Goode v. Central Virginia Legal Aid Society, No. 14-1939 (4th Cir. 2015)
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Plaintiff, a Senior Managing Attorney for CVLAS, filed suit alleging discrimination on the basis of race, sex, and age. The district court granted CVLAS's motion to dismiss without prejudice. The court concluded that the order of dismissal was not a final and appealable order, and therefore, the court dismissed the appeal for lack of jurisdiction and remanded the case to the district court with instructions. The court held that the grounds for dismissal in this case did not clearly preclude amendment.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1939 FREDDIE L. GOODE, Plaintiff – Appellant, v. CENTRAL VIRGINIA LEGAL AID SOCIETY, INC., Defendant – Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:14-cv-00281-HEH) Argued: September 15, 2015 Decided: December 9, 2015 Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit Judge. Appeal dismissed and case remanded by published opinion. Senior Judge Davis wrote the opinion, in which Judge Wynn and Judge Diaz concurred. ARGUED: Barbara Allyn Queen, LAWRENCE & ASSOCIATES, Richmond, Virginia, for Appellant. Christy E. Kiely, HUNTON & WILLIAMS LLP, Richmond, Virginia, for Appellee. ON BRIEF: Ryan A. Glasgow, HUNTON & WILLIAMS LLP, Richmond, Virginia; Warren David Harless, E. Ford Stephens, CHRISTIAN & BARTON L.L.P., Richmond, Virginia, for Appellee. DAVIS, Senior Circuit Judge: Freddie Lee Goode was a Senior Managing Attorney for Central Virginia Legal Aid Society (“CVLAS”) until CVLAS’s Board of Directors eliminated Goode’s position in March 2013. Goode brought suit against CVLAS, alleging discrimination on the basis of race, sex, and age. CVLAS filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that Goode had failed to state a claim upon which relief could be granted. The district court granted the motion without prejudice, and Goode timely appealed. to dismiss For the reasons that follow, we conclude that the order of dismissal was not a final and appealable order, and we therefore dismiss this appeal for lack of jurisdiction and remand the case to the district court with instructions. I. A. Goode, an African-American male, was 72 CVLAS terminated his employment in March 2013. CVLAS’s Richmond office for 25 years. years old when He had worked at He had begun working for the organization as an unpaid volunteer in August 1988 and had held many paid positions with CVLAS since that time. CVLAS’s two Senior Managing Attorneys in 2013, As one of Goode was responsible for “representing clients in civil matters; drafting legal documents; and advising clients on their legal rights and 2 remedies, generally. [Goode also] . . . coordinat[ed] the activities of the Social Security, elder law and public benefits J.A. 8. 1 units[] and supervis[ed] the pro bono hotline.” Goode reported to Executive Director Stephen Dickinson, a white male. Goode Directors alleged had government attorney When met on funding Board his March and positions the meeting in the within 11, 2013, CVLAS’s to that, need position, due Board discuss organization’s Goode’s commented that corresponding the discussed allegedly complaint to a to of loss of reorganize three offices. someone Goode’s in the receipt of veteran and other benefits, “he would not be impacted as much as others by the restructuring.” “[a]s a result employees, of including the J.A. 9. restructuring, Goode, were let Goode averred that, five go.” African J.A. American 10. Each terminated employee was over the age of 40, and Goode was the oldest of CVLAS’s nine attorneys at the time and the oldest CVLAS employee overall. Goode’s termination was effective on March 31, 2013. According Goode’s . . . to position cases at Goode, because the “CVLAS claim[ed] representation litigation stage was that for a it Social service eliminated Security available through the private bar . . . and . . . the office was going to 1 Citations to the “J.A.” refer to the Joint Appendix that the parties submitted in this case. 3 concentrate more on family law cases.” J.A. 11. Goode challenged this rationale in his complaint, asserting that the availability of private counsel to assist with Social Security matters was “not the case across the board” and that “there remained a substantial need for this client service” at CVLAS. Id. In seeking to challenge CVLAS’s purported justification for his termination as pretextual, Goode also described in his complaint the experiences of two other CVLAS employees who had retained their employment despite the restructuring. Specifically, he discussed Christianne Queiroz, 2 “a much younger, non African American (Latin[a]) female,” and Martin Wegbreit, CVLAS’s other Senior Managing Attorney, who is white. 