In An En Banc Decision, The Fourth Circuit Clarifies The Appealability Of Dismissals Without Prejudice - Britt v. DeJoy

• Published date: 07 September 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Kelley Drye & Warren LLP
• Author: Mr Irat T. Kasdan and Matthew Nu'ez

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...