DARRELL WILCOX AND MICHAEL MCGUIRE, INDIVIDUALLY AND AS REPRESENTATIVES OF A CLASS OF PARTICIPANTS AND BENEFICIARIES IN AND ON BEHALF OF THE GEORGETOWN UNIVERSITY DEFINED CONTRIBUTION RETIREMENT PLAN AND THE GEORGETOWN UNIVERSITY VOLUNTARY CONTRIBUTION RETIREMENT PLAN v. GEORGETOWN UNIVERSITY, ET AL.
No. 19-7065
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 2020 Decided February 9, 2021
Appeal from the United States District Court for the District of Columbia (No. 1:18-cv-00422)
Brian D. Netter argued the cause for appellees. With him on the brief were Eric A. White and Nancy G. Ross.
Before: ROGERS and RAO, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Dissenting opinion by Senior Circuit Judge RANDOLPH.
ROGERS, Circuit Judge: When appellants sought to bring individual and class action claims against Georgetown University retirement plans, the district court dismissed their complaint without prejudice. The district court also denied as untimely their motion for leave to file an amended complaint. They appeal and the University responds that the appeal is untimely because the dismissal was a final appealable order that triggered their time to appeal, which expired before appellants noted an appeal. Dismissal of a complaint without prejudice is generally not a final appealable order, but exceptions apply where the record clearly indicates that the district court has separated itself from the case. For the following reasons we hold the district court erred when it denied appellants leave to file their amended complaint on the ground that it had previously entered a final judgment in their case. Accordingly, because the district court had not entered final judgment when it dismissed appellants’ complaint, we remand the case to the district court for renewed consideration of their motion and do not reach appellants’ challenges to the dismissal of their complaint.
I.
Darrell Wilcox and Michael McGuire are participants in retirement plans for faculty and staff of Georgetown University. They sued the University and individual fiduciaries of these plans (hereinafter, “the University“), seeking to bring individual and representative class action claims for breach of fiduciary duty under the Employee Retirement Income Security Act (“ERISA“),
On January 8, 2019, the district court dismissed the complaint without prejudice. The district court ruled that appellants lacked Article III standing as to some aspects of plan management, such as the inclusion of investment options neither appellant had selected. Wilcox v. Georgetown Univ., 2019 WL 132281, at *8–10 (D.D.C. Jan. 8, 2019);
II.
As a threshold matter, the University maintains this appeal should be dismissed for lack of jurisdiction. It argues that because the district court had closed the case in January 2019, appellants had to note their appeal within 30 days of that order, which they failed to do. Notably, the jurisdictional and the merits issues turn on whether the January dismissal order constituted a final judgment. If it did, then this court lacks jurisdiction over the untimely appeal. If it did not, then this court has jurisdiction over the timely appeal, and the district court erred by relying on its January dismissal in rejecting appellants’ attempt to amend their complaint.
A.
Courts of Appeals have jurisdiction over appeals from “final decisions” of the district courts.
Generally, a dismissal of a complaint without prejudice is not a final appealable order. Because the dismissal does not constitute entry of a final judgment, the complaint may be amended pursuant to
Similarly, in Murray v. Gilmore, 406 F.3d 708 (D.C. Cir. 2005), the district court granted the defendant‘s motion for summary judgment except as to a due process claim. Id. at 712. Finding it difficult to understand the plaintiff‘s basis for the due process claim, the court dismissed that claim “without prejudice subject to reconsideration at such time as plaintiff is able to clearly identify legal and factual bases for proceeding on [the] claim.” Id. (citation omitted). The district court also ordered the case “taken off the active calendar of the Court.” Id. Upon denial of its motion to reinstate the due process claim, the plaintiff appealed. This court held that the order granting partial summary judgment and dismissing the due process claim was not final despite the direction to remove the case from the active calendar, because the district court had “plainly contemplated” the possibility of further amendment to the complaint. Id. at 712–13. Because that earlier decision was not final, the court held the plaintiff‘s appeal from the denial of the motion to reinstate the due process claim was timely. Id.
