Blue v. District of Columbia Public Schools , 764 F.3d 11 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 9, 2014 Decided August 29, 2014
No. 12-7122
AYANNA BLUE,
APPELLANT
v.
DISTRICT OF COLUMBIA PUBLIC SCHOOLS, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01504)
Natalie A. Baughman argued the cause for appellant.
With her on the briefs was Scott D. Gilbert. Mark A.
Packman entered an appearance.
Carl J. Schifferle, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellees. With him on the brief were Irvin B.
Nathan, Attorney General, Todd S. Kim, Solicitor General,
and Loren L. AliKhan, Deputy Solicitor General.
Before: GARLAND, Chief Judge, and SRINIVASAN and
PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
2
PILLARD, Circuit Judge: Robert Weismiller, a 57-year-
old teacher at a public high school for emotionally disturbed
teens, started a sexual relationship with his 18-year-old
student, Ayanna Blue, in the fall of 2008. Weismiller had
been fired repeatedly from other area schools for
inappropriate sexual contact with students, yet the District of
Columbia hired him to teach emotionally vulnerable youths.
In the chaotic and poorly supervised school at which he
taught, Weismiller preyed on Blue, and within five months
she was pregnant with his child. Blue sued Weismiller and
the District of Columbia for damages from violations of her
constitutional, statutory, and common-law rights arising out
of Weismiller’s actions.1
In this appeal, Blue now seeks review of the district
court’s order granting the District’s motion to dismiss. Blue’s
appeal is premature, however, because this case lacks a final
judgment within the meaning of 28 U.S.C. § 1291, and no
exception to that rule applies. Accordingly, we dismiss for
lack of appellate jurisdiction.
1
The facts recited here are from the Second Amended Complaint,
and are taken as true on appeal from a dismissal for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). See Atherton
v. D.C. Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). For
simplicity we refer to the three municipal defendants collectively as
the District. Blue also sued the District of Columbia Public
Schools (DCPS) and former DCPS Chancellor Michelle Rhee, but
the district court held that Rhee and DCPS are improper or
redundant defendants, and Blue does not appeal that aspect of the
district court’s decision.
3
I.
The District of Columbia created the Transition Academy
at Shadd (Shadd) as a special school for emotionally disturbed
students. But the school was under-resourced and poorly run,
with uncertified teachers, inadequate classrooms, and a lack
of supervision and control so pervasive it was described as
“unsafe for any student.” Education experts and District
political leaders described the school as an “extreme
disappointment,” a “failure,” and a “disaster.” Into this
precarious setting the District hired Robert Weismiller, a man
with a record of unlawful sexual contact with children at area
schools. Before he joined the Shadd faculty, Weismiller had
moved from school to school in the Washington D.C. area
(the complaint lists nine different schools over more than
three decades), had unlawful sexual relationships with at least
four of his students, and was repeatedly fired for misconduct.
Ayanna Blue was a student at Shadd in the fall of 2008.
While Blue was enrolled in Weismiller’s class, he began to
make sexual advances toward her. He told her, “If I were 30
years younger, I would marry you.” He flirted with her, gave
her his personal phone number, called her at home, and
frequently drove her home from school in his car. Faculty
and staff observed Weismiller spending time alone with Blue
in the classroom almost every day, sometimes with the lights
off. Weismiller had intercourse with Blue in the classroom
and in his car. It was an open secret at Shadd that Weismiller
and Blue were having sex.
Shadd personnel knew that Weismiller’s conduct toward
Blue was inappropriate. Several Shadd employees remarked
on how much time the two spent alone together. Rumors
spread that they were having sex. An aide reports that he told
Weismiller not to allow Blue in his classroom when the aide
4
was there; another opined that he would not let an emotionally
disturbed young woman spend so much time alone with a
male teacher who was not her counselor. A teacher sought to
“investigate” by going into Weismiller’s classroom at lunch a
few times in an effort to observe the two together, but
apparently took no further steps. In December 2008, Blue
told school personnel that she thought she was pregnant.
They sent her to the school’s health office for a pregnancy
test. That test result was negative, but only a few months
later, by early 2009, Blue was pregnant. The District
investigated, found no reason to conclude that Weismiller had
done anything wrong, and declined to fire or discipline him.
Blue sued the District and Weismiller for compensatory
and punitive damages arising out of the school’s and
Weismiller’s treatment of her. Against the District she raised
claims for negligent hiring and retention, and violation of her
right to freedom from sex discrimination in education under
Title IX of the Education Amendments of 1972, 20 U.S.C.
