Filed: Dec. 09, 2015
Latest Update: Mar. 02, 2020
Summary: 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 publi
Summary: 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 publis..
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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 to dismiss
without prejudice, and Goode timely appealed. 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 years old when
CVLAS terminated his employment in March 2013. He had worked at
CVLAS’s Richmond office for 25 years. 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. As one of
CVLAS’s two Senior Managing Attorneys in 2013, 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
units[] and supervis[ed] the pro bono hotline.” J.A. 8. 1 Goode
reported to Executive Director Stephen Dickinson, a white male.
Goode alleged in his complaint that CVLAS’s Board of
Directors had met on March 11, 2013, to discuss a loss of
government funding and the corresponding need to reorganize
attorney positions within the organization’s three offices.
When the Board discussed Goode’s position, someone in the
meeting allegedly commented that, due to Goode’s receipt of
veteran and other benefits, “he would not be impacted as much as
others by the restructuring.” J.A. 9. Goode averred that,
“[a]s a result of the restructuring, five African American
employees, including Goode, were let go.” J.A. 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 to Goode, “CVLAS claim[ed] that it eliminated
Goode’s position because representation for Social Security
. . . cases at the litigation stage was a service 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. J.A. 9,
11. Goode alleged that Queiroz was an “attorney” but otherwise
provided no information regarding her position or duties at
CVLAS. J.A. 12. 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
2This 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 Attorney,
Wegbreit was in charge of litigation services. 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].” J.A. 12.
Goode further 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 cost-
saving 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 in
Employment Act (“ADEA”), 29 U.S.C. §§ 621–34 (2012). He stated
5
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 J.A. 11.
On July 15, 2014, CVLAS filed a motion to dismiss for
failure to state a claim under Rule 12(b)(6). 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). Accordingly, the court stated that “Goode fail[ed] to
allege sufficient facts supporting his claim that his
termination was the result of unlawful discrimination.” Goode
v. Cent. Va. Legal Aid Soc’y, No. 3:14cv281-HEH,
2014 WL
3945870, at *6 (E.D. Va. Aug. 12, 2014). The court granted
CVLAS’s motion and dismissed the case 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 court with
instructions to allow Goode to amend his complaint. 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 Court may exercise jurisdiction only over final
orders, 28 U.S.C. § 1291, and certain interlocutory and
collateral orders, 4 28 U.S.C. § 1292; Fed. R. Civ. P. 54(b);
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545–46
(1949). 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 defects in the plaintiff’s case, the order
dismissing the complaint is final in fact” and therefore
appealable.
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 guard against piecemeal litigation and repetitive
appeals.” Chao v. Rivendell Woods, Inc., 415 F.3d 342, 345 (4th
Cir. 2005); see Domino
Sugar, 10 F.3d at 1066–67 (“[A]n
appellate court may evaluate the particular grounds for
dismissal in each case to determine whether the plaintiff could
save his action by merely amending his complaint.”). In
reaching these case-specific determinations, “[w]hat makes
8
[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 considered the former, but not the latter,
appealable. 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, the order of dismissal is final and
appealable.”). As this Court suggested in Domino 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 remedies” was final and appealable because no
amendment to the complaint could cure this procedural
shortcoming. 10 F.3d at 1067. Likewise, we have determined
that orders of dismissal without prejudice were final and
appealable when cases were dismissed for procedural reasons
unrelated to the contents of the pleadings, as in a case
dismissed because the plaintiffs had no right to bring 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 by the filing of a complaint that articulates
adequate allegations, we conclude that the order . . . is
neither a final order nor an appealable interlocutory 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 amended his complaint to cure the pleading
deficiencies that the district court identified. In other
words, CVLAS contends that we lack jurisdiction over this
appeal. We agree.
