concurring in the judgment:
Although I accept that the panel’s resolution of this case is correct in the light of precedent, I write to express my opinion that the rule of Bank v. Pitt, 928 F.2d 1108 (11th Cir.1991), is incorrect. I believe our court, en banc, should look at it.1
I think that a plaintiff who sits on his hands and does nothing to amend his complaint in the district court should — ordinarily, at least — not be granted on appeal a remand to amend. And, I think a district court should not be required to grant, sua sponte, leave to amend to a plaintiff who has never requested it.
If Plaintiff truly can allege facts that could save his complaint, he had ample opportunity to bring them to the district court’s attention. In this case, the first motion to dismiss was filed on 15 May 2000; the district court did not grant the motion until 6 March 2001. In the light of the motion to dismiss, Plaintiff knew what the potential problems with his complaint were. But, in the nearly ten months between the motion to dismiss and the district court’s order, Plaintiff never amended the complaint. Under Rule 15(a) he would have been allowed to amend as a matter of right: that is, he would not have even needed to ask for permission to amend. See Fed.R.Civ.P. 15(a) (“A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served.”). Moreover, the federal rules provide plaintiffs, whose complaints have been dismissed for failure to state a claim, a process by which they can amend their complaints even after dismissal: a motion under Rule 59(e) to vacate the dismissal or under Rule 60(b) for relief from the judgment. See, e.g., Vanderberg v. Donaldson, 259 F.3d 1321, 1326 (11th Cir.2001). Plaintiff did not seek leave to amend his complaint under either of these procedures. Furthermore, “[a] motion for leave to amend should either set forth the *1276substance of the proposed amendment or attach a copy of the proposed amendment.” Long v. Satz, 181 F.3d 1275, 1279 (11th Cir.1999). Plaintiff has never indicated to any court what additional facts he can honestly allege that could cure the deficiencies of his complaint.
The outcome of this case illustrates the negative effects of the Bank rule. It allows plaintiffs such as Plaintiff two bites at the apple, costing defendants and the courts unnecessary trouble and expense. By not amending his complaint in district court, Plaintiff — who had legal counsel— decided to take his chances with this complaint, which we have determined to be insufficient to state a claim. Bank, however, allows Plaintiff to reap all of the benefits and none of the risks of this strategy: if the district court’s ruling is reversed and the complaint is determined to be satisfactory, his case can go on; even if we confirm the district court’s decision that the complaint is legally insufficient, Plaintiff knows he will have the opportunity to amend his complaint on remand. In effect, Bank turns cases like this one into interlocutory appeals: regardless of the outcome of the appeal, we know that further proceedings in the district court will be needed. Such appeals are “inherently disruptive, time-consuming, and expensive.” Prado-Steiman v. Bush, 221 F.3d 1266, 1276 (11th Cir.2000) (internal quotations omitted).
I do not accept that a motion to amend in district court is futile and, thus, not demanded of plaintiff, even where — as here — the district court has written that it believes “no set of facts could support Plaintiffs claim for relief.” First, a real possibility exists a plaintiff could set out facts that the district court just did not contemplate and that would save the complaint, in the district court’s view on reconsideration. Second, a plaintiff, who does not bother to bring forward in district court the additional facts he can allege, forces appellate courts to remand cases on the chance that such facts might exist. The mere possibility that such facts might exist is insufficient reason to compel the district court and the litigants in this case to bear the financial and time burdens of further litigation. Instead, we should require plaintiffs, while they are still before the district court, to represent — either by amending or moving to amend or by making a motion under Rule 59(e) or 60(b)— what additional facts they can allege that could save their complaint.
