Darrell Wilcox v. Georgetown University ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 2020 Decided February 9, 2021
No. 19-7065
DARRELL WILCOX AND MICHAEL MCGUIRE, INDIVIDUALLY
AND AS REPRESENTATIVES OF A CLASS OF PARTICIPANTS AND
BENEFICIARIES IN AND ON BEHALF OF THE GEORGETOWN
UNIVERSITY DEFINED CONTRIBUTION RETIREMENT PLAN AND
THE GEORGETOWN UNIVERSITY VOLUNTARY CONTRIBUTION
RETIREMENT PLAN,
APPELLANTS
v.
GEORGETOWN UNIVERSITY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-00422)
John J. Nestico argued the cause for appellants. With him
on the briefs were Todd S. Collins and Eric Lechtzin.
Brian D. Netter argued the cause for appellees. With him
on the brief were Eric A. White and Nancy G. Ross.
Before: ROGERS and RAO, Circuit Judges, and RANDOLPH,
Senior Circuit Judge.
2
Opinion for the Court by Circuit Judge ROGERS.
Dissenting opinion by Senior Circuit Judge RANDOLPH.
ROGERS, Circuit Judge: When appellants sought to bring
individual and class action claims against Georgetown
University retirement plans, the district court dismissed their
complaint without prejudice. The district court also denied as
untimely their motion for leave to file an amended complaint.
They appeal and the University responds that the appeal is
untimely because the dismissal was a final appealable order
that triggered their time to appeal, which expired before
appellants noted an appeal. Dismissal of a complaint without
prejudice is generally not a final appealable order, but
exceptions apply where the record clearly indicates that the
district court has separated itself from the case. For the
following reasons we hold the district court erred when it
denied appellants leave to file their amended complaint on the
ground that it had previously entered a final judgment in their
case. Accordingly, because the district court had not entered
final judgment when it dismissed appellants’ complaint, we
remand the case to the district court for renewed consideration
of their motion and do not reach appellants’ challenges to the
dismissal of their complaint.
I.
Darrell Wilcox and Michael McGuire are participants in
retirement plans for faculty and staff of Georgetown
University. They sued the University and individual
fiduciaries of these plans (hereinafter, “the University”),
seeking to bring individual and representative class action
claims for breach of fiduciary duty under the Employee
Retirement Income Security Act (“ERISA”), 29 U.S.C.
§§ 1001–1461. Compl. ¶¶ 1, 22–26, 114–18. They alleged,
3
among other things, that the University plans paid excessive
fees for recordkeeping services and included investment
options that consistently underperformed their benchmarks.
Compl. ¶¶ 3–11. For instance, concerning the recordkeeping
fees, the complaint alleged that the plans paid hundreds of
dollars in annual fees for each participant when a reasonable
annual price for the services provided would have been $35.
Compl. ¶¶ 53–54. The University moved to dismiss the
complaint pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6), attaching a proposed order for dismissal
with prejudice.
On January 8, 2019, the district court dismissed the
complaint without prejudice. The district court ruled that
appellants lacked Article III standing as to some aspects of plan
management, such as the inclusion of investment options
neither appellant had selected. Wilcox v. Georgetown Univ.,
2019 WL 132281, at *8–10 (D.D.C. Jan. 8, 2019); FED . R. CIV.
P. 12(b)(1). Regarding the duty of prudence, the district court
found that appellants’ excessive recordkeeping fees allegations
failed to state a claim upon which relief could be granted
because they provided “no factual support at all for their
assertion that the Plans should pay only $35/year per
participant.” Id. at *12. That is, appellants challenged “the
fundamental structures of the Georgetown Plans” without
citing any example of a college or university continuing the
same offerings at the reduced price, and that their theory the
University could do so was “entirely speculative, contrary to
caselaw and common sense, and does not warrant discovery.”
Id. at *12–13; FED. R. CIV. P. 12(b)(6). By order, the district
court dismissed the complaint without prejudice. The
electronic docket entry for the order read, in relevant part, “See
Order for details. This case is closed.”
4
On February 7, 2019, appellants moved for leave to amend
their complaint, pursuant to Federal Rule of Civil Procedure
15(a), attaching a proposed amended complaint. The district
court denied the motion by Order of May 29, 2019. The court
explained that because its order in January had entered
judgment in the case, appellants could no longer properly seek
leave to amend under Rule 15(a), Wilcox v. Georgetown Univ.,
2019 WL 2289631, at *3 (D.D.C. May 29, 2019), and their
motion did “not survive analysis under Federal Rules of Civil
Procedure 59(e) or 60(b),” id. at *1, as it was untimely under
the former and lacked a proper basis for relief under the latter,
id. at *4–5. On June 27, 2019, appellants filed a notice of
appeal from the January 2019 memorandum opinion and order,
and from the May 2019 denial of leave to file an amended
complaint.
II.
As a threshold matter, the University maintains this appeal
should be dismissed for lack of jurisdiction. It argues that
because the district court had closed the case in January 2019,
appellants had to note their appeal within 30 days of that order,
which they failed to do. Notably, the jurisdictional and the
merits issues turn on whether the January dismissal order
constituted a final judgment. If it did, then this court lacks
jurisdiction over the untimely appeal. If it did not, then this
court has jurisdiction over the timely appeal, and the district
court erred by relying on its January dismissal in rejecting
appellants’ attempt to amend their complaint.
A.
Courts of Appeals have jurisdiction over appeals from
“final decisions” of the district courts. 28 U.S.C. § 1291.
Federal Rule of Appellate Procedure 4(a), in turn, requires that
5
a notice of appeal in a civil case be filed “within 30 days after
entry of the judgment or order appealed from.” A “judgment,”
as the term is used in the Federal Rules of Civil Procedure, is
simply “any order from which an appeal lies.” FED. R. CIV . P.
