dissenting:
This dissent is triggered by the most fundamental of considerations: the lack of a final order below, creating a lack of jurisdiction over this appeal. Because the litigants themselves had not perceived that as an issue in their respective briefs, our panel called the matter to their attention sua sponte (the appropriate handling whenever jurisdiction is in question). And as the majority opinion reflects at page 13, appellants’ letter response left no doubt that we were indeed not dealing with a full deck:
Appellants do not and need not withdraw their state law claim in Count 2 of the complaint.
What we have then is a situation in which, by the express choice of appellants-plaintiffs acting through their counsel, their Count 2 claim under state law — a claim that comes to the federal courts under the auspices of the supplemental jurisdiction conferred by 28 U.S.C. § 1367(a)— remains fully viable. And that being so, the district court’s substantive decision as to appellants’ Count 1 ADEA claim — a decision that is the only subject of the present appeal — unquestionably “adjudicated fewer than all of the claims” (in the words of Fed.R.Civ.P. (“Rule”) 54(b)).
In that circumstance Rule 54(b) could not "be more clear: As a matter of law, the district court decision did “not terminate the action as to any of the claims ...” (emphasis added). And that of course means that in the same plain language, the district court’s ruling on the federal ADEA claim did not terminate that claim either. With the exception of some outliers, the strong trend in the case law everywhere is to recognize, as Rule 54(b) teaches, that an attempted appeal from such a partially dispositive order (absent an express Rule 54(b) determination and direction by the district court, which was neither sought nor granted here) is invalid because the order below was not a final judgment.
Authorities so holding are so numerous as scarcely to require citation, but see, e.g., the thoughtful opinions from my own home circuit, in West v. Macht, 197 F.3d 1185, 1188-90 (7th Cir.1999); JTC Petroleum Co. v. Piasa Motor Fuels, Inc., 190 F.3d 775, 776 (7th Cir.1999); and the circuit’s more extended treatment in Horwitz v. Alloy Automotive Co., 957 F.2d 1431 (7th Cir.1992). More generally, the subject has *218been addressed at length — and by reach-, ing the same conclusion of no final order, hence no appellate jurisdiction — by Professor Rebecca Cochran in Gaining Appellate Review by ‘Manufacturing’’ a Final Judgment Through Voluntary Dismissal of Peripheral Claims, 48 Mercer L.Rev. 979 (1997)(see especially id. at 1005-06).
But most significantly for present purposes, this Court has itself addressed the same problem and has expressly held that no appellate jurisdiction existed where (as in this case) plaintiffs had reserved the opportunity to revive the nonappealed claims that had been dismissed without prejudice. That was both the square holding and the language of Tiernan v. Devoe, 923 F.2d 1024, 1031 (3d Cir.1991)(emphasis added, and citing the earlier decisions in Fassett v. Delta Kappa Epsilon (New York), 807 F.2d 1150 (3d Cir.1986) and Ingersoll-Rand Fin. Corp. v. Callison, 844 F.2d 133, 135 n. 1 (3d Cir.1988)):
As a preliminary matter we must establish whether we have appellate jurisdiction. This is an appeal from the district court’s enforcement of settlement agreements purportedly entered into between plaintiffs and three out of four groups of defendants. Before this appeal was filed the claims against the remaining defendant group, the Devoe Defendants, were dismissed; but this dismissal was, 'for some' of the plaintiffs, without prejudice. Some plaintiffs retained the ability to reinstitute part of this litigation. Thus, at the time this appeal was filed, jurisdiction under 28 U.S.C. § 1291 was lacking.
That defect has since been cured. Several months after this appeal was filed, plaintiffs renounced, through letter briefs, any intention to take further action against the Devoe Defendants. Therefore, we now have jurisdiction over this appeal.
