concurring in part and dissenting in part:
I cannot agree with the majority’s conclusion in Part II.A that Pliler v. Ford, 542 U.S. 225, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004), forecloses the possibility that Ford was affirmatively misled by the language “without prejudice.” I would instead affirm the district court’s finding. I therefore dissent from the majority’s holding to the contrary.
I.
Contrary to the majority’s suggestion, the Supreme Court in Pliler quite clearly left open the question whether, by spelling out options and describing one as dismissal “without prejudice” in the context of Ford’s expressed desire to stay his petitions, the district court affirmatively misled Ford.
The Supreme Court recognized that the Ninth Circuit opinion in the case suggested Ford was “misled ... by telling him that if he chose the first option, the dismissal would be without prejudice.” Id. at 229, 124 S.Ct. 2441. It then expressly limited its holding to whether the district court should have been affirmatively required to advise Ford (1) that it could consider his motions to stay the mixed petitions only if Ford chose to dismiss the unexhausted claims and (2) that, absent equitable tolling, he would be time-barred if he accepted dismissal “without prejudice.” Id. at 231, 124 S.Ct. 2441. After reversing this court as to the need for such advisements, the Court then “remand[ed] the case for further proceedings given the Court of Appeals’ concern that [Ford] had been affirmatively misled quite apart from the District Court’s failure to give the two warnings.” Id. at 234, 124 S.Ct. 2441. As *791the use of the “without prejudice” phrase was the only possibly misleading language identified in the majority opinion, it is evident that the express reservation reached the impact of that phrase.
That the Supreme Court did not foreclose the possibility that Ford was misled by the “without prejudice” phrase is confirmed by the concurring and dissenting opinions in Pliler. Justice O’Connor, who cast the fifth vote to form the majority, conditioned her concurrence on the possibility that the court on remand could find Ford was affirmatively misled. Id. at 235, 124 S.Ct. 2441 (O’Connor, J., concurring); see also id. at 234, 124 S.Ct. 2441 (“I join the Court’s opinion because it is limited to the narrow question whether the notifications crafted by the Ninth Circuit must be given.”). As, again, the “without prejudice” phrase was the language identified by the majority opinion as possibly misleading, I read Justice O’Connor’s concurrence as dependent upon leaving the question of the impact of that phrase on Ford undecided.
This understanding is confirmed by the other concurrence, that of Justice Stevens, joined by Justice Souter. Justice Stevens wrote that “remanding to the Ninth Circuit to determine the propriety of equitable tolling” was the appropriate judgment, but explicitly agreed with the substance of Justice Ginsburg’s dissent. Id. at 235, 124 S.Ct. 2441 (Stevens, J., concurring). Justice Ginsburg, in turn, expressly stated that it was the description of the dismissal orders as “without prejudice” that, in context, was “highly misleading.” Id. at 236, 124 S.Ct. 2441 (Ginsburg, J., dissenting).
In sum, the Supreme Court in Pliler left open the “affirmatively misled” issue, where the only possibly affirmatively misleading language identified in the opinions was the “without prejudice” phrase. There’s just no doubt that the issue left open in the next-to-last sentence of the majority opinion in Pliler v. Ford was whether the admonition the district court did give, using the term dismissal “without prejudice,” was misleading.
II.
Having determined that Pliler does not answer the question before us, I would affirm the district court’s finding that Ford was affirmatively misled. This finding is deserving of our deference because the district court is most intimately familiar with the facts. See Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (per curiam) (en banc) (describing the determination of “whether there are grounds for equitable tolling” as “highly fact-dependent”).
The district court’s determination is, moreover, in line with our case law. We have recognized that a dismissal “without prejudice” is in fact “with prejudice” when it is definite that an individual’s petition or claim cannot be successfully refiled because time-barred by the time of the dismissal. See, e.g., Tillema v. Long, 253 F.3d 494, 504 (9th Cir.2001) (noting that when a habeas petition is dismissed after AEDPA’s limitation period has ended, “it cannot accurately be said that the dismissal of [the] petition was ... ‘without prejudice’ ”); Pension Ben. Guar. Corp. v. Carter & Tillery Enter., 133 F.3d 1183, 1187 (9th Cir.1998) (holding that a district court abused its discretion by dismissing a plaintiffs complaint “without prejudice” rather than staying the proceedings because although “the dismissal was without prejudice, given the statute of limitations [expiration], the dismissal was effectively with prejudice”).
For its contrary conclusion that the court’s instructions were accurate and therefore could not be misleading, the ma*792jority disregards these precedents and instead relies heavily on the Black’s Law Dictionary definition of “dismissal without prejudice” as “[a] dismissal that does not bar the plaintiff from refiling the lawsuit within the applicable limitations period.” Maj. Op. at 788 (quoting Black’s Law Dictionary 502 (8th ed. 2004)). This definition simply cannot bear the weight placed on it.
