Romoland School District v. Inland Empire Energy Center, LLCRomoland School District v. Inland Empire Energy Center, LLC
Lead Opinion
Opinion by Judge GOULD; Concurrence by Judge WALLACE.
The Romoland School District and several individuals and environmental groups, (collectively, “Plaintiffs”) appeal the denial of their motion for a preliminary injunction and the dismissal with prejudice of their two claims against Inland Empire Energy Center (“IEEC”), a wholly-owned subsidiary of General Electric Company. Plaintiffs brought suit against IEEC under the citizen suit provision of the Clean Air Act (“CAA” or “Act”),
Plaintiffs also included as a defendant in their CAA action the South Coast Air Quality Management District (“the air dis
We must resolve two threshold issues of jurisdiction before we may consider the merits of Plaintiffs’ claims: (1) whether the district court’s dismissals of the claims in this case present us with a final decision pursuant to
I
A
Congress passed the Clean Air Act in 1970 “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.”
Once a local rule, like SCAQMD Rule 1303, becomes part of an EPA-approved SIP after a public notice and comment period, it becomes federally enforceable in district court through the CAA’s citizen suit provision,
In 1990, Congress amended the CAA to add a nationwide system of operating permits like those mandated by other environmental laws such as the Clean Water Act.
As with the SIPs under
[The state’s proposed program must] (x) [p]rovide an opportunity for judicial review in State court of the final permit action by the applicant, any person who participated in the public participation process provided pursuant to § 70.7(h) of this part, and any other person who could obtain judicial review of such actions under State laws.... [The program must also] (xii) [p]rovide that the opportunity for judicial review described in paragraph (b)(3)(x) of this section shall be the exclusive means for obtaining judicial review of the terms and conditions of permits, and require that such petitions for judicial review must be filed no later than 90 days after the final permit action, or such shorter time as the State shall designate.
Title V differs from earlier CAA provisions in that EPA exercises a greater degree of ongoing oversight, reviewing not only the states’ permit programs but individual permit applications and permits as well.
If EPA does not object within 45 days of receiving a proposed permit, “any person may petition the Administrator [to make such an objection] within 60 days after the expiration of the 45-day review period ... based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the permitting agency .... ”
B
New power plants in Riverside County must undergo overlapping certification processes before they may be built, some of which track the requirements of the federal CAA and others that are unique to California or to the air district. The California Energy Commission (“CEC”) assesses the environmental and public health impacts of any proposed power plant with a generating capacity of more than 50 megawatts and has the sole authority to certify the construction and operation of a power plant of that size. See
In addition to its indirect role in the CEC process, SCAQMD directly administers other permitting schemes applicable to the IEEC project at issue here. First, every piece of equipment that may release air contaminants must obtain a separate Permit to Construct under District Rule 201 and, once the Permit to Construct is granted and the equipment is evaluated for its compliance with that permit, a Permit to Operate under District Rule 203. Large facilities that are projected to emit more than a certain amount of pollution and so are subject to Title V of the CAA must also obtain a “facility-wide Title V permit” in addition to the individual permits to construct and permits to operate required for each piece of equipment at the facility. Finally, large emitters of nitrogen and sulfur oxides that qualify for the RECLAIM program discussed in footnote 3 receive a RECLAIM facility permit from the air district pursuant to District Rule 2006. See Rule 2006(b)(3); Rule 3004(b).
Because the modifications to IEEC’s proposed project required it to supply new emissions calculations and modeling analysis to the air district, IEEC canceled its pending permit applications and submitted twelve superseding applications in early 2005, including an application for a revised Title V and RECLAIM facility permit and eleven applications for permits to construct individual pieces of equipment. On June 2, 2005, the air district published a new Notice of Intent to Issue Permit in a Riverside newspaper and also mailed the notice to more than 750 separate addresses of individuals who had either expressed an interest in being notified of such activities or who lived within a quarter-mile radius of the proposed power plant location. See Rule 212(c)-(d); 3006(a).
Accordingly, on August 5, 2005, SCAQMD issued IEEC a document entitled “RECLAIM/Title V Facility Permit” which contained sections (F and G) describing the RECLAIM rules applicable to the facility, a section (K) listing administrative conditions associated with Title V, and two sections (D and H) enumerating “emission sources at [the] facility that have been issued a Permit to Operate or a Permit to Construct along with permit conditions for emission sources at[the] facility.” The cover letter sent with the permit also assigned application numbers to various pieces of equipment and explained that those applications “associated with this Facility Permit have been approved for Permits to Construct/ Temporary Permits to Operate.... ” This cover letter further stated that “the enclosed RECLAIM/Title V Facility Permit ... will serve as the official permit for your facility.”
