ANNA GALAZA, Plaintiff-Appellant, v. CHAD WOLF*, Defendant-Appellee.
No. 17-17037
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed April 8, 2020
D.C. No. 2:16-cv-00878-RFB-CWH
OPINION
FOR PUBLICATION
Appeal from the United States District Court for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Argued and Submitted October 4, 2019, San Francisco, California
Before: Richard A. Paez and Daniel P. Collins, Circuit Judges, and Jennifer Choe-Groves,** Judge.
Opinion by Judge Choe-Groves; Concurrence by Judge Paez; Concurrence by Judge Collins
FOR PUBLICATION
UNITED STATES
ANNA GALAZA, Plaintiff-Appellant, v. CHAD WOLF*, Defendant-Appellee.
No. 17-17037
D.C. No. 2:16-cv-00878-RFB-CWH
OPINION
Appeal from the United States District Court for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Argued and Submitted October 4, 2019
San Francisco, California
Filed April 8, 2020
Before: Richard A. Paez and Daniel P. Collins, Circuit Judges, and Jennifer Choe-Groves**, Judge.
Opinion by Judge Choe-Groves;
Concurrence by Judge Paez;
Concurrence by Judge Collins
SUMMARY***
Appellate Jurisdiction
The panel dismissed an appeal for lack of appellate jurisdiction under
Plaintiff filed a first amended complaint asserting Title VII claims for sex discrimination, race discrimination, and retaliation; and filed a motion for reconsideration regarding the dismissal of her Rehabilitation Act claim. The district court: denied the government‘s motion to dismiss the first amended complaint without prejudice to renewal; found that plaintiff had otherwise adequately pled Title VII sex and race discrimination claims; did not separately address plaintiff‘s Title VII retaliation claim; and denied plaintiff‘s motion for reconsideration, affirming its decision that the Aviation and Transportation Security Act preempted the Rehabilitation Act.
The panel dismissed for lack of jurisdiction because plaintiff voluntarily dismissed what she thought were her sole remaining claims without prejudice after the district court dismissed her Rehabilitation Act claim, and because the district court did not meaningfully participate in the dismissal of those claims and did not formally dismiss an additional remaining claim. The panel further held that the procedural posture of the case indicated that the district court did not intend to enter a final judgment and that the retaliation claim was still before the district court.
Judge Paez concurred in the judgment. He agreed that there was no subject matter jurisdiction over the appeal, but he would reach that determination on a narrower ground. Judge Paez would hold that plaintiff‘s outstanding retaliation claim prevented the district court‘s dismissal of the Rehabilitation Act claim from being designated as a final judgment under
Judge Collins concurred in the majority opinion which held that there was no jurisdiction over the appeal of the dismissal of plaintiff‘s Rehabilitation Act for two reasons, and wrote separately to respond to Judge Paez‘s concurrence, which took issue with the second reason. Judge Collins wrote that Judge Paez was wrong in suggesting that plaintiff‘s voluntary dismissal of her race and sex discrimination claims without prejudice presented no jurisdictional obstacle in this case; and rather, on this record, it was the principal obstacle to appellate jurisdiction.
COUNSEL
Jenny L. Foley, Ph.D. (argued) and Marta Kurshumova, HKM Employment Attorneys LLP, Las Vegas, Nevada; Philip J. Trenchak and Victoria C. Mullins, Mullins & Trenchak, Las Vegas, Nevada; for Plaintiff-Appellant.
Holly A. Vance (argued), Assistant United States Attorney; Elizabeth O. White, Appellate Chief; Nicholas A. Trutanich, United States Attorney; United States Attorney‘s Office, Reno, Nevada; for Defendant-Appellee.
OPINION
CHOE-GROVES, Judge:
Appellant Anna Galaza appeals the district court‘s dismissal of her Rehabilitation Act claim. As a threshold matter, we consider whether we have jurisdiction to hear this appeal under
I. BACKGROUND
Galaza began working as a Transportation Security Officer with the Transportation Security Administration (“TSA“) in April 2003. After being injured several times in 2004 and 2005, Galaza was given a “permanent limited duty position” but was eventually removed from this position in 2006. TSA terminated her employment in 2010.
