United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 11, 2009 Decided July 17, 2009
No. 08-7028
JACQUELINE T. ROBINSON-REEDER,
APPELLANT
v.
AMERICAN COUNCIL ON EDUCATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 07cv00880)
Christopher Cuneo argued the cause as amicus curiae in
support of appellant. With him on the briefs was Terry L.
Sullivan.
Jacqueline T. Robinson-Reeder, pro se, joined the briefs of
amicus curiae and filed a statement of personal explanations.
Christine N. Kearns argued the cause and filed the brief for
appellee. Ellen C. Cohen entered an appearance.
Before: TATEL, GARLAND, and GRIFFITH, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: The district court dismissed
plaintiff Jacqueline Robinson-Reeder’s Title VII claims against
her former employer, but permitted her to file an amended
complaint to preserve her claim of defamation. On the same day
she filed the amended complaint, Robinson-Reeder filed a notice
of appeal from the dismissal of her Title VII claims.
Subsequently, she and the defendant filed a joint stipulation
dismissing the defamation claim without prejudice. Because the
district court has not entered a final judgment in this case, and
because no exception applies to the rule that generally limits our
jurisdiction to review of final judgments, we dismiss Robinson-
Reeder’s appeal for lack of appellate jurisdiction.
I
Robinson-Reeder worked as an Executive Assistant at the
American Council on Education (ACE) for several months in
late 2006. She alleges that her superiors denied her technical
assistance for a computer problem and failed to respond to her
complaints about an insubordinate office assistant. Believing
that a probation notice she received was unjust, Robinson-
Reeder resigned her position. She subsequently experienced
difficulty obtaining comparable employment.
In May 2007, Robinson-Reeder filed a pro se complaint
against ACE in the United States District Court for the District
of Columbia. The court construed her filings to raise five
claims. The first four, brought under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., were for:
racially discriminatory treatment regarding her request for
technical assistance (Claim I); racially discriminatory treatment
regarding the probation notice (Claim II); retaliation for her
complaints about the office assistant (Claim III); and retaliation
3
for having filed a charge with the Equal Employment
Opportunity Commission (Claim IV). The fifth claim, brought
under the common law of the District of Columbia, alleged that
ACE defamed her by giving negative references to potential
employers (Claim V). Robinson-Reeder v. Am. Council on
Educ., 532 F. Supp. 2d 6, 11 (D.D.C. 2008).1
On January 29, 2008, the court granted ACE’s motion for
judgment on the pleadings as to all four Title VII claims. Id. at
13-17. At the same time, noting that Robinson-Reeder had
failed to cite any independent basis for federal jurisdiction over
her defamation claim, the court declined to exercise
supplemental jurisdiction. Id. at 18-19 (citing 28 U.S.C. §
1367(c)). The court stated that it “will dismiss plaintiff’s
defamation claim if an amended complaint asserting that claim
and a proper independent basis for federal jurisdiction is not
filed within 20 days.” Id. at 19; see Robinson-Reeder v. Am.
Council on Educ., No. 07-0880, Order at 1 (D.D.C. Jan. 29,
2008) (same). Later that day, the court clarified that any
amended pleadings would be due by February 19, 2008.
Robinson-Reeder v. Am. Council on Educ., No. 07-0880,
Set/Reset Deadlines Notice (D.D.C. Jan. 29, 2008).
Within the time period specified by the court, Robinson-
Reeder filed an amended complaint that reasserted her
defamation claim and invoked the court’s diversity-of-
citizenship jurisdiction. See Am. Compl. at 1 (J.A. 74) (citing
28 U.S.C. § 1332). The same day, she filed a notice of appeal
1
On appeal, Robinson-Reeder disputes the district court’s
characterization of her complaint, contending that she raised only one
Title VII claim (the claim described as Claim II above), along with her
defamation claim (Claim V). As this dispute has no consequence for
our jurisdictional analysis, we adopt the district court’s
characterization for purposes of explication.