11. J.A. 9, Goode alleged that Queiroz was an “attorney” but otherwise provided CVLAS. no information J.A. 12. regarding her position or duties at Goode further alleged that CVLAS had allowed Queiroz to assume part-time status while continuing to earn the same salary as she had previously. As to Wegbreit, Goode averred that he “is substantially younger,” “has a higher salary,” and “was a similarly-situated employee to Goode in terms of workload and responsibility within 2 This attorney’s last name is alternately spelled “Queiroz” and “Quieroz” in the complaint. See, e.g., J.A. 11–12. We use “Queiroz” because the complaint uses this spelling first. 4 CVLAS.” J.A. 9. As the other Senior Managing Wegbreit was in charge of litigation services. Attorney, Goode contended that CVLAS “used a budget shortfall as an excuse to terminate Goode while maintaining higher salaries and favorable terms for Wegbreit and Quieroz [sic].” Goode further J.A. 12. challenged the proposition that CVLAS had terminated him for financial reasons by explaining that, after learning of the Board’s decision, Goode had proposed some costsaving measures that CVLAS could have implemented to keep him on staff, but his supervisor was not amenable to these suggestions. In rejecting one proposal, Dickinson stated that he could not institute a 10% pay cut for employees earning over $65,000 per year because he had already promised raises to all employees and because two of the attorneys whose salaries would be reduced by such a plan were single mothers. Although Dickinson told Goode “that he could continue with CVLAS in a position supervising the volunteer lawyer pro bono hotline,” Goode “felt that Dickinson did not have any intention to keep him at CVLAS.” J.A. 10. B. Goode brought suit against CVLAS on April 17, 2014, asserting claims for violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2012), 42 U.S.C. § 1981 (2012), and the Age Discrimination Employment Act (“ADEA”), 29 U.S.C. §§ 621–34 (2012). 5 in He stated in his complaint that he “believe[d] that CVLAS’s financial considerations and their budget cuts were pretext for race, sex, and age discrimination.” 3 On July 15, 2014, J.A. 11. CVLAS filed a motion to failure to state a claim under Rule 12(b)(6). dismiss for The district court determined that Goode had failed either to present direct or circumstantial evidence of discrimination or to make out a prima facie case of discrimination under the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). allege Accordingly, the court stated that “Goode fail[ed] to sufficient facts supporting his claim that termination was the result of unlawful discrimination.” v. Cent. Va. Legal Aid Soc’y, No. 3:14cv281-HEH, 3945870, at *6 (E.D. Va. Aug. 12, 2014). CVLAS’s motion and dismissed the case his Goode 2014 WL The court granted without prejudice on August 12, 2014, concluding that “Goode has failed to state a 3 The district court did not consider Goode’s claim of sex discrimination because Goode had not presented a separate count raising this claim. Goode has since abandoned this claim on appeal, as he alleges in his opening brief only that “he was removed from his position due to his race and age.” Appellant’s Br. 10; see United States v. Washington, 743 F.3d 938, 941 n.1 (4th Cir. 2014) (“Issues that [the appellant] failed to raise in his opening brief are waived.”). In part for the same reason, the district court also disregarded Goode’s ostensible claim under 42 U.S.C. § 1983, which Goode had listed in the complaint’s introduction but had not mentioned elsewhere. Goode has also abandoned this claim on appeal. 6 claim for unlawful discrimination under Title VII, 42 U.S.C. § 1981, and the ADEA.” Id. at *7. Goode filed a timely notice of appeal on September 8, 2014. For the reasons stated below, we dismiss this appeal for lack of jurisdiction and remand the case to the district instructions to allow Goode to amend his complaint. court with Because we conclude that we do not have appellate jurisdiction over this case, we do not reach the merits of the district court’s legal conclusions. II. A. This orders, Court 28 may U.S.C. exercise § 1291, jurisdiction and certain only over final interlocutory and collateral orders, 4 28 U.S.C. § 1292; Fed. R. Civ. P. 54(b); Cohen v. (1949). Beneficial Indus. Loan Corp., 337 U.S. 541, 545–46 An order dismissing a complaint without prejudice is not an appealable final order under § 1291 if “the plaintiff 4 The district court’s order in this case was not an immediately appealable interlocutory or collateral order. