Holly Svendsen v. JB PRITZKER, Governor of Illinois

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1421
HOLLY SVENDSEN, et al.,
Plaintiffs-Appellants,
v.
JB PRITZKER, Governor of Illinois, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 22-cv-1269-JES-JEH — James E. Shadid, Judge.
____________________
ARGUED JANUARY 17, 2024 — DECIDED JANUARY 29, 2024
____________________
Before FLAUM, EASTERBROOK, and PRYOR, Circuit Judges.
EASTERBROOK, Circuit Judge. During the COVID-19 pan-
demic, the Governor of Illinois issued an executive order re-
quiring personnel in primary and secondary schools to be
tested regularly for the disease unless they had been vac-
cinated against it. Several persons affected by this order filed
suit in state court contending that this requirement offended
state law. They sought declaratory and injunctive relief but
not damages.

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2 No. 23-1421
While the state case was pending, the same plaintiffs—
who had been suspended or fired because they refused to be
either tested or vaccinated—filed a federal suit adding dam-
ages to the relief they sought. They asserted that the Governor
and other public officials had violated the First and Four-
teenth Amendments, applied through 42 U.S.C. §1983; Title
VII of the Civil Rights Act of 1964, which requires the accom-
modation of religious beliefs, 42 U.S.C. §2000e(j); the federal
statute allowing emergency-use authorization of vaccines, 21
U.S.C. §360bbb–3; the Illinois Public Health Act, 20 ILCS
2305/2; the Illinois Religious Freedom Restoration Act, 775
ILCS 35/15; and the Equal Protection Clause of the Illinois
Constitution.
These theories encounter procedural problems. For exam-
ple, a claim under Title VII depends on filing a charge with
the EEOC and receiving authority to sue. 42 U.S.C. §2000e–
5(b), (f)(1). Yet plaintiffs never furnished the district court
with a copy of a right-to-sue leher. After some defendants as-
serted that plaintiffs had not filed a charge in the first place,
they contended (without mentioning §2000e–5) that one is un-
necessary. A demand for damages against the state and its of-
ficials, based on theories other than Title VII, falters on the
rule that §1983 does not treat states or their officials as “per-
sons” subject to damages. See Will v. Michigan Department of
State Police, 491 U.S. 58 (1989). Plaintiffs’ invocation of state
law runs headlong into the rule that federal courts cannot
grant relief against state officials based on a conclusion that
they have violated state law. Pennhurst State School & Hospital
v. Halderman, 465 U.S. 89, 97–123 (1984). Section 360bbb–3
does not provide a private right of action, and using the ap-
proach of Maine v. Thiboutot, 448 U.S. 1 (1980), to create one
would take us back to §1983 and Will. Some of these potential

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No. 23-1421 3
problems are inapplicable to claims against local officials, but
plaintiffs have not ahempted to differentiate the defendants
by level of government; both their complaint and their appel-
late briefs treat all defendants as identically situated.
The district court did not address these procedural diffi-
culties or consider the merits. Instead it dismissed the federal
suit as barred by the rule against claim splihing, an aspect of
the doctrine of claim preclusion (res judicata). See Restatement
(Second) of Judgments §§ 24–26 (1982). By the time the federal
court addressed plaintiffs’ complaint, the state proceeding
had ended with a judgment dismissing plaintiffs’ claims as
moot—for by then the Governor had rescinded his executive
order. The district court’s initial opinion denied defendants’
motion to treat the dismissal as dispositive. 2023 U.S. Dist.
LEXIS 17636 (C.D. Ill. Feb. 2, 2023). Applying the state law of
preclusion—see 28 U.S.C. §1738; Marrese v. American Academy
of Orthopaedic Surgeons, 470 U.S. 373 (1985)—the federal judge
believed that the state judge should have dismissed the suit
without prejudice, even though the judgment specified that
dismissal was with prejudice. 2023 U.S. Dist. LEXIS 17636 at
*15–17. And a dismissal without prejudice would not have
blocked a later suit. Richter v. Prairie Farms Dairy, Inc., 2016 IL
119518 ¶24. The very next day, however, the federal judge dis-
missed the suit under the rubric of claim splihing. 2023 U.S.
Dist. LEXIS 18419 (C.D. Ill. Feb. 3, 2023).
The federal judge was right to apply the state’s law of pre-
clusion, as §1738 ¶3 requires. In this court the parties all but
ignore Illinois law, but Kamen v. Kemper Financial Services, Inc.,
500 U.S. 90, 99 (1991), holds that we may apply the correct
body of legal rules despite the parties’ fecklessness.