C
On February 22, 2006,
Within a month of filing suit, Plaintiffs moved for a preliminary injunction to halt construction of the power plant until IEEC’s permit was modified to comply with the applicable CAA provisions. On June 12, 2006, IEEC moved to dismiss the two causes of action against it for failure to state a claim under
Although neither the oral ruling nor the written order of the district court specified that the dismissal of Plaintiffs’ claims against IEEC was based on a lack of subject matter jurisdiction, the order did state that the dismissal was “[based on] the reasons set forth in IEEC’s motion to dismiss and the papers submitted in support thereof....” That motion and supporting documentation had contended, among other things, that the district court lacked jurisdiction over Plaintiffs’ claims because Plaintiffs were challenging a Title V permit and so were limited to the mechanisms for judicial review provided in that part of the CAA. When Plaintiffs’ claims against IEEC were dismissed, SCAQMD had not yet filed any dispositive motions. However, the air district did submit a “notice of position” to the district court on August 11 stating that it agreed with IEEC’s jurisdictional argument and would be incorporating that argument into a summary judgment motion.
Responding to these developments, Plaintiffs moved on October 10 for voluntary dismissal of their two remaining claims against the air district under
On October 12, District Judge Guilford, to whom the Plaintiffs’ remaining claims against the air district had been transferred on September 20, granted the voluntary dismissal motion. The order signed by Judge Guilford and entered on the docket read, in its entirety, as follows:
On August 18, 2006, Judge Lew entered an order dismissing Plaintiffs’ Third and Fourth Causes of Action for lack of subject matter jurisdiction. The Courthereby grants Plaintiffs’ unopposed application for voluntary dismissal. IT IS SO ORDERED.
On November 7, Plaintiffs filed a Notice of Appeal (“NOA”) that listed both IEEC and SCAQMD as defendants and included both parties on the service list. The NOA listed the judgment appealed from as the October 12 “Court approved voluntary dismissal” and stated that Plaintiffs were also appealing “interlocutory orders that gave rise to the judgment, including, but not limited to, order granting motion to dismiss without leave to amend and order denying motion for preliminary injunction.”
In January of 2007, a telephone conversation took place between counsel for Plaintiffs and counsel for the air district to which both attorneys have stipulated in signed declarations. The contact was initiated by SCAQMD’s counsel, Bradley Ho-gin, who raised concerns about the fact that the dismissal of Plaintiffs’ claims against the air district was without prejudice; Hogin asked if Plaintiffs would accommodate the air district’s concerns by dismissing their appeal, altering the dismissal in the district court to be with prejudice, and then filing a new appeal. Plaintiffs’ counsel, Suma Peesapati, declined, and Hogin stated that the air district would file a motion to dismiss the appeal as not relating to a final judgment. That motion was filed on April 12, 2007, and was joined by IEEC, who had not known of the voluntary dismissal of Plaintiffs’ claims against the air district before being served with the NOA. On May 31, 2007, Appellate Commissioner Peter Shaw denied the defendants’ motion to dismiss the appeal, without prejudice to the issue of appellate jurisdiction being considered by the merits panel.
II
Except in limited circumstances not currently at issue, parties may only appeal from, and appellate courts only have jurisdiction over, “final decisions of the district courts.” See
SCAQMD and IEEC both argue that the order denying Plaintiffs’ motion for a preliminary injunction and dismissing their claims against IEEC with prejudice and the order granting Plaintiffs’ motion for voluntary dismissal of their claims against
For many years, the general rule in this circuit had been that voluntary dismissals without prejudice do not create appealable, final judgments. Concha,
The pertinent legal landscape was altered slightly in 2002 with our decision in James v. Price Stern Sloan, Inc.,
Here, as in James, the record does not reflect intentional manipulation. The plaintiff in James explained in her motion for voluntary dismissal that “[a] federal court trial on the few remaining [contracts] would not be an efficient use of time and resources” and that “once those claims are dismissed, a final judgment can be entered.” Id. at 1068 (first alteration in original). We described those “reasons for seeking a dismissal of ... remaining claims” as “entirely legitimate,” id., and those are essentially the same reasons offered by Plaintiffs in their
Voluntary [dismissal [i]s [i]n the [interest of judicial [e]conomy [because][d]is-missal [w]ould [o]bviate the [n]eed for the SCAQMD defendants’ [d]uplicative [dispositive [m]otion ... based on the same Title V exhaustion argument that IEEC made in its motion to dismiss.... Under the ‘law of the case’ doctrine, the SCAQMD Defendants’ dispositive motion would dispose of both of Plaintiffs’ remaining causes of action for lack of subject matter jurisdiction ... thus ending the case. Recognizing the high likelihood of this outcome, Plaintiffs seek this voluntary dismissal for the purposeof gaining final judgment in this case, thereby allowing an appeal of this determinative jurisdictional issue.