54(a). For litigants to determine when it is time to notice an
appeal, they must be able to ascertain when a district court has
reached a “final decision” within the meaning of § 1291. When
a final judgment has been entered, Federal Rule of Civil
Procedure 58(a) directs that any judgment “be set out in a
separate document,” subject to exceptions not applicable here.
See also Bankers Tr. Co. v. Mallis, 435 U.S. 381, 384–85
(1978).
Generally, a dismissal of a complaint without prejudice is
not a final appealable order. Because the dismissal does not
constitute entry of a final judgment, the complaint may be
amended pursuant to Rule 15(a) of the Federal Rules of Civil
Procedure without filing a motion pursuant to Rules 59(e) or
60(b). This has long been the law in this and other circuits.
See, e.g., Ciralsky v. CIA, 355 F.3d 661, 666 (D.C. Cir. 2004);
Moya v. Schollenbarger, 465 F.3d 444, 448–49 (10th Cir.
2006); Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir. 2003);
Domino Sugar Corp. v. Sugar Workers Local Union 392, 10
F.3d 1064, 1066–67 (4th Cir. 1993); California v. Harvier, 700
F.2d 1217, 1218 (9th Cir. 1983). By contrast, dismissal of an
“action” or “case” is presumptively final, whether with or
without prejudice. Ciralsky, 355 F.3d at 666. Other circuits
view any dismissals as presumptively final and appealable
“absent some retention of jurisdiction such as an invitation to
amend the complaint.” Nichols v. Prudential Ins. Co. of Am.,
406 F.3d 98, 104 (2d Cir. 2005); see also Quartana v.
Utterback, 789 F.2d 1297, 1299–300 (8th Cir. 1986). Even
under this circuit’s approach there are well-defined
circumstances where a dismissal of a complaint without
prejudice is a final appealable order.
6
The clearest signal of finality is when a district court itself
states that its dismissal is with prejudice and its order states the
order of dismissal is final and appealable. No magic words are
required, however. For example, in St. Marks Place Housing
Co. v. U.S. Department of Housing & Urban Development, 610
F.3d 75 (D.C. Cir. 2010), the district court’s order stated that
the defendants’ motion to dismiss was granted and the case was
closed, but that its order should “not be deemed a final Order
subject to appeal until the Court has issued its Memorandum
Opinion.” Id. at 79. Once the opinion issued over two months
later, the plaintiffs filed a notice of appeal. Id. at 79–80.
Taking the district court at its word, this court held the appeal
was timely because the district court did not issue its final
decision for the purpose of § 1291 until it issued its opinion.
Id. at 80.
Similarly, in Murray v. Gilmore, 406 F.3d 708 (D.C. Cir.
2005), the district court granted the defendant’s motion for
summary judgment except as to a due process claim. Id. at 712.
Finding it difficult to understand the plaintiff’s basis for the due
process claim, the court dismissed that claim “without
prejudice subject to reconsideration at such time as plaintiff is
able to clearly identify legal and factual bases for proceeding
on [the] claim.” Id. (citation omitted). The district court also
ordered the case “taken off the active calendar of the Court.”
Id. Upon denial of its motion to reinstate the due process claim,
the plaintiff appealed. This court held that the order granting
partial summary judgment and dismissing the due process
claim was not final despite the direction to remove the case
from the active calendar, because the district court had “plainly
contemplated” the possibility of further amendment to the
complaint. Id. at 712–13. Because that earlier decision was
not final, the court held the plaintiff’s appeal from the denial of
the motion to reinstate the due process claim was timely. Id.7
Absent a clear statement by the district court
disassociating itself from the case, see Gelboim v. Bank of Am.
Corp., 574 U.S. 405, 408–09 (2015), this court has identified
certain markers as signaling whether an order is final. In
Ciralsky, 355 F.3d at 666, the court contrasted a district court
order granting dismissal without prejudice of an “action” or
“case” with a dismissal without prejudice of the “complaint.”
The former indicated an intent by the district court to separate
itself from the case while the latter typically left open the
possibility that the complaint could still be amended to cure
deficiencies. Id. Other indicia could, of course, still signal
finality. Id. at 666–67. Thus, in Ciralsky, the court concluded
that although the order simply stated “the complaint” was
dismissed, the dismissal was a final appealable order for three
reasons. First, the district court’s order “expressly stated that
it was ‘a final appealable order.’” Id. at 667. Second, the
district court granted defendants’ motion to dismiss, which had
sought dismissal of the “action.” Id. Third, the district court
had previously warned the plaintiffs when it granted a motion
to strike the complaint that a failure to file a proper amended
complaint would result in dismissal of the “case.” Id.Additionally, this court’s contextual approach has
recognized that “apparently definitive dismissal language —
like ‘ORDERED that this case is closed’ — does not always
signal finality.” St. Marks, 610 F.3d at 80. District courts are
periodically required to publicly report the number of motions
that remain pending for longer than six months and the number
of cases that remain open longer than three years. 28 U.S.C.
§ 476(a). In St. Marks, the record was “quite clear that the
district court ‘closed’ the case for reporting purposes only.”
610 F.3d at 81. This court also noted the Supreme Court’s
instruction: “[I]n applying Federal Rule of Civil Procedure
58’s requirement that judgments be set out in a separate
8
document . . . ‘the rule should be interpreted to prevent loss of
the right of appeal, not to facilitate loss.’” Id. (alterations
omitted) (quoting Bankers Tr. Co., 435 U.S. at 386). This court
concluded in St. Marks that “[b]ecause the separate document
rule [in Rule 58] and section 1291 work together to determine
the timing of appeals, . . . the same principle should apply to
questions of finality.” Id.The court has also adopted a presumption of finality for
jurisdictional dismissals of complaints. In Attias v. Carefirst,
Inc., 865 F.3d 620 (D.C. Cir. 2017), the district court ruled that
the plaintiffs lacked standing and ordered that the “complaint
be dismissed without prejudice.” Id. at 623. This court held
the dismissal was a final order from which the plaintiffs had
properly appealed. Id. at 625. The court explained:
To accommodate both the rule that a dismissal for
lack of subject-matter jurisdiction ordinarily ends the
action and the need to respect the intentions of the
district court that entered the order, we will presume,
absent a clear indication to the contrary, that a
dismissal for lack of subject-matter jurisdiction under
Rule 12(b)(1) is a final, appealable order.