§ 1681. Against both the District and Weismiller she claimed
violations of her constitutional right to equal protection and
bodily integrity under 42 U.S.C. § 1983, and breach of
fiduciary duty and intentional infliction of emotional distress
in violation of District of Columbia law.
The District, but not Weismiller, moved to dismiss, and
the district court granted that motion, dismissing Blue’s
claims. Blue v. Dist. of Columbia, 850 F. Supp. 2d 16, 38
(D.D.C. 2012). Blue’s Section 1983 claims failed for want of
factual allegations that her harms resulted from a District
custom, policy, or practice, id. at 23-31 (relying on Monell v.
Dep’t of Soc. Servs., 436 U.S. 658 (1978)), and the Title IX
claims foundered on the absence of allegations that an
appropriate District official had actual knowledge of
Weismiller’s conduct, id. at 31-36. Blue’s claims against the
5
District for violations of District of Columbia law failed
because Blue did not comply with the District of Columbia’s
sovereign immunity waiver statute, D.C. Code § 12-309,
which requires that suits against the District be preceded by
advance written notice to the Mayor, which Blue failed to
provide.2
Following the district court’s order dismissing claims
against the District, Blue moved that court to enter final
judgment against the District pursuant to Federal Rule of
Civil Procedure 54(b). The court declined to do so while the
claims against Weismiller remained unresolved because,
according to the district court, “the issues [raised by the legal
claims against each defendant] are largely intertwined and
could thus result in piecemeal appeals.” J.A. 60.
Seven months later, Blue entered a joint stipulation of
dismissal with Weismiller under Federal Rule of Civil
Procedure 41(a)(1)(A)(ii), agreeing that “this action shall be
dismissed without prejudice, subject to a tolling agreement
entered between the Parties.” J.A. 61-62. The docket reflects
a Minute Order entered the same day that reads: “Pursuant to
the parties’ joint stipulation of Dismissal, the Court ORDERS
that the case against Defendant Weismiller is DISMISSED
WITHOUT PREJUDICE.” J.A. 8.
Blue now appeals the district court’s order dismissing her
claims against the District.
2
Blue relied on the DCPS investigative report into Weismiller’s
conduct, which she argued gave District officials actual notice of
her claims, but the district court held that the report did not suffice
under the District of Columbia courts’ precedents requiring that the
District’s sovereign immunity waiver be strictly interpreted. Blue,
850 F. Supp. 2d at 36-38.
6
II.
In order to establish that we have jurisdiction over her
appeal, Blue must show that she appeals from a final order of
the district court. Our appellate jurisdiction under 28 U.S.C.
§ 1291 is generally limited to review of “final decisions.” A
decision is not final unless it “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 Catlin v. United States, 324 U.S. 229, 233
(1945)). The final judgment rule means that “a party must
ordinarily raise all claims of error in a single appeal following
final judgment on the merits.” Firestone Tire & Rubber Co.
v. Risjord, 449 U.S. 368, 374 (1981). The rule serves the
policy of the federal courts, dating from the Judiciary Act of
1789, disfavoring piecemeal appellate review. That policy
protects the district court’s independence, prevents multiple,
costly, and harassing appeals, and advances efficient judicial
administration. See Cunningham v. Hamilton Cnty., 527 U.S.
198, 203-04 (1999). The district court here has not
denominated any order in this case as final and appealable.
The difficulty for Blue is that she has not appealed her
claims against both defendants, but only the order dismissing
her claims against the District, while she relies on a voluntary
dismissal and tolling agreement to hold her claims against
Weismiller for later resolution. The finality of any order, like
Blue’s, that adjudicates fewer than all of the claims, or claims
against fewer than all of the parties, is determined by Federal
Rule of Civil Procedure 54(b). According to that Rule:
[A]ny order or other decision, however designated,
that adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties does not end
the action as to any of the claims or parties and may be
7
revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights
and liabilities.
Fed. R. Civ. P. 54(b). Under the terms of Rule 54(b), the
order from which Blue seeks to appeal is non-final and so
non-appealable because it did not adjudicate the claims
against Weismiller.
Rule 54(b) has two exceptions of potential relevance
here. First, if the district court finds that there is no reason for
delay and that entry of final judgment is warranted, it may
enter final judgment on fewer than all the claims. Second, if
the plaintiff voluntarily dismisses the remaining claims, she
can in some circumstances thereby finalize the district court
proceedings for purposes of appeal. We consider in turn each
of these exceptions as they relate to Blue’s appeal.
