motions

to dismiss. Denial of a motion to dismiss, like

denial of summary judgment, is a classic

interlocutory order. All it does is require the

litigation to continue. Such an order might be

appropriate for certification under 28 U.S.C.

sec.1292(b), see Ahrenholz v. University of

Illinois, No. 00-8010 (7th Cir. July 18, 2000),

which was the route apparently employed in
Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999).

But defendants did not seek the district court’s

leave under sec.1292(b) or ours under Fed. R.

App. P. 5; they claim a legal entitlement to an

immediate appellate decision, contending that

every denial of a motion to dismiss based on

sec.1997e(a) is a "final decision" under the

collateral-order doctrine. See Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541

(1949).

 As a rule, appeal must await the terminating

order--the decision that "’ends the litigation on

the merits and leaves nothing for the court to do

but execute the judgment.’" Van Cauwenberghe v.

Biard, 486 U.S. 517, 521-22 (1988), quoting from

Catlin v. United States, 324 U.S. 229, 233

(1945). That time lies ahead for these suits. The

district court’s order means only that the

litigation will continue. Litigants may not

appeal with respect to each decision in a case

but must await the outcome; then they may contest

each of the many forks on the road to final

decision. Cohen identifies a set of situations in

which something short of the bottom line is a

"final decision": orders that "are conclusive, .

. . resolve important questions separate from the

merits, and . . . are effectively unreviewable on

appeal from the final judgment in the underlying

action." Swint v. Chambers County Commission, 514

U.S. 35, 42 (1995). See also, e.g., Cunningham v.

Hamilton County, 527 U.S. 198 (1999); Digital

Equipment Corp. v. Desktop Direct, Inc., 511 U.S.

863 (1994). Defendants tell us that the district

court’s decision concerning exhaustion is

"conclusive," that the subject is "important" (as

the conflict among the circuits demonstrates),

that exhaustion is "separate from the merits,"

and that their entitlement to be free from

litigation until administrative remedies are over

is "effectively unreviewable on appeal from the

final judgment in the underlying action." We

grant the first three points, but not the fourth.

Arguments based on sec.1997e(a) may be resolved

on appeal from the final judgment--just as they

were in Perez and the other eight cases cited in

this opinion’s first paragraph. If the plaintiff

was required to exhaust yet failed to do so, the

appellate court will hold that the suit must be

dismissed without prejudice. Defendants thus are

freed of any adverse decision by the district

court, and if they prevailed on the merits in the

district court a remand for dismissal under

sec.1997e(a) eliminates any risk of an adverse

decision on the merits by the court of appeals

(or the Supreme Court).

 Defendants want us to think of sec.1997e(a) as

establishing a right not simply to prevail but

also to be free from litigation, along the lines
of double jeopardy, see Abney v. United States,

431 U.S. 651 (1977), absolute or qualified

immunity from suit, see Helstoski v. Meanor, 442

U.S. 500 (1979); Nixon v. Fitzgerald, 457 U.S.

731 (1982); Mitchell v. Forsyth, 472 U.S. 511

(1985); and sovereign immunity under the eleventh

amendment, see Puerto Rico Aqueduct and Sewer

Authority v. Metcalf & Eddy, Inc., 506 U.S. 139

(1993). If this is the right way to conceive an

exhaustion requirement, then public officials

have been asleep at the switch for decades, for

the United States Code is chock full of

exhaustion rules (think not only of exhaustion

required before a prisoner initiates a collateral

attack but also of administrative exhaustion

before suit under the Administrative Procedure

Act, employment-discrimination laws, the Federal

Tort Claims Act, and comparable statutes). None

of these has led to a recognized right of

immediate appeal. So clear is this that, until

now, no court of appeals has been required to

deal in a published opinion with a contention

that rejection of an exhaustion argument is

immediately appealable. Silence of the reporters

is unsurprising, because the issue is simple.

Exhaustion requirements do not create absolute

(or even qualified) rights to be free from

litigation. Assuredly they affect the timing of

litigation, and if the administrative claim

produces all of the relief the applicant

requested they may prevent suit from occurring,

but they do not create a "right not to be sued."

 True enough, an error by the district court in

denying a motion based on sec.1997e(a) may

require the claim to be tried twice, but one

could say the same whenever a district court

makes a legal ruling that affects how the case

proceeds. Litigants might as well argue that they

can appeal from any order denying summary

judgment, because erroneous denial of such a

motion subjects the parties to costs that could

have been avoided had the case been terminated

earlier. Attorneys’ fees usually can’t be

recouped after a court of appeals decides that

the case should have come to an earlier end (or,

worse, must be tried a second time to correct a

legal error that infected the first proceedings).

Actually, litigants have made such arguments, and

without success. The Supreme Court held in United

States v. Hollywood Motor Car Co., 458 U.S. 263,

269 (1982), that there is a "crucial distinction

between a right not to be tried and a right whose

remedy requires the dismissal of [the suit]." The

former right supports appeals under the

collateral-order doctrine, the latter does not.

See also Midland Asphalt Corp. v. United States,

489 U.S. 794 (1989); United States v. MacDonald,

435 U.S. 850 (1978).
 Van Cauwenberghe holds that orders rejecting

defendants’ claims of immunity from civil

process, and of forum non conveniens, are not

appealable as collateral orders. Lauro Lines

S.R.L. v. Chasser, 490 U.S. 495 (1989), adds that

an order rejecting a motion to dismiss based on

a forum-selection agreement is not immediately

appealable. Errors by district judges in cases

such as Lauro Lines and Van Cauwenberghe may lead

to litigation in the wrong place at the wrong

time, producing unnecessary expense and delay

when a court of appeals later vacates the

judgment and directs that litigation occur

somewhere else. All this the Justices recognized,

but they held that such expenses differ

conceptually from immunity and thus do not

support appeal under the collateral-order

doctrine. Just so with invocation of an

exhaustion requirement. Our defendants assert

that the right forum for plaintiffs’ claims is

administrative rather than judicial, just as the

defendants in Lauro Lines and Van Cauwenberghe

asserted that the right forum was elsewhere. If

the decisions in Lauro Lines and Van Cauwenberghe

were not immediately appealable, neither are the

decisions at issue here.

 The appeals are dismissed for want of

jurisdiction.