Id. at 624.
Most recently, in North American Butterfly Ass’n v. Wolf,
977 F.3d 1244 (D.C. Cir. 2020), the court held that it had
jurisdiction where the district court “announced that
‘defendants’ motions to dismiss are GRANTED, and this case
is DISMISSED,’” id. at 1253 (citation omitted), and by order
stated it was dismissing “the constitutional claims without
prejudice for failure to state a claim and the statutory claims
with prejudice for lack of subject-matter jurisdiction,” id.(citation omitted). The district court “separately wrote a
9
minute order on its docket sheet granting the Butterfly
Association unsolicited ‘leave to file a second amended
complaint . . . , if any, within 14 days of the date of this Order.’”
Id. at 1254 (citation omitted). Eighteen days later, when no
such complaint had been filed, the plaintiff appealed. Id. at
1252. The court held it had jurisdiction because the district
court had entered a final decision. Id. at 1254–57.
As the foregoing cases amply demonstrate, “it is not
always clear whether a district court intended its order to
dismiss the action or merely the complaint.” Ciralsky, 355
F.3d at 667. Even where a district court’s order states that it is
dismissing the complaint without prejudice, that can be a final
decision if there are other sufficiently clear record indicia that
it intended to dismiss the case or action. See id. at 667–68;
Attias, 865 F.3d at 623–24.
B.
The district court’s January Order was, on its face, a
without-prejudice dismissal of appellants’ complaint. The
question, therefore, is whether there are other indicia in the
record that the district court had withdrawn from the case as a
whole such that a Rule 15(a) amendment would not be
available.
None of the markers that this court has identified as
sufficient indicia of such finality are present here. The district
court did not state in either its January Order or memorandum
opinion that amendment of the complaint would be futile. The
Order did not state that it was final and appealable. Cf.
Ciralsky, 355 F.3d at 667. The January memorandum opinion
did not state that “the case” or “the action” was dismissed. Cf.
id. at 666; N. Am. Butterfly Ass’n, 977 F.3d at 1253. Nor did
the accompanying Order state that it was dismissing all of the
10
plaintiffs’ “claims.” Cf. N. Am. Butterfly Ass’n, 977 F.3d at
1253. The district court’s dismissal was not wholly for lack of
subject-matter jurisdiction. Cf. Attias, 865 F.3d at 625. Nor
did the University’s motion request dismissal of the “action.”
Cf. Ciralsky, 355 F.3d at 667.
The University maintains that this court should conclude
the January Order was a final decision triggering appellants’
time to file an appeal, because (1) it dismissed the complaint in
full, leaving no claim unaddressed, (2) the electronic docket
entry for the Order stated “this case is closed,” (3) the January
memorandum opinion expressed skepticism towards
appellants’ overall theory, and (4) the May memorandum
opinion stated that the district court had dismissed the action in
its January Order, thereby disassociating itself from appellants’
case.
The first reason is easily dispensed with. Of course, an
order that does not dispose of all the pleaded claims is generally
not a final decision subject to appeal. Shatsky v. Palestine
Liberation Org., 955 F.3d 1016, 1026 (D.C. Cir. 2020); see
also Murray, 406 F.3d at 712. But this court made clear in
Ciralsky, 355 F.3d at 666–67, that an order stating the
complaint is dismissed in full is generally not, without more, a
final decision. The fact that the January Order addressed all
portions of the complaint is therefore insufficient to make it
final. Notably as well, the district court did not adopt the text
of the University’s proposed order to dismiss the complaint
with prejudice.
As for the docket entry, it adds little. Docket entries kept
by the Clerk of Court are required to “briefly show . . . the
substance and date of entry of each order and judgment,” FED.
R. CIV . P. 79(a)(3); they are not authorized to alter or amplify
that substance. As has long been understood, where there is a
11
signed order of the district court, “this is prima facie the
decision or judgment rather than a statement in an opinion
[which is not a part of the record proper] or a docket entry.”
O’Brien v. Harrington, 233 F.2d 17, 19 (D.C. Cir. 1956)
(alteration in original) (quoting United States v. Hark, 320 U.S.
531, 534 (1944)); see also Furnace v. Bd. of Trustees of S. Ill.
Univ., 218 F.3d 666, 669 (7th Cir. 2000). Electronic filings
have somewhat blurred the line, and neither party cites a local
rule clarifying the manner in which docket entries are
generated or should be interpreted by litigants. Some of our
sister circuits have been reluctant to find finality based on a
docket entry where the record would not otherwise indicate a
final decision, essentially because such entries are produced
administratively and do not themselves constitute signed
judicial orders. See Witasick v. Minn. Mut. Life Ins. Co., 803
F.3d 184, 188–89 (3d Cir. 2015); United States v. Antiques Ltd.
P’ship, 760 F.3d 668, 670 (7th Cir. 2014); Filanto, S.p.A. v.
Chilewich Int’l Corp., 984 F.2d 58, 61 (2d Cir. 1993); C.I.T.
Fin. Serv. v. Yeomans, 710 F.2d 416, 416–17 (7th Cir. 1983).