A.
The district court has authority under Rule 54(b) to
“direct entry of a final judgment” as to less than the entire
case by making an express determination “that there is no just
reason for delay” in entering an appealable order as to some
of the claims or parties. Fed. R. Civ. P. 54(b). That exception
enables the district court to “meet the demonstrated need for
flexibility” in providing for appellate review in complex
cases, by acting as a “dispatcher . . . permitted to determine,
in the first instance, the appropriate time when each final
decision upon one or more but less than all of the claims in a
multiple claims action is ready for appeal.” Sears, Roebuck &
Co. v. Mackey, 351 U.S. 427, 435 (1956) (internal quotation
marks omitted). The Rule thus creates an avenue by which a
district court may expressly authorize an appeal from an order
8
disposing of part of a case “without waiting for final decisions
to be rendered on all claims in the case.” Id.That exception is unavailable to Blue here, however,
because the district court expressly denied her motion for
entry of final judgment under Rule 54(b), in view of the then-
pending, related claims against Weismiller. Blue has since
stipulated to dismiss the claims against Weismiller, and she
now points to that stipulation in support of her contention that
judgment is final. The joint stipulation of dismissal with
Weismiller was sufficient to finalize proceedings in the
district court, she urges, because she voluntarily dismissed the
“entire action” against him, rather than “only a complaint” or
a “single claim.” Appellant Br. at 14-18; Appellant Reply Br.
at 5-7. But Blue does not now seek to appeal any dismissal of
“the entire action,” nor could she, as the claims against
Weismiller have not been decided. And Blue concedes that
the district court has not revisited its earlier denial of final
judgment as to the order dismissing the claims against the
District that is under appeal, see Oral Arg. Rec. at 10:55-
11:30, nor has she moved it to do so. The district court’s
denial of Blue’s motion for final judgment remains the court’s
last word on Blue’s claims against the District despite Blue’s
subsequent voluntary dismissal, so the order from which Blue
appeals is not final and appealable.
B.
The second exception is also unavailable to Blue, because
her stipulation of voluntary dismissal does not suffice to
finalize the order she seeks to appeal. The dismissal was
party-initiated, without prejudice, and subject to a confidential
9
settlement agreement with a tolling provision.3 Such a
dismissal does not create a single, final disposition for
appellate review because it does not merge the claims thereby
dismissed into the court’s earlier order. It accordingly fails to
provide the requisite assurance that the trial court proceedings
were complete and will not result in multiple, piecemeal
appeals. As noted, the record fails to show that the district
court ever took the steps Rule 54(b) requires. The district
court neither (1) found that there is no reason for delay of
appeal of the claims against the District nor (2) directed entry
of judgment separately on those claims. The voluntary
dismissal does nothing to cure that defect.
Every circuit permits a plaintiff, in at least some
circumstances, voluntarily to dismiss remaining claims or
3
The parties filed their stipulation “pursuant to Rule
41(a)(1)(A)(ii),” but that subpart limits voluntary dismissal—once
the opposing party has answered, as Weismiller had—to cases in
which the plaintiff files a stipulation of dismissal “signed by all
parties who have appeared.” Fed. R. Civ. P. 41(a)(1)(A)(ii). The
District had appeared, yet did not sign the stipulation. Blue
alternatively contends that, even if her failure to get the District
defendants’ signatures made her ineligible for a Rule 41 voluntary
dismissal under subsection (a)(1), the voluntary dismissal was
nonetheless effective under subsection (a)(2). That provision
empowers a court to permit a voluntary dismissal “by court order,”
on “terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2).
Blue characterizes the Minute Order as a Rule 41(a)(2) court order
authorizing her voluntary dismissal, but there is no indication that
the district court meant it as such. It is thus unclear both whether
the incompletely signed stipulation was valid under Rule 41(a)(1)
and whether the court meant to approve dismissal under Rule
41(a)(2). Because it is immaterial whether the dismissal in this case
was pursuant to Rule 41(a)(1) or Rule 41(a)(2), we need not resolve
these Rule 41 issues.
10
remaining parties from an action as a way to conclude the
whole case in the district court and ready it for appeal. In
order to thus produce an appealable final order, however, a
voluntary dismissal typically must be made with prejudice.