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978) (recognizing that the collateral order exception renders only a “small class” of decisions immediately appealable—those that “conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and [are] effectively unreviewable on appeal from a final judgment”). The relevant question is therefore whether the district court’s order of dismissal was appealable as a final order. 7 could save his action by merely amending his complaint.” Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066–67 (4th Cir. 1993). In Domino Sugar, this Court held that if “the grounds of the dismissal make clear that no amendment could cure the dismissing defects the appealable. in complaint the is plaintiff’s final in case, fact” and the order therefore Id. at 1066 (quoting Coniston Corp. v. Vill. of Hoffman Estates, 844 F.2d 461, 463 (7th Cir. 1988)); see Young v. Nickols, 413 F.3d 416, 418 (4th Cir. 2005). Likewise, “a plaintiff may not appeal the dismissal of his complaint without prejudice unless the grounds for dismissal clearly indicate that ‘no amendment [in the complaint] could cure the defects in the plaintiff’s case.’” Domino Sugar, 10 F.3d at 1067 (alteration in original) (quoting Coniston Corp., 844 F.2d at 463). We have interpreted Domino Sugar to “require[] [an appellate panel] to examine the appealability of a dismissal without prejudice based on the specific facts of the case in order to appeals.” Cir. guard piecemeal litigation and repetitive Chao v. Rivendell Woods, Inc., 415 F.3d 342, 345 (4th 2005); appellate against see court Domino may Sugar, evaluate 10 the F.3d at 1066–67 particular (“[A]n grounds for dismissal in each case to determine whether the plaintiff could save his reaching action these by merely amending case-specific his complaint.”). determinations, 8 “[w]hat In makes [dismissals without prejudice] final or nonfinal is not the speculative possibility of a new lawsuit, but that they ‘end the litigation on the merits and leave nothing for the court to do but execute the judgment.’” GO Comput., Inc. v. Microsoft Corp., 508 F.3d 170, 176 (4th Cir. 2007) (quoting MDK, Inc. v. Mike’s Train House, Inc., 27 F.3d 116, 119 (4th Cir. 1994)). Notwithstanding this emphasis on the need for case-by-case determinations, courts considering this issue have established some guidelines. For instance, an appellate panel may consider whether the district court expressly dismissed the “action . . . in its entirety” or merely dismissed the complaint, as courts have generally appealable. considered the former, but not the latter, Chao, 415 F.3d at 345; see also Zayed v. United States, 368 F.3d 902, 905 (6th Cir. 2004) (“Where an action, and not merely an amendable complaint (or petition), is dismissed without prejudice, appealable.”). As the this order Court of dismissal suggested in is final Domino and Sugar, however, considering whether the district court merely dismissed the complaint or expressly dismissed the action as a whole is essentially one way of determining whether “the grounds of the dismissal make clear that no amendment could cure the defects in the plaintiff’s case, [such that] the order dismissing the complaint is final in fact and [appellate jurisdiction exists].” 9 10 F.3d at 1066–67 (second alteration in original) (quoting Coniston Corp., 844 F.2d at 463). Moreover, in cases in which the district court granted a motion to dismiss on procedural grounds that no amendment to the pleadings could cure, we have found that the dismissal was final and appealable. In Domino Sugar, for instance, we held that the district court’s order of dismissal based on “failure to exhaust contractual amendment remedies” to shortcoming. that orders appealable the was final complaint could 10 F.3d at 1067. of when dismissal cases unrelated to the dismissed because were cure this prejudice dismissed of appealable because no procedural Likewise, we have determined without contents the and the plaintiffs for were procedural pleadings, had no final right as to in and reasons a bring case the particular causes of action, see GO Comput., Inc., 508 F.3d at 176, and in a case dismissed because the claims were barred by Heck v. Humphrey, see Young, 413 F.3d at 418. By contrast, in cases in which the district court granted a motion to dismiss for failure to plead sufficient facts in the complaint, we have consistently found, albeit in unpublished, non-precedential decisions, that we lacked appellate jurisdiction because the plaintiff could amend the complaint to cure the pleading deficiency. See, e.g., Shackleford v. Riverside Reg’l Med. Ctr., 466 F. App’x 287, 287 (4th Cir. 2012) 10 (per curiam) (unpublished) (“Because the deficiency identified by the district court—that the complaint did not assert sufficient allegations in support of its legal conclusions—may be remedied adequate by the filing allegations, neither a final we order of a complaint conclude nor an that that the articulates . . . is