Kevin Paul Sandgren v. Denis R. McDonough

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 20, 2024*
Decided September 24, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 23-3147
KEVIN PAUL SANDGREN,
Plaintiff-Appellant,
v.
DENIS R. MCDONOUGH,
Defendant-Appellee.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 23-CV-923
Nancy Joseph,
Magistrate Judge.
O R D E R
Kevin Sandgren sued Denis McDonough, the Secretary of the United States
Department of Veterans Affairs (VA), alleging that the Secretary violated federal law by
failing to hire Sandgren. The Secretary moved to dismiss Sandgren’s suit for failure to
exhaust administrative remedies. After responding to the Secretary’s motion, Sandgren
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-3147 Page 2
moved to strike the Secretary’s reply brief or to file a surreply to it. A magistrate judge,
presiding with the parties’ consent, see 28 U.S.C. § 636(c), denied Sandgren’s motion and
dismissed the suit without prejudice. On appeal, Sandgren does not challenge the
Secretary’s stance on exhaustion and instead contests the denial of his motion to strike
or to file a surreply. Because the magistrate judge did not abuse her discretion in
denying Sandgren’s motion and correctly dismissed his complaint, we affirm.
Sandgren unsuccessfully applied for several jobs with the VA. The VA told
Sandgren that it was sending his most recent application to a hiring manager and he
would receive an interview. But before any interview occurred, the VA told Sandgren
that he did not get the job and that he was not interviewed because of a temporary
policy it implemented during the COVID-19 pandemic. Concerned that the VA had not
hired him because of a disability, his age, and his status as a veteran, Sandgren filed
with the VA an administrative complaint for employment discrimination. An
administrative judge ruled for the VA. The order implementing that decision explained
how Sandgren could appeal the decision to the appropriate administrative agency. It
also explained that after he appealed to that agency, he could file a civil action in district
court (1) within 90 days after receipt of the agency’s final decision or (2) after 180 days
from the date he appealed to the agency if it had not yet issued a final decision.
Sandgren sued the Secretary in district court less than 180 days after he had
appealed to the agency and before it had issued a final decision in his appeal. He
maintained that the VA had discriminated against him because of a disability, his age,
and his status as a veteran. See 29 U.S.C. §§ 621–634, 701–797; 5 U.S.C. § 2108; 5 CFR
§ 211.102 (2019). The Secretary moved to dismiss Sandgren’s complaint because he had
failed to exhaust his administrative remedies by filing his suit too early. Sandgren
opposed the motion, and the Secretary filed a reply. Sandgren then sent to the court an
email that the magistrate judge construed as a motion to strike the Secretary’s reply or
to allow Sandgren to file a surreply. The magistrate judge denied Sandgren’s motion
and dismissed Sandgren’s suit without prejudice for failure to exhaust. (The judge also
added that 5 U.S.C. § 2108 does not authorize a private remedy for an alleged failure to
prefer veterans for hire). This appeal followed.
We pause briefly to consider our jurisdiction. The Secretary argues that we do
not have appellate jurisdiction to the extent that the dismissal for failure to exhaust is
without prejudice, because Sandgren can refile after he properly exhausts. But the
dismissal for failure to exhaust administrative remedies here is an appealable final
judgment because the test for finality “is not whether the suit is dismissed with

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No. 23-3147 Page 3
prejudice or without prejudice”; it “is whether the district court has finished with the
case.” Hill v. Potter, 352 F.3d 1142, 1144–45 (7th Cir. 2003). Rather than suggest that
Sandgren could amend his complaint or cure a defect and proceed, the magistrate judge
definitively ended the case with a judgment under Rule 58 of the Federal Rules of Civil
Procedure. Thus our jurisdiction is secure.
On appeal Sandgren unpersuasively argues that the magistrate judge should
have granted his motion to strike the Secretary’s reply brief or allowed Sandgren to file
a surreply. We review the denial of Sandgren’s motion for an abuse of discretion. Heng
v. Heavner, Beyers & Mihlar, LLC, 849 F.3d 348, 353 (7th Cir. 2017) (motion to strike);
Johnny Blastoff, Inc. v. Los Angeles Rams Football Co., 188 F.3d 427, 439 (7th Cir. 1999)
(surreply). Sandgren first contends that the magistrate judge ignored his request to
strike the reply brief or to file a surreply. But the judge did not ignore his request—she
explicitly denied it. Sandgren replies that the judge should have granted his request,
insisting that in his opening brief the Secretary addressed only the disability claim and
waited until the reply brief to contest the claims based on age and veteran status. We
disagree. The Secretary’s opening brief addressed all of Sandgren’s allegations and
asked the magistrate judge to dismiss his entire suit because Sandgren had failed to
exhaust his administrative remedies with respect to any of his claims. And Sandgren
had a chance in his response brief to respond to those contentions. Thus, the magistrate
judge reasonably denied Sandgren’s motion.
Sandgren does not otherwise meaningfully engage with the merits of the
magistrate judge’s dismissal of his complaint for failure to exhaust his administrative
remedies. In any event, the ruling was correct. It is uncontested that Sandgren filed this
suit while his administrative appeal was pending but before 180 days had elapsed. As a
result, he had not exhausted his administrative appeal. See 42 U.S.C. § 2000e–16(c); Hill,
352 F.3d at 1145. Even though 180 days has now passed, dismissal was still proper. The
purpose of exhaustion is to give an agency time to address a claim, and as the Supreme
Court has said in analogous contexts, that purpose is thwarted if a plaintiff sues before
exhausting. Ross v. Blake, 578 U.S. 632, 638–39 (2016) (prisoner suits); Porter v. Nussle,
534 U.S. 516, 524 (2002) (same); McNeil v. United States, 508 U.S. 106, 111–12 (1993)
(Federal Torts Claims Act). And because the magistrate judge dismissed Sandgren’s suit
without prejudice, the dismissal allowed Sandgren to file a timely suit after he
exhausted. But the dismissal itself was proper. Finally, we note that Sandgren leaves
unchallenged the magistrate judge’s ruling that 5 U.S.C. § 2108 does not create a private
right of action; we therefore have no reason to address that ruling.
AFFIRMED

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