As I read it, the definition assumes that any applicable limitations period has not yet expired when a “dismissal without prejudice” occurs. It makes no sense to speak of “refiling the lawsuit within the applicable limitations period” when the period is over at the time of the dismissal. I very much doubt that Black (or, more probably, his successors) had in mind that anomaly when he fashioned the definition.
My reading is confirmed by Black’s separate entry for “without prejudice” as meaning “[wjithout loss of any rights; in a way that does not harm, or cancel the legal rights or privileges of a party < dismissed without prejudice>.” Black’s Law Dictionary 1632 (emphasis added); see also Bryan A. Garner, A Dictionary Of Modern Legal Usage 937 (2d ed. 1995) (defining “without prejudice” as describing “a legal action — either judicial or among private parties — that in no way harms or cancels the legal rights or privileges of a party” (emphasis added)). The majority’s reading of the definition of “dismissal without prejudice” cannot be squared with this definition of “without prejudice.” Ford’s right to have his exhausted claims heard was, according to the majority, forever lost at the moment of dismissal. See Maj. Op. at 789-90. If so, the dismissal was certainly not “without prejudice” as defined by Black’s and by Garner, as the result of the dismissal was, emphatically, to “harm or cancel ... legal rights.” So describing the option of dismissal as “without prejudice” was not accurate even under ordinary legal usage.
In any event, where a court, as here, gives options to a pro se litigant, reliance on the legal dictionary definition of “without prejudice” should not be determinative of what the litigant was reasonably led to believe by the court. Pliler to some degree supports this conclusion, because it explains why a court’s affirmative advice to a pro se petitioner can be misleading and so should be limited. See 542 U.S. at 231-32, 124 S.Ct. 2441 (stating that “to the extent that respondent is concerned with a district court’s potential to mislead pro se habeas petitioners, the warnings respondent advocates run the risk of being misleading themselves”).
Moreover, in this instance the magistrate judge must have known that the limitations period had expired on the exhausted claims, as the original habeas petitions so informed him: Ford’s original habeas petitions stated that by Ford’s own calculations, the limitations period was about to expire when the petitions were filed. See Loguereio petition dated April 19,1997 (“Petitioner advises court that due to haste to meet deadline imposed by Public Law 104-132-Apr. 24, 1996, several additional meritorious issues beyond what has been stated in this motion may exist.”); Weed petition dated April 19, 1997 (“Petitioner advises court that due to haste to meet the April 23, 1997, statute of limitations deadline for federal habeas corpus petitioners, petitioner may have missed additional issues beyond what is mentioned in this motion.”). The magistrate judge was therefore on notice that dismissal “without prejudice” of the exhausted claims after April 23, 1997, would effectively be “with prejudice.”
Even if that were not so, our case law approves of equitable tolling based on affirmatively misleading actions not the re-*793suit of knowing misinformation. For example, Harris v. Carter, 515 F.3d 1051, 1056 (9th Cir.2008), held that a habeas petitioner was entitled to equitable tolling where he “was misled by reliance on our precedent rather than by a statement of the court addressed directly to him[because] the consequences [of both] were the same.” There was, of course, no allegation that the Court had issued an incorrect prior legal decision knowing that the opinion was not correct. Harris explicitly acknowledged Pliler, which it said implied “equitable tolling would likely be appropriate in at least some situations where a petitioner is affirmatively misled by a district court.” Id.See also Prieto v. Quarterman, 456 F.3d 511, 516 (5th Cir.2006) (holding that equitable tolling was appropriate where the district court granted petitioner an “extension” to file his habeas petition that exceeded the one-year AED-PA deadline and noting that “[o]rders such as these have the effect of unintentionally misleading the prisoner, and ... may warrant equitable tolling” (brackets and quotation marks omitted) (emphasis added)); Spottsville v. Terry, 476 F.3d 1241, 1245, 1246 (11th Cir.2007) (holding that a petitioner was entitled to AEDPA equitable tolling where he “relied on the misleading instructions” of and was “affirmatively misled” by a state habeas court when the court instructed the petitioner to file his appeal with the wrong court); Jackson v. Astrue, 506 F.3d 1349, 1357 (11th Cir.2007) (noting that the Eleventh Circuit, in habeas and other contexts, had applied equitable tolling “where there [was] no evidence of deliberate concealment, but where the claimant nevertheless ha[d] been misinformed by a court’s misleading actions or instructions”).
The sum of the matter is that the district court found that Pliler was affirmatively misled when he was informed that the dismissal which would make it impossible to litigate his exhausted claims was “without prejudice,” and we have no basis for upsetting that finding.
III.
Neither our opinion in Brambles v. Duncan, 412 F.3d 1066 (9th Cir.2005), nor any other opinion of this court, forecloses this conclusion.