A leading commentator describes the administrative
termination of cases as “a source of ambiguity” that “may
suggest appeal finality in circumstances that do not warrant
appeal.” 15A Charles Alan Wright et al., FEDERAL PRACTICE
AND PROCEDURE § 3914.6 (2d ed. 2020). This court’s
precedent, which looks to the proceedings before the district
court judge, also does not embrace the notion that a statement
in a docket entry can alone make a non-final order final.
Regardless, the probative value of the docket entry here is
limited by its own terms. The closure of a case does not always
indicate that the district court has reached a final decision. As
discussed in St. Marks Place, a case may be closed for
administrative purposes even when the district court has not yet
entered a final appealable order. 610 F.3d at 81; see also Psara
Energy, Ltd. v. Advantage Arrow Shipping, L.L.C., 946 F.3d
12803, 807–08 (5th Cir. 2020) (order administratively closing
case was nonfinal); Weber v. McGrogan, 939 F.3d 232, 236–
37 (3d Cir. 2019) (no final decision despite docket entry stating
“Civil Case Terminated”); Campbell-McCormick, Inc. v.
Oliver, 874 F.3d 390, 395 & n.4 (4th Cir. 2017) (order that did
not resolve all claims was not rendered final by administrative
closure of the case); Mead v. Reliastar Life Ins. Co., 768 F.3d
102, 111 (2d Cir. 2014) (similar). Even setting aside the
general ambiguity that may attach to case closures, the specific
text of the docket entry here sent mixed signals to the parties.
On the one hand, it stated the case was “closed”; on the other
hand, it instructed the parties to “see” the underlying order for
“details” and that Order said nothing about closing the case.
Neither did the January memorandum opinion. For these
reasons, then, the docket entry was insufficient to render the
January Order final and appealable.
Neither can the absence of an express reference by the
district court to the possibility of a successful amendment to
the complaint provide the requisite clarity here. Such explicit
contemplation of an amendment was key to our decision in
Murray, 406 F.3d at 712–13, that the district court’s order was
nonfinal. Further, the University’s suggestion that the January
memorandum opinion “made it abundantly clear that [the
district court] viewed the entire premise of [appellants’] suit
. . . as resting on faulty logic,” Appellees’ Br. 29, can take it
only so far. The district court never stated on the record that
“the action could not be saved by any amendment of the
complaint which the plaintiff could reasonably be expected to
make,” Dubicz v. Commonwealth Edison Co., 377 F.3d 787,
790–91 (7th Cir. 2004) (quoting Furnace, 218 F.3d at 670).
The district court’s skepticism about aspects of appellants’ case
was confined to the factual allegations in the complaint before
it. It nowhere hypothesized about the futility of potential
amendments; indeed, its comments highlighted the absence of
13
particular facts that would have supported appellants’ theory.
That is the sort of problem that could potentially be cured by
an amended complaint.
It is true that in its May memorandum opinion the district
court stated that the January Order had “dismissed the
Complaint and the action.” Wilcox, 2019 WL 2289631, at *3.
A separate Order stated, “This case remains closed.” Those
documents, the University urges, reveal that the district court
intended to dismiss appellants’ action and issue a final decision
in January 2019. But all this occurred long after appellants’
time to note an appeal had expired. Adopting the University’s
position would mean that a nonfinal order can be rendered final
by statements the district court makes months later, long after
a party’s time to appeal has run. Such a result would be
inconsistent with the Federal Rules of Procedure and judicial
precedent seeking to ensure that litigants receive clear notice
of when their time to appeal begins to run. See FED. R. CIV . P.
58 advisory committee’s note to 1963 amendment; Budinich v.
Becton Dickinson & Co., 486 U.S. 196, 202 (1988).
Consequently, the finality of a district court’s decision must be
reasonably apparent based on information available to the
litigants when the time to appeal begins to run. Cf. Hentif v.
Obama, 733 F.3d 1243, 1249–50 (D.C. Cir. 2013).
Collectively, then, the record failed to alert appellants in
January that the district court had separated itself from their
case and entered a final judgment. Neither the January Order,
its docket entry, nor the January memorandum opinion
provided a clear indication that the district court had reached a
final decision from which an appeal could properly be taken.
The January Order itself referred only to dismissal of “the
complaint” without prejudice, which generally conveys
nonfinality. Ciralsky, 355 F.3d at 666. The docket entry and
the January memorandum opinion muddied the waters by
14
giving appellants mixed signals about whether their right of
appeal was triggered in January. Appellants could have filed a
protective notice of appeal, cf. Hentif, 733 F.3d at 1250, or
sought clarification from the district court, cf. Dubicz, 377 F.3d
at 792, in view of ambiguity about the finality of the January
Order. Indeed, a number of actions could have obviated the
need to expend time and resources litigating questions of
finality. But the University, which maintains that because
appellants failed to take such protective action ambiguity
should be resolved against them, supposes a burden on litigants
that neither the Federal Rules of Civil Procedure nor this
court’s precedent contemplate.
For these reasons, we hold that the January Order was not
final; only the May Order was. The May Order stated that
appellants’ Rule 15(a) motion for leave to file an amended
complaint was denied, and disassociated the district court from
their case. Because the notice of appeal was filed within 30
days of the May Order, it was timely and this court has
jurisdiction.
Our dissenting colleague opts for a different approach than
this court has chosen, positing that there is no difference
between dismissing a “complaint” and dismissing a “case” or
all the “claims.” Dis. Op. 4, 6. Yet the court in Ciralsky
observed that “courts often regard the dismissal without
prejudice of a complaint as not final,” 355 F.3d at 666(emphasis in original), and reiterated in North American
Butterfly Ass’n, that “[o]ur scrutiny of a without-prejudice
dismissal often focuses on whether the district court dismissed
the entire ‘case’ or just the ‘complaint,’” 977 F.3d at 1253.