In this case, a real possibility exists that, upon remand, Plaintiff will amend his complaint, the district court will again dismiss the complaint, and Plaintiff will again appeal that dismissal. All of this costly and additional litigation could be avoided if we adopted the rule that a plaintiff must seek to amend his complaint in the district court and that requesting leave to amend for the first time on appeal is too late.2
I recognize, however, that it might not be fair to apply the new rule I endorse to this case and to other cases now on appeal. The plaintiffs in those cases have likely
*1277relied upon the rule of Bank in declining to amend their complaints before the district court and in immediately appealing the dismissal of their complaints. We have accepted that, in some instances, rulings can be applied in a purely prospective fashion; this case represents an appropriate instance.3 Therefore, I would apply the new rule only to cases in which notice of appeal was filed after the announcement of the new rule.
In conclusion, if I were not overcome by Bank, I would affirm the ruling of the district court. But because I worry it would be unfair to apply a new rule, contrary to Bank, to this Plaintiff and because I recognize the importance of our prior-precedent rule, I concur in the judgment of the court.
APPENDIX
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
Andrew J. WAGNER, Plaintiff, v. DAEWOO HEAVY INDUSTRIES, America Corporation, Jack Mosler, George Valencia, David O’Dell, Donald Adams, and Kevin Ho, Defendants.
Civil Action File No. 1 00-CV-0797.
COMPLAINT
Andrew J. Wagner (“Wagner” or “Plaintiff’), through his counsel, Stephen M. Katz, alleges as follows:
JURISDICTION
1.
This Court has jurisdiction over Plaintiffs claim under 28 U.S.C. §§ 1331 and 1343(3) and (4) in that this is an action (1) arising under the laws of the United States, and (2) to recover damages under Acts of Congress providing for the Protection of Civil Rights.
*1278VENUE
2.
Venue is proper in this judicial district under 28 U.S.C. § 1391 in that Wagner’s claims arose entirely within the Northern District of Georgia, Atlanta Division.
PARTIES
3.
Andrew J. Wagner (“Wagner” or “Plaintiff’) is a former resident of the Northern District of Georgia.
4.
Daewoo Heavy Industries America Corporation (“Daewoo”) is a New York corporation with its principal place of business in Suwanee, Georgia.
5.
Defendant Jack Mosler (“Mosler”) is, upon information and belief, a resident of the Northern District of Georgia and, at all relevant times, served as Senior Vice President and Chief Financial Officer of Dae-woo.
6.
Defendant David O’Dell (“O’Dell”) is, upon information and belief, a resident of the Northern District of Georgia and, at all times relevant, was a senior level executive and Defendant Valencia’s superior at Dae-woo.
7.
Defendant Donald Adams (“Adams”) is, upon information and belief, a resident of the Southern District of Georgia and, at all times relevant to this action, was employed by LDH Corporation, a vendor to Daewoo.
8.
Defendant Kevin Ho (“Ho”) is, upon information and belief, a resident of Korea and serves as a senior level executive for Daewoo its parent corporation.
NATURE OF THIS ACTION
9.
This is an action seeking to recover equitable relief (including, without limitation, an injunction, reinstatement and back pay), compensatory and punitive damages, taxable and non-taxable costs, attorney’s fees and other relief to redress violations of 42 U.S.C. § 1985(2).
FACTS
10.
Daewoo is a supplier of construction equipment, industrial vehicles, engines, machine tools, factory automation systems, and precision machine parts. Daewoo’s parent corporation, which manufactures the aforesaid equipment, is headquartered in Korea and has over 80 branches worldwide. Daewoo, an American subsidiary, is headquartered in Suwanee, Georgia.
11.
Wagner, now age 22, was formerly employed by Daewoo as a transportation and inventory control clerk in its Suwanee, Georgia headquarters until June, 1999.
12.
Wagner’s job duties included tracking inventory and arranging long distance *1279shipping of heavy equipment such as wheel loaders and excavators.
13.
As part of his job responsibilities, Wagner filled out a form known as a “Customs Invoice” when heavy equipment was shipped. The Customs Invoice form was generated on a word processor and contained Daewoo’s address, the name and address of the customer purchasing the heavy equipment, the type of equipment being purchased, the serial number, the declared value, and the final destination of the equipment.
14.