And Fassett (which was followed in Ingersoll Rand) plainly stands for the same proposition, for there the panel opinion upheld appealability only because the plaintiff had both “voluntarily and finally abandoned” the claims that were dismissed “nominally without prejudice,” thus making the dismissal “for our purposes a final dismissal” (Fassett, 807 F.2d at 1155 (emphasis added in each instance)).1
As against those direct holdings in this Circuit and the like wealth of authority elsewhere, the majority opinion cites only to Nyhuis v. Reno, 204 F.3d 65, 68 n. 2 (3d Cir.2000) and Bhatla v. U.S. Capital Corp., 990 F.2d 780, 786 (3d Cir.1993). But Nyhuis dealt with a situation much different from the multiple claim situation that we have here-and by sharp contrast, the deliberate choice that has been made by appellants’ counsel as to Count 2 in this case scotches the very notion that the “without prejudice” description was “anomalous,” as the panel found to be the case in Nyhuis, 204 F.3d at 68 n. 2. Indeed, I submit that a full reading of the cited footnote supports the conclusion reached here, not that reached in the majority opinion. As for Bhatla, I suggest that a reading of that opinion makes it surprising to see the decision cited in support of, rather than in opposition to, the majority’s stance.2
Nor does even one of the parade of citations that follow in the majority opinion add a whit to the analysis.3 Without exception, each of those cases (even as disclosed by the majority’s summary of their *219holdings) deals with the totally different situation in which the court made the ultimate decision to dispatch all of the claims in the action — for example, by the remand of a case in its entirety to the state court or by a without-prejudice dismissal or remand to the state court of unresolved claims under the authority of 28 U.S.C. § 1367(a)(3) or under the long-standing doctrine of United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).4
Again the contrast with the present situation is clear: Here the litigant — given'the opportunity to clean up its act in jurisdictional terms — -chose to relinquish its other federal claim with prejudice but also expressly chose to preserve its state law claim, so that the district court’s substantive resolution of the federal claim had “adjudicate[d] fewer than all the claims” (again to quote Rule 54(b)). It is thus surprising to find the majority opinion in part calling to its aid the decision in Trent v. Dial Med. of Florida, Inc., 33 F.3d 217, 220 (3d Cir.1994), for the language quoted by the majority tellingly stops short of the opinion’s statement that directly pointed to the square holding in Tieman that makes the very distinction that controls here (emphasis added):
Even dismissals without prejudice have been held to be final and appealable if they “end[ ][the] suit so far as the District Court was concerned,” although we have indicated that such dismissals may not constitute final orders until the \party seeking relief renounces any intention to reinstate litigation. See Tiernan v. Devoe, 923 F.2d 1024, 1031 (3d Cir.1991).
In sum, it is truly a non sequitur for the majority to conclude (in its opinion at 13) that “we have jurisdiction under 28 U.S.C. § 1291” by reason of the appellants’ with-prejudice withdrawal of “any ADEA claim not disposed of by the district court’s September 30, 1999 order,” while at the same time appellants’ selfsame letter has reconfirmed the nonwithdrawal of their Count 2 state law claim. Just the'opposite is true. And to support that opposite conclusion, we have square precedents from this Circuit as well as elsewhere, as against the total absence of even a single Third Circuit case that deals with the present situation and nevertheless upholds appellate jurisdiction.
With respect, it seems to me that the majority opinion’s treatment of this vital issue, running counter as it does to the only Third Circuit decisions that deal directly with the subject, also runs . counter to the notion that no panel is free to depart from prior circuit law-. But that aside, nothing in the majority opinion appears to respond to the heavy weight of authority that teaches the lack of finality, and therefore of appellate jurisdiction, under the circumstances presented here.
I respectfully dissent.
. Judge Adams' dissent in Fassett, id. at 1166-67 would not have granted finality even to a without-prejudice dismissal of a claim on which the statute of limitations had run.
. Bhatla’s holding of nonfinality, and hence of. nonappealability and the lack of appellate jurisdiction, rests directly on the appellants' retained freedom to pursue the claims that they dismissed without prejudice (directly paralleling the situation here).
.Indeed, the first of the cases cited to exemplify the insupportable "we have always done it this way” premise — Reitz v. County of Bucks, 125 F.3d 139, 143, 148 (3d Cir.1997)— says not a word on the subject of jurisdiction or its absence. Just as Socrates is quoted in Plato's Apology as teaching that "the unexamined life is not worth living,” just so the unexamined decision is not worth citing. And in jurisprudential rather than philosophical terms, no less an authority than the Su*219preme Court has consistently taught that no weight is to be attached to such an unexamined holding — a principle that dates back to Chief Justice Marshall (United States v. More, 7 U.S. (3 Cranch) 159, 172, 2 L.Ed. 397 (1805), that has survived the two intervening centuries (see, e.g., United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 & n. 9, 73 S.Ct. 67, 97 L.Ed. 54 (1952)), and that is still alive and well and living in Washington (see, e.g., Lopez v. Monterey County, 525 U.S. 266, 281, 119 S.Ct. 693, 142 L.Ed.2d 728 (1999), reconfirming the comparable holding in Brecht v. Abrahamson, 507 U.S. 619, 630-31, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)).
. In such a situation the Court of Appeals, if it reverses a district court's substantive decision that dismissed any claims that had been resolved at that initial level, may itself choose to reinvigorate .other claims that had been dismissed without prejudice (see 28 U.S.C. § 2106, which empowers a reviewing court's remand order to "direct'the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances”). That of course contrasts with any notion of a comparable power 'of self-determination on a litigant's part.