Additionally, this court‘s contextual approach has recognized that “apparently definitive dismissal language — like ‘ORDERED that this case is closed’ — does not always signal finality.” St. Marks, 610 F.3d at 80. District courts are periodically required to publicly report the number of motions that remain pending for longer than six months and the number of cases that remain open longer than three years.
The court has also adopted a presumption of finality for jurisdictional dismissals of complaints. In Attias v. Carefirst, Inc., 865 F.3d 620 (D.C. Cir. 2017), the district court ruled that the plaintiffs lacked standing and ordered that the “complaint be dismissed without prejudice.” Id. at 623. This court held the dismissal was a final order from which the plaintiffs had properly appealed. Id. at 625. The court explained:
To accommodate both the rule that a dismissal for lack of subject-matter jurisdiction ordinarily ends the action and the need to respect the intentions of the district court that entered the order, we will presume, absent a clear indication to the contrary, that a dismissal for lack of subject-matter jurisdiction under
Rule 12(b)(1) is a final, appealable order.
Most recently, in North American Butterfly Ass‘n v. Wolf, 977 F.3d 1244 (D.C. Cir. 2020), the court held that it had jurisdiction where the district court “announced that ‘defendants’ motions to dismiss are GRANTED, and this case is DISMISSED,‘” id. at 1253 (citation omitted), and by order stated it was dismissing “the constitutional claims without prejudice for failure to state a claim and the statutory claims with prejudice for lack of subject-matter jurisdiction,” id. (citation omitted). The district court “separately wrote a
As the foregoing cases amply demonstrate, “it is not always clear whether a district court intended its order to dismiss the action or merely the complaint.” Ciralsky, 355 F.3d at 667. Even where a district court‘s order states that it is dismissing the complaint without prejudice, that can be a final decision if there are other sufficiently clear record indicia that it intended to dismiss the case or action. See id. at 667–68; Attias, 865 F.3d at 623–24.
B.
The district court‘s January Order was, on its face, a without-prejudice dismissal of appellants’ complaint. The question, therefore, is whether there are other indicia in the record that the district court had withdrawn from the case as a whole such that a
None of the markers that this court has identified as sufficient indicia of such finality are present here. The district court did not state in either its January Order or memorandum opinion that amendment of the complaint would be futile. The Order did not state that it was final and appealable. Cf. Ciralsky, 355 F.3d at 667. The January memorandum opinion did not state that “the case” or “the action” was dismissed. Cf. id. at 666; N. Am. Butterfly Ass‘n, 977 F.3d at 1253. Nor did the accompanying Order state that it was dismissing all of the
The University maintains that this court should conclude the January Order was a final decision triggering appellants’ time to file an appeal, because (1) it dismissed the complaint in full, leaving no claim unaddressed, (2) the electronic docket entry for the Order stated “this case is closed,” (3) the January memorandum opinion expressed skepticism towards appellants’ overall theory, and (4) the May memorandum opinion stated that the district court had dismissed the action in its January Order, thereby disassociating itself from appellants’ case.
The first reason is easily dispensed with. Of course, an order that does not dispose of all the pleaded claims is generally not a final decision subject to appeal. Shatsky v. Palestine Liberation Org., 955 F.3d 1016, 1026 (D.C. Cir. 2020); see also Murray, 406 F.3d at 712. But this court made clear in Ciralsky, 355 F.3d at 666–67, that an order stating the complaint is dismissed in full is generally not, without more, a final decision. The fact that the January Order addressed all portions of the complaint is therefore insufficient to make it final. Notably as well, the district court did not adopt the text of the University‘s proposed order to dismiss the complaint with prejudice.