4
from the January 29 order. On February 29, ACE filed in the
district court a motion to dismiss the amended complaint on the
ground, among others, that it failed to state a claim for
defamation upon which relief could be granted. Robinson-
Reeder did not oppose the motion to dismiss, and the district
court did not rule on it. Instead, on March 28, 2008, the parties
(with Robinson-Reeder then represented by counsel) filed a joint
stipulation, stating that “the remaining cause of action in the
within action is dismissed without prejudice.” Stipulation of
Dismissal (J.A. 95).
Robinson-Reeder, now again proceeding pro se, seeks
review of the district court’s dismissal of Claim II of her initial
complaint. ACE has filed a motion to dismiss the appeal for
lack of appellate jurisdiction. This court appointed amicus
curiae to present arguments in favor of Robinson-Reeder’s
position, and she has indicated that she joins the briefs that
amicus filed.2 Because we conclude that we lack jurisdiction,
we do not reach the merits of Robinson-Reeder’s appeal.
II
The jurisdiction of a court of appeals is generally limited to
appeals from “final decisions” of the district courts. 28 U.S.C.
§ 1291; see Cunningham v. Hamilton County, 527 U.S. 198, 203
(1999). “In accord with . . . historical understanding,” the
Supreme Court has “repeatedly interpreted § 1291 to mean that
an appeal ordinarily will not lie until after final judgment has
been entered in a case.” Cunningham, 527 U.S. at 203.3 As the
2
Robinson-Reeder has also submitted a separate statement of
personal explanations.
3
Under the collateral order doctrine, the Court has “interpreted the
term ‘final decision’ in § 1291 to permit jurisdiction over appeals from
5
Court has explained, “the final judgment rule serves several
salutary purposes:”
It emphasizes the deference that appellate courts owe
to the trial judge as the individual initially called upon
to decide the many questions of law and fact that occur
in the course of a trial. Permitting piecemeal appeals
would undermine the independence of the district
judge, as well as the special role that individual plays
in our judicial system. In addition, the rule is in
accordance with the sensible policy of avoid[ing] the
obstruction to just claims that would come from
permitting the harassment and cost of a succession of
separate appeals from the various rulings to which a
litigation may give rise, from its initiation to entry of
judgment. The rule also serves the important purpose
of promoting efficient judicial administration.
Id. at 203-04 (alteration in original) (quoting Firestone Tire &
Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981)). “Consistent
with these purposes,” the Court has held that “a decision is not
final, ordinarily, unless it ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment.” Id.
at 204 (internal quotation marks omitted).
a small category of orders that do not terminate the litigation,” a
category that “includes only decisions that are conclusive, that resolve
important questions separate from the merits, and that are effectively
unreviewable on appeal from the final judgment in the underlying
action.” Cunningham, 527 U.S. at 204. In addition, 28 U.S.C. § 1292
permits appeals from a limited set of interlocutory decisions.
Robinson-Reeder’s appeal does not fall under either of these rubrics,
and she does not contend that it does.
6
The finality of a decision in a case involving multiple
claims is governed in part by Federal Rule of Civil Procedure
54(b), which specifies that a district court “may direct entry of
a final judgment as to one or more, but fewer than all, claims . . .
only if the court expressly determines that there is no just reason
for delay.” FED. R. CIV. P. 54(b). “Otherwise, any order or
other decision, however designated, that adjudicates fewer than
all the claims . . . does not end the action as to any of the claims
. . . and may be revised at any time before the entry of a
judgment adjudicating all the claims . . . .” Id.; see Cambridge
Holdings Group, Inc. v. Fed. Ins. Co., 489 F.3d 1356, 1359
(D.C. Cir. 2007).
