Complaints, Actions & Finality After Dismissals Without Prejudice

Many discussions of federal appellate jurisdiction focus on when litigants can appeal before the end of district court proceedings. But traditional end-of-proceedings appeals have their own issues, including uncertainty over when the time to file them begins to run. That uncertainty can lead to parties’ losing their right to appeal. So efforts to reform appellate jurisdiction cannot look only at interlocutory appeals. The traditional end-of-proceedings appeal needs work, too.

As much can be seen in the D.C. Circuit’s decision from earlier this week in Wilcox v. Georgetown University. The district court in Wilcox dismissed the plaintiffs’ complaint without prejudice and, several months later, denied leave to amend. The D.C. Circuit looked for signs that the district court intended for the initial dismissal to be final. Concluding that the district court intended to dismiss only the complaint—not the entire action—the majority held that the decision did not become final until the district court denied leave to amend. Dissenting, Judge Randolph contended that the case was over at the initial dismissal. And of particular interest, he rejected the longstanding distinction between dismissing a complaint and dismissing an entire action.

The Wilcox Litigation

Wilcox involved a purported class action concerning Georgetown University’s retirement plan. The district court eventually dismissed the complaint. Some of the claims were dismissed for a lack of subject matter jurisdiction. Others were dismissed for failure to state a claim—the complaint lacked sufficient allegations to support some elements of the claims. The order granting the motion to dismiss stated that the complaint was dismissed without prejudice. A docket entry for that order said, “See Order for details. This case is closed.”

The plaintiffs then sought leave to amend their complaint. The district court denied that motion a few months later. As the district court saw things, the case was over; the court had entered a final judgment when it dismissed the complaint. So the parties could no longer amend the pleadings. And the plaintiffs did not give any reason to disturb the judgment via Federal Rule of Civil Procedure 59(e) or 60(b).

The plaintiffs then appealed.

Finality After an Ambiguous Dismissal

In the D.C. Circuit, the defendants moved to dismiss the appeal as untimely. They argued that the plaintiffs had 30 days to appeal from the initial dismissal of the complaint. Their notice of appeal—filed within 30 days of the district court’s denying leave to amend but several months after the dismissal—was accordingly late.

In a split decision, the D.C. Circuit held that the decision was not final until the district court denied leave to amend. The notice of appeal was thus timely. Judge Randolph dissented to contend that the district court’s decision was final at the initial dismissal.

The Majority: No Clear Indication of a Final Decision

When it comes to dismissals at the pleading stage, most courts of appeals distinguish between between the dismissal of a complaint and the dismissal of an action. An order dismissing only a complaint—particularly when the dismissal is with leave to amend—is generally not final. Although the pleading that began the action is deficient, the action itself is not yet resolved. So the plaintiff can keep the case alive (or at least try to) by filing an amended pleading A dismissal becomes final (and thus appealable) once the district court dismisses the entire action. That being said, some dismissals without prejudice are final, such as dismissals for a lack of subject-matter jurisdiction. And it’s possible for a district court to intend that a dismissal without prejudice be final.

District courts are not always clear with their dismissals. And “[a]bsent a clear statement by the district court disassociating itself from the case,” the court looks for signs that the district court is done with the case. So the D.C. Circuit had to dig into the district court’s statements and actions. And it didn’t find any clear indicia of finality:

• The district court dismissed all claims in the complaint. But that meant little given the distinction between dismissing complaints and actions.
• The docket entry (which said the case was closed) was similarly insufficient; district courts often close cases for administrative purposes, not because they are done with them. The docket entry also directed readers to the underlying order, which said nothing about closing the case.
• The district court expressed skepticism about the plaintiffs’ claims. But the district court did not say that an amendment would be futile. Instead, the dismissal pointed out the absence of certain factual allegations, which are normally added via an amendment.
• When it denied leave to amend, the district court said that it had dismissed the action and thus entered a final decision. But the district court’s post-hoc description of its decision could not retroactively change matters. To hold otherwise would “mean that a nonfinal order can be rendered final by statements the district court makes months later, long after a party’s time to appeal has run.”