interlocutory appealable order or collateral order.”); Hankins v. Ayers, 327 F. App’x 388, 388–89 (4th Cir. 2009) (per curiam) (unpublished); Green v. Booker, 149 F. App’x 140, 141 (4th Cir. 2005) (per curiam) (unpublished); Sindram v. Raker, 119 F. App’x 528, 529 (4th Cir. 2005) (per curiam) (unpublished). We think the time has come to enshrine this salutary rule in a precedential opinion, and we do so here. B. 1. CVLAS argues that the district court’s order granting its motion to dismiss without prejudice was not appealable because Goode could have deficiencies words, that CVLAS appeal. amended the contends his complaint district that to cure the pleading court In lack we identified. jurisdiction other over this We agree. The district court’s grounds for dismissal did not clearly indicate that complaint, appealable. so no the amendment order of could cure the dismissal was defects not in the final and To the contrary, the district court stated several 11 grounds for amendment. dismissal, each of which is readily curable by We consider each in turn. First, the district court concluded, as to Goode’s race discrimination claims under Title VII and § 1981, that Goode had failed to present discrimination or discrimination. requiring to or make circumstantial out a prima evidence facie of case of Goode argues that the district court erred in him to discrimination Swierkiewicz direct at v. establish prima pleading the a stage, Sorema, N. A., 534 facie case relying U.S. of race primarily 506, 508 on (2002). Accordingly, we must first consider whether it is appropriate for this Court to examine if Goode could have amended the complaint to meet an allegedly erroneous standard. 2. Because the relevant jurisdictional inquiry is whether “the grounds of the dismissal make clear that no amendment could cure the defects in the plaintiff’s case,” Domino Sugar, 10 F.3d at 1066 (emphasis added) (quoting Coniston Corp., 844 F.2d at 463), we conclude plaintiff that could it have is appropriate amended the to consider complaint to whether satisfy pleading standards that the district court imposed. a the In this case, a primary ground for the district court’s dismissal of Goode’s race discrimination claims was Goode’s failure to allege sufficient facts to present direct or circumstantial evidence of 12 discrimination or discrimination. to establish a prima facie case of We therefore analyze whether Goode could have amended his complaint to cure these supposed pleading defects, regardless of whether the district court was correct in imposing these requirements. Accordingly, we need not determine at this juncture whether the district court in fact applied an erroneous legal standard in dismissing Goode’s complaint. 5 Such an analysis serves to bolster smooth operation of the judiciary. that § 1291 preserves judicial the efficiency and This Court has recognized economy by ensuring that a district court maintains authority over a case until it issues a final and appealable order, thus preventing piecemeal litigation and repeated appeals. 10 F.3d at 1067. See Chao, 415 F.3d at 345; Domino Sugar, If a plaintiff were able to appeal an otherwise unappealable order of dismissal by contending that the district court had applied an erroneous standard, the plaintiff would seemingly be able to bypass the amendment process in the 5 For purposes of this jurisdictional inquiry, we therefore assume without deciding that the district court applied the correct legal standards in assessing the motion to dismiss. As such, our discussion of the pleading standards employed by the district court should not be read to indicate that we would hold that the district court’s analysis was free from error were we to consider this issue on the merits. Cf. SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 441 (4th Cir. 2015) (“Iqbal and Twombly do not require a plaintiff to prove his case in the complaint.” (quoting Robertson v. Sea Pines Real Estate Cos., Inc., 679 F.3d 278, 291 (4th Cir. 2012))). 13 district court and autonomously render the order appealable, largely defeating the purpose of § 1291. Moreover, argument allowing that the appellate district jurisdiction court had to applied rest an on an improper standard would paradoxically require this Court to assess the merits of a district court’s decision in order to determine whether we have jurisdiction to do so—putting the cart before the horse. his We thus consider whether Goode could have amended complaint to cure the defects that the district court identified—including his failure to make out a prima facie case of discrimination—rather than considering whether Goode could have amended his complaint to satisfy some other legal standards that the district court did not impose. C. 1. To under establish a McDonnell “(1) membership performance; treatment prima Douglas, in a protected class.” a protected (3) adverse from facie case race plaintiff class; employment similarly of situated discrimination must demonstrate (2) satisfactory action; and employees job (4) different outside the Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff’d sub nom. Coleman v. Court of Appeals of Md., 132 S. Ct. 1327 (2012) (citing White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004)). 