In Robinson-Reeder v. American Council on Education, for
example, where we lacked jurisdiction over an appeal as to
Title VII claims because related defamation claims had been
dismissed only without prejudice, we noted that “[t]here is
little doubt” that the Title VII claims would have been
appealable “had the remaining claim been dismissed with
prejudice.” 571 F.3d 1333, 1338 (D.C. Cir. 2009). Other
circuits, too, treat voluntary dismissals of all remaining claims
as sufficient to finalize a district court order for review when
those dismissals are made with prejudice. See John’s
Insulation, Inc. v. L. Addison & Assocs., Inc., 156 F.3d 101,
107 (1st Cir. 1998); Ali v. Fed. Ins. Co., 719 F.3d 83, 89-90
(2d Cir. 2013); Trevino-Barton v. Pittsburgh Nat’l Bank, 919
F.2d 874, 878 (3d Cir. 1990); Independence News, Inc. v. City
of Charlotte, 568 F.3d 148, 153 & n.2 (4th Cir. 2009);
Marshall v. Kan. City S. Ry. Co., 378 F.3d 495, 500 (5th Cir.
2004); Libbey-Owens-Ford Co. v. Blue Cross & Blue Shield
Mut. of Ohio, 982 F.2d 1031, 1034 (6th Cir. 1993); West v.
Macht, 197 F.3d 1185, 1188 (7th Cir. 1999); Helm Fin. Corp.
v. MNVA R.R., 212 F.3d 1076, 1080 (8th Cir. 2000);
Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548
F.3d 738, 750 (9th Cir. 2008); Martin v. Franklin Capital
Corp., 251 F.3d 1284, 1288 (10th Cir. 2001); OFS Fitel, LLC
v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1356 (11th
Cir. 2008).
Where the voluntary dismissal is without prejudice to
refiling the dismissed claims, as was Blue’s stipulation here,
there is no similarly universal consensus. Some circuits allow
dismissals without prejudice to finalize trial court proceedings
for appellate review at least some of the time. See, e.g.,
11
James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1070 (9th
Cir. 2002); Mo. ex rel. Nixon v. Coeur D’Alene Tribe, 164
F.3d 1102, 1106 (8th Cir. 1999). Every circuit, however,
appears to acknowledge a presumption against that practice.
See Robinson-Reeder, 571 F.3d at 1338-39 & n.6; see also
Scanlon v. M.V. SUPER SERVANT 3, 429 F.3d 6, 8 (1st Cir.
2005); Ali, 719 F.3d at 88; Fed. Home Loan Mortg. Corp. v.
Scottsdale Ins. Co., 316 F.3d 431, 438 (3d Cir. 2003); Waugh
Chapel S., LLC v. United Food & Commercial Workers
Union Local 27, 728 F.3d 354, 359 (4th Cir. 2013); Swope v.
Columbian Chems. Co., 281 F.3d 185, 192 (5th Cir. 2002);
Laczay v. Ross Adhesives, 855 F.2d 351, 354 (6th Cir. 1988);
Muzikowski v. Paramount Pictures Corp., 322 F.3d 918, 923
(7th Cir. 2003); Helm Fin. Corp., 212 F.3d at 1080;
Romoland Sch. Dist., 548 F.3d at 748; Jackson v. Volvo
Trucks N. Am., Inc., 462 F.3d 1234, 1238 (10th Cir. 2006);
State Treasurer v. Barry, 168 F.3d 8, 14-16 (11th Cir. 1999);
15A Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure § 3914.8, at 623-
24 (2d ed. 1992) (endorsing a rule that would require
plaintiffs to fully abandon their remaining claims in exchange
for the right of immediate appeal).
In keeping with that broad consensus, our circuit treats
voluntary but non-prejudicial dismissals of remaining claims
as generally insufficient to render final and appealable a prior
order disposing of only part of the case. See Robinson-
Reeder, 571 F.3d at 1338-40. In Robinson-Reeder, we found
insufficient the plaintiff’s effort to finalize for appeal the
district court’s dismissal of her Title VII claim because her
stipulated dismissal of her other claim was without prejudice.
Id. at 1335-36. We held that we lacked jurisdiction over that
appeal because dismissal of the “only remaining . . . claim”
was insufficient “to permit appeal of those . . . claims that the
court did adjudicate.” Id. at 1338-40.
