Springing Finality in the D.C. Circuit

District courts sometimes dismiss a case with leave to refile within a certain amount of time. The courts of appeals have split on when—if ever—these dismissals become final and appealable. Last week, in North American Butterfly Association v. Wolf, the D.C. Circuit weighed in on the issue. In a split decision, the court held that a plaintiff can appeal after the time to amend expires. At that time, the dismissal is sufficiently final for appeal purposes, and no further district court action is required. Dissenting, Judge Millett contended that a dismissal with a set time to amend is not final or appealable until the district court enters a subsequent order dismissing the claims with prejudice. So an appeal before that with-prejudice dismissal is premature.

The Butterfly Association Litigation

Butterfly Association involved a wildlife sanctuary’s action to prevent the construction of a border wall on its land. The sanctuary sits on 100 acres of land along the Rio Grande River. In 2017, the sanctuary’s executive director found government contractors clearing trees and performing other construction on the sanctuary’s land. The director contacted the Customs and Border Patrol, which asserted “blanket authority” to construct the wall and related infrastructure. All told, this construction would seize control of over two-thirds of the sanctuary. Customs and Border Patrol also planned to place sensors at undisclosed locations, and it ordered the sanctuary to not lock its gate so that agents could access the grounds.

The sanctuary sued. It brought two claims under environmental statutes. It also brought claims under the Fourth and Fifth Amendments.

The district court eventually dismissed all of these claims without prejudice. (The district court dismissed the statutory claims “with prejudice.” But, as the D.C. Circuit noted, these dismissals were for lack of subject-matter jurisdiction, so they were necessarily without prejudice.) But the terms of the dismissal were a bit confusing. The district court’s opinion granting the government’s motion to dismiss said that the case was dismissed. And an accompanying order dismissed all of the plaintiff’s claims. But a separate minute order gave the sanctuary 14 days to file an amended complaint.

The sanctuary did not file an amended complaint. Instead, shortly after the 14-day window to refile expired, it appealed.

Dismissals With Leave to Amend & Springing Finality

Butterfly Association involved a number of jurisdictional issues, including mootness and the Supreme Court’s exclusive appellate jurisdiction over certain claims. I focus herein on the finality issue, which had two components.

Dismissing the Complaint or the Case

The first involved the distinction between dismissing a complaint (the plaintiff’s pleadings) and dismissing a case (the plaintiff’s claims against the defendant). Often the dismissal of complaint coincides with the dismissal of a case. But not always. If a district court dismisses a complaint with leave to amend—giving the plaintiff an opportunity to correct whatever was wrong—the decision is generally not final. The case remains pending, and the plaintiff can keep the case alive (or at least try to) by filing an amended pleading. Finality comes when the district court dismisses the entire case. Dismissal of a case signals that the district court is finished with the litigation.

The Butterfly Association panel split on whether the district court had dismissed the complaint or the case. The majority said it was the entire case. The district court’s opinion said that the case was dismissed, and the accompanying order dismissed all of the claims (not just the complaint). The minute order—which gave the sanctuary 14 days to refile—temporarily upset things. But the majority read the district court’s minute order to mean that the case was over once the time to refile expired.

Judge Millett disagreed. No order of the district court, she observed, ever said that the entire case was dismissed; those words appeared only in the district court’s opinion. And the minute order said that the district court had dismissed only the complaint. That minute order also invited the sanctuary to file an amended complaint. And as Judge Millett saw things, that invitation indicated that district court proceedings were not over. The district court instead contemplated further proceedings and had not “wash[ed] its hands of the case.” So the dismissal was of only the complaint, not the case.

The Finality of the Dismissal

The second finality issue had to do with the effect of the district court’s giving the sanctuary a set time in which it could file an amended complaint. Courts have split on when this sort of dismissal is final. Some circuits require that the district court enter a subsequent order of dismissal for the dismissal to be final and appealable. Others don’t and follow some theory of “springing finality”: subsequent events—the passage of time, the plaintiff’s decision to stand on the original complaint—render the dismissal final.

The majority in Butterfly Association held that no further action was required for the district court’s decision to be final. The majority noted the “disagreement among the circuits over whether and when a without-prejudice dismissal with time-limited leave to amend becomes final under section 1291.” But it saw no need to definitively resolve the issue, as an appeal after the expiration of time to refile was an appeal from a final decision:

[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 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.

Any other decision would do nothing but delay the proceedings. Were the court to dismiss the appeal as premature, the district court would simply enter another dismissal, and the case would be back before the court of appeals. “Wheels would spin for no practical purpose.”

Again, Judge Millett disagreed. She contended that the expiration of the window to refile did not make the dismissal final; some further district court action was required to end the litigation. Because the district court in Butterfly Association had not entered a final order of dismissal after the time to amend expired, its decision was not final, and the sanctuary’s appeal was premature.

In making this point, Judge Millett relied largely on the Supreme Court’s decision in Jung v. K. & D. Mining Co. Simplifying a little bit, the district court in Jung had dismissed a complaint but given the plaintiffs 20 days to file an amended complaint. The plaintiffs never filed anything. And nearly two years passed before the plaintiffs told the district court that they elected to stand on their dismissed complaint. The district court thereafter dismissed the case, and the plaintiffs appealed.

The Supreme Court held that this appeal was timely. The district court’s initial dismissal was not “the final judgment in the case” because it “left the suit pending for further proceedings either by amendment of the complaint or entry of a final judgment.” “Another order of absolute dismissal after expiration of the time allowed for amendment is required to make a final disposition of the cause.” So the time to appeal in Jung did not run from the expiration of the 20 days to amend. It instead ran from the district court’s final order of dismissal.

Judge Millett read Jung to mean 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.” Further action from the district court is required. To hold otherwise, Judge Millett contended, does not give Jung its due.

Springing Finality

I side with the majority on this issue. The crucial distinction here is the difference between a late appeal and an early one.

Late appeals are a problem. Once the time to appeal starts running, litigants have a very brief window—often 30 days—in which to file their notice of appeal. Failure to appeal before that window closes forfeits the right to appeal. So it’s important that parties know when the time to appeal begins to run.

Jung protects appellants from late appeals. Dismissals with leave to amend within a certain time create uncertainty over finality. Jung says that appellants can rest assured that the time for appealing will not begin to run until the district court enters a final judgment. In other words, Jung protects appellants from inadvertently forfeiting their right to appeal.

Early appeals in this context are different. If the district court has resolved all of the dispute but left open the possibility of an amendment, little (if anything) is lost if the parties skip the formality of a subsequent order of dismissal. By appealing before that subsequent order, the appellant essentially waives the right to amend and the protection of Jung.

So when a district court dismisses a case but offers the plaintiff a chance to refile, I think the better rule gives the plaintiff options. The plaintiff can wait to appeal until the district court enters a subsequent order dismissing the case with prejudice. Or the plaintiff can appeal before that subsequent order. This early appeal not only forfeits the right to refile; it also waives any right to delay the time for appealing until the district court enters another dismissal. This rule lets litigation proceed without the pointless delay of a remand for the district court to enter a formal order of dismissal. It also protects parties from inadvertently forfeiting their right to appeal.

North American Butterfly Association v. Wolf, 2020 WL 6038920 (D.C. Cir. Oct. 13, 2020), available at the D.C. Circuit and Westlaw.