Unlike here, in North American Butterfly the district court
expressly stated the “case” was dismissed. Id. Absent en banc
review, this distinction is the law of the circuit, by which this
three-judge panel is bound. LaShawn A. v. Barry, 87 F.3d
151389, 1395 (D.C. Cir. 1996). United States v. Wallace &
Tiernan Co., 336 U.S. 793 (1949), requires no different result.
See Dis. Op 6. There, the Court held that it had appellate
jurisdiction where the district court entered an order
“dismissing the action without prejudice,” id. at 794 n.1
(emphasis added), because that order had “ended this suit so far
as the District Court was concerned,” id. Additionally, our
dissenting colleague misperceives the effect of the clerk’s
docket entry, Dis. Op. 2–3, 5, 11, insofar as the entry’s critical
text that the case was “closed” appears nowhere in the January
Order or memorandum opinion of the district court. Nor was
this docket entry a “text-only docket entry for which . . . no
PDF document will be issued and the text order shall constitute
the Court’s only order on the matter,” Witasick, 803 F.3d at 189
(quoting the ECF User Manual for the District of New Jersey);
see also Weber, 939 F.3d at 237 (relying on Witasick). Rather
it was a ministerial entry of the sort required by Federal Rule
of Civil Procedure 79 to “briefly show the nature” of the
underlying order and here instructed the parties to “[s]ee” that
Order “for details,” and so could not transform the Order into
a final judgment.
III.
The district court concluded in May that because judgment
had been entered by the January Order, appellants could no
longer seek leave to amend their complaint pursuant to Rule
15(a)(2). But because the January Order did not enter a final,
appealable judgment, the district court erred when considering
appellants’ motion to amend their complaint in refusing to
apply the Rule 15(a)(2) standard, rather than the more
restrictive standards under Rules 59(e) and 60(b). See
generally Trudel v. SunTrust Bank, 924 F.3d 1281, 1287 (D.C.
Cir. 2019). In this circumstance, as the University suggests, it
16
is appropriate to remand for the district court to decide, in the
exercise of its discretion, whether to grant appellants’ motion.
Accordingly, we vacate the denial of appellants’ motion
for leave to amend their complaint and remand the case to the
district court to consider whether to grant leave for appellants
to file their proposed amended complaint. There is no need
now for this court to address either appellants’ challenges to
the district court dismissal of their initial complaint or the
University’s contention that the proposed amendments would
be futile, for the district court can address that matter in the first
instance.
RANDOLPH, Senior Circuit Judge, dissenting,
“The law of federal appellate jurisdiction is widely regarded
as a mess,”1 a “tangle.”2
This case presented our court with an opportunity to clear
things up a bit, but the majority opinion has made matters worse.
On January 8, 2019, District Judge Collyer dismissed the
plaintiffs’ complaint without prejudice for “lack of subject-
matter jurisdiction,” Fed. R. Civ. P. 12(b)(1), and for “failure to
state a claim upon which relief can be granted,” Fed. R. Civ. P.
12(b)(6). This was a “final decision” under 28 U.S.C. § 1291,
giving the plaintiffs thirty days to appeal.3 The deadline came
and went.4
But the majority decides that the countdown never began
because Judge Collyer’s judgment was not a “final decision.”
That is so, the majority claims, (1) because Judge Collyer did
not “intend” to issue a final decision; (2) because Judge Collyer
only dismissed the “complaint,” not the “action”; (3) because
even after Judge Collyer dismissed the complaint, the plaintiffs
1
Bryan Lammon, Finality, Appealability, and the Scope of
Interlocutory Review, 93 Wash. L. Rev. 1809, 1810 (2018).
2
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 3914.1 (2d ed.).
3
Under 28 U.S.C. § 2107(a), “no appeal shall bring any
judgment, order or decree in an action, suit or proceeding of a civil
nature before a court of appeals for review unless notice of appeal is
filed, within thirty days after the entry of such judgment, order or
decree.” See also Fed R. App. P. 4(a)(1)(A).
4
The court of appeals lacks jurisdiction over an appeal if the
notice of appeal was not timely filed. See Bowles v. Russell, 551 U.S.
205, 214 (2007).
2
could have amended their complaint; and (4) because precedents
of our court support the majority’s decision.
I will take up these four points in that order. Each is deeply
flawed and quite mistaken.
I.
My first objection is to the majority’s treatment of the
district court’s “intent.”
What has a district court’s “intention” to do with appellate
jurisdiction? A footnote in a Supreme Court opinion states that
it matters “whether the district court intended the judgment to
represent the final decision in the case.” Bankers Tr. Co. v.
Mallis, 435 U.S. 381, 385 n. 6 (1978) (per curiam). This
footnote may not have been a holding, but our court seems to
have viewed it as such. See Attias v. Carefirst, Inc., 865 F.3d
620, 624 (D.C. Cir. 2017) (citing Ciralsky v. CIA, 355 F.3d 661,
667–68 (D.C. Cir. 2004)).
Here, the record leaves no doubt that Judge Collyer meant
to bring this case to an end on January 8, 2019. Although not
required to do so, Judge Collyer issued a comprehensive opinion
on that date explaining why she was dismissing not just part, but
all of the complaint under Rules 12(b)(1) and 12(b)(6).5 Then,
in compliance with Rule 58(a), Judge Collyer issued the Order
set forth in the margin.6 On the same day, a clerk entered the
5
Under Fed. R. Civ. P. 52(a)(3), district court judges are “not
required to state findings or conclusions when ruling on” Rule 12(b)
motions.
6
“For the reasons stated in the Memorandum Opinion issued
contemporaneously with this Order, it is hereby
3
following on the civil docket, as Rule 79(a)(1) required:
“ORDER granting Motion to Dismiss. See Order for details.
