D.C. Circuit Panel Splits Over Whether It Has Appellate Jurisdiction to Review Dismissal “Without Prejudice” That Gave Plaintiff Leave to Amend Within 14 Days

In North Am. Butterfly Assoc. v. Wolf,  No. 19-5052 (D.C. Cir. Oct. 13, 2020), a 2-1 panel devotes 41 pages of its opinion (out of 69) to the question of whether it has power to review an ambiguous final judgment.

The merits issue in the district court was whether construction of “a segment of the wall [that] the U.S. Department of Homeland Security (DHS) plans to build on the border with Mexico” was an unconstitutional seizure or taking of neighboring property under the Fourth and Fifth Amendments (plus a statutory claim under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996). The district court granted a motion for failure to state a claim under Fed. R. Civ. P. 12(b)(6) and lack of jurisdiction under Fed. R. Civ. P. 12(b)(1), but afforded the plaintiff 14 days to file an amended complaint if it chose. Instead, the plaintiff association appealed after 14 days expired.

The panel majority holds that the court has appellate jurisdiction under 28 U.S.C. § 1291, despite the invitation to refile. “Specifically, we must determine whether the district court’s minute order, noting on its docket sheet a time-limited grant of leave to amend the complaint, rendered nonfinal the court’s otherwise final published opinion and order dismissing the case. As a practical matter, the question is whether the Butterfly Association was within its rights to appeal the dismissal without first requesting and obtaining from the district court an additional order confirming the finality of its judgment of dismissal.”

The panel majority observes that “without prejudice” dismissal “may be final if it ended the case as far as the district court was concerned,” and to decide that the panel “closely examine[s] the relevant order and its surrounding circumstances.” Here, the relevant order “announced that ‘defendants’ motions to dismiss are GRANTED, and this case is DISMISSED.’” While part of the dismissal was without prejudice, that was the claim which the district court held was not within its subject-matter jurisdiction. “[We understand the district court’s dismissal of the entire case—for what it saw as a mix of jurisdictional and non-jurisdictional defects—to have been without prejudice.”

As far as the entry on the “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,” while it lent ambiguity to the record, the order became effectively final when the fourteen days elapsed. “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.”

The panel allows that “[t]here is some disagreement among the circuits over whether and when a without-prejudice dismissal with time-limited leave to amend becomes final under section 1291 . . . . [B]ecause the district court’s intent here is clear, we need not spell out other circumstances in which a further order might be needed to signal finality.”

Judge Millett, in a 30-page dissent, would hold nevertheless that the district court was required to do more to finalize the judgment. “Statutory text, structure, and established principles of appellate jurisdiction foreclose our review because the district court’s dismissal of the complaint was by its plain terms not final when entered by the court. The mere passage of time, without more, could not by itself make the judgment final. Neither could the litigants, through their actions or inaction, step into the shoes of the district court and singlehandedly cause the entry of a final judgment in the case. Without jurisdiction, we lack the power to address the merits.”

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