14 Here, the district court determined that the complaint did not provide sufficient factual allegations to show that Goode’s job performance was satisfactory at the time of his termination or that CVLAS treated Goode differently than similarly situated employees outside the protected class. We conclude that Goode could have amended his complaint to add factual allegations district court’s instance, Goode order could to satisfy these not indicate did have provided standards, and otherwise. facts to the For support his allegation that he had “always met or exceeded the performance expectations of CVLAS.” J.A. 9. He could have referenced positive feedback or performance reviews that he had received from his CVLAS supervisor since 2009—the year that, according to the district court, Goode’s allegations last suggested that he had performed satisfactorily. Likewise, Goode could have presented factual allegations to support his assertions that the other Senior Managing Attorney, Martin Wegbreit, “was a similarly-situated employee to Goode in terms of workload and responsibility within CVLAS,” id., and that Wegbreit Goode could received have more amended favorable his treatment complaint to than include Goode. facts demonstrating the similarities between his workload and that of Wegbreit, perhaps clarifying why Wegbreit’s higher salary and 15 his responsibilities as the attorney in charge of litigation did not belie Goode’s claim that the two were similarly situated. The district court also based its order of dismissal on its determination that Goode had failed to set forth facts indicating that CVLAS “did not treat . . . race neutrally when making its decision.” Goode, 2014 WL 3945870, at *6 (alteration in original) (quoting Causey v. Balog, 162 F.3d 795, 802 (4th Cir. 1998)). In other words, the court concluded that Goode did not state a plausible claim that CVLAS discriminated against him because of his race. Goode’s allegations In doing so, the court determined that impliedly conceded that CVLAS’s purported financial reasons for his termination were at least partially true, and the court thus ple[d] himself out of court.” Again, these are concluded that “Goode essentially See id. at *4. precisely the kinds of pleading deficiencies that amendment to the complaint could have cured, and the order of dismissal did not preclude this remedy; to the contrary, amendment. a dismissal without prejudice invites such an Goode could have rectified the apparent defects by presenting factual allegations to demonstrate why he believed that his termination had been racially motivated and, perhaps more importantly, to show why CVLAS’s purported justifications were pretextual, thus bolstering his claim that intentionally discriminated against him based on race. 16 CVLAS had Goode could also have responded to the district court’s observation that he had apparently “ple[d] himself out of court” by amending his complaint to clarify that he was not conceding that CVLAS’s alleged financial reasons for his termination were true. A plaintiff who wishes to amend a complaint is not limited merely to adding allegations to the original pleadings; rather, the plaintiff may remove or, plainly, amend the original allegations by filing an amended complaint. 6 That is to say, even if Goode’s complaint contained allegations that rendered his claims of discrimination facially untenable, amendment to the complaint could have cured this defect. As the district court’s dismissal of the original complaint without prejudice plainly anticipated, pleading a plausible claim of race discrimination hardly involves heavy lifting. 6 See Staggs v. Doctor’s Hosp. of Manteca, Inc., No. 2:11cv-00414-MCE-KJN, 2015 WL 6951759, at *3 (E.D. Cal. Nov. 10, 2015) (recognizing that case law “does not forbid a plaintiff from changing or deleting previously pled factual allegations in an amended complaint”); cf. Scott v. Chuhak & Tecson, P.C., 725 F.3d 772, 783 (7th Cir. 2013) (“[W]here the original complaint and an amended complaint contain contradictory or mutually exclusive claims, only the claims in the amended complaint are considered; the contradicted claims in the original complaint are knocked out.”). But cf. United States v. McKeon, 738 F.2d 26, 31 (2d Cir. 1984) (noting that the original admission of a litigant who amends the pleadings to replace one version of the facts with another is admissible at trial). 