North American Butterfly Association v. Chad F. Wolf

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 5, 2019 Decided October 13, 2020
No. 19-5052
NORTH AMERICAN BUTTERFLY ASSOCIATION ,
APPELLANT
v.
CHAD F. WOLF, IN HIS OFFICIAL CAPACITY AS ACTING
SECRETARY, UNITED STATES DEPARTMENT OF HOMELAND
SECURITY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-02651)
Timothy K. Beeken argued the cause and filed the briefs for
appellant.
Jeffrey S. Beelaert, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Jeffrey Bossert Clark, Assistant Attorney General, and Eric
Grant, Deputy Assistant Attorney General.
Before: TATEL, MILLETT, and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
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Dissenting opinion filed by Circuit Judge MILLETT.
PILLARD , Circuit Judge: The National Butterfly Center, a
100-acre wildlife sanctuary and botanical garden owned by the
nonprofit North American Butterfly Association, lies along the
border between the United States and Mexico. Butterfly Center
staff discovered in 2017 that a segment of the wall the U.S.
Department of Homeland Security (DHS) plans to build on the
border with Mexico would run through the Center’s premises.
After DHS confirmed that plan and asserted control over parts
of the Center, the Butterfly Association sued.
The Association contends that DHS’ presence on and use
of parts of its property to prepare for and carry out construction
of a border wall violate the Fourth and Fifth Amendments to
the United States Constitution and two environmental statutes.
The district court dismissed all claims, concluding the
Association stated no viable constitutional claim and that
section 102(c)(2)(A) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,
Div. C, 110 Stat. 3009, 3009-546, as amended (IIRIRA)
(codified at 8 U.S.C. § 1103), strips jurisdiction over the
statutory claims because the DHS Secretary waived application
of environmental laws with respect to the construction of roads
and physical barriers to be built at the Center. See N. Am.
Butterfly Ass’n v. Nielsen, 368 F. Supp. 3d 1, 4 (D.D.C. 2019).
We affirm dismissal of the Butterfly Association’s statutory
and Fourth Amendment claims but reverse dismissal of the
Fifth Amendment claim and remand for further proceedings
consistent with this opinion.
I. BACKGROUND
In our de novo review of the district court’s order
dismissing under Federal Rule of Civil Procedure 12(b)(1) and
3
12(b)(6) the Butterfly Association’s claims, we accept the
operative complaint’s well-pleaded factual allegations as true
and draw all reasonable inferences in the Butterfly
Association’s favor. See Wash. All. of Tech. Workers v. DHS,
892 F.3d 332, 338-39 (D.C. Cir. 2018). Like the district court,
we consider “any documents either attached to or incorporated
in the complaint and matters of which [the court] may take
judicial notice.” Hurd v. District of Columbia, 864 F.3d 671,
678 (D.C. Cir. 2017) (alteration in original) (quoting EEOC v.
St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.
1997)).
A. Factual Allegations
Located in southern Texas, the National Butterfly Center
attracts visitors to its nature trails, conservation areas,
educational exhibits, and plant nursery. See Am. Compl. ¶¶ 15,
46 (J.A. 24, 31). The Center affords visitors the chance to view
and learn about wild butterflies as well as the several
endangered plant and animal species on its premises. See id.
¶¶ 49-50 (J.A. 32). Because it abuts the Rio Grande River
separating Texas from Mexico, the Center falls within DHS’
Rio Grande Valley Border Patrol Sector, a 17,000-square-mile
area that DHS patrols to protect border security and police
immigration from Mexico. See id. ¶¶ 15, 19 (J.A. 24-25).
Shortly after taking office, President Trump directed DHS
to take “all appropriate steps to immediately plan, design, and
construct a physical wall along the southern border, using
appropriate materials and technology to most effectively
achieve complete operational control of the southern border.”
Executive Order No. 13,767, § 4(a), 82 Fed. Reg. 8793, 8794
(Jan. 25, 2017). As statutory authority for his directive,
President Trump invoked IIRIRA, see id., which for more than
a decade has authorized DHS to “deter illegal crossings in areas
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of high illegal entry into the United States” by “tak[ing] such
actions as may be necessary to install additional physical
barriers and roads (including the removal of obstacles to
detection of illegal entrants) in the vicinity of the United States
border,” IIRIRA § 102(a). To facilitate such construction,
IIRIRA authorizes the DHS Secretary “to waive all legal
requirements” that she, “in [her] sole discretion, determines
necessary to ensure expeditious construction of the barriers and
roads under this section,” id. § 102(c)(1), and strips district
courts’ jurisdiction over all non-constitutional claims “arising
from any action undertaken, or any decision made, by the
Secretary” pursuant to the waiver authority, id. § 102(c)(2)(A).
To implement Executive Order No. 13,767, the Secretary
sent a memorandum to senior DHS officials that instructed the
U.S. Customs and Border Protection (CBP), an agency within
DHS, to
immediately begin planning, design,
construction and maintenance of a wall,
including the attendant lighting, technology
(including sensors), as well as patrol and access
roads, along the land border with Mexico in
accordance with existing law, in the most
appropriate locations and utilizing appropriate
materials and technology to most effectively
achieve operational control of the border.
Memorandum from John Kelly, DHS Sec’y, to Kevin
McAleenan, CBP Acting Comm’r, et al. at 5 (Feb. 20, 2017)
(J.A. 415) (DHS Memo). Several months later, in July 2017,
the Butterfly Center’s Executive Director, Marianna Wright,
discovered CBP contractors using heavy equipment to “cut
down trees, mow brush, and widen a private road” at the
Center. Am. Compl. ¶ 53 (J.A. 33). Noticing that the work
5
crew had already cleared up to eighteen feet on either side of
the private roadway within the Center’s grounds and observing
additional signs of planned construction work, see id. ¶¶ 53-54
(J.A. 33), Wright contacted CBP, which asserted “blanket
authority” to conduct border-infrastructure activities at the
Butterfly Center, id. ¶ 55 (J.A. 33).
Manuel Padilla, Jr., CBP’s Chief Patrol Agent for the Rio
Grande Valley Border Patrol Sector, visited the Butterfly
Center in August 2017. See id. ¶¶ 19, 56 (J.A. 25, 34). He
explained to Wright that the planned border wall would cross
through the Center, see id. ¶ 56 (J.A. 34), and that “additional
large areas of the Butterfly Center would be cleared for
secondary roads and government operations,” id. ¶ 57
(J.A. 34). In total, the Butterfly Association would be forced
to relinquish control over some two thirds of the Center’s
premises, see id. ¶ 56 (J.A. 34), which, Wright anticipated,
would “effectively destroy[] it and leav[e] behind a 70-acre no-
man’s land between the proposed border wall and the Rio
Grande,” id. ¶ 15 (J.A. 24-25).
Padilla also informed Wright that CBP had placed sensors
at undisclosed locations throughout the Center and instructed
the Butterfly Association not to gate or lock the Center. See id.
¶¶ 59-60 (J.A. 34). Padilla cautioned that any gates or locks
would be destroyed. See id. ¶ 60 (J.A. 34). Consistent with
Padilla’s warning that border-wall construction would
necessitate a “green uniform presence” of Border Patrol agents,
id. ¶ 58 (J.A. 34), CBP now regularly stations its personnel at
the Center, see id. ¶ 62 (J.A. 35). CBP agents “assert that vast
stretches of the property are off limits to Butterfly Center
employees and visitors.” Id.
CBP agents and other DHS officials have authority to enter
private lands, like the Butterfly Center, within twenty-five
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miles of any international U.S. border, but that authority is
limited to entries “for the purpose of patrolling the border to
prevent the illegal entry of aliens into the United States.” 8
U.S.C. § 1357(a)(3). DHS defines “patrolling the border” as
“conducting such activities as are customary, or reasonable and
necessary, to prevent the illegal entry of aliens into the United
States.” 8 C.F.R. § 287.1(c).
DHS has not analyzed the environmental impact of border
wall-related activities conducted at the Butterfly Center since
2017, cf. 42 U.S.C. § 4332(2)(C); Am. Compl. ¶ 66 (J.A. 35),
nor consulted with other federal agencies about how to
minimize the impact of those activities on endangered species,
cf. 16 U.S.C. § 1536(a)(2); Am. Compl. ¶ 76 (J.A. 37). Crucial
to application of IIRIRA’s jurisdiction-stripping provision, see
IIRIRA § 102(c)(2), when the Butterfly Association filed this
suit in December 2017, the DHS Secretary had not yet
exercised her statutory authority “to waive [any] legal
requirements” she “determine[d] necessary to ensure
expeditious construction of the barriers and roads under
[IIRIRA section 102(a)-(b)],” id. § 102(c)(1).
B. Procedural History
The Butterfly Association’s suit against DHS comprises
four causes of action, two arising under environmental statutes
and two under the Constitution. As a statutory matter, the
Association claims that DHS’ failure to complete an
environmental impact statement or consult with the United
States Fish and Wildlife Service in connection with DHS’
activities at the Butterfly Center violated the National
Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq.;
see Am. Compl. ¶¶ 63-71 (J.A. 35-36), and the Endangered
Species Act (ESA), 16 U.S.C. §§ 1531 et seq.; see Am. Compl.
¶¶ 72-78 (J.A. 36-37). The Association also claims DHS
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seized parts of the National Butterfly Center in violation of the
Fourth Amendment, see Am. Compl. ¶¶ 84-89 (J.A. 38), and
deprived the Association of various property interests in its
Center without due process of law, in violation of the Fifth
Amendment, see id. ¶¶ 79-83 (J.A. 37-38). In addition to costs
and attorney fees, the Association seeks declaratory and
injunctive relief. See id. at pp. 19-20 (J.A. 39-40).
DHS moved to dismiss the Butterfly Association’s claims
for lack of subject-matter jurisdiction and for failure to state a
claim. After the parties fully briefed that motion, and some ten
months after the Association filed suit, the DHS Secretary
exercised her authority under IIRIRA section 102(c)(1) to
waive application of various laws to DHS actions at the
Butterfly Center. Specifically, she decided to waive “in their
entirety” application of NEPA and ESA “with respect to the
construction of roads and physical barriers (including, but not
limited to, accessing the project area, creating and using
staging areas, . . . and installation and upkeep of physical
barriers, roads, supporting elements, drainage, erosion
controls, safety features, lighting, cameras, and sensors).”
Determination Pursuant to Section 102 of [IIRIRA], as
Amended, 83 Fed. Reg. 51,472, 51,473 (Oct. 11, 2018)
(Waiver Determination). Once the Waiver Determination
issued, DHS supplemented its motion to dismiss, arguing that
IIRIRA section 102(c)(2)(A)’s jurisdictional bar now applies
to the Butterfly Association’s statutory claims. After the
parties fully briefed DHS’ supplemental motion, the
Association moved for preliminary injunctive relief.
Before addressing the Butterfly Association’s request for
preliminary injunctive relief, the district court on February 14,
2019, issued a memorandum opinion and order dismissing the
Association’s claims. See Butterfly Ass’n, 368 F. Supp. 3d at 4.
The court held that IIRIRA section 102(c)(2)(A) deprived it of
8
jurisdiction over claims invoking environmental laws subject
to the Secretary’s Waiver Determination, so it dismissed the
Association’s statutory claims under Federal Rule of Civil
Procedure 12(b)(1). See id. at 10. The district court dismissed
the two constitutional claims as not legally cognizable. The
court held that “the confluence of the Butterfly Center’s open
field status and defendants’ constitutional and statutory
authority at the border compels dismissal of [the] Fourth
Amendment claim under Rule 12(b)(6).” Id. at 7. And,
whether viewing it as “an authorized-but-uncompensated
taking claim” or as a procedural due process claim, the court
considered the Association’s Fifth Amendment claim
“premature” and thus “unripe.” Id. at 8.
The next day, Congress passed and President Trump
signed an appropriations package that appears to have afforded
the Butterfly Association much of the relief it seeks in this
litigation. While funding “the construction of primary
pedestrian fencing . . . in the Rio Grande Valley Sector,”
Consolidated Appropriations Act, 2019, Pub. L. No. 116-6,
§ 230(a)(1), 133 Stat. 13, 28 (2019 Appropriations Act), and
“the acquisition and deployment of border security
technologies and trade and travel assets and infrastructure,” id.
§ 230(a)(2), Congress specified that “[n]one of the funds made
available by this Act or prior Acts are available for the
construction of pedestrian fencing . . . within the National
Butterfly Center,” id. § 231(4). The following year, Congress
placed a similar limit on its 2020 appropriation of funds for
“construction of [a] barrier system along the southwest
border,” “the acquisition and deployment of border security
technologies,” “facility construction and improvements,”
“integrated operations assets and infrastructure,” and “mission
support and infrastructure.” Consolidated Appropriations Act,
2020, Pub. L. No. 116-93, § 209(a), 133 Stat. 2317, 2511 (2020
Appropriations Act). The 2020 Appropriations Act, too,
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provides that “[f]ederal funds may not be made available for
the construction of fencing . . . within the National Butterfly
Center.” Id. § 210(4).
Eighteen days after the district court’s dismissal order, the
Butterfly Association commenced this appeal.
Notwithstanding the restrictions in the recent Appropriations
Acts, the Association contends that CBP is engaged in
“ongoing violations” of the Association’s statutory and
constitutional rights in the Butterfly Center. Reply Br. 10. The
Association argues that, rather than mooting the case, the
funding restrictions defeat the DHS Secretary’s waiver of the
environmental laws that form the basis of its statutory claims.
The Association also asserts that the Secretary’s failure to
fulfill her duty under IIRIRA to consult stakeholders before
issuing the Waiver Determination renders the Determination
ultra vires, that the Butterfly Center’s open fields are protected
from Fourth Amendment seizures, and that its Fifth
Amendment claim is ripe because CBP has already intruded
and still threatens to intrude onto the Center without due
process of law.
II. JURISDICTION
Before reaching the merits of the Butterfly Association’s
appeal, we must address three questions about our appellate
jurisdiction. First, we sua sponte raised a threshold
jurisdictional question that we asked counsel to address at oral
argument: “whether the finality requirement of 28 U.S.C.