In 2016, Galaza filed a complaint in the United States District Court for the District of Nevada, alleging numerous federal and state law claims, including violations of Title VII of the Civil Rights Act of 1964, and a violation of the Rehabilitation Act based on disability discrimination. The government filed a motion to dismiss Galaza‘s claims; the government argued as to the Rehabilitation Act claim that the district court lacked subject matter jurisdiction because any such claim is preempted by the Aviation and Transportation Security Act (“ATSA“).
The district court granted the government‘s motion with prejudice as to all claims except the Title VII hostile work environment, sex discrimination, and retaliation claims. The district court granted Galaza an opportunity to amend as to those remaining claims. The district court specifically found the Rehabilitation Act claim preempted by the ATSA.
Galaza then filed her first amended complaint asserting Title VII claims for sex discrimination, race discrimination, and retaliation. She also filed a motion for reconsideration regarding the dismissal of her Rehabilitation Act claim. The government filed a motion to dismiss the first amended complaint and opposed Galaza‘s motion for reconsideration. In her opposition to the government‘s motion to dismiss, Galaza consented to the dismissal of her retaliation claim with prejudice.
On September 12, 2017, the district court denied the government‘s motion to dismiss without prejudice to renewing the motion after a brief period of discovery addressed to the issue of whether Galaza had adequately exhausted her administrative remedies. The court found that Galaza had otherwise adequately pled Title VII sex and race discrimination claims. The district court did not separately address Galaza‘s Title VII retaliation claim. The district court also denied Galaza‘s motion for reconsideration, affirming its decision that the ATSA preempts the Rehabilitation Act.
On October 11, 2017, Galaza filed a notice of voluntary dismissal of her race and sex discrimination claims without prejudice under
II. ANALYSIS
We first determine whether we have jurisdiction over this appeal. Symantec Corp. v. Global Impact, Inc., 559 F.3d 922, 923 (9th Cir. 2009) (“Although neither party raised the issue of our jurisdiction to entertain this appeal, we have a duty to consider it sua sponte.“). We asked the parties to address at oral argument our jurisdiction to hear this appeal. In response to our request, the government now asks that we dismiss this appeal because the district court‘s decision was not final for purposes of conferring jurisdiction under
Under the final judgment rule embodied in
general rule that “the whole case and every matter in controversy in it [must be] decided in a single appeal.” Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1712 (2017) (quoting McLish v. Roff, 141 U.S. 661, 665–66 (1891)) (alteration in original) (internal quotation marks omitted).
Though there was no separate judgment entered by the district court, we have previously ruled that a
There is an exception to this general principle, as established in James v. Price Stern Sloan, Inc., 283 F.3d 1064 (9th Cir. 2002).2 In James, the district court granted the plaintiff‘s motion to dismiss her remaining claims so that she could pursue an appeal after the district court had granted partial summary judgment dismissing the majority of her claims. Id. at 1065. Although the dismissal was without prejudice, we determined the judgment was final and appealable in this circumstance because: 1) there was no evidence of any attempt to manipulate appellate jurisdiction; and 2) the plaintiff had sought the district court‘s permission to dismiss the remaining claims. Id. at 1066–68. For these reasons, we held that “when a party that has suffered an
adverse partial judgment subsequently dismisses remaining claims without prejudice with the approval of the district court, and the record reveals no evidence of intent to manipulate our appellate jurisdiction, the judgment entered after the district court grants the motion to dismiss is final and appealable under
We subsequently clarified that James had carved out “an exception to the general rule that ‘[i]n the absence of [a
In American States Insurance Company, we found no jurisdiction to consider an appeal because 1) both parties had attempted to create appellate jurisdiction through manipulation; and 2) the district court did not meaningfully participate in the voluntary dismissal of all remaining claims after granting partial summary judgment. Id. at 885–89. We noted that “the active involvement of the district court . . . would have empowered the district court to manage the development of this action, thereby facilitating efficiency[] [and] avoiding this premature appeal.” Id. at 889.