As Plaintiffs clarified at oral argument, they sought dismissal of their claims against SCAQMD because they believed those claims to be resolved by the district court’s rulings on Plaintiffs’ claims against IEEC and their motion for preliminary injunction, and they have disclaimed all intention to revive their claims against SCAQMD independently of their claims against IEEC. Moreover, the air district, like the defendant in James, “had an opportunity to argue that[Plaintiffs’ stated reasons for seeking voluntary dismissal] were a subterfuge, but failed to do so.”
Despite these similarities to James, our case is distinguishable in several important respects. First, James involved multiple claims against a single defendant, some of which were voluntarily dismissed and others of which (those subject to the partial summary judgment) were appealed following the voluntary dismissal. Id. at 1065. By contrast, here Plaintiffs seek to appeal two otherwise interlocutory orders — the order dismissing their claims against IEEC but also the order denying their motion for a preliminary injunction, a motion which had sought relief from both IEEC and SCAQMD. Specifically, Plaintiffs’ counsel advised at oral argument that the preliminary injunction motion sought rescission from SCAQMD of the permit it had issued to IEEC. For this reason, Plaintiffs’ Notice of Appeal listed both IEEC and the air district as defendants, and the air district submitted a brief and participated in oral argument on appeal even though all of Plaintiffs’ claims against it had been dismissed. This involvement by a defendant in an appeal of issues that it never litigated before the district court goes well beyond the straightforward two-party scenario contemplated in James, and the legal uncertainty for such a defendant is compounded where it faces the possibility that the original claims against it may be revived, depending on the outcome of the appeal, because they were dismissed without prejudice.
Second, the James panel found it significant that the voluntarily dismissed claims in that case related to different contracts for different pieces of artwork than the claims being appealed, making it likely that final judgment could also have been obtained through severance of the claims by the district court under
The year after James was decided, we clarified that James had carved out “an exception to the general rule that ‘in the absence of [a
The Concha decision predated James and thus belonged to an era when only dismissals with prejudice gave rise to ap-pealable, final judgments. However, many of the same considerations of intent that motivated us to deem the dismissal in Con-cha with prejudice lead to the same conclusion here. Whereas the parties’ stipulation in Concha explicitly stated that the dismissal of remaining claims was without prejudice, here the order dismissing Plaintiffs’ claims against the air district says nothing about the dismissal’s effect, and the assertion that it was without prejudice derives solely from the presumption in
Accordingly, for purposes of this appeal,
Ill
The jurisdictional argument first raised in IEEC’s motion to dismiss, and reiterated in both defendants’ briefs and at oral argument, has been misconstrued by Plaintiffs throughout this appeal as a claim that they “failed to exhaust administrative remedies” or a contention that Title V of the CAA “revoked” Title I, the part of the CAA containing the NSR and other pre-construction requirements. Instead, what the defendants are asserting is that because the air district has elected to incorporate all federal, state and local regulations regarding air pollution, including the requirements of NSR where applicable, into a consolidated permitting process for all facilities subject to Title V, and because Plaintiffs are not challenging IEEC’s compliance with the terms of its permit but are rather asserting that the permit itself violates District Rule 1803, the only forums in which Plaintiffs could have brought that challenge to IEEC’s permit are those authorized by Title V of the CAA and the SCAQMD rules implementing Title V within the air district. Although Plaintiffs argue that they “did not invoke” the “additional enforcement scheme” added by Title Y and thus that this title is “wholly irrelevant” to their action, the defendants suggest that when the preconstruction requirements of NSR are incorporated or “merged” into a state’s Title Y permitting scheme, the compliance of permits granted under such a scheme with NSR and other Title I requirements may only be challenged through Title V-related judicial review procedures, whether a plaintiff specifically “invokes” Title V or not. Put another way, the defendants are not arguing that Plaintiffs failed to take certain administrative steps such as petitioning the EPA to object to IEEC’s permit and that because of this failure, their claims are not ripe for judicial review in the district court; rather Defendants are contending that the type of challenge these plaintiffs are bringing — an attack on a duly issued permit as inconsistent with NSR-related components of a SIP — can never be brought in federal district court under
A
In drafting Title V, Congress intended to impose the requirement to obtain an operating permit on a wide range of pollution sources, including those sources that were already required to gain a permit before beginning construction pursuant to
To reconcile Title V’s requirements for a permit during operation with Title I, Part D’s requirement that a permit be obtained before construction or modification, Congress provided that state permitting programs under Title V “shall establish reasonable procedures to prioritize ... approval or disapproval [of permit applications] in the case of applications for construction or modification under the applicable requirements of this Act.”