The majority reads Brambles to hold that an advisement using the term “dismissal without prejudice” cannot as a matter of law be misleading, even when given after the limitation period has expired. See Maj. Op. at 788-89. Rather, to warrant equitable tolling, “[a] petitioner like Ford must show that the court erred in the instruction it did give him.” Id. at 789. On balance — although the question is not free from doubt — I would not adopt this interpretation of Brambles.
Given the terseness of the opinion, it is unlikely that Brambles determined that a “dismissal without prejudice” • advisement can never be misleading, even if the limitations period has run, and even if, as here, the judge who gave the advisement concludes that the petitioner was affirmatively and reasonably misled.1 Although Brambles mentions that the “dismissal without prejudice” phrase was used in the advisement given Brambles, the opinion does not isolate that language or discuss whether those specific words are or are not misleading. See 412 F.3d at 1070. Instead, Brambles says only that the alternatives given to Brambles, as a whole, “were not affirmatively misleading.” Id.
*794A panel of this court may consider the merits of an issue that was not “ ‘squarely addressed’ ” by an earlier case. See Morales-Garcia v. Holder, 567 F.3d 1058, 1064 (9th Cir.2009) (quoting Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). As the specific question whether “dismissal without prejudice” can ever be misleading was not discussed in Brambles, I would hold that Brambles does not control this case.
Aside from Brambles, the majority relies on Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.2006), and Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.2009), for its conclusion that the extraordinary circumstances “standard has never been satisfied by a petitioner’s confusion or ignorance of the law alone.” Maj. Op. at 789. When these cases are read in context, they are not particularly relevant.
In Rasberry, we held that “a pro se petitioner’s lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.” 448 F.3d at 1154 (emphasis added). Rasberry considered whether a petitioner’s “inability correctly to calculate the [AEDPA] limitations period” and whether a district court’s failure to notify a petitioner that he could amend his habeas petition to include exhausted claims “if it is apparent from the record that the petitioner meant to include the claims,” regardless of “whether the habeas petition itself demonstrates [that] intent,” are extraordinary circumstances. Id. at 1153-54. It did not consider whether specific options affirmatively given by a district court could be misleading, such that a petitioner’s resulting confusion was an extraordinary circumstance.
Waldron-Ramsey is even further from the mark. In that case, decided after Rasberry and Brambles, we held that the petitioner “was not diligent in the filing of his federal habeas petition,” and so reserved the question “whether confusion about AEDPA law or confusion about what action the state court has taken can ever be the type of extraordinary circumstance that may warrant equitable tolling.” Waldronr-Ramsey, 556 F.3d at 1013.
CONCLUSION
In sum, Ford was affirmatively misled by the language that the court chose to use in describing his options. In its considered judgment, the district court so found on remand, and the Supreme Court in Pliler did not erect a barrier to this finding. Indeed, the Supreme Court remanded for this very purpose. I would not read Brambles as dictating a contrary result in this case.
Alternatively, if Brambles does have the force the majority thinks it does, I would conclude that it was wrongly decided and would recommend en banc reversal by this court. The panel in Brambles should not have adopted a per se rule that telling a pro se litigant his dismissal is “without prejudice” can never be misleading. Ford’s case offers a compelling example of why this is so. It was logical for Ford to be confused as to the meaning of a dismissal without prejudice, given the common understanding of the term “without prejudice.” See, e.g., The Compact Oxford English Dictionary: New Edition 356 (reprinted 1999) (2d ed. 1991) (defining “without prejudice” as “without detriment to any existing right or claim”); see also id. (defining the verb “prejudice” as “[t]o affect injuriously or unfavourably by doing some act, or as a consequence of something done; to injure or impair the validity of (a right, claim, statement, etc.)”). There is also evidence that Ford was in fact confused about the meaning of “without prejudice,” which the district court re*795inforced with its instructions.2 Finally, the Magistrate Judge found that Ford was affirmatively misled by the court’s instructions given the specific context in which they were given. This court should not simply close its eyes to this finding, or the fact that a petitioner was actually and understandably misled, to follow a per se, formalistic rule.
For the foregoing reasons, I respectfully dissent.
. The district court in Brambles had determined that Brambles was not entitled to equitable tolling. 412 F.3d at 1069.
. For example, in response to the government's attempt to dismiss Ford's Weed petition, Ford filed a traverse stating that "petitioner hopes to proceed by this instant Traverse as to those ‘Grounds' which are actionable unless a stay or dismissal without prejudice is granted or if in doing so he would be procedurally barred.” (emphasis added) He then filed a "return” to the government's answer, stating that if the district court could not stay his Weed petition, he requested dismissal without prejudice in order to exhaust his unexhausted claims in state court “unless, in doing so, he will be procedurally barred ... In which case he has no choice but to proceed....” The court then gave Ford three options, including dismissal "without prejudice” as the default. When Ford did not respond to the court’s order regarding the Weed petition, the court dismissed it “without prejudice.”