Here, we are presented with a situation where there is no overt record evidence of any attempt to manufacture appellate jurisdiction through manipulation. Both parties at oral argument claimed no intent to do so. Galaza‘s counsel stated during oral argument that, although Galaza had initially dismissed her race and sex discrimination claims without prejudice in the hope that the exhaustion issue might be resolved, Galaza now has no intention of refiling these claims. It appears that the decision to voluntarily dismiss Galaza‘s remaining Title VII claims without prejudice, versus with prejudice, was made without awareness of the potential effects on this court‘s jurisdiction.
What is clear from the record is that there was no meaningful district court participation in Galaza‘s voluntary dismissal of all remaining claims after the district court denied the government‘s motion to dismiss the first amended complaint and Galaza‘s motion for reconsideration. Because Galaza never requested an entry of partial final judgment under
Both parties raised issues at oral argument that illustrate the importance of district court involvement in resolving whether a case is ripe for review. Galaza‘s counsel argued that as a practical matter, the dismissal of the race and sex discrimination claims is now effectively with prejudice because the statute of limitations has since expired for Galaza‘s Title VII race and sex discrimination claims. Dismissal with prejudice would make the dismissal potentially appealable. See Ward v. Apple Inc., 791 F.3d 1041, 1045 (9th Cir. 2015) (“We have repeatedly recognized that voluntary dismissals with prejudice that produce an adverse final judgment may be appealed.“). While it is true that “subsequent events can validate a prematurely filed appeal,” Anderson, 630 F.2d at 681, Galaza‘s argument overlooks the well-settled rule that entry of a final judgment by the district court is still needed to make appealable an order that otherwise would have been non-final, see, e.g., Cato v. Fresno City, 220 F.3d 1073, 1074–75 (9th Cir. 2000); Eastport Assocs. v. City of Los Angeles, 935 F.2d 1071, 1075 (9th Cir. 1991); Anderson, 630 F.2d at 681. If Galaza wanted to appeal the dismissal of her Rehabilitation Act claim while she kept her race and sex discrimination claims alive, she needed the district court‘s permission to do so. See
All these arguments ultimately pertain to whether an appeal of a potential non-final order or judgment should be allowed. This court has regularly expressed that a district court‘s involvement in the voluntary dismissal of a plaintiff‘s claims carries substantial weight in determining whether appellate jurisdiction is proper. In James, the district court‘s participation in the dismissal of the claims without prejudice allowed the district court to review the plaintiff‘s reasons for seeking dismissal, thus allowing the district court in effect to make “a determination that its adjudication of those claims was ripe for review[.]” 283 F.3d at 1069. In American States Insurance Company, because the district court was not involved when the parties filed a stipulation to dismiss a claim without prejudice, we noted that “[b]y circumventing the district court‘s involvement, even for practical considerations, parties do not make judgments final. They merely eliminate the district court‘s gate-keeping role and unnecessarily increase [the appellate court‘s] own tasks.” 318 F.3d at 889–90.
Despite the lack of evidence of any attempt to manufacture appellate jurisdiction through manipulation, the circumstances of this case emphasize the need for district court involvement in this sort of dismissal so that the district court can offer a “clear indication of finality[,]” which would avoid “confus[ing] the parties and the public.” Id. at 889. In this case, the procedural posture indicates that the district court did not intend to enter a final judgment and that the retaliation claim is still before the district court. Either circumstance would be sufficient to warrant dismissal of the appeal. Though
Thus, this appeal is DISMISSED for lack of appellate jurisdiction.
PAEZ, Circuit Judge, concurring in the judgment:
I agree with the majority that we lack subject-matter jurisdiction over Galaza‘s appeal, but I reach this determination on a narrower ground.