Yet by far the strongest evidence of federal intent to consolidate preconstruction and Title V permitting requirements comes from the Federal Register notice in which EPA announced the final adoption of its implementing regulations for Title V. In a section in that notice entitled “Permit/SIP Relationship,” the agency explained:
The SIP remains the basis for demonstrating and ensuring attainment and maintenance of the national ambient air quality standards (NAAQS). The permit program collects and implements the requirements contained in the SIP as applicable to the particular permittee. Since permits must incorporate emission limitations and other requirements of the SIP, all SIP provisions applicable to a particular source will be defined and collected into a single document.
57 Fed.Reg. at 32258. Another section under the heading “New Source Review/Title V Relationship” is instructive. It states:
Under today’s final rule State and local permitting authorities have the option, but not a mandate, to integrate requirements determined during preconstruction review with those required under title V. Such integration would be consistent with the previously stated implementation goals of combining programs and building on existing State programs which typically have already accomplished such integration at the State level. As discussed above, if NSR is integrated with the procedural and compliance-related requirements contained in [40 C.F.R.] §§ 70.6, 70.7, and 70.8 (including opportunity for EPA and affected State review), an existing title V permit can be administratively revised to reflect the results of the integrated NSR process.
Id. at 32259.
Analysis of the air district’s permitting rules leaves little doubt that it has taken advantage of this “option ... to integrate ... preconstruction review with ... Title V” requirements. One district rule, Rule 3003(h), creates some confusion of terminology when it states that “[t]he submittal of a complete Title V permit application ... shall not relieve any person of the requirements for a pre-construction permit under Title I of the federal Clean Air Act, District Regulation XIII — New Source Review, or District Rule 2005 — New Source Review for RECLAIM.” Despite the use of the term “pre-construction permit” in this rule, the cited district NSR provisions nowhere refer to a “pre-construction permit” but speak instead of “permits to construct,” which are not to be granted unless the permit applicant complies with emission limitation and offset requirements. See, e.g., District Rule 1303(a)(1), 1303(b). In turn, the rules that make up District Regulation II governing permits to construct contain repeated references to Title V of the CAA, such as the statement in a list of deadlines for approval or denial of construction permits that “permit revisions for Title V facilities shall follow the timetables for permit action” set forth in Regulation XXX, which contains rules implementing the district’s Title V program. Rule 210(d)(3). Other cross-references to Regulation XXX occur in Rule 204 regarding written conditions of construction permits and in Rule 212, which contains the requirements for public notice and comment regarding permits to construct. See Rule 212(c)(1), 212(c)(3).
Despite its emphasis on operating permits, Title V is similarly replete with references to both NSR and permits to construct. In a parallel to the federal regulations discussed above, District Rule 3000(b)(1)(D) defines the term “administrative permit revision” to include “any Title V permit revision to ... issue a final permit to operate for any equipment previously issued a Title V permit to construct....” The Federal Register notice in which EPA granted interim approval to SCAQMD’s Title V program explains the significance of this provision:
Enhanced New Source Review. South Coast’s title V permit program providesfor enhanced preconstruction review, an optional process that allows sources to satisfy both new source review and title V permit modification requirements at the same time. Any modification processed pursuant to South Coast’s enhanced preconstruction review procedures may be incorporated into the title V permit as an administrative permit amendment. These enhanced procedures obviate the need to undergo two applications, public notice, and permit issuance/revision processes for the same change. (See [Rule] 3000(b)(1)(D).)
