En Banc Fourth Circuit Clarifies That Order of Dismissal Without Prejudice but No Leave to Amend Is Appealable “Final Order” Under 28 U.S.C. § 1291

In Britt v. DeJoy, No. 20-1620 (4th Cir. Aug. 17, 2022), the unanimous en banc Fourth Circuit abandons a case-by-case approach to finality under 28 U.S.C. § 1291 and adopts a bright-line rule that “[w]hen a district court dismisses a complaint or all claims without granting leave to amend, its order is final and appealable.”

The plaintiff Britt brought claims of employment discrimination and retaliation against the U.S. Postal Service under the Rehabilitation Act and the Age Discrimination in Employment Act. “The court dismissed all of Britt’s claims with prejudice except for her retaliation claim, finding that she had not pled any prima facie claims of unlawful discrimination. The court then dismissed Britt’s retaliation claim based on the Amended Complaint’s failure to ‘sufficiently allege a causal link between’ her ‘protected activity and an adverse employment action’ . . . . [T]he district court dismissed the retaliation claim without prejudice—and without granting leave to amend—concluding that ‘[s]uch deficiencies are not fatal to Britt’s retaliation claim’ . . . . Yet in the court’s accompanying order, it directed the Clerk of Court to ‘close the case.’”

The Fourth Circuit sua sponte took the case en banc before a determination of the merits “on the issue of when a dismissal without prejudice is final, and thus appealable.”

The court notes that finality is easily resolved by the district court by following Fed. R. Civ. P. 58, requiring that “[e]very judgment and amended judgment must be set out in a separate document.” Nevertheless, the entry of a separate document does not determine appellate jurisdiction. Indeed, Fed. R. App. P. 4(b) clarifies that “failure to set forth a judgment or order on a separate document [as] required by [Rule 58(a)] does not affect the validity of an appeal from that judgment or order.”

For decades, since Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064 (4th Cir. 1994), the Fourth Circuit applied a “case-by-case methodology” to decide finality, requiring the court to “scrutiniz[e] the district court’s order and the proceedings below to discern whether the district court was truly finished with the case or whether there was more to do.” But this approach led to intra-circuit divisions among different panel decisions and resulting confusion in the case law.

Taking a cue from a D.C. Circuit decision, Attias v. Carefirst, Inc., 865 F.3d 620 (D.C. Cir. 2017),  the Forth Circuit overrules its prior authority and rejects the case-by-case standard in favor of a single rule. “We now hold that when a district court dismisses a complaint or all claims without providing leave to amend, we need not evaluate the grounds for dismissal or do anything more—the order dismissing the complaint is final and appealable.”

The en banc court notes that the new standard might present difficulties for plaintiffs who choose not to amend their complaints. “[A] plaintiff who wishes to stand on her complaint should request that the district court enter a final decision dismissing her case without leave to amend. See Fed. R. Civ. P. 59. Once the district court issues this new decision constituting a final judgment, the appeals clock will begin to run, and the plaintiff may appeal.”

The en banc court concludes that the district court order is final in this case, returning the case to the merits panel for review,

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