The district court’s grounds for dismissal did not clearly
indicate that no amendment could cure the defects in the
complaint, so the order of dismissal was not final and
appealable. To the contrary, the district court stated several
11
grounds for dismissal, each of which is readily curable by
amendment. 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 direct or circumstantial evidence of
discrimination or to make out a prima facie case of
discrimination. Goode argues that the district court erred in
requiring him to establish a prima facie case of race
discrimination at the pleading stage, relying primarily on
Swierkiewicz v. Sorema, N. A., 534 U.S. 506, 508 (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 that it is appropriate to consider whether a
plaintiff could have amended the complaint to satisfy the
pleading standards that the district court imposed. 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 to establish a prima facie case of
discrimination. 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 the efficiency and
smooth operation of the judiciary. This Court has recognized
that § 1291 preserves judicial 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. See Chao, 415 F.3d at 345; Domino
Sugar,
10 F.3d at 1067. 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, allowing appellate jurisdiction to rest on an
argument that the district court had applied 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. We thus consider whether Goode could have amended
his 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 establish a prima facie case of race discrimination
under McDonnell Douglas, a plaintiff must demonstrate
“(1) membership in a protected class; (2) satisfactory job
performance; (3) adverse employment action; and (4) different
treatment from similarly situated employees outside the
protected class.” 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)). Here,
14
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 to satisfy these standards, and the
district court’s order did not indicate otherwise. For
instance, Goode could have provided facts to 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 received more favorable treatment than Goode.
Goode could have amended his complaint to include 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. In doing so, the court determined that
Goode’s allegations impliedly conceded that CVLAS’s purported
financial reasons for his termination were at least partially
true, and the court thus concluded that “Goode essentially
ple[d] himself out of court.” See
id. at *4.
Again, these are 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, a dismissal without prejudice invites such an
amendment. 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 CVLAS had
intentionally discriminated against him based on race.
16
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. 2:11-
cv-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 explained that to present a claim of age
discrimination under the ADEA, a plaintiff must 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 by someone outside the protected class with
comparable qualifications,”
id. As in the context of race
discrimination, the court determined that Goode had not pled
sufficient facts demonstrating his satisfactory job performance
at the time of his termination. Further, the court concluded
that Goode had failed to plead 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 first alleged defect—the lack of sufficient factual
allegations demonstrating satisfactory job performance—through
18
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 duties were
dispersed to remaining, younger former colleagues. 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 that his termination
resulted from age discrimination.”
Id. 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. It is certainly
possible, for instance, that Goode could have submitted an
amended complaint with factual allegations demonstrating that
CVLAS had distributed some of Goode’s job duties to
substantially younger employees, thus establishing a prima facie
19
case through an alternate route. See Duffy v. Belk, Inc., 477
F. App’x 91, 94–95 (4th Cir. 2012) (unpublished) (“We have
determined before that a transfer of some of a terminated
plaintiff’s duties to younger workers is sufficient to satisfy
the fourth element of a prima facie case of age
discrimination.”). Accordingly, the district court did not make
clear that no amendment could have cured the grounds for
dismissal. Because Goode could have amended his complaint, the
district court’s order dismissing the complaint without
prejudice is not, and should not be treated as, 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. See Domino Sugar, 10 F.3d at 1066. A
litigant may not presume the finality of a district court’s
order—particularly an order expressly granting a motion to
dismiss “without prejudice” on the basis of pleading
inadequacies that could be rectified with little 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 the spirit of
Federal Rule of Civil Procedure 15(a).”). Goode also was not
barred from amending his complaint 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, we recognized in Chao that a court assessing
appellate jurisdiction may consider whether a 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 choose not to amend a complaint in order to
single-handedly render an order of dismissal final and
appealable under all circumstances. 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 that differ
significantly from those in the case before us. In Chao, the
Secretary of Labor appealed the district court’s dismissal of
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her action against various defendants for violations of the Fair
Labor Standards Act. Id. at 343. Because the Secretary
contended “that she must be able to employ similarly-worded
complaints throughout the country for 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.”
Id.
The Court in Chao therefore considered the weighty
assurances of the Secretary of Labor that the 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 rather than one dismissing only the complaint
imputes greater finality and therefore favors 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, we are unconvinced that the district
court’s use of the word “case” rather than “complaint” is
determinative, or even highly probative, of the order’s
appealability. Rather, the proper inquiry is whether the
district court’s grounds for dismissal clearly indicate that no
amendment could cure the complaint’s defects. We hold that the
grounds for dismissal in this case did not clearly preclude
amendment. Accordingly, we lack jurisdiction to 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
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