Unknown to Wagner, the Defendants were deliberately violating the United States embargo on trade with Cuba (as authorized by 22 U.S.C. § 2370(a)) by selling and/or shipping heavy equipment, such as wheel loaders and excavators, to Cuba.
15.
In or about March, 1999, Defendant Ho, during a trip to the United States, personally selected heavy equipment that was to be transported from the United States to Cuba.
16.
Prior to March, 1999, Daewoo, its parent and/or affiliated concerns had sold heavy equipment located in the United States to Cuba or Cuban-controlled entitles, or shipped equipment, either directly or indirectly, from the United States to Cuba or Cuban-controlled entities.
17.
In March, 1999, Defendants O’Dell and Valencia held a conversation in Wagner’s work area. During the conversation, which was overheard by Wagner while at his workstation, O’Dell directed Valencia to immediately arrange to ship a wheel loader and excavator to Halifax. It was clear from O’Dell and Valencia’s conversation that they both knew the ultimate destination for the equipment was Cuba.
18.
After his conversation with O’Dell, Defendant Valencia directed Wagner to immediately arrange for shipping of a wheel loader and excavator to Youkobian Motors, a customer ostensibly located in Canada. O’Dell and Valencia provided the serial numbers of the equipment directly to Wagner.
19.
In accordance with Defendant Valencia’s instructions, Wagner made arrangements for two different trucking companies to ship the wheel loader and excavator to an address across the international border in Halifax, Nova Scotia.
20.
One of the trucking companies hired to ship the wheel loader and excavator was located in Savannah, Georgia; the other trucking company was located in Seattle, Washington.
21.
In accordance with his usual procedure, Wagner asked the client George Sarkis at Youkobian Motors to provide the final destination of the heavy equipment being shipped to Halifax, Nova Scotia so that Wagner could fill in the Customs Invoice form.
*128022.
Mr. Sarkis advised Wagner that the final destination of the equipment was Havana, Cuba.
23.
Unknown to Wagner but known to the other defendants, the United States has embargoed certain type of trade with Cuba, including the shipment of the wheel loader and excavator manufactured, sold, shipped, and serviced by Daewoo.
24.
In accordance with his usual procedure for completing the Customs Invoice, Wagner wrote in the final destination for the wheel loader and excavator: “Havana, Cuba” in the space marked “Final Destination” on the Customs Invoice form. The Customs Invoice was thereafter transmitted to the shipping companies and drivers of the trucks. Defendant Adams, an official of the trucking company in Savannah, Georgia, was well aware that Cuba was the ultimate destination of the equipment his company was shipping for Daewoo.
25.
Defendants knew and intended that the ultimate destination of the wheel loader being trucked by Daewoo in or about March, 199 to Halifax was Cuba.
26.
Defendants knew and intended that the ultimate destination of the excavator being trucked by Daewoo in or about March, 1999 to Halifax was Cuba.
27.
At the time the wheel loader was shipped to Halifax, with an ultimate destination of Cuba, Defendants, and each of them, were aware that the sale and/or shipment of the wheel loader to Cuba violated federal law.
28.
At the time the excavator was shipped to Halifax, with an ultimate destination of Cuba, Defendants, and each of them, were aware that the sale and/or shipment of the excavator to Cuba violated federal law.
29.
The truck containing the wheel loader was allowed to proceed across the U.S.Canadian border; U.S. Customs officials stopped the truck containing the excavator when it reached the U.S.-Canadian border.
30.
When the truck with the excavator reached the U.S.-Canadian border, the driver presented the Customs Invoice to the Customs official stationed at the international border.
31.
After noticing that the ultimate destination for the excavator was Cuba, the agent at the border impounded the truck and confiscated the excavator being shipped by Daewoo.
32.
After U.S. Customs officials impounded the truck and confiscated the excavator, U.S. Customs agents entered Daewoo’s headquarters in Suwanee, Georgia and removed and/or confiscated certain records belonging to Daewoo.
*128138.
