In its en banc opinion last month, the United States
Court of Appeals for the Fourth Circuit held that where a district
court dismisses a case without prejudice but is silent about
allowing leave to amend, the dismissal is considered a final,
appealable order under 28 U.S.C. § 1291. Britt v.
DeJoy, No. 20-1620, 2022 WL 3590436 (4th Cir. Aug. 17, 2022)
(en banc). Prior to Britt, the Fourth Circuit had
adopted a case-by-case approach which meant that the appellate
court was charged to review the proceedings below to determine
whether the district court was truly finished with the case or
whether an amendment to the complaint was viable. Britt
eliminated the "confusion" that the case-by-case approach
had sown, replacing it with a "clear bright-line" set of
rules. Id. at *4.
1. Summary Of The Facts
Appellant Joann Britt, a former employee of the United States
Postal Service ("USPS") brought employment discrimination
and retaliation claims against her employer. USPS moved to dismiss
the complaint and, with the exception of the retaliation claim, the
district court dismissed all of Britt's claims with
prejudice. The court dismissed the retaliation claim
without prejudice after finding that Britt did not plead a
causal link between her protected activity and her termination.
Although the deficiencies in her complaint were not fatal, the
court did not grant Britt leave to amend. [In fact, the district
court record indicates that Britt made no request to amend.]
Nonetheless the court directed the Clerk of Court to "close
the case." Britt appealed the dismissal and the Fourth Circuit
decided to consider en banc the "issue of when a
dismissal without prejudice is final, and thus appealable."
Id. at *2.
2. Discussions
The Fourth Circuit began its discussion stating that it is
"well-established that dismissals made without prejudice when
leave to amend is denied are final and appealable, and it is
equally well-established that dismissals made without prejudice
when leave to amend is granted are not." Id. at *4.
But, the Court asked, "what happens when a district court
dismisses a complaint or all claims within a complaint without
prejudice yet remains silent as to the possibility of
amendment?" Id. To resolve the issue, the Court
abandoned its previous case-by-case approach, and instead joined
the D.C. and other Circuits by adopting a bright-line rule to the
effect that anything less than an express invitation to amend is
not a clear enough signal to overcome the presumption of finality.
Id. at *5. The Fourth Circuit reasoned that "[a]ny
and all intent regarding finality... is communicated through the
presence or lack of permission to amend the complaint."
Id. Without such permission expressly granted, the
dismissal is final and appealable.
Notwithstanding this new standard, the Fourth Circuit admitted that
some confusion could still remain under several different
circumstances. The Court, therefore, set forth several scenarios
and explained how a party should proceed to maintain a timely right
to appeal. Id.
a. The District Court Dismisses a Complaint Without Prejudice and Without Expressly Granting Leave to Amend – When Does the Time to Appeal Begin to Run If the Plaintiff Wants to Amend the Complaint?
As noted under the new rule, where the district court's
order is without prejudice but does not address the ability to
amend, the decision is appealable. If, however, the party wishes to
amend the complaint, the Court explained that the time to appeal
begins to run upon entry of the judgment after amendment. In this
instance the plaintiff can only amend its complaint by first filing
a motion to reopen or to vacate the judgement under Rule 59 or Rule
60. Id. at *5. Once this motion is filed, the time to
appeal will restart from the entry of the order disposing of the
last such remaining motion. Id.
b. The District Court Grants a Plaintiff Leave to Amend but Plaintiff Chooses Not to Amend – How May the Plaintiff Obtain the Right to Appeal?
If a plaintiff wishes to stand on the complaint when a district
court expressly grants leave to amend, the decision would not be
final and, thus, not appealable. Id. at *6. In this
circumstance, a plaintiff who wishes to stand on the complaint
should request that the district court enter a final decision
dismissing the case without leave to amend. See Fed. R.
Civ. P. 59. Once the district court issues the new decision
constituting a final judgment, the appeal clock will begin to run,
and the plaintiff may then appeal. DeJoy, 2022 WL 3590436,
at *6.
c. The District Court Grants Leave to Amend and Either Specifies or Does Not Specify the Deadline for the Amendment – What are the Deadlines for an Appeal?
In granting a plaintiff leave to amend the complaint, the
district court may have: (1) provided the plaintiff with a
specified number of days in which to amend, or (2) remained silent
as to a deadline for amendment. Because, on its face, either type
of order is not final (by virtue of the possibility for amendment
of the complaint), the Fourth Circuit held that in both instances
the plaintiff must obtain a final order before being able to
appeal.
In the first instance, where the district court has indicated how
much time the plaintiff has to amend the complaint, that deadline
must be met and an appeal would be possible at a later time when
the amended complaint is ruled upon. However, if no amendment is
filed by the deadline, the district court should issue a final
order upon the deadline's expiration whereupon the time to
appeal begins to run. Id. Citing an old Supreme Court
case, the Fourth Circuit opined that absent an order from the
district court, the time to appeal would not run – even if
the plaintiff fails to amend or fails to file the amendment on
time. Id. at *6 (citing Jung v. K. & D. Min.
Co., 356 U.S. 335, 337, (1958) (finding that a plaintiff who
was granted twenty days to amend obtained a final, appealable
decision when electing to stand on her complaint nearly two years
later)). In the second instance where no amendment deadline is set,
a plaintiff electing to stand on the complaint can affirmatively
waive the right to amend by requesting, and obtaining, a final
decision from the district court. Id.
3. Conclusion
The Fourth Circuit concluded that an order dismissing a complaint without prejudice but without expressly granting leave to amend is final. In Britt's case, the Fourth Circuit found that her appeal was from a final order thus clearing the way for an ultimate appellate decision on the merits. Id. at *7.
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