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4 No. 23-1421
The judge also was right to recognize that a state decision
rendered after the federal suit begins has the same preclusive
effect it would have had possessed had it been rendered ear-
lier. Restatement §14. (We cite the Restatement because the Su-
preme Court of Illinois has declared that it follows the Amer-
ican Law Institute on issues concerning the preclusive effect
of judgments. See, e.g., River Park, Inc. v. Highland Park, 184 Ill.
2d 290, 311–13 (Ill. 1998).) The state judge dismissed the state
suit while the federal suit was pending, and that terminating
disposition satisfies the requirement in Illinois that a decision
be “final” to have preclusive effect. See, e.g., Richter ¶40; Rein
v. David A. Noyes & Co., 172 Ill. 2d 325, 340 (1996).
The judge was on shakier ground in believing that he
could treat a state judgment as standing for what the state
court should have done. The actual judgment dismisses the
state suit with prejudice. That was a final and appealable dis-
position. If plaintiffs believed that the judgment should have
provided something else, they could have appealed but did
not. Plaintiffs have not cited any Illinois case permihing a later
court to proceed on the basis of its belief about what the first
court should have done, rather than what it did.
We do not think that the difference between dismissal with
and without prejudice mahers in the end. Any final dismissal
brings into play the rule against claim splihing. In Rein the
Supreme Court of Illinois, relying on Restatement §26(1),
wrote that a final disposition in one suit blocks another unless
(1) the parties have agreed in terms or in effect that plaintiff may split
his claim or the defendant has acquiesced therein; (2) the court in the
first action expressly reserved the plaintiff’s right to maintain the sec-
ond action; (3) the plaintiff was unable to obtain relief on his claim
because of a restriction on the subject-matter jurisdiction of the
court in the first action; (4) the judgment in the first action was
plainly inconsistent with the equitable implementation of a statutory
scheme; (5) the case involves a continuing or recurrent wrong; or (6)

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No. 23-1421 5
it is clearly and convincingly shown that the policies favoring preclu-
sion of a second action are overcome for an extraordinary reason.
172 Ill. 2d at 341. None of these exceptions applies here.
Plaintiffs chose to present a demand for equitable relief in
one forum and a demand for damages in another. Illinois for-
bids that multiplication of suits. The state permits only one
suit concerning any single set of events, no maher how a
plaintiff chooses to allocate legal theories or remedial re-
quests. See, e.g., River Park, 184 Ill. 2d at 311; Rein, 172 Ill. 2d
at 339–42; Green v. Northwest Community Hospital, 401 Ill. App.
3d 152 (1st Dist. 2010). As a maher of state law all legal theo-
ries contesting the test-or-vaccinate order arise from one nu-
cleus of operative facts. The reason the state case became moot
was that plaintiffs had sought damages in a different forum,
a maneuver that Illinois disallows. Plaintiffs may have been
hoping to get the beher of two outcomes, but under Illinois
law they get the first outcome—good or bad.
That the Governor amended his order (and ultimately re-
scinded it) after the state and federal suits had been filed does
not maher; the target of plaintiffs’ complaint remains the test-
or-be-vaccinated command. Plaintiffs tell us that both the ex-
ecutive order and some rules of law changed while the state
suit was pending, but they conceded at oral argument that
they do not know of any decision under Illinois law holding
that such changes permit litigants to move to a different fo-
rum and start over. (For what it is worth, we add that none of
the amendments to the executive order injured any of the
plaintiffs.)
Marrese holds that the state’s law of preclusion applies
even when some potential legal theories must be litigated in
federal court. When one court has exclusive jurisdiction over
some theories of relief, the plaintiff may choose where to

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6 No. 23-1421
litigate (potentially surrendering a theory) but may not liti-
gate in both state and federal court unless state law permits
that step. Illinois law does not allow multiple suits, but nei-
ther did it require these plaintiffs to elect some claims and
abandon others. All of their legal theories and remedial re-
quests could have been adjudicated in state court. Instead
plaintiffs sought equitable relief in one forum and damages in
another—even though, given Will and Pennhurst, they chose
the wrong forum in which to seek damages. Illinois does not
tolerate sequential litigation against a single order, whether
or not the plaintiffs made a strategic blunder.
AFFIRMED

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