§ 1291 is met here, given that the district court dismissed” the
Association’s claims “without prejudice and with leave to
amend.” Order, No. 19-5052 (D.C. Cir. Nov. 27, 2019) (per
curiam). Second, the government contends that the 2019 and
2020 Appropriations Acts’ funding restrictions on constructing
fencing at the Butterfly Center moot the claims insofar as they
10
preclude DHS from engaging in the conduct alleged in the
complaint, and deprive the Butterfly Association of any current
or certainly impending injury to support its standing to
challenge CBP’s activities going forward. Third, the
government asserts that IIRIRA section 102(c)(2)(C)’s
limitation on appellate review of claims arising from the DHS
Secretary’s waiver authority means the Association can obtain
review of its surviving claims, if any, only in the Supreme
Court.
A. Timely Appeal from a Final Decision
We have jurisdiction over appeals from “final decisions”
of the district court, 28 U.S.C. § 1291, provided the appeal is
timely as measured from “entry” of the “judgment, order or
decree” announcing the final decision, id. § 2107.
Notwithstanding the parties’ agreement that the district court’s
dismissal order was final, see Oral Arg. Tr. 4:3-6 (Butterfly
Association), 28:18-20 (DHS), we must independently
determine its finality under section 1291 and timeliness under
section 2107. Specifically, we must determine whether the
district court’s minute order, noting on its docket sheet a time-
limited grant of leave to amend the complaint, rendered
nonfinal the court’s otherwise final published opinion and
order dismissing the case. As a practical matter, the question
is whether the Butterfly Association was within its rights to
appeal the dismissal without first requesting and obtaining
from the district court an additional order confirming the
finality of its judgment of dismissal.
Under 28 U.S.C. § 1291, “[a] decision ‘is not final,
ordinarily, unless it ends the litigation on the merits and leaves
nothing for the district court to do but execute the judgment.’”
Dukore v. District of Columbia, 799 F.3d 1137, 1140 (D.C. Cir.
2015) (alteration omitted) (quoting Cunningham v. Hamilton
11
County, 527 U.S. 198, 204 (1999)). Finality under section
1291 turns on “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). As the
Court has explained, the statute “emphasizes the deference that
appellate courts owe to the trial judge,” and “promot[es]
efficient judicial administration.” Firestone Tire & Rubber v.
Risjord, 449 U.S. 368, 374 (1981). We have accordingly noted
the importance of discerning and “respect[ing] the intentions of
the district court that entered the order.” Attias v. CareFirst,
Inc., 865 F.3d 620, 624 (D.C. Cir. 2017); accord Ciralsky v.
CIA, 355 F.3d 661, 667 (D.C. Cir. 2004).
For purposes of section 1291 appealability, a district
court’s order of dismissal with prejudice is always final; a
dismissal without prejudice also may be final if it ended the
case as far as the district court was concerned. See, e.g.,
Ciralsky, 355 F.3d at 666. To decide whether an order
dismissing without prejudice “le[ft] nothing more for the
[district] court to do,” making it final, or instead signaled the
district court’s expectation that “the action [would] continue,”
we closely examine the relevant order and its surrounding
circumstances. Attias, 865 F.3d at 624; see also Murray v.
Gilmore, 406 F.3d 708, 712-13 (D.C. Cir. 2005); Ciralsky, 355
F.3d at 667-68. Our scrutiny of a without-prejudice dismissal
often focuses on whether the district court dismissed the entire
“case” or just the “complaint.” Ordinarily, when the district
court dismisses the “case,” even when it does so without
prejudice to refiling, the litigation is over and the dismissal is
final. See Attias, 865 F.3d at 623; Murray, 406 F.3d at 712;
Ciralsky, 355 F.3d at 666.
Here, the district court’s memorandum opinion announced
that “defendants’ motions to dismiss are GRANTED, and this
case is DISMISSED.” Butterfly Ass’n, 368 F. Supp. 3d at 4.
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The accompanying order dismissed all of the claims, not just
the complaint. Order, Civil Case No. 17-2651 (RJL) (D.D.C.
Feb. 14, 2019) (J.A. 722) (Dismissal Order). The court
separately addressed the statutory and constitutional claims,
rather than the case as a whole, because it said 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. See id.; Butterfly Ass’n, 368 F.
Supp. 3d at 7-8, 10. But a dismissal for want of subject-matter
jurisdiction can only be without prejudice, see Fed. R. Civ.
P. 41(b); Havens v. Mabus, 759 F.3d 91, 98 (D.C. Cir. 2014),
so we understand the district court’s dismissal of the entire
case—for what it saw as a mix of jurisdictional and non-
jurisdictional defects—to have been without prejudice.
Because we treat dismissal of a case as declaring an end to the
litigation, and thus as final and appealable despite the court’s
specification that it is without prejudice, see Ciralsky, 355 F.3d
at 666-68, the dismissal order here, taken alone, was final. But
to confirm whether “the district court thought the order had
terminated the action,” id. at 667, we further consider the order
in context.
On the same day that the district court entered its order
dismissing the entire case, the district court separately wrote a
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.”
Minute Order, Civil Case No. 17-2651 (RJL) (D.D.C. Feb. 14,
2019) (minute order). The minute order unsettled during that
fourteen-day period the finality of the otherwise unambiguous
dismissal order. For our dissenting colleague, the minute order
is “[k]ey.” Diss. Op. at 2. We see it differently. As it
happened, no amended complaint was filed, and the minute
order’s invitation to amend expired by its own terms after
fourteen days. See 28 U.S.C. § 2107(b)(3). Put another way,
13
although the district court provided the Butterfly Association a
brief opportunity to refile, “that does not change the fact that,
in the absence of such an affirmative act on [the Association’s]
part, the case [wa]s at an end” upon the expiration of that
period. Ciralsky, 355 F.3d at 667.
The record adequately reflects the district court’s intention
that its order finally end the case: In this context, we see no
material distinction between the district court’s dismissal order
and an order stating that, in the event the plaintiff did not file
an amended complaint on or before February 28, 2019, the
order would then be final and appealable. This approach
protects the district court’s authority over when and on what
terms its decisions become final. Because the district court
unambiguously identified how, when, and why the case would
end if there were no timely amendment—and there was none—
the district court “disassociate[d] itself from [the] case” and
rendered its decision final. Gelboim v. Bank of Am. Corp., 574
U.S. 405, 408 (2015) (quoting Swint v. Chambers Cty.
Comm’n, 514 U.S. 35, 42 (1995)). Without further action on
plaintiff’s part, the dismissal order “l[eft] nothing for the
district court to do but execute the judgment” it had entered.
Dukore, 799 F.3d at 1140 (alteration omitted) (quoting
Cunningham, 527 U.S. at 204).
To be sure, our cases have explained that an order inviting
amendment of a complaint or other ongoing litigation is
ordinarily nonfinal, but none so held in a situation like this one.
Indeed, this case bears little resemblance to those in which we
have held district court orders to be nonfinal because they
invited further proceedings. For example, in Castro County v.
Crespin, 101 F.3d 121 (D.C. Cir. 1996), on which our
dissenting colleague relies, Diss. Op. at 5, 8, the issue was
whether plaintiff’s fee petition was incorrectly denied as late
because it was filed more than fourteen days after an order the
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district court deemed final. We reversed, holding that the
specified order was nonfinal: It had only conditionally
dismissed the action in order to provide thirty days—later
extended by another month—for settlement negotiations
during which period either party could move to reinstate the
case. Crespin, 101 F.3d at 123. By the end of the specified
period the government took action resolving the case, id., and
the “action concluded,” id. at 127. We held that the plaintiff’s
motion for attorneys’ fees, filed more than fourteen days after
the order of conditional dismissal but before the end of the
reinstatement period and ultimate resolution, was timely. Id. at
128. This case is substantially different. The order we held to
be nonfinal in Crespin was entered before any merits resolution
whatsoever, and it merely granted the parties’ joint motion to
stay the proceedings. Id. at 123.
We similarly rejected a contention that an order earlier
than the one appealed from was final in Murray v. Gilmore,
406 F.3d 708, in circumstances a bit closer to those now before
us. There, the court granted partial summary judgment “except
with regard to Murray’s due process claim,” inviting
reconsideration on that claim “at such time as plaintiff is able
to clearly identify legal and factual bases for proceeding.” Id.
at 712 (citation omitted). Unlike here, the court in Murray had
placed no limit on the time for the plaintiff to cure the identified
shortfalls, and Ms. Murray took up the offer to try to do so.
After making a further submission that the district court
deemed inadequate, she appealed and the defendant questioned
our jurisdiction on the ground that the earlier order granting
summary judgment was final, so Murray’s appeal was too late.
We held the earlier order nonfinal, emphasizing, among other
things, that the district court had only removed the case from
its active calendar rather than dismissing the action. Id. The
express time limitation on the amendment opportunity in this
15
case, and absence of any retention of the case on an inactive
list, suffice to distinguish it from Murray.
Our conclusion comports with the Supreme Court’s
decision in Jung v. K. & D. Mining Co., 356 U.S. 335 (1958)
(per curiam). Cf. Diss. Op. at 11-15. The nonfinal order in that
case dismissed only the “complaint,” 356 U.S. at 336, whereas
the district court here dismissed the “case,” Butterfly Ass’n, 368
F. Supp. 3d at 4, and all of the Butterfly Association’s “claims,”
id. at 10; Dismissal Order (J.A. 722). All told, the district court
in Jung had entered three dismissal orders: The first dismissed
the complaint but granted twenty days’ leave to amend it, and
the second denied plaintiffs’ motion for reconsideration but
granted a further twenty days leave to amend. Jung, 356 U.S.
at 336. More than a year after the second twenty days elapsed,
and without having filed an amended complaint, the plaintiffs
“filed an instrument in the case by which they elected to stand
on their first amended complaint,” prompting the district court
to enter its third order, dismissing the entire “action.” Id. The
defendants moved to dismiss the appeal as filed too late as
measured from the second dismissal order—the district court’s
denial of reconsideration.
The Supreme Court in Jung held that earlier, unappealed
order did not constitute a “final judgment” under Federal Rule
of Civil Procedure 58 because it anticipated “further
proceedings ‘either by amendment of the [complaint] or entry
of a final judgment.’” Id. at 337. It was the third order, from
which plaintiffs had timely appealed, that finally dismissed the
case when it “directed ‘that all relief be denied’ and required
‘the clerk [to] enter judgment.’” Id. (quoting Fed. R. Civ. P. 58
(1946), reprinted in 28 U.S.C. § 723c app. at 3318 (1946)).
The order from which plaintiff appealed in this case, by
contrast, showed by its terms and context that the case stood
dismissed when the Butterfly Association appealed.
16
In any event, Jung and Rule 58 do not control our
jurisdictional inquiry. Jung focuses on “what constituted the
final judgment in the case,” id., in terms that appear to speak to
Rule 58’s separate-document requirement, id. (referring to
Rule 58), which is not itself jurisdictional. Indeed, the Jung
opinion never even cites section 1291 nor mentions
jurisdictional finality. This court has never cited Jung in our
ample finality jurisprudence; neither, notably, has the Supreme
Court. And the Supreme Court has since held that Rule 58,
which prescribes how civil judgments must be documented,
need not necessarily be satisfied for a decision to be considered
final and appealable under section 1291. See Mallis, 435 U.S.
at 384 & n.4, 385. More recently still, the Federal Rules were
amended in 2002 to clarify that, even when a district court
making a final decision under section 1291 fails separately to
document the judgment as Rule 58 prescribes, judgment is
deemed entered 150 days thereafter and any appeal taken
within that 150-day period is timely. See Fed. R. Civ.
P. 58(c)(2)(B); Fed. R. App. P. 4(a)(7); Outlaw v. Airtech Air
Conditioning & Heating, Inc., 412 F.3d 156, 163 (D.C. Cir.
2005). Jung’s construction of Rule 58—which preserved
rather than defeated appellate jurisdiction—poses no conflict
with our recent decisions, including this one, expressly
deciding the circumstances under which a dismissal without
prejudice is final under section 1291.
There is some disagreement among the circuits over
whether and when a without-prejudice dismissal with time-
limited leave to amend becomes final under section 1291.
Compare, e.g., Otis v. City of Chicago, 29 F.3d 1159, 1167 (7th
Cir. 1994) (en banc) (holding a dismissal is always final once
leave expires), and Garfield v. NDC Health Corp., 466 F.3d
1255, 1260 (11th Cir. 2006) (holding that a dismissal can be
final even before leave to amend expires), with, e.g., WMX
Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en
17
banc) (holding that finality requires a further order of dismissal
upon expiration of leave to amend). But because the district
court’s intent here is clear, we need not spell out other
circumstances in which a further order might be needed to
signal finality. All we decide is that this appeal, taken after
expiration of the minute order’s time-limited opportunity to
amend, and appealing from the judge’s dismissal order and
accompanying opinion that unambiguously dismissed the
entire “case” and all “claims,” addresses a final decision of the
district court and therefore falls within our jurisdiction under
section 1291—without the need for the plaintiff to request and
obtain a further order from the district court. Contra WMX
Techs., 104 F.3d at 1136 (requiring a further district court
order).
Our disagreement with the dissent is narrow. We agree
that we look to the dismissal order, doing our best in light of
the order’s terms and context to discern the district judge’s
intention. Diss. Op. at 4-6. We, like the dissent, leave control
over its proceedings in the district court’s hands. Id. at 29 &
n.7. Again, the dismissal order here rejects the “claims,” not
just the “complaint.” See FirsTier Mortg. Co. v. Invs. Mortg.
Ins. Co, 498 U.S. 269, 277 (1990) (describing as tending to
support finality the purported disposition by bench ruling of
“all” of FirsTier’s “claims”). And the reasoning in the
accompanying opinion—which announced that the entire
“case” was dismissed—well explains the effect of the judge’s
order. See St. Marks Place Hous. Co., Inc. v. U.S. Dep’t of
Hous. & Urban Dev., 610 F.3d 75, 80 (D.C. Cir. 2010)
(construing finality of dismissal order to crystalize upon
issuance of ensuing opinion). We see grounds here for further
merits litigation, see infra, at 34-38; see also Diss. Op. at 8, but
nothing in the district court’s memorandum opinion and order
suggested that court expected the case could be rescued
through better pleading.
18
The separate minute order is not to the contrary. The
court’s allowance of fourteen days for amendment appears to
have been a routine and appropriate exercise of judicial
modesty and efficiency. By recognizing that a plaintiff might
see a valid avenue for correction even where it does not, a
district court can prevent unnecessary appeals. That approach
is in keeping with the “practical rather than a technical
construction” of finality under 28 U.S.C. § 1291, geared toward
avoiding “protracted litigation and piecemeal appeals.”
Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1712-13 (2017). If
the unsolicited minute order confused either party, it could
have asked the court to separately document the judgment, see
Fed. R. Civ. P. 58(d)—a step that, although available and
sometimes useful, is not required. It is because our dissenting
colleague reads the minute order as supplanting, rather than
complementing, the district court’s memorandum opinion and
order that she views our decision as contrary to Attias. See
Diss. Op. at 4-5. Perhaps the district court could have been
clearer. But we, like the parties, think it was clear enough.
We also agree with the dissent that the issue here would
have been obviated altogether had the district court entered
another order dismissing the case on the expiration of the
fourteen-day amendment period. Diss. Op. at 18. But we
disagree that “some further action from the district court is
needed” to confirm the final judgment in every case in which
leave to amend is granted. Id. Instead, on a plaintiff’s timely
appeal without amendment, we credit the district court’s
dismissal of the “case” and all “claims” as signaling an end to
the district court’s involvement in the case. The district court’s
provision for a clearly circumscribed window to amend did not,
contrary to the dissent’s assertions, id. at 18, 21, 22, 29, take
finality out of the court’s hands. The date a paper is filed is not
always and necessarily the date the order it embodies becomes
19
final and appealable, see generally, e.g., St. Marks Place, 610
F.3d at 80; Fed. R. Civ. P. 58(c)(2)(B); Fed. R. App. P.
4(a)(7)(A)(ii), (B); contra Diss. Op. at 23 (an order is final
“when it hits the docket”), and we see no bar to a district court
order setting finality at an identified future date. On this record,
“nothing but delay would flow” from the dissent’s favored
approach: “Upon [our] dismissal [of this appeal], the district
court would simply file and enter the separate judgment, from
which a timely appeal would then be taken. Wheels would spin
for no practical purpose.” Mallis, 435 U.S. at 385.
In addition to confirming that the district court decision
under review is “final,” we must also ensure this appeal is
timely. Here, that means the Butterfly Association must have
appealed within sixty days of the “entry” of the “judgment” or
“order” setting forth the final decision. 28 U.S.C.
§ 2107(b)(3). Here, too, we must respect the district court’s
power to determine when and precisely how it decides its cases.
See St. Marks Place, 610 F.3d at 80 (“[D]istrict courts can
choose when to decide their cases.”). It would seem most
consistent with the intent of the district court here to view its
order as final as of the date the specified time to file any
amended complaint expired. But because this appeal is
unquestionably timely even if the judgment were treated as
final on the date the underlying order was filed, we need not
decide the precise date of entry. This is no “cliffhanger,” Diss.
Op. at 1, but the familiar incrementalism of an Article III court
applying binding law to decide the case before it. We hold that
the Butterfly Association timely appealed from a final decision,
affording us jurisdiction under 28 U.S.C. §§ 1291 and
2107(b)(3).
20
B. Article III Standing & Mootness
We next consider whether the Butterfly Association has
standing, and whether its claims are mooted by the
Appropriations Acts’ prohibitions against funding any border
fencing at the National Butterfly Center. DHS contends that
no actual, ongoing controversy exists because the Butterfly
Association has itself taken the position that the 2019 and 2020
Appropriations Acts prohibit using federal funds to construct
“fencing” at the Center. 2019 Appropriations Act § 231(4);
2020 Appropriations Act § 210(4). Specifically, DHS
contends that those appropriations bills—at least as the plaintiff
reads them—destroy the Association’s standing to obtain
prospective injunctive relief and moot whatever actual
controversy once existed.
DHS’ standing argument is misplaced because “the
standing inquiry focuses on whether the plaintiff has
demonstrated an injury ‘at the outset of the litigation,’” so post-
filing developments like the 2019 and 2020 Appropriations
Acts do not undercut standing. Hardaway v. D.C. Hous. Auth.,
843 F.3d 973, 977 (D.C. Cir. 2016) (quoting Friends of the
Earth, Inc. v. Laidlaw Env’t. Servs., 528 U.S. 167, 180 (2000)).
DHS does not dispute that the Butterfly Association “alleged a
live controversy when it first filed suit,” Appellees’ Br. 30, and
our review of the complaint confirms as much, see Am. Compl.
¶¶ 53, 56-60, 62 (J.A. 33-35). There is no standing defect here.
DHS’ objection is more aptly framed in terms of mootness,
which focuses on “whether events subsequent to the filing of
the complaint ‘have so transpired that the decision will neither
presently affect the parties’ rights nor have a more-than-
speculative chance of affecting them in the future.’”
Hardaway, 843 F.3d at 978 (quoting Am. Bar Ass’n v. FTC,
636 F.3d 641, 645 (D.C. Cir. 2011)). Defendant DHS bears
21
“the initial burden of proving” that no live controversy exists.
Planned Parenthood of Wis., Inc. v. Azar, 942 F.3d 512, 516
(D.C. Cir. 2019). Attempting to carry that “heavy burden,”
Hardaway, 843 F.3d at 979 (quoting Laidlaw, 528 U.S. at 189),
DHS insists that the Butterfly Association “interprets the
[2019] Appropriations Act to prevent the construction of a wall
on its property,” Appellees’ Br. 30.
DHS invokes but, critically, does not itself embrace the
Butterfly Association’s interpretation of the funding
limitations. In fact, the current restriction against using
appropriated federal funds to construct “fencing” at the
National Butterfly Center does not conclusively put an end to
all of CBP’s challenged conduct. The 2019 and 2020
Appropriations Acts identify fence construction as distinct
from widening roads or installing sensors. Specifically, they
continue to fund “the acquisition and deployment of border
security technologies and trade and travel assets and
infrastructure” separately from construction of a “barrier
system” and “pedestrian fencing.” Compare 2020
Appropriations Act § 209(a)(2), and 2019 Appropriations Act
§ 230(a)(2), with 2020 Appropriations Act § 209(a)(1), and
2019 Appropriations Act § 230(a)(1). DHS does not even
argue that, in view of the appropriations restrictions, it will
cease all of the challenged activities on the Center’s land. See
Am. Compl. ¶¶ 53, 59 (J.A. 33). It does not disclaim current
authority to install sensors, alter roads, or maintain a
continuous physical presence at the National Butterfly
Center—activities the complaint squarely challenges in
addition to the border-wall construction itself. See id. ¶¶ 53,
57, 59 (J.A. 33-34).
Because DHS has neither ceased the conduct that the
Butterfly Association challenges nor professed any intent to
cease, it has not made “absolutely clear that the allegedly
22
wrongful behavior could not reasonably be expected to recur.”
Hardaway, 843 F.3d at 979 (quoting Laidlaw, 528 U.S. at 189).
Without any admission on DHS’ part that the Appropriations
Acts foreclose its activities or other disavowal of its previously
stated plans, nor any basis to conclude that DHS has withdrawn
its active presence at the National Butterfly Center, see Reply
Br. 10; Oral Arg. Tr. 64:19-65:7, we cannot declare the claims
moot. We therefore conclude that DHS “has not met th[e] high
bar” to show that this appeal is moot. Aref v. Lynch, 833 F.3d
242, 251 (D.C. Cir. 2016).
C. IIRIRA’s Jurisdiction-Stripping and Review-
Channeling Provisions
DHS contends that IIRIRA section 102(c)(2) applies here
to deprive us of jurisdiction by wholly eliminating federal court
review of the Butterfly Association’s statutory claims, and
confining to the Supreme Court any review of the district
court’s decisions on the constitutional claims. Section
102(c)(2)(A) eliminates district courts’ jurisdiction over all
non-constitutional “causes and claims arising from any action
undertaken, or any decision made,” by the DHS Secretary to
waive under IIRIRA section 102(c)(1) legal requirements that
would otherwise apply to border-infrastructure projects.
IIRIRA § 102(c)(2)(A). And, whereas section 102(c)(2)(A)
allows district courts to exercise jurisdiction over constitutional
claims “arising from” the Secretary’s waiver authority, it
channels review of those decisions directly to the Supreme
Court on writ of certiorari, bypassing the courts of appeals. See
id. § 102(c)(2)(C). The district court concluded that the
Butterfly Association’s statutory claims arose from the Waiver
Determination and dismissed those claims for lack of
jurisdiction, even as it noted in passing that the Waiver
Determination provided the government a valid defense. See
Butterfly Ass’n, 368 F. Supp. 3d at 8-10. It dismissed the
23
constitutional claims as legally noncognizable. See id. at 6-8.
The government defends both dispositions.
Both of the jurisdictional questions here—whether
section 102(c)(2)(A) supported the district court’s dismissal of
the statutory claims for want of jurisdiction, and whether
section 102(c)(2)(C) channeled any effort at further review
directly to the Supreme Court, bypassing this court—depend
on whether the respective claims “aris[e] from” the Waiver
Determination that the DHS Secretary issued some ten months
after the Butterfly Association sued DHS. IIRIRA
§ 102(c)(2)(A). To assess the scope of the term “arising from,”
“we look to the ‘traditional tools of statutory interpretation—
text, structure, purpose, and legislative history.’” In re Sealed
Case, 932 F.3d 915, 928 (D.C. Cir. 2019) (quoting Tax
Analysts v. IRS, 350 F.3d 100, 103 (D.C. Cir. 2003)). Because
section 102(c)(2)(A) wholly eliminates some federal court
jurisdiction, our statutory analysis must account for “the strong
presumption that Congress intends judicial review of
administrative action.” Am. Clinical Lab. Ass’n v. Azar, 931
F.3d 1195, 1204 (D.C. Cir. 2019) (quoting Smith v. Berryhill,
139 S. Ct. 1765, 1776 (2019)); accord Make the Road N.Y. v.
Wolf, 962 F.3d 612, 623-24 (D.C. Cir. 2020); In re Border
Infrastructure, 915 F.3d 1215, 1222 n.10 (9th Cir. 2019). We
thus construe § 102(c)(2)(A)’s “arising from” language
“narrowly.” Am. Clinical, 931 F.3d at 1204.
Notably, the jurisdiction-stripping provision,
section 102(c)(2)(A), applies only to claims “arising from any
action undertaken, or any decision made, by the Secretary of
Homeland Security pursuant to paragraph (1)”—the paragraph
that authorizes the Secretary to waive statutory requirements
for border projects. IIRIRA § 102(c)(2)(A). By its terms, it
does not extend to construction or related activities that do not
24
necessarily flow from exercise of the waiver authority as such,
but that IIRIRA section 102(a)-(b) authorizes independently.
The parties agree that our understanding of IIRIRA’s
“arising from” language should draw on interpretation of the
same text in another jurisdiction-stripping immigration
provision, which deprives courts of jurisdiction over any claim
“arising from” the Attorney General’s alien-removal decisions
or orders. 8 U.S.C. § 1252(g). Courts interpreting the removal
provision have held that “we would defy logic by holding that
a claim for relief somehow ‘aris[es] from’ decisions and
actions accomplished only after the injury allegedly occurred.”
Humphries v. Various Fed. USINS Emps., 164 F.3d 936, 944
(5th Cir. 1999) (alteration in original) (quoting 8 U.S.C.
§ 1252(g)); accord Kwai Fun Wong v. United States, 373 F.3d
952, 965 (9th Cir. 2004). Accepting that an act can only
“aris[e] from” circumstances that precede it, we conclude that
claims challenging CBP’s alleged incursions onto the National
Butterfly Center’s property did not “aris[e] from” a Waiver
Determination issued well after the alleged incursions (and,
indeed, not until some ten months after the Butterfly
Association filed its original complaint). Regardless whether
the Waiver Determination affords a defense to the
Association’s claims, see Part III.A infra, it did not give rise to
them. Our statutory analysis accords with that of the Ninth
Circuit, which assessed the same “arising from” language in
IIRIRA section 102(c)(2)(A) and exercised jurisdiction over an
appeal challenging border-wall construction for which the
DHS Secretary had issued waivers under section 102(c)(1),
including some issued only after the plaintiffs had filed suit.
See Border Infrastructure, 915 F.3d at 1220-22.
The meaning of “arising from” in other areas of law
confirms that the Butterfly Association’s claims cannot “aris[e]
from” a post-claim event like the Waiver Determination. For
25
example, the Ninth Circuit analogized to the “black letter law
of federal question jurisdiction” reflected in the well-pleaded
complaint rule to explain that, just as a claim does not arise
under federal law simply because it is susceptible to a federal-
law defense, claims do not “‘aris[e] from’ the Secretary’s
waiver determinations merely because those waivers could
provide the Secretary with a viable defense.” Id. at 1221-22
(alteration in original) (quoting IIRIRA § 102(c)(2)(A)). To
similar effect, we recently reiterated in construing a contractual
forum-selection clause that the phrase “arising out of” sweeps
less broadly than “in connection with” or “in relation to.”
Azima v. RAK Inv. Auth., 926 F.3d 870, 878 (D.C. Cir. 2019);
see also John Wyeth & Bro. Ltd. v. CIGNA Int’l Corp., 119
F.3d 1070, 1074-75 (3d Cir. 1997) (Alito, J.). Because “‘arise’
out of means ‘to originate from a specified source,’” Coregis
Ins. Co. v. Am. Health Found., Inc., 241 F.3d 123, 128 (2d Cir.
2001) (Sotomayor, J.) (quoting Webster’s Third New
International Dictionary 117 (1986)), the phrase “arising out
of” generally requires “a causal connection,” id., not merely a
“logical” one, Azima, 926 F.3d at 877 (quoting John Wyeth,
119 F.3d at 1074).
Without reason to believe the meaning of IIRIRA’s
“arising from” should differ from the ordinary understanding
of “arising out of” in other contexts, we read section 102(c)(2)
to eliminate jurisdiction only for those claims that “originate[]
or stem[] from” the Waiver Determination. Border
Infrastructure, 915 F.3d at 1220. The Butterfly Association’s
claims predate and do not depend on the DHS Secretary’s
Waiver Determination, so do not “aris[e] from” the DHS
Secretary’s waiver authority.