61 Fed.Reg. 45530, 45532 (August 29, 1996). Another district rule is explicit about the degree to which the air district has merged its Title V permitting scheme with the source-specific permits to construct discussed in Rule 1303: “A written authorization to construct, issued as part of a Title V facility permit, shall be deemed a permit to construct for the purposes of all other District rules and regulations.” Rule 3007(a)(2).
The very permitting process at issue in this case demonstrates the extent of the integration. Although IEEC did apply for a separate Permit to Construct for each piece of emitting equipment at its facility as well as applying for a Title V and RECLAIM facility permit, only one permit was issued to IEEC by SCAQMD: a “RECLAIM/Title V Facility Permit” which included a list of “emission sources at your facility that have been issued a Permit to Operate or a Permit to Construct....” Not only were all of IEEC’s applicable permits contained in a single document, but that permit was also subjected to a single public review and comment process combining the notice and comment requirements of Rule 212 concerning permits to construct and Rule 3006 regarding Title V permits. Moreover, the RECLAIMTTi-tle V Facility Permit, including sections D and H with their lists of pieces of equipment granted Permits to Construct, was submitted to EPA for its review pursuant to Rule 3003(j). We therefore conclude that while all substantive requirements of preconstruction review remain in place in the air district, as a procedural matter the district’s various permit application processes for potential emitters subject to Title V have been consolidated into a single comprehensive system, under the auspices of Title V, and IEEC’s RECLAIM/Title V Facility Permit for its proposed Romoland power plant was issued pursuant to this consolidated system.
B
Title V permits are by no means wholly insulated from the CAA’s citizen suit provision. To the contrary, when the CAA was amended in 1990 to add Title V, the citizen suit provision was also amended to add to the definition of “emission standard or limitation,” an alleged violation of which authorizes any person to bring an enforcement action, “any other standard, limitation, or schedule established under any permit issued pursuant to title V, ... any permit term or condition, and any requirement to obtain a permit as a condition of operations.”
This “use it or lose it” provision of
Our interpretation of
The two cases cited by Plaintiffs to support their argument that allegedly invalid permits may be challenged directly through the CAA citizen suit provision, Grand Canyon Trust v. Tucson Electric Power Co. and Communities for a Better Environment v. Cenco Refining Co., are inapposite. Grand Canyon Trust involved a challenge under
In Cenco, one of the plaintiffs in this action, Communities for a Better Environment (“CBE”), challenged, under the citizen suit provision, SCAQMD’s decision to transfer a previously expired Permit to
[J]ust because a federal administrative remedy is available for objecting to the issuance of a subchapter Y permit does not mean that a legal remedy under§ 7604 is unavailable for a defendant’s failure to comply with [non-Title V-related] SIP permitting requirements. Although Cenco may be required to eventually acquire subchapter V permits, the mere fact that plaintiffs could challenge such permits under§ 7661d at that time does not preclude plaintiffs from attacking other permits now under the broad language of subsection (f)(4) [of§ 7604 ]; indeed, the Clean Air Act nowhere states that plaintiffs must wait for the issuance of subchapter Y permits before they can sue on existing violations of the SIP.
Id. at 1081 n. 6.
This language in Cenco, coming from a case involving the same air district and many of the same district rules at issue here, aptly illustrates that there are limits to our holding today. We do not opine upon the general contours or scope of the citizen suit provision of 42 U.S.C. 7604. We hold only that where a state or local air pollution control district has integrated the preconstruction requirements of Title I with the permitting requirements of Title V and a permit is issued under that integrated system, a claim that the terms of that permit are inconsistent with other requirements of the Clean Air Act may only be brought in accordance with the judicial review procedures authorized by Title V of that Act,
IV
For the foregoing reasons, we conclude that we have jurisdiction over this appeal, and we affirm the district court’s dismissal with prejudice of Plaintiffs’ claims against IEEC. We grant IEEC’s request for judicial notice of materials relevant to the dispositive jurisdictional question in this case. Because of our conclusion on that jurisdictional question, we decline to reach the merits of Plaintiffs’ claims against IEEC or their motion for a preliminary injunction. We further hold that the district court should not entertain any further proceedings in this case or in a future action seeking to revive Plaintiffs’ claims against the air district pursuant to the October 12, 2006 dismissal of those claims without prejudice, because that court lacks subject matter jurisdiction over such claims under
AFFIRMED.