After the truck was impounded, the excavator was confiscated, and the Customs officials obtained Daewoo’s records, the Defendants were aware that the federal government had commenced an investigation of Daewoo for violating the Cuban embargo.
34.
After the truck was impounded, the excavator was confiscated, and Customs officials obtained Daewoo’s records, it was apparent to Defendants that criminal proceedings might well be instituted against Daewoo and certain of its officers, employees, and agents for violation of United States laws prohibiting trade with Cuba.
35.
After the truck was impounded, the excavator was confiscated, and Customs officials obtained Daewoo’s records, it was apparent to Defendants that Wagner would be a witness in a federal court proceeding — grand jury or trial — because he was the individual who arranged the shipping for the aforesaid equipment, and, pursuant to Defendant Valencia’s instructions, indicated on the Customs Invoice that the final destination for the wheel loader and excavator was Cuba.
36.
After the truck was impounded, the excavator was confiscated, and Customs officials obtained Daewoo’s records, Daewoo obtained legal representation from a criminal defense attorney for certain of its employees.
37.
In June, 1999, Defendants falsely accused Wagner of soliciting bribes from Defendant Adams trucking company. Defendants terminated Wagner’s employment with Daewoo, ostensibly for violating company work rules.
38.
The reasons for Wagner’s termination were false and pretextual.
39.
Defendant’s conspired to terminate Wagner’s employment to intimidate, harass, punish, and deter him from testifying before a federal grand jury and at a trial in federal court.
40.
Subsequently, Wagner in fact testified regarding the facts contained herein before a federal grand jury in Maine. Well before Wagner was subpoenaed to the grand jury, the United States Attorney advised Wagner that he was not target of the investigation.
41.
Daewoo, and certain of the Defendants, remain targets of an investigation by the federal government into whether they violated federal law by trading or shipping goods to Cuba in violation of the U.S. embargo.
42.
Upon information and belief, Daewoo, its agents, counsel, or employees, have had discussions with federal officials regarding a plea agreement wherein Daewoo (or certain of its agents, officers, or employees) would admit violating U.S. law(s) regarding trade with Cuba.
*128243.
Upon information and belief, Daewoo, its agents, counsel, or employees, have had discussions with federal officials about entering into an agreement whereby Daewoo (or certain of its agents, officers, or employees) would pay a fine for violating U.S. law(s) regarding trade with Cuba.
44.
In furtherance of their conspiracy, Defendants sought to terminate, and in fact obtained the termination of Wagner’s employment with Daewoo.
CLAIM FOR RELIEF
VIOLATION OF 42 U.S.C.
§ 1985(2) et seq.
(Retaliation)
45.
Wagner repeats and realleges each and every paragraph set forth above as if fully set forth at length herein.
46.
Defendants entered into a conspiracy to intimidate, harass, punish, and deter Wagner from appearing and testifying truthfully in federal court proceedings, including grand jury proceedings.
47.
In furtherance of their conspiracy Defendants falsely accused Wagner of criminal wrongdoing and/or unethical conduct, to wit: soliciting a bribe from a vendor. Defendants were well aware that the allegations of criminal wrongdoing and/or unethical conduct used to fire Wagner were false.
48.
In furtherance of their conspiracy, Defendants deliberately interfered with Wagner’s employment relationship with Dae-woo and caused him injury.
49.
Each defendant, and others, have been a party to the civil conspiracy against Wagner and others.
50.
As a direct and proximate result of the conspiracy perpetrated by Defendants, Wagner has sustained financial losses, including, without limitation, back pay and lost benefits, for which he is severally.
51.
As a direct and proximate result of the conspiracy perpetrated by Defendants, Wagner has sustained mental anguish for which he is entitled to recover Defendants, and each of them, jointly and severally.
