Maxine Johnson v. Illinois Commerce Commission

*After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 28, 2006*
Decided March 29, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-3251
MAXINE JOHNSON,
Plaintiff-Appellant,
v.
ILLINOIS COMMERCE
COMMISSION,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division
No. 04 C 8021
Ronald A. Guzmán,
Judge.
O R D E R
Maxine Johnson, a customer of People’s Light Gas & Coke Company
(“People’s”) has been engaged in a billing dispute with People’s for several years.
Unable to resolve her dispute with People’s directly, Johnson filed a formal
complaint with the Illinois Commerce Commission (“ICC”), alleging that People’s
failed to credit her account for a $200 payment she made and subsequently
disconnected her gas service for nonpayment. She requested, among other things, a
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-3251 Page 2
$200 credit to her account and restoration of her gas service. Following several
hearings, the ICC denied Johnson’s complaint and dismissed it with prejudice.
Johnson petitioned the ICC for rehearing, but Johnson’s petition for rehearing was
denied. Rather than seek judicial review of the ICC’s order in state court, see Ill.
Admin. Code tit. 83, § 200.890; 200 Ill. Comp. Stat. 5/10-201(a), Johnson then
brought suit against the ICC in federal district court, alleging consumer fraud,
corporate misconduct, malicious conspiracy to defraud, and violations of the Illinois
Public Utilities Act, 220 Ill. Comp. Stat. 5/1-101 et seq., Racketeering Influence and
Corrupt Organizations Act, 18 U.S.C. § 1961, and the Fair Debt Collection Practices
Act, 15 U.S.C. § 1692 et seq. The district court dismissed for lack of subject matter
jurisdiction.
On appeal Johnson challenges the district court’s determination that the ICC
is a state agency that enjoys immunity from suit in federal court. The Eleventh
Amendment bars federal jurisdiction over suits brought against unconsenting states
by citizens of other states as well as by its own citizens. See Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 98-99 (1984); Edelman v. Jordan, 415 U.S. 651,
663-64 (1974). Eleventh Amendment immunity applies to state agencies the same
way it applies to states. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,
506 U.S. 139, 144 (1993); MCI Telecomm. Corp. v. Ill. Bell Tel. Co., 222 F.3d 323,
336 (7th Cir. 2000).
We have long recognized that the ICC is a state agency. See MCI Telecomm.
Co., 222 F.3d at 336-344; Ill. Bell Tel. Co. v. Worldcom Tech., Inc., 157 F.3d 500, 501
(7th Cir. 1998); Fuchs v. Rural Elec. Convenience Coop., Inc., 858 F.2d 1210, 1217
(7th Cir. 1988); Illinois v. Interstate Commerce Comm’n, 713 F.2d 305, 309 (7th Cir.
1983). And Johnson presents no argument that an exception to sovereign immunity
applies in this case. See Luellen v. City of E. Chi., 350 F.3d 604, 612 (7th Cir. 2003)
(explaining that arguments not raised on appeal are waived). Thus the district
court was correct that it lacked jurisdiction over this matter and properly dismissed
the case.
Johnson contends, however, that the dismissal was with prejudice because
the district court dismissed the case “in its entirety.” Dismissal for lack of subject
matter jurisdiction is without prejudice. See Enk v. Brophy, 124 F.3d 893, 898 (7th
Cir. 1997). We agree with Johnson that the district court’s order could be
interpreted to dismiss the case with prejudice. We therefore modify the dismissal to
be without prejudice to Johnson’s refiling her claim in state court.
Because jurisdiction is absent, we do not address Johnson’s challenge to the
timeliness of the ICC’s motion to dismiss. And, given our agreement with the
district court’s analysis, Johnson’s motion for appointment of counsel is denied.

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No. 05-3251 Page 3
For the foregoing reasons, we AFFIRM the district court’s decision but
modify the dismissal to be without prejudice.

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