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The purpose of Rule 54(b) is to prevent parties from
taking over the “dispatcher” function that the Rule vests in the
trial judge to control the circumstances and timing of the entry
of final judgment. Id. at 1340 (citing Sears, Roebuck & Co.,
351 U.S. at 435). Rule 54(b) empowers the district judge to
balance the benefits of quick review of an order disposing of
part of a case against the risks of multiple appeals. The judge,
not the parties, is meant to be the dispatcher who controls the
circumstances and timing of the entry of final judgment. See
id. We have declined to treat dismissals without prejudice as
finalizing trial court proceedings for appellate review because
routinely allowing appeals from non-prejudicial dismissals
would undermine Rule 54(b)’s careful limits on piecemeal
appeals. If a party’s non-prejudicial dismissal of any still-
pending claims could, without more, render final and
appealable any earlier order disposing of other claims,
litigants, not district judges, would control the timing of
appeal. Parties could agree to appeal their suit in stages,
periodically dismissing all remaining claims without prejudice
as they went, agreeing to reinstate them once the court of
appeals weighed in on individual issues. The resulting
fragmentary appeals would burden courts and litigants, foster
uncertainty, and undermine the salutary aims that Rule 54(b)
and the final judgment rule promote.
Blue counters that, at least in some circumstances,
dismissal without prejudice can render a district court order
final and appealable. But Blue invokes cases of court-
ordered, involuntary dismissal, not the party-initiated
voluntary dismissal at issue here. See, e.g., United States v.
Wallace & Tiernan Co., 336 U.S. 793, 794 n.1 (1949);
Ciralsky v. CIA, 355 F.3d 661, 665 (D.C. Cir. 2004).
Involuntary dismissal, even when it is without prejudice,
unlike party-initiated voluntary dismissal, does not threaten
13
the role of the district court as gatekeeper for the court of
appeals. A court’s order of involuntary dismissal does not
risk empowering parties to take over the district court’s
“dispatcher function” and can therefore be treated as final and
appealable consistent with Rule 54(b).
The fact that Blue’s two groups of claims are against two
different defendants does not mean that they should be treated
differently from the distinct claims in Robinson-Reeder, all of
which ran against the same defendant. The language and
purposes of Rule 54(b) and Robinson-Reeder do not support
any such distinction. Rule 54(b) was amended in 1961 to
treat dismissals of fewer than all claims and fewer than all
parties identically. See Fed. R. Civ. P. 54(b) advisory
committee’s note to 1961 Amendment. The amendment
reflects the reality that the values of Rule 54(b) are equally
applicable in both situations. See Shirey v. Bensalem Twp.,
663 F.2d 472, 475 (3d Cir. 1981). Non-prejudicial dismissals
of remaining parties, like non-prejudicial dismissals of
remaining claims, could be used to generate overlapping
lawsuits, piecemeal appeals, and splintered and harassing
litigation. In each situation, it is equally important to avoid
opportunities for party manipulation and wasteful litigation
while empowering the district court, in appropriate
circumstances, to authorize immediate review of orders
disposing of only part of a case.
Blue contends that, even if the joint stipulation of
dismissal were alone insufficient to finalize the case for
appeal, the district court’s entry of a Minute Order
distinguishes this case from Robinson-Reeder. But the
Minute Order appears to have been a ministerial
acknowledgement of the parties’ joint stipulation and Blue’s
attendant motion for voluntary dismissal. A district court
must grant a motion for voluntary dismissal unless it finds
14
“that dismissal will inflict clear legal prejudice on a
defendant.” Kellmer v. Raines, 674 F.3d 848, 851 (D.C. Cir.
2012) (quoting Conafay v. Wyeth Labs., 841 F.2d 417, 419
(D.C. Cir. 1988)). Because dismissal of claims against a
defendant rarely prejudices that party, the grant of a voluntary
dismissal is virtually automatic. There is thus no reason in
law nor in the record in this case to conclude that the district
court’s Minute Order was an affirmative finality
determination intended to satisfy the requirements of Rule
54(b).
* * *
Blue will be able to obtain appellate review of the district
court’s dismissal of her claims against the District, but first
she will have to obtain a final judgment from the district
court. She might do so by asking the district court to
reconsider its decision to deny her motion to enter judgment
against the District pursuant to Rule 54(b) and expressly
certify that there is no just reason for delay of Blue’s appeal
of that dismissal. Alternatively, she might reinstate her
claims against Weismiller by filing a Rule 15 motion to
amend her complaint and litigate them to a final disposition,
dismiss those claims with prejudice, or otherwise resolve
them in a manner that satisfies the district court that entry of
final judgment is warranted.
Because we conclude that there is no final judgment
within the meaning of 28 U.S.C. § 1291, we dismiss this
appeal for lack of appellate jurisdiction.
So ordered.