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D.C. Circuit divides again on finality of orders dismissing complaints without prejudice

If a district court dismisses a complaint in its entirety and closes the case, is the order final and appealable?  Not necessarily, a panel of the D.C. Circuit held this week.  

According to the panel in Wilcox v. Georgetown University, the dismissal at issue was not final until the court later denied leave to amend—because only then was it clear that the court intended to dismiss the entire action, rather than merely the complaint:

It is not always clear whether a district court intended its order to dismiss the action or merely the complaint. Even where a district court’s order states that it is dismissing the complaint without prejudice, that can be a final decision if there are other sufficiently clear record indicia that it intended to dismiss the case or action.

The district court’s January Order was, on its face, a without-prejudice dismissal of appellants’ complaint. The question, therefore, is whether there are other indicia in the record that the district court had withdrawn from the case as a whole such that a Rule 15(a) amendment would not be available.

None of the markers that this court has identified as sufficient indicia of such finality are present here. The district court did not state in either its January Order or memorandum opinion that amendment of the complaint would be futile. The Order did not state that it was final and appealable. The January memorandum opinion did not state that “the case” or “the action” was dismissed. Nor did the accompanying Order state that it was dismissing all of the plaintiffs’ “claims.” The district court’s dismissal was not wholly for lack of subject-matter jurisdiction. Nor did the University’s motion request dismissal of the “action.”

It was not even enough, the court held, that the docket stated that the case was “closed.”

Judge Randolph dissented, comparing the panel’s reasoning to something from Alice in Wonderland:

Exactly this question arose in United States v. Wallace & Tiernan Co., 336 U.S. 793 (1949). The Supreme Court’s answer should have controlled this appeal: “That the dismissal was without prejudice to filing another suit does not make the cause unappealable, for denial of relief and dismissal of the case ended this suit so far as the District Court was concerned.” 336 U.S. at 794 n.1.

Wallace thus holds that a dismissal without prejudice is a final, appealable decision under § 1291. My colleagues seek to avoid Wallace by invoking a fiction. The fiction is this: the January 8 decision was not final because the “action” continued after Judge Collyer dismissed the complaint.

Under Rule 3, there can be no action without a complaint. If the complaint is gone, the action is too. There is no accounting for the difference in finality between dismissing a complaint with prejudice — which the majority thinks is a final decision — and dismissing a complaint without prejudice.

The majority’s fiction — that an “action” remains after the district court dismisses the complaint for failing to state one — is the proverbial grin without the cat. “‘Well! I’ve often seen a [complaint] without [a cause of action],’ thought Alice; ‘but [an action] without a [complaint]! It’s the most curious thing I ever saw in my life!’” Lewis Carroll, Alice in Wonderland & Through the Looking Glass 69 (J. Tenniel illus. 1997).


On March 11, the appellee petitioned for rehearing, noting that another divided panel of the D.C. Circuit came out the other way—holding a dismissal to be final and appealable—even though in that case the district court did grant leave to amend and did not say the case was “closed”:

Earlier this Term, in North American Butterfly Ass’n v. Wolf, 977 F.3d 1244 (D.C. Cir. 2020), a divided panel concluded that a district court had disassociated itself from a case even though the court had expressly granted the plaintiff leave to amend a complaint that had been dismissed without prejudice. Here, by contrast, the divided panel concluded that a district court had not disassociated itself from the case even though the court made no mention of an amended complaint but instead directed on the docket: “[t]his case is closed.” Op. 3.

This situation is one to watch—both in the D.C. Circuit and possibly down the road, in the U.S. Supreme Court.