Nothing about the dismissal “provided a clear indication that the district court had reached a final decision from which an appeal could properly be taken.” So the district court’s decision was not final until it denied leave to amend. At that point, the district court was clearly done with the case. And the plaintiffs’ appeal was filed within 30 days of that decision.

Judge Randolph’s Dissent

Judge Randolph dissented. He thought that the district court had entered a final decision when it initially dismissed the complaint. So the notice of appeal, filed several months later, was late.

Judge Randolph made four main points in his dissent. First, he read the record differently. As Judge Randolph saw things, “the record [left] no doubt that [the district court] meant to bring this case to an end” when it dismissed the complaint. The district court itself declared that the case was closed. That meant all of the claims were dismissed. To say otherwise was “[s]tuff and nonsense”:

A “claim,” in the Federal Rules of Civil Procedure, is what a complaint puts forward (or is supposed to). Without a complaint there can be no claim. The district judge’s order dismissing the complaint necessarily dismissed all of the claims contained in the complaint. For the district judge also to announce that the plaintiffs’ claims were dismissed would have been redundant and would have betrayed the same misunderstanding of federal procedural rules evinced in the majority’s opinion.

(Cleaned up.) So when the district court judge closed the case, “she intended to end it, and end it she did.”

Second, Judge Randolph rejected the distinction between dismissing a complaint and dismissing an action. A dismissal without prejudice, Judge Randolph contended, is final under the Supreme Court’s decision in United States v. Wallace & Tiernan Co. In that case, the Court said that a dismissal “without prejudice to filing another suit does not make the cause unappealable, for denial of relief and dismissal of the case ended this suit so far as the District Court was concerned.” The only way around Wallace & Tiernan, Judge Randolph thought, was distinguishing between the dismissal of a complaint and the dismissal of an action. But there is no distinction. “Under [Federal Rule of Civil Procedure 3], there can be no action without a complaint.” So it’s “impossible” for an action to survive dismissal of the complaint. The purported distinction was “the proverbial grin without the cat”:

“‘Well! I’ve often seen a [complaint] without [a cause of action],’ thought Alice; ‘but [an action] without a [complaint]! It’s the most curious thing I ever saw in my life!’”

(Quoting Alice in Wonderland & Through the Looking Glass.)

Third, Judge Randolph criticized the majority’s suggestion that the dismissal was not final because the complaint could be amended. The reasoning, he said, was circular:

Dismissal of a complaint without prejudice is not a final order, the majority says, because the plaintiffs may amend their complaint under Rule 15(a). And the plaintiffs may amend their complaint under Rule 15(a) because dismissal without prejudice is not a final order.

Finally, Judge Randolph thought that the D.C. Circuit’s caselaw in this area required treating the district court’s initial dismissal as final.

Thoughts on Finality After Dismissals Without Prejudice

In his dissent, Judge Randolph quoted my observation that “[t]he law of federal appellate jurisdiction is widely regarded as a mess.” Much of that mess does no serious good. Uncertainty over the running of the appeal clock does none. The deadline for civil appeals is statutory and thus jurisdictional. So a late-filed notice forfeits the right to appeal. Uncertainty over when a district court’s decision is final can thus result in the needless loss of appeal rights.

“Appellate jurisdiction ought to be determined mechanically, without guessing at the district judge’s expectations.” So in an ideal world, the point at which the appeal clock begins to run would be clear, easily identifiable, and unchanging. That’s not yet our world. I’ve suggested that we might improve things via rules-based reform. We might, for example, return to the old Federal Rule of Civil Procedure 58, which delayed the running of the appeal clock—perhaps forever—until the district court entered a separate judgment. Or we might try something like Arizona’s Rule of Civil Procedure 54(c), which says that “[a] judgment as to all claims and parties is not final unless the judgment recites that no further matters remain pending and that the judgment is entered under Rule 54(c).”

But until reform occurs, courts should be careful to not let uncertainty over appellate jurisdiction needlessly deprive parties of their right to appeal. There was uncertainty over finality in Wilcox. The majority—correctly, I think—resolved that uncertainty in favor of allowing the appeal.

Thanks to both Howard Bashman and Michael Solimine for sending this case to me.

Wilcox v. Georgetown University, 2021 WL 446126 (D.C. Cir. Feb. 9, 2021), available at the D.C. Circuit and Westlaw.