DHS points to legislative history expressing Congress’s
intent that section 102(c)(2) facilitate “expeditious
construction of border security infrastructure.” Appellees’
26
Br. 26 (quoting H.R. Rep. No. 109-72, at 172 (2005)). But the
apparent purpose to hasten construction cannot “be used to
‘muddy’ the meaning of ‘clear statutory language’” like
section 102(c)(2)’s specific cross-reference to
section 102(c)(1) rather than to section 102 as a whole. Food
Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364
(2019) (quoting Milner v. Dep’t of the Navy, 562 U.S. 562, 572
(2011)). Section 102(c)(2)(A) has the intended effect of aiding
expedition only to the extent its text commands—by
eliminating judicial review of claims flowing from a waiver
decision. “[P]olicy arguments” about the assertedly dilatory
effect of judicial review the text leaves undisturbed cannot
“overcome the statute’s plain language, which is our primary
guide to Congress’ preferred policy.” Sandoz Inc. v. Amgen
Inc., 137 S. Ct. 1664, 1678 (2017) (internal quotation marks
omitted). Our reading of the statute gives full effect to
Congress’ expressed interest in stripping federal-court
jurisdiction and channeling review over claims “arising out of”
the Secretary’s exercise of waiver authority.
We accordingly hold that we have jurisdiction over this
appeal. We are satisfied that the district court’s jurisdiction
over the Butterfly Association’s statutory claims was not
stripped by section 102(c)(2)(A), nor is review of the dismissal
of the statutory and constitutional claims channeled by
section 102(c)(2)(C) directly to the Supreme Court. Insofar as
plaintiffs challenge actions that predate the waiver, the
statutory limitations on the courts’ jurisdiction do not apply.
We thus need not reach the Butterfly Association’s alternative
jurisdictional argument that, if the statute purported to bar our
review, we nonetheless would have jurisdiction on the ground
that the Waiver Determination was ultra vires. See, e.g., DCH
Reg’l Med. Ctr. v. Azar, 925 F.3d 503, 508-09 (D.C. Cir.
2019). We return to the ultra vires argument in a moment in
connection with the government’s asserted Waiver-
27
Determination-based defense to the NEPA and ESA claims, the
viability of which depends on the Association’s challenges to
the Waiver Determination itself.
III. MERITS
We now turn to the merits of the district court’s dismissal
of the Butterfly Association’s statutory and constitutional
claims. See Butterfly Ass’n, 368 F. Supp. 3d at 7-8, 10. The
Association contends that, in preparing for and starting to
construct the border wall, defendants have entered onto,
commandeered, and damaged the Association’s private
property on which the Association maintains, among other
things, its Butterfly Center and endangered-species habitats.
See Am. Compl. ¶¶ 53-62 (J.A. 33-35). The Association
claims that the government has breached its statutory
obligations under the National Environmental Policy Act and
the Endangered Species Act and violated the Association’s
possessory rights protected by the Fourth and Fifth
Amendments to the Constitution. See id. ¶¶ 63-89
(J.A. 35-38). We hold that the Secretary’s Waiver
Determination defeats the statutory claims, that the Butterfly
Association has failed to state a Fourth Amendment claim of
unreasonable seizure of property it acknowledges to be “open
fields,” but that the Association has stated a procedural due
process claim under the Fifth Amendment.
A. Statutory Claims
The Secretary’s Waiver Determination “waive[s] in their
entirety . . . legal requirements of, deriving from, or relating to
the subject of” various statutes, including the NEPA and ESA,
that could otherwise apply to border-wall construction and
related border-security measures occurring in a project area
that includes the National Butterfly Center. Waiver
Determination, 83 Fed. Reg. at 51,473. The Butterfly
28
Association does not dispute that the Waiver Determination, if
lawful and effective, defeats its NEPA and ESA claims. Those
familiar environmental statutes require preparation of an
environmental impact statement in connection with “major
Federal actions significantly affecting the quality of the human
environment,” 42 U.S.C. § 4332(2)(C) (NEPA), and
interagency consultation to ensure that agency action “is not
likely to jeopardize the continued existence of any endangered
species or threatened species” or its habitat, 16 U.S.C.
§ 1536(a)(2) (ESA).
The Butterfly Association raises two arguments that those
claims survive the Secretary’s Waiver Determination. First, it
contends that the Waiver Determination was ultra vires as
issued—meaning it was “a ‘patent violation of agency
authority.’” Am. Clinical, 931 F.3d at 1208 (quoting Indep.
Cosmetic Mfrs. & Distribs., Inc. v. U.S. Dep’t of Health, Educ.
& Welfare, 574 F.2d 553, 555 (D.C. Cir. 1978)). Second, it
argues that the funding restrictions in the 2019 and 2020
Appropriations Acts render the Waiver Determination
ineffective as to the Butterfly Center.
1. “Ultra vires review ‘is intended to be of extremely
limited scope,’ and it ‘represents a more difficult course than
would review under the [Administrative Procedure Act (APA),
5 U.S.C. § 706].’” Id. (quoting Trudeau v. FTC, 456 F.3d 178,
190 (D.C. Cir. 2006) (alteration omitted)). The Butterfly
Association’s ultra vires claim hinges on its contention that the
Secretary failed to comply with the nondiscretionary
consultation requirement of IIRIRA section 102(b)(1)(C)(i)
before exercising her authority under section 102(c)(1) to
waive legal requirements derived from the NEPA and the ESA.
The statute the Association invokes as requiring pre-
waiver consultation provides in full:
29
In carrying out this section, the [DHS Secretary]
shall consult with the Secretary of the Interior,
the Secretary of Agriculture, States, local
governments, Indian tribes, and property
owners in the United States to minimize the
impact on the environment, culture, commerce,
and quality of life for the communities and
residents located near the sites at which such
fencing is to be constructed.
IIRIRA § 102(b)(1)(C)(i). The Association acknowledges that
DHS published its construction plans and sought public
comment in advance of issuing the Waiver Determination in
mid-October 2017, but contends that the statute required the
Secretary to do more than what the Association characterizes
as having merely gone through “the motions of consulting”
with stakeholders. Appellant’s Br. 48. The Association argues
that a more procedurally and substantively robust level of
stakeholder engagement before beginning border-construction
work is essential to fulfill the purpose of the pre-waiver
consultation requirement and to provide some protection for
the interests otherwise served by advance consultation and
study under the waived statutes (including the NEPA and
ESA).
For purposes of its ultra vires claim, however, the
Butterfly Association has not established that the pre-waiver
consultation DHS conducted fell so far short as to render it
ultra vires. In casting DHS’ consultation as too narrow, the
Association has not shown that its scope violated “a specific
prohibition in the statute that is clear and mandatory,” DCH
Reg’l, 925 F.3d at 509 (quoting Nyunt v. Chairman, Broad. Bd.
of Governors, 589 F.3d 445, 449 (D.C. Cir. 2009)), was
“obviously beyond the terms of the statute,” Fla. Health Scis.
Ctr., Inc. v. Sec’y of Health & Human Servs., 830 F.3d 515,
30
522 (D.C. Cir. 2016), or was “far outside the scope of the task
that Congress gave it,” Am. Clinical, 931 F.3d at 1208, as
would be necessary to invalidate the Waiver Determination as
ultra vires.
2. The Butterfly Association alternatively argues that the
Waiver Determination no longer applies to the Butterfly Center
in light of Congress’s decisions in the 2019 and 2020
Appropriations Acts to defund border-wall construction at the
Center.
The Association reads the Appropriations Acts’ funding
prohibition to prevent “any and all forms of new construction,
including walls, barriers, roads, enforcement zones, and
artificial lighting,” on its premises. Appellant’s Br. 40-41. On
that reading, we note that there would not appear to be
authorization for any “major Federal actions significantly
affecting the quality of the environment,” 42 U.S.C.
§ 4332(2)(C); 40 C.F.R. § 1508.18, or “agency action,”
16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.02, sufficient to bring
the NEPA or ESA into play. See Part II.B supra (non-
mootness). Indeed, the Association acknowledged at oral
argument that, if its understanding of the reach of the
Appropriations Acts’ funding restrictions were correct, its
NEPA and ESA claims would fall away. See Oral Arg.
Tr. 25:18-25.
More to the point, the Waiver Determination is framed to
sweep aside NEPA’s and ESA’s application not just to
“fencing” but more generally to the “construction of roads and
physical barriers,” including installation of “safety features,
lighting, cameras, and sensors” to which the Butterfly Center
objects. 83 Fed. Reg. at 51,473. That Determination thus
operates to defeat on its merits the Association’s claim that the
NEPA and ESA apply to CBP border security activity at the
31
Butterfly Center that was not eliminated by the 2019 and 2020
Appropriations Acts’ defunding of border fencing.
In sum, as to the Butterfly Association’s statutory claims,
we hold that the district court erred in dismissing them for lack
of subject-matter jurisdiction under IIRIRA
section 102(c)(2)(A), but we credit the district court’s
suggestion that those claims are defeated on their merits by the
Waiver Determination. See Butterfly Ass’n, 368 F. Supp. 3d
at 8. The Waiver Determination is neither ultra vires nor
rendered inapplicable by the 2019 and 2020 Appropriations
Acts. We thus affirm dismissal of the NEPA and ESA claims
for failure to state a legally viable claim on which relief can be
granted. See, e.g., St. Francis Xavier, 117 F.3d at 624.
B. Constitutional Claims
There is no dispute that the Waiver Determination is
inapplicable to the Butterfly Association’s constitutional
claims. See 83 Fed. Reg. at 51,473-74; Butterfly Ass’n, 368 F.
Supp. 3d at 6 n.2. We accordingly review on their merits the
government’s contentions that the Butterfly Association lacks
the asserted constitutional protections against the claimed
occupation and use of its property.
1. Fourth Amendment Seizure Claim
The Butterfly Association asserts a Fourth Amendment
claim of “unreasonable seizure of its property,” Appellant’s
Br. 19, but because it admits that the Butterfly Center is an
“open field[],” Reply Br. 12-13, its claimed interest against
seizure—whether cast in privacy or possessory terms—is
unprotected by the Fourth Amendment. “The Fourth
Amendment ‘indicates with some precision the places and
things encompassed by its protections’” against unreasonable
searches and seizures; what it speaks of are “persons, houses,
32
papers, and effects.” Florida v. Jardines, 569 U.S. 1, 6 (2013)
(quoting Oliver v. United States, 466 U.S. 170, 176 (1984)). At
its “very core,” the Fourth Amendment protects the inside of a
home, id. (quoting Silverman v. United States, 365 U.S. 505,
511 (1961)), and its home protection has been held to extend to
“curtilage”—the outdoor area “immediately surrounding and
associated with the home,” id. (quoting Oliver, 466 U.S. at
180). But “open fields” beyond the curtilage of a home,
whether or not privately owned, are not among the protected
places and things “enumerated in the Amendment’s text,” so
they fall outside the Fourth Amendment’s coverage. Id. The
Supreme Court in Oliver provided an additional justification
beyond the Fourth Amendment’s enumeration for considering
“open fields” outside the Amendment’s scope: “[A]n
individual may not legitimately demand privacy for activities
conducted out of doors in fields.” 466 U.S. at 178.
The Association acknowledges the lack of a
constitutionally protected “privacy interest” in an open field,
but asserts that its “possessory interest” in the National
Butterfly Center’s grounds suffices to support a Fourth
Amendment seizure claim. Appellant’s Br. 18. That claim
runs up against the same obstacle that would defeat a privacy-
based claim: Open fields are not among the “places and things”
the Fourth Amendment protects—whether from infringements
of privacy or possession. Jardines, 569 U.S. at 6. To be sure,
the Supreme Court recognized in Soldal v. Cook County that its
cases “unmistakably hold that the [Fourth] Amendment
protects property as well as privacy,” 506 U.S. 56, 62 (1992),
and that it shields against “seizures” as well as “searches,” id.
at 63 (quoting United States v. Jacobsen, 466 U.S. 109, 113
(1984)). In the same breath, however, the Court cautioned that
the Fourth Amendment “does not protect possessory interests
in all kinds of property,” id. at 62 n.7, with a lone citation to
Oliver, in which the Court had held that “open fields” are not
33
part of the “house” or among the “effects” the privacy of which
the Fourth Amendment protects, Oliver, 466 U.S. at 176-77.
We thus read the Soldal footnote to imply that open fields fall
beyond the Fourth Amendment’s protection of possessory as
well as privacy interests. That implication gains further (albeit
indirect) support in the Court’s recent declaration that, “[q]uite
simply, an open field, unlike the curtilage of a home, is not one
of those protected areas enumerated in the Fourth
Amendment.” United States v. Jones, 565 U.S. 400, 411
(2012) (citation omitted). Recognizing the lack of precedent
directly on point, we hold that the alleged seizure of the
Butterfly Center’s open fields is not cognizable under the
Fourth Amendment.
The Butterfly Association frames its Fourth Amendment
claim as contesting only a seizure of its open fields. We need
not, and do not, consider the potential viability of distinct
Fourth Amendment claims that a private party might assert in
similar circumstances. We do not, for example, pass on
whether continuous monitoring by sensors or CBP officers in
person on Center premises might violate the Association’s
reasonable expectation of privacy and therefore amount to a
Fourth Amendment search, cf. Carpenter v. United States, 138
S. Ct. 2206, 2217-19 (2018), or whether destruction,
disturbance, or occupation of botanical gardens, landscaping,
or other fixtures or improvements at the Center might count as
seizure of Fourth Amendment-protected “effects,” cf. Oliver,
466 U.S. at 177 & n.7. Because the Butterfly Association does
not seek relief pursuant to the Fourth Amendment that it does
not also seek under the Fifth Amendment, see Oral Arg.
Tr. 9:21-24, we need not now venture into those relatively
uncharted Fourth Amendment waters. We therefore affirm the
dismissal of the Fourth Amendment claim.
34
2. Fifth Amendment Claim
The Fifth Amendment extends certain protections distinct
from and in some respects broader than those granted by the
Fourth. By its terms, the Fifth Amendment prohibits the
federal government from depriving any person “of life, liberty,
or property, without due process of law,” and from taking
“private property . . . for public use, without just
compensation.” U.S. Const. amend. V. Because it lacks the
kind of specific enumeration appearing in the Fourth
Amendment, the Fifth applies to private property more
generally. See, e.g., United States v. James Daniel Good Real
Prop., 510 U.S. 43, 51-52 (1993). We hold that the complaint
states a Fifth Amendment procedural due process claim based
on DHS’ allegedly unauthorized occupation and use of the
Butterfly Association’s land.
On appeal, the Butterfly Association has disclaimed
seeking “recovery for a taking,” Reply Br. 26, so we consider
only its due process claim. The Due Process Clause affords
both substantive and procedural protections. See, e.g., County
of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998). The
Butterfly Association contends that DHS violated both, but the
Association failed to press or even mention substantive due
process in the district court. We thus treat any substantive due
process claim as forfeited and limit our Fifth Amendment
analysis to the procedural due process claim.