This case is closed. Signed by Judge Rosemary M. Collyer on
1/8/2019. (lcrmc1) (Entered: 01/08/2019).” J.A. 8.
On May 29, 2019, Judge Collyer issued another opinion
and order, this time rejecting plaintiffs’ motion to amend the
complaint that she had dismissed in January. In this ruling,
Judge Collyer reiterated that her January 8 Order, as entered on
the civil docket above her signature, ended the case and so she
had “disassociated” from it.7 J.A. 525. Judge Collyer’s order
denying the motion stated: “This case remains closed.” J.A.
531.
In a classic example of Orwellian “doublespeak,”8 the
majority opinion asserts that Judge Collyer — in ordering that
the “case is closed” and, later, that the “case remains closed” —
meant that the “case is not closed.” The absurdity of this
assertion speaks for itself.
It will come as no surprise that nothing else in Judge
Collyer’s orders, or in her opinions, raises any doubt about her
ORDERED that Defendants’ Motion to Dismiss, Dkt. 18, is
GRANTED; and it is
FURTHER ORDERED that the Complaint, Dkt. 1, is dismissed
without prejudice.” J.A. 385.
7
A final decision under § 1291 is “one which ends the litigation
on the merits and leaves nothing for the court to do but execute the
judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945).
8
E.g., “WAR IS PEACE, FREEDOM IS SLAVERY.” George
Orwell, 1984 (1949), in Animal Farm & 1984, at p. 112 (2003 C.
Hitchens ed.).
4
intention. And in this regard Judge Collyer is in good company:
legions of opinions from the Supreme Court and this circuit use
“case is closed” to signify the obvious — that the case is over,
that it has ended, that it is finished.9
There is nothing to the majority’s claim that the January 8
Order was unclear. There is ambiguity here, but it is in the
majority’s opinion — not Judge Collyer’s. For example, the
majority proposes that the January 8 decision was uncertain
because the “Order [did not] state that it was dismissing all of
the plaintiffs’ ‘claims.’” Majority Op. 9–10.
Stuff and nonsense. A “claim,” in the Federal Rules of
Civil Procedure, is what a complaint puts forward (or is
supposed to). See Rule 8(a) (entitled “Claim for Relief”).
Without a complaint there can be no claim. Judge Collyer’s
order dismissing the complaint necessarily dismissed all of the
claims contained in the complaint. For Judge Collyer also to
announce that the plaintiffs’ claims were dismissed would have
9
E.g., Dist. Att’y’s Off. for Third Jud. Dist. v. Osborne, 557 U.S.
52, 68 (2009); Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 758
(1995); Bruning v. United States, 376 U.S. 358, 359 (1964); United
States v. Ohio Power Co., 353 U.S. 98, 111 (1957) (Harlan, J.,
dissenting); Dixon v. Duffy, 344 U.S. 143, 157 (1952) (Jackson, J.,
dissenting).
Even the author of today’s opinion has used “case is closed” to
signify that the case is over. Mobley v. CIA, 806 F.3d 568, 575 (D.C.
Cir. 2015) (Rogers, J.) (“[T]he FBI case was closed while the CIA
case remained open.”); Hentif v. Obama, 733 F.3d 1243, 1249 (D.C.
Cir. 2013) (Rogers, J.) (“The July 27 posting informed parties without
equivocation that the district court regards the case as closed and
intends that no further action be taken by it, and that the time to appeal
has commenced to run.” (internal quotation marks and brackets
omitted)).
5
been redundant and would have betrayed the same
misunderstanding of federal procedural rules evinced in the
majority’s opinion.
The majority also suggests that the entry of judgment was
somehow irregular — and that we may ignore Judge Collyer’s
May 29 decision denying any such thing.10 Circuit law is firmly
against both notions. In ruling otherwise, the majority does
“violence to the presumption of regularity surrounding all
judicial proceedings and record” and improperly “disregard[s]
the District Court’s subsequent affirmation of regularity.”
Weedon v. Gaden, 419 F.2d 303, 306 (D.C. Cir. 1969).
Here is the bottom line. When Judge Collyer closed this
case on January 8, 2019, she intended to end it, and end it she
did. By any measure that was a “final decision” under § 1291.11
II.
This brings me to the majority’s second rationale, which
presents this question: Does a district court’s dismissal without
prejudice make the court’s decision nonfinal under § 1291
because it is without prejudice? The majority thinks so. The
Supreme Court does not.
10
The majority dismisses Judge Collyer’s later opinion and order
on the ground that “a nonfinal order can[not] be rendered final by
statements the district court makes months later[.]” Majority Op. 13.
This is nothing more than thinly-disguised question-begging. The
question is whether the initial order was a final decision.
11
See, e.g., Acevedo-Villalobos v. Hernandez, 22 F.3d 384, 389
(1st Cir. 1994) (“Here the complaint was dismissed by the district
court for failure to state a claim, and judgment was then entered on the
docket and set forth on a separate document in accordance with Fed.
R. Civ. P. 58 and 79(a). Accordingly, the dismissal of plaintiffs'
complaint possesses all of the markings of a ‘final decision.’”).
6
Exactly this question arose in United States v. Wallace &
Tiernan Co., 336 U.S. 793 (1949). The Supreme Court’s answer
should have controlled this appeal: “That the dismissal was
without prejudice to filing another suit does not make the cause
unappealable, for denial of relief and dismissal of the case ended
this suit so far as the District Court was concerned.” 336 U.S.
at 794 n.1.12
Wallace thus holds that a dismissal without prejudice is a
final, appealable decision under § 1291. My colleagues seek to
avoid Wallace by invoking a fiction. The fiction is this: the
January 8 decision was not final because the “action” continued
after Judge Collyer dismissed the complaint.13
Under Rule 3, there can be no action without a complaint.