There are two hurdles Galaza must clear to establish that the dismissal of her Rehabilitation Act disability discrimination claim is a final, appealable judgment under
I agree that Galaza fails to cross the first hurdle. Her outstanding retaliation claim prevents the court‘s dismissal of the Rehabilitation Act claim from being designated as a final judgment under
After a district court rules on a dismissal or summary-judgment motion, a plaintiff may voluntarily dismiss her remaining claims without prejudice under
But we have adopted a “pragmatic evaluation of finality,” Am. States Ins. Co. v. Dastar Corp., 318 F.3d 881, 890 (9th Cir. 2003), and carved out exceptions under which voluntary dismissals without prejudice can effectively result in final decisions under section 1291, see James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068 (9th Cir. 2002). These exceptions still require “sufficient prejudice in a legal sense,” Coursen, 764 F.2d at 1342, or, some assurance that no part of the plaintiff‘s claim will remain in the district court and create a risk of piecemeal appeals of the same case. See Anderson v. Allstate Ins. Co., 630 F.2d 677, 681 (9th Cir. 1980).
In Concha v. London, we held that the plaintiffs’ voluntary dismissal without prejudice of their claims was a final, appealable judgment under
In James, we echoed the reasoning in Concha and held that the plaintiff‘s voluntary dismissal of her remaining claims rendered the district court‘s partial grant of summary judgment an appealable order. 283 F.3d at 1066–70. We explained that James‘s reasons for seeking dismissal of her remaining claims “seem[ed] entirely legitimate,” and the district court had actively participated in the dismissal because it was brought under
There are clear indications Galaza intended her dismissal of the race and gender claims to be final. She effectively conceded in the district court she failed to administratively exhaust these claims and did not indicate she had returned to the EEOC, risking them being barred by the statute of limitations or foreclosed by laches. See James, 283 F.3d at 1066; see also
But, because I agree that Galaza‘s outstanding retaliation claim forecloses any possibility that the district court‘s dismissal order is a final judgment disposing of the entire litigation, I agree with the court‘s judgment dismissing this appeal for lack of jurisdiction. I would not reach whether Galaza‘s voluntary dismissal also precludes our jurisdiction. Therefore, I concur only in the judgment.
COLLINS, Circuit Judge, concurring:
I concur in Judge Choe-Groves’ majority opinion, which correctly holds that we lack jurisdiction over Galaza‘s appeal of the dismissal of her Rehabilitation Act claim because (1) Galaza failed to formally dismiss her separate retaliation claim (which the parties agreed should be dismissed with prejudice), and (2) she filed her appeal without first obtaining the “approval and meaningful participation of the district court” in the dismissal of her remaining race and sex discrimination claims without prejudice. See Majority Opinion at 11. I write briefly to respond to Judge Paez‘s concurrence, which takes issue with the second holding.
According to Judge Paez, Galaza‘s voluntary dismissal of her race and sex discrimination claims without prejudice probably presents no jurisdictional obstacle because this case “likely” falls within a line of authority in which we have “construe[d] voluntary dismissals without prejudice under [Federal]
The course of the litigation up to the time of Galaza‘s voluntary dismissal refutes any suggestion that Galaza effectively conceded that she had failed to administratively exhaust her race and sex discrimination claims. Far from conceding the exhaustion point, Galaza expressly opposed the Government‘s request for dismissal of those claims for lack of exhaustion; she conceded only that her retaliation claim had not been exhausted. Moreover, the Government itself initially conceded in connection with its first motion to dismiss that the sex discrimination claim had been exhausted, and only in its subsequent motion to dismiss did it argue that both the race and sex discrimination claims were unexhausted. Galaza, however, opposed that second motion to dismiss these claims and did so successfully: the district court denied that motion as inadequately supported. In doing so, the court ordered the parties to undertake a brief period of discovery addressed to the exhaustion issue, after which the Government could file a further motion to dismiss if warranted. Shortly thereafter, Galaza dismissed her race and sex discrimination claims without prejudice and filed an appeal of the dismissal of her Rehabilitation Act claim. Accordingly, at the time of that voluntary dismissal, Galaza had consistently—and successfully—opposed the Government‘s arguments that her race and sex discrimination claims were unexhausted. On this record, the suggestion that Galaza had “effectively conceded in the district court she failed to administratively exhaust these claims,” see J. Paez Concurrence at 14–15, is inaccurate.