WHEREFORE, Wagner demands relief as follows:
1. That process issue and that Defendants be served according to law;
2. An Order finding that Defendants violated 42 U.S.C. § 1985(2) and a permanent injunction enjoining Defendants from violating the rights of Plaintiff and similarly situated individuals;
3. That Wagner have and recover judgment against Defendants, jointly and severally, for compensatory damages, punitive damages, back pay and lost benefits;
4. That Wagner have and recover judgment against Defendants, jointly and severally, for reasonable attorneys fees under 42 U.S.C. § 1988;
5. That Wagner have and recover damages for pre- and post-judgment interest;
*12836. That Wagner have and recover all taxable and non-taxable costs as well as attorneys fees as provided by law;
7. That Wagner have TRIAL BY JURY;
8. That Wagner have and recover such other, further and different relief as this Court deems appropriate.
This 24th day of March, 2000.
Respectfully submitted,
HEWITT, KATZ & DUMICH
By: /s/ Stephen M. Katz
Ga. Bar No. 409065
Hewitt, Katz & Dumich
2610 Resurgens Plaza
945 E. Paces Ferry Road
Atlanta, Georgia 30326
Telephone: 404.240.0400
Facsimile: 404.240.0401
smkatz@mindspring.com
. By the way, the precedents upon which Bank seems to rely—Thomas v. Town of Davie, 847 F.2d 771 (11th Cir.1988); Friedlander v. Nims, 755 F.2d 810 (11th Cir.1985); and Sarterv. Mays, 491 F.2d 675 (5th Cir.1974)—do not, in my view, compel the rule established by Bank.
. I observe that most other circuit courts seem to have adopted the rule I endorse. See Royal Bus. Group, Inc. v. Realist, Inc., 933 F.2d 1056, 1066 (1st Cir.1991) (determining that, where plaintiff never took advantage of Rule 15(a) amendment as of right, despite being on notice that its claims were being challenged as insufficient, and where plaintiff never sought to reopen judgment in district court, a request to the appellate court for remand in order to amend was untimely); Graue Mill Dev. Corp. v. Colonial Bank & Trust Co., 927 F.2d 988, 992 (7th Cir.1991) (same); Glenn v. First Nat'l Bank, 868 F.2d 368, 370-71 (10th Cir.1989) (same); see also Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 76 (2nd Cir.1998) (rejecting plaintiff's argument that district court erred in dismissing claim without leave to amend because plaintiff "never requested leave to *1277amend from the district court, and ... has made no showing that he would be able to amend his complaint in a manner that would survive dismissal”); Cinel v. Connick, 15 F.3d 1338, 1346 (5th Cir.1994) (finding that plaintiff, following 12(b)(6) dismissal of suit, need not be granted leave to amend when such leave is sought for the first time on appeal); Guam v. American President Lines, 28 F.3d 142, 150-51 (D.C.Cir.1994) (same); Sinay v. Lamson & Sessions Co., 948 F.2d 1037, 1041-42 (6th Cir.1991) (writing, in dicta, that “a district court does not abuse its discretion in failing to grant a party leave to amend when such leave is not sought”). At least one circuit has gone even farther, holding that a district court does not abuse its discretion in denying a motion for leave to amend that is filed in district court, but filed after a rule 12(b)(6) motion has been granted. See Parnes v. Gateway 2000, Inc., 122 F.3d 539, 550-51 (8th Cir.1997). But see District Council 47 v. Bradley, 795 F.2d 310, 316 (3d Cir.1986) (ruling that, when a section 1983 claim is dismissed because it lacks required specificity or for another readily curable defect, a plaintiff must be given leave to amend, even where the plaintiff initially appeals dismissal rather than seeking leave from the district court).
. A new rule of law may be applied prospectively if the following conditions are met: "1) the decision adopting the new rule does so ... by overruling clear past precedent ...; and 2) the application of the old rule in the instant case does not contravene the purpose and operation of the provision being interpreted; and 3) application of the new rule in the instant case would be inequitable.” Kirkland v. Midland Mortgage Co., 243 F.3d 1277, 1281-82 (11th Cir.2001) (internal quotations omitted); see also McKinney v. Pate, 20 F.3d 1550, 1566 (11th Cir.1994) (enbanc). I think that all three of these criteria are satisfied in this case.