Notes
. Plaintiffs also brought suit against Barry R. Wallerstein, an executive officer of SCAQMD, in his official capacity. However, as Waller-stein is represented by the same counsel as the air district and has not filed any motions in his own right, the terms "air district” and "SCAQMD” will be used in this opinion to refer collectively to the defendant air district and to defendant Wallerstein.
. The air district's rules may be accessed at http://yosemite.epa.gov/R9/r9sips.nsi7Agency? ReadForm & count=500 & state=California & cat=South + Coast-I-Air+Quality + Management + District-Agency-Wide + Provisions (last visited August 14, 2008).
. The air district has promulgated another NSR provision, Rule 2005, which applies to the air district's Regional Clean Air Incentives Market, or RECLAIM, program, a special permitting program for large emitters of nitrogen and sulfur oxides. (The IEEC power plant that is the subject of this litigation received its permit through the RECLAIM program.) Rule 2005 contains modeling and offsets requirements that are virtually identical to those in Rule 1303. See, e.g., Rule 2005(b)(1)(B) (“The [air district] shall not approve the application for a ... permit to authorize construction or installation of a new or relocated facility unless the applicant demonstrates [through modeling] that ... the operation of any emission source located at the ... facility will not cause a violation or make significantly worse an existing violation of the ... national ambient air quality standard at any receptor location in the District. ...").
. SCAQMD's Title V permit program is codified in Rules 3000-3008 and received final approval from EPA on November 30, 2001. See 40 C.F.R. pt. 70, appendix A, California (dd)(2); 66 Fed.Reg. 63503 (December 7, 2001) (notice granting final approval to 34 operating permit programs in California, including that of SCAQMD).
. Because of the nature of the proposed amendment, the air district was not required to provide CEC with a new PDOC and FDOC for the project.
. Pursuant to District Rule 212(d), the mailing of notice to individuals within a quarter-mile radius of the facility site, as well as parents of children attending the Romoland Elementary School, was conducted by IEEC itself, with the relevant names and addresses provided to IEEC by the air district.
. CURE, as well as the Romoland School District, had also been involved in the public comment proceedings before CEC prior to the FDOC issuance and project certification in 2003. Specifically, both of these plaintiffs petitioned CEC for, and were granted, formal intervenor status in IEEC’s certification process, which gave them the right to submit data requests to any other party (including IEEC), participate in CEC-sponsored conferences and hearings, present and cross-examine witnesses at hearings, and submit briefs. Neither CURE nor the Romoland School District, nor any of the other plaintiffs that did not have intervenor status, actively participated in any CEC hearings or conferences, and while Romoland School District did submit comments, these concerned the school district’s desire to receive funding from IEEC to facilitate relocation of Romoland Elementary School to a site farther from the proposed power plant and did not raise any concerns about the project’s PM10 emission levels or offsets that became the basis of this litigation.
. IEEC contends that when it received this notice from Plaintiffs, it was already six months into construction and had committed $400 million to the power plant project.
. This determination relates only to our appellate jurisdiction by making it unnecessary for us to rely on or expand James to establish finality for purposes of
Concurrence Opinion
concurring in the result:
I agree that this appeal should be dismissed, but for a different reason. Our precedents dictate that the plaintiffs’ vol
I.
Except in limited circumstances not relevant here, the courts of appeals have jurisdiction to review only “final decisions of the district courts.”
In Concha v. London, we held that a plaintiffs “voluntary dismissal without prejudice is ordinarily not a final judgment from which the plaintiff may appeal.”