A procedural due process violation under the Fifth
Amendment occurs when a government official deprives a
person of property without appropriate procedural
protections—protections that include, at minimum, the basic
requirements of notice and an opportunity to be heard. See,
e.g., Mathews v. Eldridge, 424 U.S. 319, 333-34 (1976). As a
threshold matter, DHS contends that the procedural due
35
process claim is unripe because the Butterfly Association
“acknowledge[s] that the federal government has not [yet]
sought to acquire an interest in [the National Butterfly Center]
‘or followed any of the steps for doing so.’” Appellees’ Br. 16
(quoting Am. Compl. ¶ 83 (J.A. 38)); see also Butterfly Ass’n,
368 F. Supp. 3d at 8. But a deprivation occurs by virtue of the
government’s assertion of control, so a procedural due process
claim may be ripe without the government having formally
sought or acquired any property interest. Indeed, a principal
focus of procedural due process protection is the adequacy of
governmental process “before the owner is finally deprived of
a protected property interest.” Propert v. District of Columbia,
948 F.2d 1327, 1331 (D.C. Cir. 1991) (quoting Logan v.
Zimmerman Brush Co., 455 U.S. 422, 433 (1982)).
The Butterfly Association alleges that CBP has asserted
control over the National Butterfly Center by entering,
maintaining a regular presence on, and taking charge of areas
of the Center without notice to or consent from the Association.
See Am. Compl. ¶ 62 (J.A. 35). The complaint alleges that
CBP installed sensors at the Center to detect aboveground
activity, widened private roadways within the property, cut
down trees, and threatened to destroy the Association’s private
gates and locks without warning. See id. ¶¶ 53, 59-60
(J.A. 33-34); see also, e.g., Fourth Wright Decl. ¶¶ 4-9
(J.A. 698-700) (averring that such intrusions continued into
February 2019). Those property deprivations are unexcused,
the complaint alleges, by any citation on DHS’ part to a “lawful
basis for their intrusion and destruction of” the Butterfly Center
or any effort by DHS to “acquire an interest” in property
admittedly not its own through any legally recognized “steps
for doing so.” Am. Compl. ¶ 83 (J.A. 38). In light of the
alleged current and imminent property deprivations, we are
unpersuaded by DHS’ submission that its failure to take steps
formally to acquire a property interest in the National Butterfly
36
Center prevents the Butterfly Association from asserting a
property-deprivation claim under the Fifth Amendment.
We also reject DHS’ defense that its statutory authority to
patrol the border means that the Butterfly Association has
failed to identify a property deprivation. To be sure, if all the
alleged intrusions count as routine border patrol, there is no
property deprivation for which the Association claims a due
process denial. Federal law privileges CBP officers to enter the
Center’s premises to “patrol[] the border” by conducting
“activities [that] are customary, or reasonable and necessary, to
prevent the illegal entry of aliens into the United States.” 8
C.F.R. § 287.1(c); see also 8 U.S.C. § 1357(a)(3). And the
Association does not challenge that statutory “license to patrol
the Butterfly Center.” Reply Br. 22.
The due process claim survives because the government
has not established that its statutory authority to enter private
property to patrol the border licenses all of the alleged
intrusions at the Center. For example, DHS has not argued that
the contractors it allegedly employed to widen a private road at
the Center, see Am. Compl. ¶¶ 53, 55 (J.A. 33), are
“immigration officers” entitled “to exercise the power to patrol
the border conferred by [8 U.S.C. § 1357(a)(3)]” by entering
private property, 8 C.F.R. § 287.5(b). Nor has it established
that widening private roadways, installing sensors, or regularly
stationing CBP agents on Center property, see Am. Compl.
¶¶ 53, 59, 62 (J.A. 33-35), all fall within the statutory
authorization for “patrolling the border,” 8 C.F.R. § 287.1(c),
or justify entry onto private property under section 1357(a)(3).
Seeking to fit at least the installation of sensors within its
customary border-patrol authority, DHS cites two decades-old
criminal cases that describe CBP’s use of sensors on highways
near the border to detect individual crossings. See United
37
States v. Aguirre-Valenzuela, 700 F.2d 161, 162 & n.3 (5th Cir.
1983) (per curiam) (referring to two “loop-type[]” vehicle
sensors located approximately ten miles apart across a dirt road
and a state highway); United States v. Mora-Chavez, 496 F.2d
1181, 1182 (9th Cir. 1974) (referring only generally to
“electronic sensors which detect human foot traffic across the
border”). But DHS provides no authority that installing
multiple sensors on private property without advance notice or
the landowner’s consent counts as a “customary[] or reasonable
and necessary” activity of “patrolling the border” to prevent
unauthorized immigration. 8 C.F.R. § 287.1(c). Indeed, in
implementing Executive Order No. 13,767, the DHS
Secretary described the installation of “sensors” as “attendant”
to new border-wall construction, not as a customary border-
patrol activity. DHS Memo at 5 (J.A. 415). We cannot
conclude at this stage that the challenged installation of sensors
and other infrastructure or support for border surveillance rests
on the same legal authority as traditional border patrol.
With allegations that government officials and contractors
have entered the National Butterfly Center to alter private
roadways and install sensors, and that CBP has maintained an
enduring presence at the Center in connection with planned
border-security infrastructure, the Butterfly Association
plausibly pleads a deprivation of property without due process.
At the pleading stage, we of course express no view as to
whether DHS agents in fact behaved as the Butterfly
Association has alleged or whether the Association’s Fifth
Amendment procedural due process claim will ultimately
prevail.
Finally, DHS makes a fleeting assertion that the Fifth
Amendment claim is fatally defective for failure to identify the
procedural safeguards the Butterfly Association claims the
government should have observed. While “stat[ing] a
38
procedural due process claim” typically requires “suggest[ing]
‘what sort of process is due,’” Elkins v. District of Columbia,
690 F.3d 554, 561 (D.C. Cir. 2012) (quoting Doe ex rel. Fein v.
District of Columbia, 93 F.3d 861, 869 (D.C. Cir. 1996)), DHS
forfeited that ground for dismissal by failing to raise it in the
district court, see, e.g., Manitoba v. Bernhardt, 923 F.3d 173,
179 (D.C. Cir. 2019).
In short, DHS’ arguments do not defeat the Butterfly
Association’s Fifth Amendment procedural due process claim,
so we reverse dismissal of that claim and remand for further
proceedings consistent with this opinion.
* * *
To sum up our disposition, we conclude that we and the
district court have jurisdiction to consider the Butterfly
Association’s claims, but that the two statutory claims fail on
their merits. We thus affirm their dismissal under
Rule 12(b)(6) rather than Rule 12(b)(1). We also affirm
dismissal of the Butterfly Association’s Fourth Amendment
claim under Rule 12(b)(6). We reverse dismissal of the
Butterfly Association’s Fifth Amendment procedural due
process claim and remand for further proceedings consistent
with this opinion.
So ordered.
MILLETT, Circuit Judge, dissenting: Cliffhangers may
make for good storytelling, but they are no good for
establishing appellate jurisdiction. Because the district court
dismissed the complaint in part without prejudice and with
express leave to amend and to seek emergency injunctive relief,
and then did nothing more to conclude the case, we lack
jurisdiction over this appeal.
The majority opinion offers a thoughtful theory of
jurisdiction. The problem is that the Supreme Court has
already answered this same jurisdictional question the opposite
way. That decision binds this court. And the Supreme Court’s
disposition should come as no surprise. Statutory text,
structure, and established principles of appellate jurisdiction
foreclose our review because the district court’s dismissal of
the complaint was by its plain terms not final when entered by
the court. The mere passage of time, without more, could not
by itself make the judgment final. Neither could the litigants,
through their actions or inaction, step into the shoes of the
district court and singlehandedly cause the entry of a final
judgment in the case. Without jurisdiction, we lack the power
to address the merits. For that reason, I respectfully dissent.
I
The North American Butterfly Association filed a notice
of appeal of “all aspects of the order” by the district court
“entered on February 14, 2019, granting defendants’ motions
to dismiss,” citing “ECF 46[.]” Notice of Appeal, North
American Butterfly Ass’n v. Nielsen, No. 1:17-cv-02651-RJL
(D.D.C. March 4, 2019), ECF No. 47. That order as recorded
in ECF 46 states, as relevant here: “[D]efendants’ motions to
dismiss * * * are granted, plaintiff’s constitutional claims are
dismissed without prejudice, and plaintiff’s statutory claims
are dismissed with prejudice.” Order, North American
Butterfly, No. 1:17-cv-02651-RJL (D.D.C. Feb. 14, 2019). The
referenced “motions to dismiss,” id., requested dismissal of the
2
Butterfly Association’s “Complaint.” Motion to Dismiss at 1,
North American Butterfly, No. 1:17-cv-02651-RJL (D.D.C.
May 25, 2018), ECF No. 25; Defendants’ Supplemental
Motion to Dismiss at 2, North American Butterfly, No. 1:17-
cv-02651-RJL (D.D.C. Nov. 5, 2018), ECF No. 34. 1
Key to the jurisdictional question in this case is the
accompanying minute order the district court entered that same
day and recorded as part and parcel of the ECF 46 dismissal
decision. The minute order first denied as moot the Butterfly
Association’s motion for a temporary restraining order and
preliminary injunction. Minute Order, North American
Butterfly, No. 1:17-cv-02651-RJL (D.D.C. Feb. 14, 2019). The
minute order also provided that, “[i]n light of the Court’s
February 14 Memorandum Opinion and Order dismissing
plaintiff’s Amended Complaint,” it is
ORDERED that [the Butterfly Association] shall
have leave to file a second amended complaint and
renewed request for emergency injunctive relief,
if any, within 14 days of the date of this Order.
Any such filings shall consider the effect of the
Court’s February 14 Memorandum Opinion and
Order on [the Butterfly Association’s] claims.
Id.
1
I agree with the majority opinion that, because the district
court ruled that it lacked jurisdiction over the statutory claims, as a
matter of law those too should have been dismissed without
prejudice. Majority Op. 12; see Havens v. Mabus, 759 F.3d 91, 98
(D.C. Cir. 2014) (citing Semtek Int’l Inc. v. Lockheed Martin Corp.,
531 U.S. 497, 505 (2001)).
3
The Butterfly Association did not file an amended
complaint. Nor did it inform the court that it would not be
filing an amended complaint or new request for injunctive
relief. Instead, the Butterfly Association filed a notice of
appeal eighteen days later from the order “granting the
defendants’ motions to dismiss (ECF 46[)]”—that is, from the
order dismissing the complaint in part without prejudice and
with leave to file an amended complaint and seek further relief.
Notice of Appeal, North American Butterfly, No. 1-17-cv-
02651-RJL (D.D.C. Feb. 14, 2019), ECF No. 47.
To date, the district court has not entered an order
converting its dismissal without prejudice of the constitutional
claims to a dismissal with prejudice. Nor has it entered a
formal judgment or otherwise finalized its decision. And so the
district court’s order inviting an amended complaint and
application for injunctive relief remain the last entries on the
docket preceding this appeal.
II
The threshold question in this case—as in every case—is
whether we have jurisdiction. See, e.g., Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 94–95 (1998); CTS Corp. v.
EPA, 759 F.3d 52, 57 (D.C. Cir. 2014) (“This court, as a matter
of constitutional duty, must assure itself of its jurisdiction to
act in every case.”). Because the district court never entered an
appealable final order denying all relief in the case, and no
other source of appellate jurisdiction applies, we do not have
jurisdiction. 2
2
While the district court also denied as moot the Butterfly
Association’s motion for a preliminary injunction, the Butterfly
Association did not appeal that aspect of the order. Its notice of
appeal is explicit that it is challenging only the order “granting
4
A
This court has jurisdiction over appeals from “final
decisions of the district courts[.]” 28 U.S.C. § 1291. A final
decision is one that “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 (1988) (internal
quotation marks omitted); accord Shatsky v. Palestine
Liberation Org., 955 F.3d 1016, 1026 (D.C. Cir. 2020).
In evaluating the finality of district court orders granting
motions to dismiss, we must “distinguish[] between orders
dismissing the action, which are final, and orders dismissing
the complaint, which, if rendered without prejudice, are
typically not final.” Attias v. CareFirst, Inc., 865 F.3d 620, 623
(D.C. Cir. 2017) (formatting modified); see Ciralsky v. CIA,
355 F.3d 661, 666–667 (D.C. Cir. 2004).
Sometimes it is difficult to tell “whether a district court
intended its order to dismiss the action or merely the
complaint.” Ciralsky, 355 F.3d at 667. But not here. When
the dismissal order contains “an express invitation to amend[,]”
that language sends a “clear signal” that the district court
“intended the action to continue” in that court, and so
“reject[ed] only the complaint presented[.]” See Attias, 865
F.3d at 625. Because “[a] court that has extended such an
invitation to amend clearly contemplates that there is still some
work for the court to do before the litigation is over[,]” orders
dismissing without prejudice and with express leave to amend
defendants’ motions to dismiss[.]” Notice of Appeal, supra, at 1–2.
The Butterfly Association’s briefing confirms that understanding by
focusing entirely on the dismissal order, and nowhere addressing the
denial of injunctive relief or asserting that jurisdiction exists under
28 U.S.C. § 1292(a)(1).
5
are not final. See id. at 624; Murray v. Gilmore, 406 F.3d 708,
712–713 (2005) (dismissal of a claim “without prejudice
subject to reconsideration” was “akin to a grant of leave to
amend,” which is not an appealable final judgment); cf. Castro
County v. Crespin, 101 F.3d 121, 127, 128 (D.C. Cir. 1996)
(An order “provid[ing] that the case would be dismissed * * *
with prejudice absent a request to reopen it within thirty days”
was “not a final order subject to appeal” because “it
contemplated * * * the possibility that the case would be
litigated further in the event that settlement talks failed.”).
Attias governs this case. The February 14th order granting
the motions to dismiss the complaint was not final when
entered because the court dismissed the constitutional claims
without prejudice and with “an express invitation to amend[,]”
Attias, 865 F.3d at 625, and also to seek emergency injunctive
relief. Because the district court expressly stated its “inten[t]
for the action to continue via amendment of the
complaint * * *, its dismissal order is not final.” Id. at 624; id.
at 625 (“[A]n express invitation to amend is a much clearer
signal that the district court is rejecting only the complaint
presented, and that it intends the action to continue.”); see also
Crespin, 101 F.3d at 128 (holding that an order “did not end
the litigation on the merits[] because it contemplated not only
further settlement negotiations by the parties, but the possibility
that the case would be litigated further”) (emphasis added).