17 2. Finally, the district court concluded that Goode had also failed to allege a plausible claim of discrimination based on age. The court discrimination explained under the that to ADEA, present a a claim plaintiff of must age allege “membership in a protected class, satisfactory job performance, and adverse employment action,” id. at *6 (citing Causey, 162 F.3d at 802), as well as facts establishing that the plaintiff was “replaced comparable by someone outside qualifications,” id. the As protected in the class context of with race discrimination, the court determined that Goode had not pled sufficient facts demonstrating his satisfactory job performance at the time of his termination. that Goode had failed to plead Further, the court concluded facts showing that he was replaced by someone outside the protected class; in fact, the court construed Goode’s allegations to indicate that “his position and some of his job duties were eliminated” such that he was “not replaced, let alone by someone outside the protected class.” Id. Again, it is clear to us that the district court’s order did not prevent Goode from amending his complaint to correct these supposed pleading deficiencies. Goode could have cured the of sufficient job performance—through first allegations alleged defect—the demonstrating lack satisfactory 18 factual amendment, as discussed above. As to the second alleged shortcoming—failure to satisfy the fourth element of a prima facie case of age discrimination—the court similarly did not “make clear” that Goode could not have amended his complaint to allege that he was replaced by someone outside the protected class. The district court’s order stated that “Goode does not allege he was replaced by anyone at all,” id. (emphasis added), but it did not indicate that Goode could not have done so, or, of equal import, that he could not allege his dispersed to remaining, younger former colleagues. duties were Instead, the district court drew the inference from Goode’s allegations that he was not replaced by anyone, and it thus concluded that “Goode fail[ed] to allege sufficient facts resulted from age discrimination.” Id. that his termination The district court’s order therefore did not clearly preclude Goode from amending his complaint to correct any pleading inadequacy. In this regard, while Goode’s complaint “acknowledges that his position and some of his job duties were eliminated,” id., the district court’s order did not preclude Goode from otherwise establishing a prima facie case under the ADEA. possible, amended CVLAS for instance, complaint had with distributed that Goode factual some could allegations of Goode’s It is certainly have submitted demonstrating job duties an that to substantially younger employees, thus establishing a prima facie 19 case through an alternate route. F. App’x 91, determined 94–95 before (4th that a Cir. See Duffy v. Belk, Inc., 477 2012) transfer (unpublished) of some of a (“We have terminated plaintiff’s duties to younger workers is sufficient to satisfy the fourth element discrimination.”). clear that dismissal. no of a prima facie case of age Accordingly, the district court did not make amendment could have cured the grounds for Because Goode could have amended his complaint, the district court’s order prejudice is and not, dismissing should not be the complaint treated as, without final and appealable. D. It puzzles us that, for his part, Goode repeatedly asserts that he “was not afforded the ability to amend his complaint,” Appellant’s Br. 49, and that, because “the [district court] did not allow Goode to amend his Complaint in the decision, the Order should be treated as a final order and this Court should have jurisdiction over this matter,” Appellant’s Reply Br. 16– 17. This argument flips the relevant standard on its head. A district court’s decision is not final and appealable merely because the court did not affirmatively state that the plaintiff could have amended the complaint; rather, we may only exercise appellate jurisdiction where a district court’s order clearly indicates that amendment to the complaint could not cure the 20 complaint’s defects. litigant may not presume order—particularly dismiss an “without inadequacies See Domino Sugar, 10 F.3d at 1066. that the order finality expressly prejudice” could of be on district granting the rectified a a basis with A court’s motion of little to pleading effort by amendment. Moreover, Goode’s argument that he “was not afforded the ability to amend his complaint,” Appellant’s Br. 49, rings hollow, as he never attempted to amend his complaint and never sought leave to do so (even assuming he needed to seek