As for the docket entry, it adds little. Docket entries kept by the Clerk of Court are required to “briefly show . . . the substance and date of entry of each order and judgment,”
Regardless, the probative value of the docket entry here is limited by its own terms. The closure of a case does not always indicate that the district court has reached a final decision. As discussed in St. Marks Place, a case may be closed for administrative purposes even when the district court has not yet entered a final appealable order. Id. at 81; see also Psara Energy, Ltd. v. Advantage Arrow Shipping, L.L.C., 946 F.3d 803,
Neither can the absence of an express reference by the district court to the possibility of a successful amendment to the complaint provide the requisite clarity here. Such explicit contemplation of an amendment was key to our decision in Murray, 406 F.3d at 712–13, that the district court‘s order was nonfinal. Further, the University‘s suggestion that the January memorandum opinion “made it abundantly clear that [the district court] viewed the entire premise of [appellants‘] suit . . . as resting on faulty logic,” Appellees’ Br. 29, can take it only so far. The district court never stated on the record that “the action could not be saved by any amendment of the complaint which the plaintiff could reasonably be expected to make,” Dubicz v. Commonwealth Edison Co., 377 F.3d 787, 790–91 (7th Cir. 2004) (quoting Furnace, 218 F.3d at 670). The district court‘s skepticism about aspects of appellants’ case was confined to the factual allegations in the complaint before it. It nowhere hypothesized about the futility of potential amendments; indeed, its comments highlighted the absence of
It is true that in its May memorandum opinion the district court stated that the January Order had “dismissed the Complaint and the action.” Wilcox, 2019 WL 2289631, at *3. A separate Order stated, “This case remains closed.” Those documents, the University urges, reveal that the district court intended to dismiss appellants’ action and issue a final decision in January 2019. But all this occurred long after appellants’ time to note an appeal had expired. Adopting the University‘s position would mean that a nonfinal order can be rendered final by statements the district court makes months later, long after a party‘s time to appeal has run. Such a result would be inconsistent with the Federal Rules of Procedure and judicial precedent seeking to ensure that litigants receive clear notice of when their time to appeal begins to run. See
Collectively, then, the record failed to alert appellants in January that the district court had separated itself from their case and entered a final judgment. Neither the January Order, its docket entry, nor the January memorandum opinion provided a clear indication that the district court had reached a final decision from which an appeal could properly be taken. The January Order itself referred only to dismissal of “the complaint” without prejudice, which generally conveys nonfinality. Ciralsky, 355 F.3d at 666. The docket entry and the January memorandum opinion muddied the waters by
For these reasons, we hold that the January Order was not final; only the May Order was. The May Order stated that appellants’
Our dissenting colleague opts for a different approach than this court has chosen, positing that there is no difference between dismissing a “complaint” and dismissing a “case” or all the “claims.” Dis. Op. 4, 6. Yet the court in Ciralsky observed that “courts often regard the dismissal without prejudice of a complaint as not final,” 355 F.3d at 666 (emphasis in original), and reiterated in North American Butterfly Ass‘n, that “[o]ur scrutiny of a without-prejudice dismissal often focuses on whether the district court dismissed the entire ‘case’ or just the ‘complaint,‘” 977 F.3d at 1253. Unlike here, in North American Butterfly the district court expressly stated the “case” was dismissed. Id. Absent en banc review, this distinction is the law of the circuit, by which this three-judge panel is bound. LaShawn A. v. Barry, 87 F.3d
III.
The district court concluded in May that because judgment had been entered by the January Order, appellants could no longer seek leave to amend their complaint pursuant to
Accordingly, we vacate the denial of appellants’ motion for leave to amend their complaint and remand the case to the district court to consider whether to grant leave for appellants to file their proposed amended complaint. There is no need now for this court to address either appellants’ challenges to the district court dismissal of their initial complaint or the University‘s contention that the proposed amendments would be futile, for the district court can address that matter in the first instance.
“The law of federal appellate jurisdiction is widely regarded as a mess,”1 a “tangle.”2
This case presented our court with an opportunity to clear things up a bit, but the majority opinion has made matters worse.