The majority opinion reasons that the district court’s
decision was final and appealable because the court dismissed
“the entire ‘case,’ and all ‘claims[.]’” Majority Op. 17 (quoting
North American Butterfly Ass’n v. Nielsen, 368 F. Supp. 3d 1,
4, 10 (D.D.C. 2019); internal citation omitted). No order of the
court ever said that, or even that the “case” was dismissed.
Instead, the district court’s memorandum opinion said once at
the beginning that the “case” is dismissed. North American
6
Butterfly, 368 F. Supp. 3d at 4. But the accompanying order
said only that the “defendants’ motions to dismiss” the
complaint “are GRANTED, plaintiff’s constitutional claims
are DISMISSED without prejudice, and plaintiff’s statutory
claims are DISMISSED with prejudice.” Order, North
American Butterfly, No. 1:17-cv-02651-RJL (D.D.C. Feb. 14,
2019), ECF No. 46. The district court’s accompanying minute
order is still more explicit that the “Order dismiss[ed]
plaintiff’s Amended Complaint,” not the case. Minute Order,
supra (emphasis added). Holding the courthouse door wide
open, the district court then expressly invited the Butterfly
Association both to come back with an amended complaint and
to again seek “injunctive relief” from the district court. Id.
That order of dismissal, and not the memorandum opinion,
is what the Butterfly Association appealed. Notice of Appeal,
supra¸ at 1–2 (appealing “all aspects of the order * * * granting
defendants’ motion to dismiss[.]”) (citing Order, North
American Butterfly, No. 1:17-cv-02651-RJL (D.D.C. Feb. 14,
2019), ECF No. 46). Because that order was a dismissal
without prejudice that was accompanied by an “express
invitation to amend” and to “request * * * injunctive relief,”
Minute Order, supra, it was not final and so not appealable, as
Attias squarely held, 865 F.3d at 625.
As this court has ruled, finality turns not on looking at
purported “dismissal language” in “isolation” even when it is
in an order (let alone in just one page of a memorandum
opinion). St. Marks Place Housing v. United States Dep’t of
Housing and Urban Dev., 610 F.3d 75, 80 (D.C. Cir. 2010).
Instead, this court must “read the district court’s order[s] as a
whole,” and when that comprehensive reading disaffirms
finality, as the orders did here, no final appealable judgment
exists. Id.
7
The majority opinion relegates the district court order
granting time to amend the complaint to mere “context” for
reading the memorandum opinion as intending to enter a final
judgment. Majority Op. 12, 17. But that gets the law
backwards. To the extent there is any perceived conflict
between the memorandum opinion and the explicit operative
language of the accompanying orders, “the language in the
order is controlling.” Friedland v. Zickefoose, 538 F. App’x
122, 124 n.4 (3d Cir. 2013); see Ciralsky, 355 F.3d at 667
(while the district court’s memorandum opinion “spoke several
times of dismissing the complaint[,]” finality is found in part
because the court’s order granted a motion to dismiss the
action, and the district court expressly denominated its order “a
final appealable order”); Dixon v. Edwards, 290 F.3d 699, 720
(4th Cir. 2002) (Where there is a conflict between an opinion
and order, the “Order is controlling because courts speak
through their orders[.]”); Eakin v. Continental Ill. Nat’l Bank
& Trust Co., 875 F.2d 114, 118 (7th Cir. 1989) (“Judicial
opinions do not create obligations; judgments do. * * * In the
event of a conflict between the opinion and the judgment, the
judgment controls.”); cf. Sea-Land Serv., Inc. v. Department of
Transp., 137 F.3d 640, 647 (D.C. Cir. 1998) (“Appellate courts
‘review judgments, not statements in opinions.’”) (quoting
California v. Rooney, 483 U.S. 307, 311 (1987)).
The majority opinion then waves off the court’s explicit
orders as just a nicety designed to reflect “judicial modesty and
efficiency,” Majority Op. 18, opining that the district court did
not seriously “expect[] the case could be rescued through better
pleading,” id. at 17.
But finality is about order reading, not counter-textual
mind reading. The only workable course is to take the district
court’s orders “at [their] word.” St. Marks Place, 610 F.3d at
80; see Attias, 865 F.3d at 625 (“[A]n express invitation to
8
amend” is a “clear signal” that the district court “intend[ed] the
action to continue[.]”). Especially since the district court
expressly invited not only an amended complaint, but also a
renewed application for emergency injunctive relief. In so
ordering, the district court, at a minimum, “contemplated * * *
the possibility that the case would be litigated further[.]”
Crespin, 101 F.3d at 128.
Nor is there any dispute that the complaint could have been
amended in a manner that would have been responsive to the
court’s order of dismissal. The Butterfly Association, for
example, could have amended its Fourth Amendment claim to
include the types of claims that the majority opinion notes were
not raised in the dismissed complaint, such as alleging a seizure
of effects or an intrusion on privacy. See Majority Op. 33. In
addition, the Fifth Amendment claims were dismissed as
“premature and thus unripe,” Majority Op. 8 (internal
quotations omitted), which the passage of time or
reformulation of the claims (e.g., alleging a regulatory taking
or substantive due process claim, see Majority Op. 34) might
have perhaps cured.
As I see it, there simply is no way to read the district
court’s order expressly inviting the Butterfly Association both
to amend its complaint and to again seek injunctive relief from
the court as the district court denying all relief or otherwise
conclusively washing its hands of the case.
B
I also part company with the majority opinion in analyzing
the jurisdictional consequences of what did and did not happen
after the orders’ entry. Recall that the district court’s invitation
to amend came with what seems like an expiration date: A new
complaint was to be filed “within 14 days of the date of this
Order.” Minute Order, supra. That language, combined with
9
the district court’s subsequent silence, implicates a
longstanding circuit split on which our court had not
specifically spoken until today: Does a non-final order
dismissing a complaint without prejudice, but expressly
granting leave to amend within a specified time period,
automatically become final when the deadline passes without
an amended complaint being filed? See, e.g., WMX Techs.,
Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc)
(collecting cases).
Circuits on one side of the split take the position that a
dismissal with express leave to amend is not final and does not
become final just because the deadline passes. Those courts
look to the nature of the order entered by the district court at
the time of its entry, and leave control over the finality of a
judgment in the district court’s hands.3
Circuits on the other side are united in their view that non-
final dismissals with express leave to amend can become final
3
See, e.g., Richards v. Dunne, 325 F.2d 155, 156 (1st Cir. 1963)
(per curiam) (citing Jung v. K. & D. Mining Co., 356 U.S. 335 (1958)
(per curiam) for the proposition that another order from the district
court is required to make the dismissal final); Sapp v. City of
Brooklyn Park, 825 F.3d 931, 935–936 (8th Cir. 2016) (reasoning
that “a bright-line approach” in which “a party granted leave to
amend her complaint must obtain a final judgment before appealing
a district court’s dismissal” avoids uncertainty); WMX Techs.,
104 F.3d at 1135–1137 (holding that the Supreme Court’s decision
in Jung requires “a final order of dismissal from the district court”
before the plaintiff may appeal); Moya v. Schollenbarger, 465 F.3d
444, 451 & n.9 (10th Cir. 2006) (explaining that, because orders
expressly granting leave to amend are not final, plaintiffs who choose
to appeal rather than amend must first obtain a final judgment from
the district court).
10
without the district court doing anything else. But they fracture
over what triggers that transformation.
The Fourth Circuit holds that an order is final if “the
plaintiff elects to stand on the complaint” by waiving the right
to amend. Bing v. Brivo Sys., LLC, 959 F.3d 605, 610–611
(4th Cir. 2020).
The Third Circuit requires a plaintiff to “stand on their
complaint” either (i) by failing to take action before a deadline
that “provides express notice” that missing the deadline will
“automatically produce a final order of dismissal[,]” or (ii) by
expressing a “clear and unequivocal intent to decline
amendment and immediately appeal that leaves no doubt or
ambiguity.” Weber v. McGrogan, 939 F.3d 232, 237–240
(3d Cir. 2019).
Still other courts require nothing more than the passage of
the time period set out by the district court. 4 The Seventh
Circuit has dubbed this jurisdictional theory “springing
finality.” Otis, 29 F.3d at 1164.
The majority opinion claims not to take sides in the debate.
See Majority Op. 16–17, 19. But to hold that the court has
jurisdiction, it had to apply some rule. At times, the majority
opinion embraces the springing finality rule. Id. at 12–13
(“[A]lthough the district court provided the Association a brief
4
See, e.g., Otis v. City of Chicago, 29 F.3d 1159, 1165–1166
(7th Cir. 1994) (en banc) (conditional dismissal becomes final when
“the time to satisfy the condition has expired”); Schuurman v. The
Motor Vessel “Betty K V”, 798 F.2d 442, 445 (11th Cir. 1986) (per
curiam) (same); see also Slayton & American Express Co., 460 F.3d
215, 224 & n.7 (2d Cir. 2006) (order becomes final when the plaintiff
“disclaim[s] any intent to amend” or the time to amend expires).
11
opportunity to refile, ‘that does not change the fact that, in the
absence of such an affirmative act on [the Association’s] part,
the case [wa]s at an end’ upon the expiration of that period.”)
(second alteration in original; quoting Ciralsky, 355 F.3d at
667); id. at 13 (“Because the district court unambiguously
identified how, when, and why the case would end if there were
no timely amendment—and there was none—the district court
‘disassociate[d] itself from [the] case’ and rendered its decision
final.”) (alternations in original; quoting Gelboim v. Bank of
America Corp., 574 U.S. 405, 408 (2015)); id. at 17 (“[T]his
appeal, taken after expiration of the minute order’s time-
limited opportunity to amend, and appealing from the judge’s
dismissal order and accompanying opinion * * * addresses a
final decision[.]”); id at 17–18 (“timely appeal without
amendment [of the complaint]” suffices). In those statements,
the majority opinion maps squarely onto the Seventh Circuit’s
springing finality rule because finality emerges from the
passage of time alone, without any further action by or role for
the district court.
Elsewhere the majority opinion widens the circuit conflict
by proposing a whole new jurisdictional path trod by no other
court: that the district court’s order was final when entered,
even before the window for filing an amended complaint
closed. Majority Op. 13 (“The record adequately reflects the
district court’s intention that its order finally end the case[.]”);
id. at 16–17 (describing “the judge’s order and accompanying
opinion” as “unambiguously dismiss[ing] the entire ‘case’ and
all ‘claims’”); id. at 19 (noting that the decision would be final
“even if the judgment were treated as final on the date the
underlying order was filed”).
Either way, the central problem is that the Supreme Court
has already rejected the majority opinion’s jurisdictional
approach and has agreed with those courts that require further
12
action from the district court to finalize the order of dismissal.
See Jung v. K. & D. Mining Co., 356 U.S. 335 (1958) (per
curiam). On top of that, an alternative theory by which litigants
would create their own finality would stray far from the
relevant statutory text, structure, and ordinary principles of
finality.
1
In Jung v. K. & D. Mining Co., the Supreme Court
confronted the same jurisdictional scenario involved here.
356 U.S. at 336–337. In a unanimous summary reversal, the
Court flatly rejected the argument that a dismissal without
prejudice accompanied by a set time for filing a new complaint
metamorphosed into a reviewable final order as soon as that
time expired. Id.
The Jung case began with an order just like the one here:
The district court dismissed the plaintiffs’ complaint on
May 10, 1955, while granting them “twenty days from this date
within which to file an amended complaint.” 356 U.S. at 336.
On May 27th, the district court denied the plaintiffs’ motion to
vacate, but agreed to extend the deadline for filing an amended
complaint another twenty days. Id. The plaintiffs, though,
never filed an amended complaint.
Nearly two years later, in March 1957, the plaintiffs
informed the district court that they “elected to stand on their
first amended complaint.” Jung, 356 U.S. at 336. The court
responded by ordering that “this cause of action be and it
hereby is dismissed without costs.” Id. The plaintiffs appealed
only from that order of dismissal. Id.
The Seventh Circuit dismissed the appeal for lack of
jurisdiction. Jung, 356 U.S. at 336. The court of appeals
identified the jurisdictional question in terms identical to the
13
present case: “[W]hether the [district court’s initial] order of
May 27, 1955 became final and appealable upon expiration of
the time for making amendment.” Jung v. K. & D. Mining Co.,
246 F.2d 281, 282 (7th Cir. 1957), rev’d, 356 U.S. 335. The
Seventh Circuit acknowledged “some authority for the
proposition that another order is necessary after the time for
amendment has passed in order to insure finality.” Id. (citing
Cory Bros. & Co. v. United States, 47 F.2d 607 (2d Cir. 1931)
(per curiam)). But the court of appeals rejected that view. Id.
at 283. Instead, the Seventh Circuit held that, because “no
amendment was filed within 20 days from the order, and no
appeal from that order taken within 30 days” of the filing
period’s expiration, the court lacked jurisdiction over the later-
filed notice of appeal. Id.; see id. at 282 (decision “became
final and appealable upon expiration of the time for making
amendment”). That is, according to the Seventh Circuit,
finality sprang up upon the expiration of the time set for filing
an amended complaint, and that was when the time for
appealing began to run.
The plaintiffs sought certiorari on the questions
(i) whether the 1955 order extending the time to amend was a
final decision under 28 U.S.C. § 1291, (ii) whether the 1957
order of dismissal was a final decision, (iii) when the district
court intended to terminate the litigation, and (iv) whether the
district court “los[t] jurisdiction of the cause by mere expiration
of the time to file amendment to the complaint[.]” Petition for
Writ of Certiorari at 3, Jung, 356 U.S. 335 (No. 619).
The Supreme Court granted certiorari and summarily
reversed the Seventh Circuit, resoundingly rejecting that
court’s holding that the district court’s judgment of dismissal
became final and appealable once the designated time period
for amending the complaint had passed. Jung, 356 U.S. at 337–
338. The Court held that the May 1955 order “granting further
14
leave to [the plaintiffs] to amend their complaint did not
constitute the final judgment in the case” because “[i]t did not
direct ‘that all relief be denied’ (Rule 58 of Federal Rules of
Civil Procedure) but left the suit pending for further
proceedings either by amendment of the complaint or entry of
a final judgment.” Id. at 336–337 (formatting modified).
