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
No. 19-5052
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 5, 2019 Decided October 13, 2020
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.
Dissenting opinion filed by Circuit Judge MILLETT.
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
I. BACKGROUND
In our de novo review of the district court‘s order dismissing under
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 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
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 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.”
DHS has not analyzed the environmental impact of border wall-related activities conducted at the Butterfly Center since 2017, cf.
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
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 jurisdiction over claims invoking environmental laws subject to the Secretary‘s Waiver Determination, so it dismissed the Association‘s statutory claims under
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
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
A. Timely Appeal from a Final Decision
We have jurisdiction over appeals from “final decisions” of the district court,
Under
For purposes of
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. 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
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
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 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’
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 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
In any event, Jung and
There is some disagreement among the circuits over whether and when a without-prejudice dismissal with time-limited leave to amend becomes final under
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.
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
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 final and appealable, see generally, e.g., St. Marks Place, 610 F.3d at 80;
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.
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
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
“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
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 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
C. IIRIRA‘s Jurisdiction-Stripping and Review-Channeling Provisions
DHS contends that
Both of the jurisdictional questions here—whether
Notably, the jurisdiction-stripping provision,
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.
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 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
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
DHS points to legislative history expressing Congress‘s intent that
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
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. 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 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,”
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),
The statute the Association invokes as requiring pre-waiver consultation provides in full:
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.
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,”
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 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
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.
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, 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 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
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.”
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 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
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 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.”
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 [
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 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
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 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
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 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.
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
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
A
This court has jurisdiction over appeals from “final decisions of the district courts[.]”
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 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
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. 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. 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
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 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 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
Circuits on the other side are united in their view that non-final dismissals with express leave to amend can become final 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 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[.]”);
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 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 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
The plaintiffs sought certiorari on the questions (i) whether the 1955 order extending the time to amend was a final decision under
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 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’ (
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
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
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
Nor has the language of
The current rule contains similar operative language. See
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 opportunities to appeal is one.” Otis, 29 F.3d at 1166. The Otis court reasoned that
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
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 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]
Finally, the majority opinion here treats Jung as a ruling about
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
The majority opinion is correct that
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
Like Jung, this case is not about the absence of a separate
Equally important, the district court‘s orders here did not “den[y] all 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, 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, 356 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
3
In addition to being binding, Jung‘s holding also aligns with the text, structure, and precedent applying
First, an order‘s finality—or not—is fixed at the time that order‘s issuance is entered on the docket. Section 1291 and
By providing that the clock runs from “the entry of [the] judgment, order or decree” being appealed,
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 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
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
The Federal Rules of Appellate Procedure are of the same mind. As validly promulgated federal rules of procedure, those 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”
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 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.
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 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,”
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 face denies all relief and terminates the case. In that way,
Meanwhile,
Said another way, the problem here, as in Jung, is one of substance, not paperwork. The obligation to enter a judgment under
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 free to file, and the district court free to act upon, a belated motion for extension of time or a tardy amended complaint. See
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
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).
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 1136 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.