If the complaint is gone, the action is too. There is no
accounting for the difference in finality between dismissing a
complaint with prejudice — which the majority thinks is a final
decision — and dismissing a complaint without prejudice.
12
As Wallace indicates, and as then-Judge Scalia held for this
court, dismissal “without prejudice” means that the doctrine of res
judicata will not bar a later suit. Dozier v. Ford Motor Co., 702 F.2d
1189, 1194 (D.C. Cir. 1983); see also Lomax v. Ortiz-Marquez, 140
S. Ct. 1721 (2020); Elfenbein v. Gulf & W. Indus., Inc., 590 F.2d 445,
449 (2d Cir. 1978) (per curiam).
13
Wallace did not create this fiction. “That the dismissal” — not
of the action, or complaint, or claims, since none of these distinctions
matter — “was without prejudice to filing another suit does not make
the cause unappealable[.]” 336 U.S. at 793 n.1 (emphasis added); see
Br. for the U.S., at *14, United States v. Wallace & Tiernan Co., 1949
WL 50582 (“The judgment dismissing the complaint without
prejudice is clearly a final judgment since it terminates the cause in
which it was entered.”).
7
Judge Collyer dismissed this complaint, in part, for lack of
jurisdiction under Rule 12(b)(1). Were the entire complaint
dismissed on this ground, that would doubtless be a final,
appealable decision under § 1291. Attias v. Carefirst, Inc., 865
F.3d 620, 625 (D.C. Cir. 2017), holds that when the district court
dismisses the complaint without prejudice for lack of subject-
matter jurisdiction that is a “final decision” unless the court
expressly invites the plaintiff to amend its complaint.14 (Judge
Collyer issued no such invitation.)
There is no rational basis for treating Rule 12(b)(6)
dismissals any differently. As I have written, the majority posits
that an “action” survives the dismissal of a complaint under Rule
12(b)(6). That is impossible. Rule 12(b)(6) is “the same as the
old demurrer for failure of a pleading to state a cause of action.”
Fed. R. Civ. P. 12 advisory committee’s note to 1946
amendment. Little wonder that Supreme Court opinions
describe grants of Rule 12(b)(6) motions as dismissals for
failure to state “a cause of action.” Examples abound in many
of the Court’s leading cases dealing with complaints and federal
civil procedure. E.g., Ashcroft v. Iqbal, 556 U.S. 662, 678, 687
(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007);
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89, 90, 91,
94, 95, 96, 98 (1998); Bell v. Hood, 327 U.S. 678, 680, 682, 683
(1946). Our court has done the same. E.g., Simpkins v. D.C.
Gov’t, 108 F.3d 366, 369 (D.C. Cir. 1997); Haase v. Sessions,
835 F.2d 902, 906 (D.C. Cir. 1987).
The majority’s fiction — that an “action” remains after the
district court dismisses the complaint for failing to state one —
is the proverbial grin without the cat. “‘Well! I’ve often seen a
[complaint] without [a cause of action],’ thought Alice; ‘but [an
14
As the district court did in Murray v. Gilmore, 406 F.3d 708,
712-13 (D.C. Cir. 2005).
8
action] without a [complaint]! It’s the most curious thing I ever
saw in my life!’” Lewis Carroll, Alice in Wonderland &
Through the Looking Glass 69 (J. Tenniel illus. 1997).
III.
The majority’s other basis for not recognizing finality is
this: a dismissal of a complaint without prejudice is not a final
appealable order because the complaint may be amended
pursuant to Rule 15(a). Majority Op. 5. Of course, the Supreme
Court’s opinion in Wallace, quoted above, flatly contradicts the
majority’s “rationale.” But that is not the only problem.15 As I
will explain next, the majority’s reasoning is logically
fallacious.
Here is the law. After a district court enters a final
decision, the plaintiff is no longer free to amend its complaint
under Rule 15(a). No amendment is permitted unless the district
court first reopens the judgment. See, e.g., Firestone v.
Firestone, 76 F.3d 1205, 1208–09 (D.C. Cir. 1996) (per
curiam).16 The plaintiff may move to reopen the judgment, but
only if it does so within 28 days of the judgment.17 Fed. R. Civ.
15
Elfenbein, 590 F.2d at 448 (“This circuit has clearly rejected
the view that ‘without prejudice’ means ‘with leave to amend.’”).
16
A Rule 59(e) motion “is discretionary” and need not be granted
unless the district court finds that there is “‘an intervening change of
controlling law, the availability of new evidence, or the need to correct
a clear error or prevent manifest injustice.’” Nat’l Tr. for Hist. Pres.
v. Dep’t of State, 834 F. Supp. 453, 455 (D.D.C. 1993) (quoting Virgin
Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d
Cir. 1992), cert. denied, 506 U.S. 820 (1992)), aff’d in part and rev’d
in part on other grounds sub nom., Sheridan Kalorama Hist. Ass’n v.
Christopher, 49 F.3d 750 (D.C. Cir. 1995).
17
The plaintiffs did not do so here.
9
Pro. 59(e). Only if the district court first grants that motion may
the plaintiff move to amend the complaint under Rule 15(a).
Here then is the majority’s logical fallacy, the fallacy of
circular reasoning. Dismissal of a complaint without prejudice
is not a final order, the majority says, because the plaintiffs may
amend their complaint under Rule 15(a). And the plaintiffs may
amend their complaint under Rule 15(a) because dismissal
without prejudice is not a final order.18
In short, the third ground for the majority’s conclusion
regarding finality goes nowhere. It goes round and round,
stating in one form or another that A is true because B is true;
and B is true because A is true.
IV.
All that remains is circuit precedent. An Addendum to this
dissent criticizes the majority’s reliance on a case from this
circuit and on cases from other circuits. Rather than further
recitations about why this case is the same as that, or that case
is different from this, I offer the following abbreviated analysis.