Adopting the Second Circuit’s view in Cory Brothers, the
Supreme Court explained that “another order of absolute
dismissal after expiration of the time allowed for amendment
is required to make a final disposition of the cause.” Jung,
356 U.S. at 337 (quoting Cory Bros., 47 F.2d at 607).
The Supreme Court, in other words, unanimously ruled
that an order dismissing a complaint for failure to state a claim
and also setting a time limit to file a new complaint is not a
reviewable final decision. According to the Supreme Court,
the district court judgment was not final when entered; it was
not final when the designated (and then extended) window for
filing a new complaint expired; and it did not become final at
any point in the ensuing years of inaction by the district court
and the parties prior to March 1957. See Jung, 356 U.S. at 336–
337.
Rather, the Supreme Court ruled that a reviewable final
order first materialized two years later when the district court
entered, in response to the plaintiffs’ notice that they “elected
to stand on their first amended complaint[,]” an order stating
that “this cause of action be and it hereby is dismissed without
costs.” Jung, 356 U.S. at 336; see id. at 337. That dismissal of
the “cause of action” was an order “direct[ing] ‘that all relief
be denied’ and required ‘the clerk [to] enter judgment’
accordingly.” Id. (alteration in original) (quoting the then-
current version of Rule 58).
15
The Supreme Court recognized that, as the two-year delay
illustrated, its understanding of finality would sometimes lead
to seemingly “useless delays in litigation[.]” Jung, 356 U.S.
at 337. But that concern, the Supreme Court explained, was
“more than offset by the hazards of confusion or
misunderstanding as to the time for appeal.” Id. That is all the
more true because the delay could easily have been avoided if
the district court, on its own or at the behest of a party, had
issued an order that “put a definitive end to the case.” See id.
So the jurisdictional question in this case has already been
asked and answered. The Supreme Court sided with the
Second Circuit’s decision in Cory Brothers that required
further action by the district court, adopting in terms that
circuit’s rule that “another order of absolute dismissal after
expiration of the time allowed for amendment is required to
make a final disposition of the cause.” Jung, 356 U.S. at 337
(quoting Cory Bros., 47 F.2d at 607). The only difference
between the non-final May 27, 1955 order in Jung and the
February 14, 2019 order here is the date. That means the
Supreme Court has told us exactly what to do with this appeal:
Dismiss it for lack of jurisdiction.
2
None of the circuits that have taken a contrary approach
have offered a persuasive justification for casting aside that
binding Supreme Court precedent.
For starters, the statutory provisions governing this issue
have not changed in any relevant way since Jung. The relevant
part of 28 U.S.C. § 1291 said then what it says now: “The
courts of appeals shall have jurisdiction of appeals from all
final decisions of the district courts of the United States * * *
except where a direct review may be had in the Supreme
Court.” 28 U.S.C. § 1291 (1952); id. (2018) (same, plus a
16
parenthetical excluding the Federal Circuit). And then, as now,
the time for appeal ran from “the entry of [the] judgment, order
or decree” appealed. Id. § 2107 (1952); id. § 2107(a) (2018)
(same, but now with subdivisions).
Nor has the language of Federal Rule of Civil
Procedure 58 changed in any material respect. At the time of
Jung, Rule 58 read in relevant part: “When the court
directs * * * that all relief be denied, the clerk shall enter
judgment forthwith upon receipt by him of the direction,” and
“[t]he notation of a judgment in the civil docket as provided by
Rule 79(a) constitutes the entry of the judgment * * * .” FED.
R. CIV. P. 58 (1946), reprinted in 28 U.S.C. § 723c app. at 3318
(1946) (emphasis added).
The current rule contains similar operative language. See
FED. R. CIV. P. 58(b)(1) (directing the clerk to enter the
judgment without the court’s direction when “the court denies
all relief”); FED . R. CIV. P. 58(c) (linking the time of entry of
the judgment to the time it “is entered in the civil docket under
Rule 79(a)”). Rule 58 is different now in that it calculates the
“[t]ime” of entry of a final judgment differently, pegging it to
the entry of an order in the civil docket under Federal Rule of
Civil Procedure 79(a) plus the earlier of either the entry of a
separate document or the passage of 150 days. FED. R. CIV.
P. 58(c)(2). But what is relevant here is that the predicate
requirement of an order from the district court that “denies all
relief” remains the same. FED . R. CIV. P. 58(b)(1)(C).
Nevertheless, the courts of appeals that have perpetuated
the springing finality route to jurisdiction have paid Jung little
heed.
The Seventh Circuit argued that reading Jung as doing
exactly what it did—rejecting springing finality—would be to
“assume[] incorrectly that the maximum number of
17
opportunities to appeal is one.” Otis, 29 F.3d at 1166. The Otis
court reasoned that 28 U.S.C. § 1291 “speaks of final
‘decisions,’” which “may occur in advance of final
‘judgments[,]’” as evidenced by the collateral order doctrine.
Id. at 1166–1167. Because, in the Seventh Circuit’s view, Jung
“did not consider whether a prior appeal would have been
possible[,]” it left the door open to springing finality. Id.
But no one suggests that this appeal fits within the
collateral order doctrine. Beyond that, the Supreme Court has
said what counts as a final decision: “A final decision ‘ends
the litigation on the merits and leaves nothing for the court to
do but execute the judgment.’” Hall v. Hall, 138 S. Ct. 1118,
1123–1124 (2018) (quoting Ray Haluch Gravel Co. v. Central
Pension Fund of Operating Eng’rs & Participating Employers,
571 U.S. 177, 183 (2014)). And the Supreme Court has said in
terms that a decision granting further leave to amend within a
designated time period “did not constitute the final judgment in
the case,” and “another order of absolute dismissal after
expiration of the time allowed for amendment is required to
make a final disposition of the cause.” Jung, 356 U.S. at 337
(emphasis added) (quoting Cory Bros., 47 F.2d at 607). Not to
mention that the whole point of the requirement of finality in
28 U.S.C. § 1291 is to avoid piecemeal appellate litigation by
channeling the issues into one appeal when the case is ended.
See Microsoft Corp. v. Baker, 127 S. Ct. 1702, 1712 (2017)
(“‘From the very foundation of our judicial system,’ the general
rule has been that the ‘whole case and every matter in
controversy in it [must be] decided in a single appeal.’”)
(quoting McLish v. Roff, 141 U.S. 661, 665–666 (1891)).
The Second Circuit, for its part, relegated Jung to a
footnoted “But see” citation, with a parenthetical describing it
as a case “where no notice of appeal was filed[.]” Slayton,
460 F.3d at 224 n.7. True, but irrelevant. The Supreme Court
18
said specifically what was needed to establish finality, and it
was “another order of absolute dismissal” by the district court,
not a notice of appeal by a party. Jung, 356 U.S. at 337
(quoting Cory Bros., 47 F.2d at 607).
That means that some further action from the district court
is needed to transform a non-final and conditional dismissal
without prejudice, with an invitation to amend, into a concrete
termination of the “cause of action” that will conclusively deny
all relief and support appellate jurisdiction, Jung, 356 U.S. at
337. After all, a notice of appeal is supposed to be from a final
judgment; it does not create a final judgment. A plaintiff’s
notice of appeal also is not further action from the district court
signaling that it is now finished with the case. Nor is it a
judgment or order of the court “denying all relief” that can be
entered on the docket by the clerk of the district court.
The springing finality concept, in other words, endorses a
concept of finality in which final judgments would materialize
out of the air with a wave of a party’s pleading, but would never
show up on the case docket. All the docket would record is an
expressly non-final decision. That cannot be right.
The Eleventh Circuit, for its part, tried to avoid direct eye
contact with Jung’s holding, reasoning that its version of
springing finality “prevents the impropriety of situations such
as” the two-year delay in Jung. Schuurman v. The Motor
Vessel “Betty K V”, 798 F.2d 442, 445 (11th Cir. 1986) (per
curiam).
It sure does. Yet that is hardly a ground for ignoring
Supreme Court precedent. Especially when the Supreme Court
already addressed that very problem and expressly struck a
different balance between delay and clear, administrable rules
of finality. The Supreme Court openly acknowledged that
“nearly two years [had] elapsed” before the final judgment was
19
entered. Jung, 356 U.S. at 337. But it explained that such delay
could have been easily remedied by the parties asking the court,
and the court agreeing, to make the judgment final. Id. The
Court then added: “The undesirability of useless delays in
litigation is more than offset by the hazards of confusion or
misunderstanding as to the time for appeal.” Id.; see also In re
United States, 844 F.2d 1528, 1537–1538 (11th Cir. 1988)
(Kravitch, J., specially concurring) (suggesting that Schuurman
“may be in conflict with the principles expressed in Jung”).
Finally, the majority opinion here treats Jung as a ruling
about Federal Rule of Civil Procedure 58 and its requirement
that a separate paper judgment be entered by the district court.
Majority Op. 15–16. Not so.
Jung addressed the very same question presented here:
Whether the “District Court’s order of May 27, 1955, denying
petitioners’ motion to vacate the order of May 10, 1955, but
granting further leave to petitioners to amend their complaint”
was “the final judgment in the case” that the plaintiffs should
have appealed. Jung, 356 U.S. at 334–335. The court of
appeals decision that the Supreme Court unanimously reversed
addressed only finality under 28 U.S.C. § 1291. Jung,
246 F.2d at 282. The decision never mentioned Rule 58. The
petition for a writ of certiorari raised finality under 28 U.S.C.
§ 1291 in its first question presented, and never discussed or
even cited Rule 58. Petition for Writ of Certiorari at 3, Jung,
356 U.S. 335 (No. 619). The brief in opposition to certiorari
likewise focused on finality and never referenced Rule 58. See
Respondents’ Reply Brief to Petition for Writ of Certiorari at 7,
Jung, 356 U.S. 335 (No. 619) (“[W]e think the Circuit Court of
Appeals was justified in holding that the appeal was not filed
in time[.]”) (emphasis added). And the Cory Brothers rule
requiring the entry of another order “to make a final disposition
20
of the cause” that the Supreme Court expressly adopted, Jung,
356 U.S. at 337, never mentioned Rule 58 either.5
The majority opinion is correct that Rule 58 has since been
amended to allow the time of entry of a final judgment to be
measured by the passage of 150 days if no order is entered on
the docket. Majority Op. 16. But that puts the cart before the
horse. Rule 58’s timing provision does not even come into play
until there first is a district court judgment that “denies all
relief.” FED. R. CIV. P. 58(b) & (b)(1)(C). That antecedent
question—whether the district court itself ever wrapped up the
case by denying all relief—is the issue in this case. We do not
even get to the Rule 58 question of formalizing the judgment
until such a final decision is entered.
Jung likewise was all about that predicate question of
whether the district court had entered a final judgment denying
all relief, not the timing of the docket entry memorializing such
a judgment if there were one. Compare FED . R. CIV. P. 58(b)
& (b)(1)(C) (specifying which judgments can be entered,
which includes a judgment in which “the court denies all
relief”), with FED. R. CIV. P. 58(c)(2) (specifying the “[t]ime”
at which the judgments identified in Rule 58(b) can be entered
on the docket). That is why, to the extent the Supreme Court
referenced Rule 58, it focused on whether “all relief [was]
denied” by the district court order that allowed leave to amend.
Jung, 356 U.S. at 337; cf. Bankers Trust Co. v. Mallis, 435 U.S.
381, 387 (1978) (holding that a separate docket entry under
Rule 58 was not necessary where the district court “clearly
evidenced its intent that the opinion and order from which an
appeal was taken would represent the final decision in the
5
Because the Supreme Court summarily reversed the Seventh
Circuit’s springing approach to finality, no other briefs were filed in
the case.
21
case”); id. at 382 n.1 (quoting the district court’s memorandum
opinion as stating, “Complaint dismissed in its entirety. So
Ordered”).
Like Jung, this case is not about the absence of a separate
Rule 58 paper judgment from the district court. It is about the
presence as the last entry on the docket of an expressly non-
final order that on its face showed that the district court was not
done with the case. That order, the Supreme Court has ruled,
“left the suit pending for further proceedings ‘either by
amendment of the [complaint] or entry of a final judgment.’”
Jung, 356 U.S. at 337 (emphasis added; quoting Missouri &
Kansas Interurban Ry. Co. v. City of Olathe, 222 U.S. 185, 186
(1911)).
Equally important, the district court’s orders here did not
“den[y] all relief,” FED . R. CIV. P. 58(b)(1)(C). Quite the
opposite, the district court expressly invited the plaintiffs to file
a new complaint and to request “emergency injunctive relief.”
Minute Order, supra. The district court, in other words, did not
“unambiguously dismiss[]” the litigation. Majority Op. 17. It
expressly invited another round. Nor could the court in any
sense have “denied all relief” when the order expressly invited
further application for relief.
The majority opinion also seems to place weight on
whether the district court’s order granting time to file an
amended complaint was “unsolicited” or requested. Majority
Op. 12, 18. The Supreme Court in Jung attached no legal
significance to that factor. Nor does it seem workable to
require litigants and courts of appeals to look behind the face
of the court’s order or docket and root around in the district
court record for indicia of either the court’s motivation or such
a suggestion or preference among the parties’ filings and
statements to the court. “Motives are difficult to evaluate,
22
while jurisdictional rules should be clear.” Lapides v. Board of
Regents of Univ. System of Georgia, 535 U.S. 613, 621 (2002).
Finally, the majority opinion attempts to escape Jung by
distinguishing the orders from which the appeal was taken in
that case and ours. But there is no difference. The district court
in Jung dismissed the “complaint,” Jung, 346 U.S. at 337. The
district court’s order here likewise “dismiss[ed] plaintiff’s
Amended Complaint” and granted the “defendants’ motions to
dismiss,” which were captioned motions to dismiss the
complaint. See Order, supra; Motion to Dismiss at 1, North
American Butterfly, No. 1:17-cv-02651-RJL (D.D.C. May 25,
2018), ECF No. 25; Defendants’ Supplemental Motion to
Dismiss at 2, North American Butterfly, No. 1:17-cv-02651-
RJL (D.D.C. Nov. 5, 2018), ECF No. 34. The order’s dismissal
of “claims”—which appear only in complaints—proves that
there was no dismissal of the case.6
6
FirsTier Mortgage Co. v. Investors Mortgage Insurance Co.,
498 U.S. 269 (1990), is off point. That case expressly did not decide
the question of finality that is at issue here. Id. at 274, 277. Instead,
the Court decided only that, under Federal Rule of Appellate
Procedure 4(a)(2), a notice of appeal was effective when it was filed
(i) after a bench ruling that both dismissed all claims and advised that
“the losing party has a right to appeal,” id. at 271, but (ii) before the
district court’s entry of its written decision and judgment. Id. at 275–
277. The Court explained that FirsTier was “reasonable” to think
the bench ruling was appealable, and so its “premature” notice of
appeal was effective to appeal the later-entered judgment under the
plain terms of Federal Rule of Appellate Procedure 4(a)(2). Id. at
277; see id. at 276–277. That case did not involve claims expressly
dismissed without prejudice; it did not involve an explicit invitation
from the district court to return with an amended complaint and
renewed request for relief; and it did not involve a case in which no
final order or judgment concluding the case was ever entered.