leave after a dismissal without prejudice of the original complaint). Had he sought leave to amend, the district court surely would have granted this motion, given the liberal standard that governs a request to amend a complaint under Federal Rule of Civil Procedure 15(a)(2). See Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when justice so requires.”); Foman v. Davis, 371 U.S. 178, 182 (1962); Galustian v. Peter, 591 F.3d 724, 729 (4th Cir. 2010) (“It is this Circuit’s policy to liberally allow amendment in keeping with Federal Rule of Civil Procedure 15(a).”). barred from amending his complaint the spirit of Goode also was not by any statute of limitations, as an amended complaint would have related back to the date that the original complaint had been filed. See Fed. R. Civ. P. 15(c)(1)(B) (“An amendment to a pleading relates back 21 to the date of the original pleading when: . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading.”). Similarly, Goode’s decision not to amend the complaint did not itself render the order of dismissal final and appealable. To be sure, appellate we recognized jurisdiction may in Chao consider that a whether court a assessing plaintiff has chosen to “stand on the complaint,” treating the order as final and appealable rather than seeking amendment in the district court. See 415 F.3d at 345. As part of its case-specific jurisdictional analysis, the Court in Chao considered such a decision by the plaintiff-appellant, and the Court ultimately concluded that it had appellate jurisdiction in that case. Id. at 345–46. Yet Chao does not stand for the general proposition that a plaintiff may single-handedly choose not render to an amend order appealable under all circumstances. a complaint of dismissal in order final to and As we explained above, it is the province of the district court—not of the party seeking an appeal—to indicate that an order is final and appealable. Chao also involved a unique set of facts significantly from those in the case before us. that differ In Chao, the Secretary of Labor appealed the district court’s dismissal of 22 her action against various defendants for violations of the Fair Labor Standards contended “that complaints Act. she Id. must throughout at be the 343. able Because to employ country for the Secretary similarly-worded consistency,” she “elect[ed] to stand on the complaint presented to the district court.” Id. at 345. In doing so, “the Secretary . . . waived the right to later amend . . . thus protect[ing] against the possibility of repetitive appeals that concerned [this Court] in Domino Sugar.” The Id. Court assurances of in the Chao therefore Secretary of considered Labor that the the weighty objectives of Domino Sugar and § 1291 would best be served by the Court’s exercise of appellate jurisdiction in that case, particularly in light of the institutional interests of the Executive Branch. Goode, by contrast, cannot and does not attempt to make these assurances, and he does not seek to vindicate such institutional interests. Goode’s failure to seek leave to amend the complaint thus does not favor appealability of the district court’s order of dismissal. Goode also contends that we have appellate jurisdiction based on the proposition that an order dismissing an action in its entirety imputes rather greater than finality one and dismissing therefore only favors the complaint appealability. Indeed, the district court’s order does state that “Defendant’s 23 Motion to Dismiss is granted and the case is dismissed without prejudice.” Goode, 2014 WL 3945870, at *7 (emphasis added). Nevertheless, we see no indication that the district court intended for its use of the word “case” rather than “complaint” to hold any special meaning or for it to signify any particular finality, especially in light of the court’s express statement that the dismissal was “without prejudice”—a phrase that generally indicates that a court’s decision is not final. Given the emphasis in this Circuit’s governing precedent on case-by-case review, court’s of use determinative, appealability. the or we are word even unconvinced “case” highly Rather, the rather that than probative, proper inquiry the district “complaint” of is the is order’s whether the district court’s grounds for dismissal clearly indicate that no amendment could cure the complaint’s defects. We hold that the grounds clearly for amendment. dismissal in Accordingly, this we case lack did not jurisdiction to preclude review the district court’s decision. III. For the foregoing reasons, we dismiss this appeal for lack of jurisdiction and remand the case to the district court with instructions to allow Goode to amend his complaint. DISMISSED AND REMANDED 24
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