Here, the district court approved the plaintiffs’ unopposed
The plaintiffs argue that the voluntary dismissal nonetheless falls within the narrow exception to Concha articulated in James v. Price Stern Sloan, Inc.,
In addition, contrary to the majority’s conclusion, the record reveals at least some evidence that the plaintiffs’ voluntary dismissal without prejudice was done with an intent to manipulate our appellate jurisdiction. In particular, when counsel for the air district notified plaintiffs’ counsel about its concerns that the “without prejudice” dismissal could render the decision non-final, plaintiffs’ counsel adamantly refused to make the dismissal “with prejudice.” Although this is not direct evidence of an intent to manipulate the appellate process, the James exception does not require a lack of substantial evidence or even significant evidence. So long as there is any evidence of an intent to manipulate, the exception does not apply. James,
The default jurisdictional rule in Concha therefore applies to this case. Under this well-established precedent, voluntary dismissals without prejudice, like the dismissal at issue here, are not appealable final judgments, and this court lacks jurisdiction to review such judgments on appeal.
II.
The majority acknowledges that Concha precludes voluntary dismissals without prejudice from being appealable final judgments. (Majority Op. 748.) The majority also concedes that the James exception does not apply to the facts of this case. (Majority Op. 749-50.) Nonetheless, the majority holds that appellate jurisdiction exists here because the plaintiffs’ dismissal without prejudice can be construed as being one with prejudice under a “pragmatic evaluation of finality.” (Maj. Op. 750.) Unfortunately, this ruling cannot be squared with our precedent.
In construing the plaintiffs’ dismissal as one with prejudice, the majority principally relies on the fact-specific inquiry undertaken in Concha. (Maj. Op. 750-52.) In that case, although we held that voluntary dismissals without prejudice ordinarily do not constitute appealable final judgments, we ultimately concluded that “[i]n this unusual case,” the plaintiffs’ voluntary dismissal without prejudice would be treated as one with prejudice for the purposes of appeal. Concha,
This court’s determination of finality in Concha represents a fact-specific exception to the general rule that voluntary dismissals without prejudice do not constitute final judgments for the purposes of appeal. As we have held, any exceptions to our established bright-line jurisdictional rules should be construed narrowly. Cf. Am. States Ins. Co. v. Dastar Corp.,
The plaintiffs in this case cannot make these required showings. First, as described above, the record demonstrates that the plaintiffs in fact had no intention of entering a dismissal with prejudice. When asked by opposing counsel to change their without-prejudice dismissal to one with prejudice, plaintiffs’ counsel flatly refused.
Second, it is not at all clear that the plaintiffs had “absolutely nothing to gain” from filing a without-prejudice dismissal. In fact, the logical inference from their refusal to enter such a dismissal is that they perceived some advantage to obtaining a dismissal without prejudice. Moreover, although the plaintiffs argue that an adverse decision on this appeal would preclude their dismissed claims against the air district, nothing would prevent them from refiling their air district claims and seeking a different result. The majority cites the plaintiffs’ representations at oral argument that they do not seek to relitigate these claims as evidence that there is little possibility of such piecemeal litigation. (Maj. Op. 751.) However, the whole point of having bright-line jurisdictional rules is to avoid the expense and effort of appeal in the first place. We cannot have a rule where parties are unable to determine appellate jurisdiction based on a facial examination of the record, but must instead go through the trouble of writing briefs and preparing for oral argument to guard against the possibility of a last-minute determination of jurisdiction. Cheng v. Comm’r Internal Revenue Serv.,
For these reasons, I would not follow the majority’s approach in construing the plaintiffs’ voluntary dismissal to be one with prejudice. To expand the exception recognized in Concha beyond the specific facts of that case, as the majority does here, risks the adoption of an all-too flexible test for federal jurisdiction, one that would mimic former Justice Potter Stewart’s definition of pornography: I know it when I see it. This approach is diametrically opposed to our federal jurisprudence, which requires finality to be clear and identifiable on the record. 15A Wright, Miller & Cooper, Federal Practice and Procedure § 3913, at 462 (1992) (“Although well-established rules of appealability might at times cause an action to be determined unjustly, slowly, and expensively, they have nonetheless the great virtue of forestalling the delay, harassment, expense, and duplication that could result from multiple or ill-timed appeals”).
Moreover, the plaintiffs had multiple avenues through which they could have appealed the non-final orders entered by the district court. Most obviously, they could have simply specified that their dismissal was with prejudice, thereby adhering to this court’s established rules of federal jurisdiction. Or, if a dismissal with prejudice was unpalatable, they could have moved for a
I suggest we take an unfortunate and counter-productive turn when we fail to accept the dismissal with prejudice as necessary for appellate jurisdiction. We do
Therefore, I concur in the result of the majority, but for the reason that our court’s jurisdiction has not been demonstrated.