Our court has rendered three decisions dealing with
“finality” and appellate jurisdiction in the last few years.
Today’s majority decision is inconsistent with each one of them.
18
There is another problem with the majority’s amendment
rationale. The premise must be that the plaintiffs, by amending the
complaint, could cure the defects that resulted in its dismissal. And so
it seems to me that the majority, to determine our appellate
jurisdiction, had to decide whether the plaintiffs could save their
complaint by amending it. Yet I cannot understand how an appellate
court could possibly know the answer. See, e.g., Bing v. Brivo Sys.,
LLC, 959 F.3d 605, 610–11 (4th Cir. 2020); Furnace v. Bd. of Trs.,
218 F.3d 666, 670 (7th Cir. 2000).
10
On February 14, 2019, a month after Judge Collyer issuing
her ruling, another district judge, Leon, J., ruled in a different
case, dismissing the plaintiffs’ constitutional claims “without
prejudice” and their statutory claims “with prejudice.” N. Am.
Butterfly Ass’n v. Wolf, 977 F.3d 1244, 1253 (D.C. Cir. 2020).
On appeal, our court held that Judge Leon rendered a “final
decision” within the meaning of § 1291. Id. at 1254. There is no
plausible way to distinguish this case from Butterfly. As I
discussed earlier, “claims” are what complaints contain.
In the meantime, while this case and Butterfly were
pending on appeal, our court decided Reshard v. Stevenson, 801
Fed. App’x 790 (D.C. Cir. 2020). We treated the district court’s
dismissal of the complaint without prejudice19 as a “final
decision” within the meaning of § 1291, no different than an
order “dismissing the case.” 801 Fed. Appx. at 791-92.
And several months before this case began, our decision in
Attias gave the final word on finality. “[A]nything less than an
express invitation is not a clear enough signal to overcome the
presumption of finality.” Attias, 865 F.3d at 625. The majority
opinion mistakenly restricts Attias to dismissals of complaints
without prejudice pursuant to Rule 12(b)(1). Majority Op. 8; see
Attias, 865 F.3d at 624 (relying on Murray v. Gilmore, 406 F.3d
708, 712 (D.C. Cir. 2005)). What the majority cannot coherently
explain is why dismissals of complaints without prejudice
pursuant to Rule 12(b)(6) deserve different treatment.
Case closed.
19
The district court had issued the following judgment:
“ORDERED that the Amended Complaint is DISMISSED without
prejudice.” Reshard v. Stevenson, No. 18-cv-775 (CRC), 2018 WL
10667526 (D.D.C. Oct. 5, 2018).
11
ADDENDUM
St. Marks Place Hous. Co. v. U.S. Dep’t of Hous. & Urb. Dev.,
610 F.3d 75 (D.C. Cir. 2010):
At several points the majority invokes St. Marks to show
that “the case is closed” may not amount to a “final decision.”
Majority Op. 7-8. “Pure applesauce.” King v. Burwell, 576 U.S.
473, 507 (2015) (Scalia, J., dissenting). The majority’s use of
St. Marks is quite misleading. It omits the critical language in
the St. Marks order – namely, “this Order shall not be deemed
a final Order subject to appeal[.]” 610 F.3d at 79 (emphasis
added). There is nothing of the kind here — nothing to
contradict Judge Collyer’s “apparently definitive dismissal
language” that the “case is closed.”
Weber v. McGrogan, 939 F.3d 232 (3d Cir. 2019):
According to the majority, Weber shows that docket entries
are not necessarily “probative.” Majority Op. 11–12. But the
majority again breezes past the details. The docket entry in
Weber was an unsigned “utility event” that was not an order of
the district court. 939 F.3d at 237. Compare that to this case,
where Judge Collyer issued a “text order” that “contain[ed] [her]
electronic signature” — what Weber called the “most
significant” type of docket entry. Id.
Psara Energy, Ltd. v. Advantage Arrow Shipping, 946 F.3d
803 (5th Cir. 2020):
Psara is instructive — just not in the way that the majority
imagines. The majority cites Psara to prove that an order
“administratively closing [a] case” may be nonfinal. Majority
Op. 11–12. What of it? The district court in Psara ordered the
case “administratively closed[.]” Dkt. 40, Psara Energy, Ltd. v.
12
Advantage Arrow Shipping, 1:18-cv-00178-MAC-ZJH (E.D.
Tex. Jan. 4, 2019) (emphasis added). The district court here did
not. Far more telling is the Fifth Circuit’s statement that an
order “compel[ling] arbitration and dismiss[ing] or clos[ing] the
case outright possesses finality and confers jurisdiction on [the
appellate] court.” 946 F.3d at 807 (internal quotation marks
omitted) (emphasis added).
Campbell-McCormick, Inc. v. Oliver, 874 F.3d 390 (4th Cir.
2017):
Campbell-McCormick — like Psara — was
“administratively clos[ed].” Dkt. 106, Campbell-McCormick,
Inc. v. Oliver, 1:16-cv-01057-CCB (D. Md. July 18, 2016)
(capitalization omitted). This case was not. So it is neither here
nor there that Campbell-McCormick “was not rendered final by
administrative closure.” Majority Op. 12.
Mead v. Reliastar Life Ins. Co., 768 F.3d 102 (2d Cir. 2014):
Mead does not undermine the “probative value of the
docket entry here.” Majority Op. 11–12. The district court in
Mead “remanded to the [benefits] plan administrator for further
proceedings” and then ordered the case “close[d].” 768 F.3d at
106. The Second Circuit held that this was not a final order
because it “did not conclusively determine” all pending claims.
Id. at 109 (cleaned up). At most, then, Mead shows that a
docket entry cannot render a nonfinal order final. Yet unlike the
order in Mead, Judge Collyer’s order left no unfinished
business.