23
In short, this case is on all fours with Jung’s holding and
analysis. In my view, we are duty bound to follow that
precedent and dismiss this case for lack of a final, appealable
order.
3
In addition to being binding, Jung’s holding also aligns
with the text, structure, and precedent applying 28 U.S.C.
§ 1291 and related statutes.
First, an order’s finality—or not—is fixed at the time that
order’s issuance is entered on the docket. Section 1291 and 28
U.S.C. § 2107 work in tandem to set the rules for appellate
jurisdiction over district courts’ final decisions. Section 1291
identifies which decisions are appealable, and Section 2107
sets the jurisdictional deadline for appealing them. See
Hamer v. Neighborhood Housing Servs. of Chi., 138 S. Ct. 13,
20–21 (2018).
By providing that the clock runs from “the entry of [the]
judgment, order or decree” being appealed, 28 U.S.C.
§ 2107(a) (emphasis added), Congress indicated that an order
is either final or not—and so appealable or not—when it hits
the docket. See Hentif v. Obama, 733 F.3d 1243, 1246 (D.C.
Cir. 2013). Under Section 2107(a), “entry” is the “act of
making or entering a record” or “the placement of something
before the court or on the record.” Hentif, 733 F.3d at 1246
(formatting modified).
Congress, in fact, has long started the clock for appeals
from “the entry” of the relevant order, and the Supreme Court
has long understood “the entry” in this context to be the act of
recording the order on the docket. See Polleys v. Black River
Improvement Co., 113 U.S. 81, 83–84 (1885) (interpreting a
statute identical in relevant part to Section 2107(a), and holding
24
that “the entry” of a judgment occurred when it was “entered
in the order book, or record of the court’s proceedings”); cf. Ex
parte Morgan, 114 U.S. 174, 174–175 (1885) (referring to the
clerk’s “ministerial act of recording a judgment” as the “entry”
of the judgment); Hentif, 733 F.3d at 1246.
That understanding of “entry” is incompatible with
springing finality. If the time for appeal runs from the time an
order is entered, but the order only later becomes final for
purposes of appeal under 28 U.S.C. § 1291, then the time for
an appeal would begin—and could end—before the order even
becomes appealable. That would make no sense.
In adopting its springing finality rule, the Seventh Circuit
expressed its “belie[f] that ‘entry’ should be deemed to occur
on the date the condition is satisfied or the time to satisfy it
ends.” Otis, 29 F.3d at 1167–1168. Springing finality, in other
words, requires a hypothesized docket entry tied to the action
or inaction of a litigant, not an order of the court.
Yet as a matter of settled usage, “entry” on the docket
cannot reasonably be read to mean the occurrence or not of
some event by independent non-judicial actors long after the
relevant order is entered, while the docket remains unchanged.
Congress, in other words, chose to measure the time to appeal
by reference to the court and its docket, and courts are not free
to replace that rule with some kind of totality of the
circumstances test. Cf. Strange ex rel. Strange v. Islamic
Republic of Iran, No. 19-7083, 2020 WL 3886202, at *7 (D.C.
Cir. July 10, 2020) (“We are without power to create for
ourselves otherwise nonexistent jurisdiction, in a fashion that
cannot be grounded in the statutory text[.]”) (internal quotation
marks omitted).
The Federal Rules of Appellate Procedure are of the same
mind. As validly promulgated federal rules of procedure, those
25
Rules “have the force of law, and the court is not free to ignore
their interpretation of a jurisdictional requirement.” Hentif,
733 F.3d at 1246; see Bowles v. Russell, 551 U.S. 205, 208
(2007).
Appellate Rule 4(a)(7)(A) provides that, in calculating the
time to appeal, “[a] judgment or order is entered” when it “is
entered in the civil docket under” Civil Rule 79(a) and, where
Civil Rule 58(a) “requires a separate document,” either that
requirement has been satisfied or when “150 days have run
from entry of the judgment or order[.]” FED. R. APP.
P. 4(a)(7)(A); see FED . R. CIV. P. 58(a) (requiring most
“judgment[s] and amended judgment[s] [to] be set out in a
separate document”). So “the entry” in Section 2107(a) is the
act described in Rule 79(a).
Rule 79(a) describes a kind of “entry” that can only
happen by changing the docket. The rule requires the clerk of
court to keep a “civil docket” and to “mark[]” certain “items,”
including “orders, verdicts, and judgments[,]” “with the file
number” and “enter[] [them] chronologically in the docket[.]”
FED. R. CIV. P. 79(a)(1)–(2). “Each entry must briefly show
the nature of the paper filed or writ issued, the substance of
each proof of service or other return, and the substance and date
of entry of each order and judgment.” FED. R. CIV . P. 79(a)(3).
The mere passage of days does none of those things.
This case illustrates the point. Despite this court’s hinting
(Majority Op. 13, 16–17, 19), no court has ever held that an
order like the one from which the Association appealed was a
final order of dismissal when it was entered on the court’s
docket with an open invitation to file a new complaint and seek
emergency injunctive relief in a specified time period. Yet
whenever finality attached under the majority opinion’s rule—
entry of the order inviting an amended complaint on the docket
26
or expiration of the time period for amendment—there is no
question that the docket remained static.
Worse still, without the docket entry of an order
terminating the case as the starting point for the time to appeal,
courts and parties will be left “in a quandary about the proper
timing of their appeals,” Gelboim, 574 U.S. at 414, forced to
guess as to when the clock began and stopped running.
Case in point: This one. The majority opinion itself gives
no answer as to whether the time for appeal started running
when the order dismissing the case was entered on the docket,
or fifteen days after if no amended complaint was filed. But
what happens if the court grants an extension of time on the
sixteenth day? Or if a plaintiff miscounted and files an
amended complaint on the fifteenth or sixteenth day? What if
six months after the time to file an amended complaint expired,
the Association advised the district court that it was standing
on its original complaint, and the district court then entered an
“order of absolute dismissal” pursuant to Jung, 356 U.S. at
337? Surely the Association could have appealed that final
judgment as Jung expressly held. And what about a defendant
who wants to appeal adverse portions of a judgment? Does the
defendant’s time to appeal run from the entry of the order of
dismissal without prejudice, since it has no complaint to
amend? Can the order be final for the defendant but not for the
plaintiff? How many appealable “final” orders can arise from
a single ruling dismissing a complaint without prejudice? Is
jurisdictional finality really a buffet of choices? The majority
opinion studiously avoids answering any of those questions
raised by its holding. Majority Op. 16–17, 19.
Such uncertainty and unpredictability are no good for
jurisdictional rules. Rather, “jurisdictional rules should be, to
the extent possible, clear, predictable, bright-line rules that can
27
be applied to determine jurisdiction with a fair degree of
certainty from the outset.” DSMC Inc. v. Convera Corp., 349
F.3d 679, 683 (D.C. Cir. 2003) (Roberts, J.), abrogated on
other grounds by Arthur Andersen LLP v. Carlisle, 556 U.S.
624 (2009); see Grupo Dataflux v. Atlas Global Group,
541 U.S. 567, 582 (2004) (“Uncertainty regarding the question
of jurisdiction is particularly undesirable, and collateral
litigation on the point particularly wasteful.”). That is why, in
Jung, the Supreme Court said that any concerns about delay
caused by waiting for the district court to enter “another order
of absolute dismissal after expiration of the time allowed for
amendment” would be “more than offset by the hazards of
confusion or misunderstanding as to the time for appeal.”
Jung, 356 U.S. at 337.
Nor can courts “deem[]” their way around this problem, as
the Seventh Circuit suggests, Otis, 29 F.3d at 1167. The rule
defining “entry” provides a limited authority to deem the
“entry” of certain orders on the docket—those in which the
court has “denie[d] all relief,” FED. R. CIV. P. 58(b)(1)(C), but
has failed to comply with the separate-document requirement
for papering that final judgment. FED. R. APP. P. 4(a)(7)(A)(ii).
No similar provision in the rules licenses courts to deem
orders to be “final” and to deny all relief when their plain terms
do neither. Cf. Republic of Sudan v. Harrison, 139 S. Ct. 1048,
1058 (2019) (“Congress generally acts intentionally when it
uses particular language in one section of a statute but omits it
in another.”) (internal quotation marks omitted).
Deeming a finality that is absent from the face of the
district court’s order is an entirely different magnitude of
operation from deeming paperwork done. All that
Rule 4(a)(7)’s deeming provision does is give effect to the
district court’s entry of a decision that objectively and on its
28
face denies all relief and terminates the case. In that way,
Rule 4(a)(7)(A) simply averts a procedural glitch—the failure
to set a judgment out in a separate document—from
eliminating the deadline to appeal. See FED. R. CIV. P. 58(a)
(requiring a separate document only for a “judgment” or
“amended judgment”); FED . R. CIV. P. 54(a) (defining
“judgment” as “a decree and any order from which an appeal
lies”); see also FED. R. APP. P. 4(a)(7) advisory committee’s
note to 2002 amendment (explaining that the deeming
provision is meant to “ensure that parties will not be given
forever to appeal * * * when a court fails to set forth a[n
appealable] judgment or order on a separate document in
violation of” Rule 58(a)).
Meanwhile, Rule 4(a)(7)(B) ensures that parties can
appeal a final decision “without waiting for [it] to be set forth
on a separate document.” FED. R. APP. P. 4(a)(7) advisory
committee’s note to 2002 amendment; see FED. R. APP.
P. 4(a)(7)(B) (providing that the lack of a separate document
“does not affect the validity of an appeal from” a final
judgment).
Said another way, the problem here, as in Jung, is one of
substance, not paperwork. The obligation to enter a judgment
under Rule 58 was not even triggered because the district
court’s order was non-final: The order invited the Association
to seek more relief; it did not deny all relief. What makes a
decision final is that it “ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment.”
Van Cauwenberghe, 486 U.S. at 521. The district court,
though, expressly left the door open for additional proceedings.
The majority opinion reasons that the district court was left
with nothing to do upon the expiration of the fourteen-day
filing window. Majority Op. 13. But the plaintiff remained
29
free to file, and the district court free to act upon, a belated
motion for extension of time or a tardy amended complaint.
See FED. R. CIV. P. 6(b)(1) (“When an act may or must be done
within a specified time, the court may, for good cause, extend
the time * * * (B) on motion made after the time has expired if
the party failed to act because of excusable neglect.”)
(emphasis added); see, e.g., Ciralsky, 355 F.3d at 667 (although
district court order afforded the plaintiff 21 days to file an
amended complaint, the district court did not enter a final order
dismissing the case for another ten months). Of course, it is
probably a safe bet that the case will be over once the deadline
passes. But finality under 28 U.S.C. § 1291 requires more than
gamblers’ odds.
What is critical here is that the district court’s order sets
out only its expectation as to when the case might be over, not
its final determination that the case is over. Truncating the
district court’s authority to grant an extension or to otherwise
revisit its disposition “wrest[s] control of the litigation’s
finality out of the district court’s hands[,]” Shatsky, 955 F.3d
at 1027. Ordinarily, it is for the district court “alone [to]
determine[] when the case [is] over[.]” Dukore v. District of
Columbia, 799 F.3d 1137, 1142 (D.C. Cir. 2015); see Jung,
356 U.S. at 337 (focusing the finality inquiry on the district
court’s actions and its “power * * * over its own calendar” to
“fix an unequivocal terminal date for appealability”); Blue v.
District of Columbia Pub. Sch., 764 F.3d 11, 18 (D.C. Cir.
2014) (Given “the role of the district court as gatekeeper for the
court of appeals[,]” parties cannot themselves make a non-final
dismissal of some claims final by dismissing the remaining
claims without prejudice.); St. Marks Place, 610 F.3d at 80
(“[D]istrict courts can choose when to decide their cases.”).7
7
See also Shatsky, 955 F.3d at 1026 (“It is the district court, not
the parties, that must control the terms of dismissal so as to prevent
30
None of this is to say that non-final orders are forever
insulated from review under Section 1291. As the Supreme
Court explained in Jung, parties can ask the court to “put a
definitive end to the case.” 356 U.S. at 337. And when the
district court eventually enters a final decision and a party takes
a timely appeal from that decision, the court of appeals has
“authority to review the interlocutory orders that preceded it
based on the principle that such orders merge into the final
decision.” LeFande v. District of Columbia, 841 F.3d 485, 491
(D.C. Cir. 2016); see also Ciralsky, 355 F.3d at 668 & n.7
(collecting cases, and holding that a non-final order that
expressly granted leave to amend was an “interlocutory
ruling[]” that merged with the court’s final decision).
In sum, adhering to Jung leaves the jurisdictional lines
clear, and control over finality remains in the hands of the
district court. By contrast, resting jurisdictional finality on a
contextual divination of intent that supersedes the decidedly
non-final language of the district court’s last order risks leaving
finality in the eye of the beholder and “encourag[ing] * * *
jurisdictional litigation,” Grupo Dataflux, 541 U.S. at 581–
582.
The better path, in my view, is to follow on-point Supreme
Court precedent and settled rules and principles of finality.
Strictly enforcing the rule that parties may not appeal under
Section 1291 until the district court enters an order concluding
the case and denying all relief “requires only a modicum of
diligence by the parties and the district court, avoids
uncertainty, and provides for a final look before the arduous
appellate process commences.” WMX Techs., 104 F.3d at
manipulation of the courts’ jurisdiction.”) (formatting modified)
(quoting Dukore, 799 F.3d at 1141).
31
1136. That also leaves control over finality right where it
belongs—in the trial court’s hands.
For all of those reasons, I would dismiss this appeal for
lack of jurisdiction. I respectfully dissent.