On January 8, 2019, District Judge Collyer dismissed the plaintiffs’ complaint without prejudice for “lack of subject-matter jurisdiction,”
But the majority decides that the countdown never began because Judge Collyer‘s judgment was not a “final decision.” That is so, the majority claims, (1) because Judge Collyer did not “intend” to issue a final decision; (2) because Judge Collyer only dismissed the “complaint,” not the “action“; (3) because even after Judge Collyer dismissed the complaint, the plaintiffs
I will take up these four points in that order. Each is deeply flawed and quite mistaken.
I.
My first objection is to the majority‘s treatment of the district court‘s “intent.”
What has a district court‘s “intention” to do with appellate jurisdiction? A footnote in a Supreme Court opinion states that it matters “whether the district court intended the judgment to represent the final decision in the case.” Bankers Tr. Co. v. Mallis, 435 U.S. 381, 385 n. 6 (1978) (per curiam). This footnote may not have been a holding, but our court seems to have viewed it as such. See Attias v. Carefirst, Inc., 865 F.3d 620, 624 (D.C. Cir. 2017) (citing Ciralsky v. CIA, 355 F.3d 661, 667–68 (D.C. Cir. 2004)).
Here, the record leaves no doubt that Judge Collyer meant to bring this case to an end on January 8, 2019. Although not required to do so, Judge Collyer issued a comprehensive opinion on that date explaining why she was dismissing not just part, but all of the complaint under Rules 12(b)(1) and 12(b)(6).5 Then, in compliance with
following on the civil docket, as
On May 29, 2019, Judge Collyer issued another opinion and order, this time rejecting plaintiffs’ motion to amend the complaint that she had dismissed in January. In this ruling, Judge Collyer reiterated that her January 8 Order, as entered on the civil docket above her signature, ended the case and so she had “disassociated” from it.7 J.A. 525. Judge Collyer‘s order denying the motion stated: “This case remains closed.” J.A. 531.
In a classic example of Orwellian “doublespeak,”8 the majority opinion asserts that Judge Collyer — in ordering that the “case is closed” and, later, that the “case remains closed” — meant that the “case is not closed.” The absurdity of this assertion speaks for itself.
It will come as no surprise that nothing else in Judge Collyer‘s orders, or in her opinions, raises any doubt about her
There is nothing to the majority‘s claim that the January 8 Order was unclear. There is ambiguity here, but it is in the majority‘s opinion — not Judge Collyer‘s. For example, the majority proposes that the January 8 decision was uncertain because the “Order [did not] state that it was dismissing all of the plaintiffs’ ‘claims.‘” Majority Op. 9–10.
Stuff and nonsense. A “claim,” in the Federal Rules of Civil Procedure, is what a complaint puts forward (or is supposed to). See
The majority also suggests that the entry of judgment was somehow irregular — and that we may ignore Judge Collyer‘s May 29 decision denying any such thing.10 Circuit law is firmly against both notions. In ruling otherwise, the majority does “violence to the presumption of regularity surrounding all judicial proceedings and record” and improperly “disregard[s] the District Court‘s subsequent affirmation of regularity.” Weedon v. Gaden, 419 F.2d 303, 306 (D.C. Cir. 1969).
Here is the bottom line. When Judge Collyer closed this case on January 8, 2019, she intended to end it, and end it she did. By any measure that was a “final decision” under
II.
This brings me to the majority‘s second rationale, which presents this question: Does a district court‘s dismissal without prejudice make the court‘s decision nonfinal under
Wallace thus holds that a dismissal without prejudice is a final, appealable decision under
Under
There is no rational basis for treating
The majority‘s fiction — that an “action” remains after the district court dismisses the complaint for failing to state one — is the proverbial grin without the cat. “‘Well! I‘ve often seen a [complaint] without [a cause of action],’ thought Alice; ‘but [an
III.