Other features of the objective record further negate any suggestion that Galaza actually meant to abandon her race and sex discrimination claims with prejudice. Because the district court left the parties free to conduct whatever discovery or other inquiry was necessary to resolve the exhaustion issue, nothing about the subsequent without-prejudice dismissal required Galaza or the Government to cease their own efforts to examine the underlying facts concerning exhaustion. The posture of the case, as framed by Galaza, thus created a clear opportunity for her to pursue an interlocutory appeal of the dismissal of the Rehabilitation Act claim—without the district court‘s permission—while simultaneously reviewing the available records on the issue of exhaustion and assessing whether these claims could survive a future renewed motion to dismiss. This objective opportunity to attempt a two-track litigation strategy further negates any suggestion that, from the outset, Galaza intended her without-prejudice dismissal to actually be with prejudice. Indeed, at the oral argument in this case, Galaza‘s counsel acknowledged that Galaza had hoped that the exhaustion issue might be satisfactorily resolved after the dismissal.
It makes no difference that, as Judge Paez notes, Galaza “appears to have dismissed the remaining claims in order to pursue an appeal of the Rehabilitation Act claim.” See J. Paez Concurrence at 15. Indeed, to allow that fact by itself to support recharacterizing a without-prejudice dismissal as a with-prejudice dismissal would effectively eliminate the well-settled rule—acknowledged by Judge Paez‘s concurrence—that a plaintiff‘s dismissal of his or her remaining claims without prejudice “will ordinarily not result in a final judgment a plaintiff may appeal.” See J. Paez Concurrence at 12; see also Concha, 62 F.3d at 1507 (“A voluntary dismissal without prejudice is ordinarily not a final judgment from which the plaintiff may appeal.“). If a without-prejudice dismissal followed by an appeal were enough to convert the dismissal into a with-prejudice dismissal, then the ordinary rule would never apply. Here, the objective possibility that Galaza was trying to take an unauthorized interlocutory appeal without abandoning her remaining claims is affirmatively a reason to apply the ordinary rule.
In all events, there is no basis in this record for concluding that it is “clear,” Concha, 62 F.3d at 1509, or “unambiguous,” Romoland, 548 F.3d at 751, that Galaza actually intended to dismiss her race and sex discrimination claims with prejudice at the time that they were dismissed. If anything, the record is clear that this was not Galaza‘s intent. But if there were any doubts on this score, we would have to resolve them in favor of leaving undisturbed Galaza‘s express designation of her dismissal of these claims as being “without prejudice.”
Finally, as the majority opinion correctly notes, the fact that Galaza now has effectively abandoned her race and sex discrimination claims does not retroactively create appellate jurisdiction over her unauthorized appeal. See Majority Opinion at 9–10. The ability to recharacterize a without-prejudice dismissal as being a with-prejudice dismissal applies only if it is clear at the time of dismissal that that is what was intended. Romoland, 548 F.3d at 747–51; Concha, 62 F.3d at 1506–09. By contrast, we have never allowed a party, who objectively kept his or her options open while pursuing an unauthorized appeal, to later invoke a change of heart as a basis for subsequently validating such an appeal.
For all of these reasons, Judge Paez is wrong in suggesting that Galaza‘s voluntary dismissal of her race and sex discrimination claims without prejudice presents no jurisdictional obstacle to us in this case. Rather, on this record, it is the principal obstacle to our jurisdiction.1 I therefore concur in Judge Choe-Groves’ opinion in full.