The majority‘s other basis for not recognizing finality is this: a dismissal of a complaint without prejudice is not a final appealable order because the complaint may be amended pursuant to
Here is the law. After a district court enters a final decision, the plaintiff is no longer free to amend its complaint under
Here then is the majority‘s logical fallacy, the fallacy of circular reasoning. Dismissal of a complaint without prejudice is not a final order, the majority says, because the plaintiffs may amend their complaint under
In short, the third ground for the majority‘s conclusion regarding finality goes nowhere. It goes round and round, stating in one form or another that A is true because B is true; and B is true because A is true.
IV.
All that remains is circuit precedent. An Addendum to this dissent criticizes the majority‘s reliance on a case from this circuit and on cases from other circuits. Rather than further recitations about why this case is the same as that, or that case is different from this, I offer the following abbreviated analysis.
Our court has rendered three decisions dealing with “finality” and appellate jurisdiction in the last few years. Today‘s majority decision is inconsistent with each one of them.
In the meantime, while this case and Butterfly were pending on appeal, our court decided Reshard v. Stevenson, 801 Fed. App‘x 790 (D.C. Cir. 2020). We treated the district court‘s dismissal of the complaint without prejudice19 as a “final decision” within the meaning of
And several months before this case began, our decision in Attias gave the final word on finality. “[A]nything less than an express invitation is not a clear enough signal to overcome the presumption of finality.” Attias, 865 F.3d at 625. The majority opinion mistakenly restricts Attias to dismissals of complaints without prejudice pursuant to
Case closed.
St. Marks Place Hous. Co. v. U.S. Dep‘t of Hous. & Urb. Dev., 610 F.3d 75 (D.C. Cir. 2010):
At several points the majority invokes St. Marks to show that “the case is closed” may not amount to a “final decision.” Majority Op. 7-8. “Pure applesauce.” King v. Burwell, 576 U.S. 473, 507 (2015) (Scalia, J., dissenting). The majority‘s use of St. Marks is quite misleading. It omits the critical language in the St. Marks order – namely, “this Order shall not be deemed a final Order subject to appeal[.]” 610 F.3d at 79 (emphasis added). There is nothing of the kind here — nothing to contradict Judge Collyer‘s “apparently definitive dismissal language” that the “case is closed.”
Weber v. McGrogan, 939 F.3d 232 (3d Cir. 2019):
According to the majority, Weber shows that docket entries are not necessarily “probative.” Majority Op. 11–12. But the majority again breezes past the details. The docket entry in Weber was an unsigned “utility event” that was not an order of the district court. 939 F.3d at 237. Compare that to this case, where Judge Collyer issued a “text order” that “contain[ed] [her] electronic signature” — what Weber called the “most significant” type of docket entry. Id.
Psara Energy, Ltd. v. Advantage Arrow Shipping, 946 F.3d 803 (5th Cir. 2020):
Psara is instructive — just not in the way that the majority imagines. The majority cites Psara to prove that an order “administratively closing [a] case” may be nonfinal. Majority Op. 11–12. What of it? The district court in Psara ordered the case “administratively closed[.]” Dkt. 40, Psara Energy, Ltd. v.
Campbell-McCormick, Inc. v. Oliver, 874 F.3d 390 (4th Cir. 2017):
Campbell-McCormick — like Psara — was “administratively clos[ed].” Dkt. 106, Campbell-McCormick, Inc. v. Oliver, 1:16-cv-01057-CCB (D. Md. July 18, 2016) (capitalization omitted). This case was not. So it is neither here nor there that Campbell-McCormick “was not rendered final by administrative closure.” Majority Op. 12.
Mead v. Reliastar Life Ins. Co., 768 F.3d 102 (2d Cir. 2014):
Mead does not undermine the “probative value of the docket entry here.” Majority Op. 11–12. The district court in Mead “remanded to the [benefits] plan administrator for further proceedings” and then ordered the case “close[d].” 768 F.3d at 106. The Second Circuit held that this was not a final order because it “did not conclusively determine” all pending claims. Id. at 109 (cleaned up). At most, then, Mead shows that a docket entry cannot render a nonfinal order final. Yet unlike the order in Mead, Judge Collyer‘s order left no unfinished business.