As amicus acknowledged at oral argument, there was no
final judgment from which Robinson-Reeder could have
appealed at the time she filed a notice of appeal in this court on
February 19, 2008. Oral Arg. Recording at 5:10-15.4 The
district court’s January 29, 2008, order had dismissed her Title
VII claims on the pleadings, but it had not dismissed her
defamation claim. Rather, the court stated that it “will dismiss
plaintiff’s defamation claim if an amended complaint asserting
that claim and a proper independent basis for federal jurisdiction
is not filed within 20 days.” Robinson-Reeder, 532 F. Supp. 2d
at 19 (emphases added). The court further suggested that
“diversity of citizenship” could provide such an independent
jurisdictional basis. Id. The court thus made clear that it had
not dismissed Robinson-Reeder’s defamation claim, and that it
would do so only if she failed to file an appropriately amended
complaint. Nor did the district court make the “express[]
4
Although the amicus brief maintained that the district court
intended its January 29 order to dismiss the entire action, Amicus
Curiae Br. 11, counsel acknowledged at oral argument that the court’s
treatment of the defamation claim makes clear this was not so. Oral
Arg. Recording at 5:10-15.
7
determin[ation] [of] no just reason for delay” authorized by Rule
54(b). FED. R. CIV. P. 54(b).
Notwithstanding the absence of a final judgment on the day
she filed her notice of appeal, Robinson-Reeder argues that we
have jurisdiction as a consequence of Federal Rule of Appellate
Procedure 4(a)(2). Rule 4(a)(2) provides that “[a] notice of
appeal filed after the court announces a decision or order -- but
before the entry of the judgment or order -- is treated as filed on
the date of and after the entry.” FED. R. APP. P. 4(a)(2). As
construed by the Supreme Court in FirsTier Mortgage Co. v.
Investors Mortgage Insurance Co., this rule “permits a notice of
appeal from a nonfinal decision to operate as a notice of appeal
from the final judgment only when a district court announces a
decision that would be appealable if immediately followed by
the entry of judgment.” 498 U.S. 269, 276 (1991). The key
point for our purposes, however, is that for Rule 4(a)(2) to
apply, “[t]here must at some point prior to consideration of the
appeal actually have been a final appealable judgment of some
sort entered; Rule 4(a)(2) by its terms makes a premature notice
effective ‘on the date of and after the entry [of judgment].’”
Outlaw v. Airtech Air Conditioning & Heating, Inc., 412 F.3d
156, 162 (D.C. Cir. 2005) (alteration in original) (quoting FED.
R. APP. P. 4(a)(2)); see FirsTier, 498 U.S. at 275 (“Under Rule
4(a)(2), a premature notice of appeal does not ripen until
judgment is entered.”).
The next question, then, is whether the district court ever
entered a final judgment in this case. Robinson-Reeder makes
three arguments in support of her contention that it did. First,
she argues that the “dismissal of the remaining defamation claim
became self-actuating when the condition[] for dismissal
occurred.” Amicus Curiae Br. 13. That condition, she
maintains, was the failure to file an amended complaint stating
a proper defamation claim and a proper independent basis for
8
jurisdiction. Because the district court never ruled that her claim
and jurisdictional basis were proper, she insists that the court’s
condition for dismissing the complaint was satisfied. Id. at 13-
14.
This argument simply misreads the district court’s January
29 order. In that order, the court indicated that it would dismiss
Robinson-Reeder’s defamation claim if she failed to file “an
amended complaint asserting that claim and a proper
independent basis for federal jurisdiction” within the specified
time period. Robinson-Reeder, 532 F. Supp. 2d at 19 (emphasis
added). She did file such a complaint, however, asserting both
defamation and diversity of citizenship -- the independent
jurisdictional basis the court itself had suggested. See id. Of
course, if the district court had determined that these assertions
were improper, dismissal would have followed. But there is no
ground for reading the court’s order as suggesting that an
amended complaint would be dismissed in the absence of such
a determination.
Second, Robinson-Reeder argues that, following the parties’
stipulation to dismissal of the defamation claim without
prejudice, the district court dismissed not just that claim but the
entire action. And she points out that, in Ciralsky v. CIA, we
held that a district court’s dismissal of an entire action is a final
appealable judgment, whether or not the dismissal was with
prejudice. 355 F.3d 661, 666 (D.C. Cir. 2004). Ciralsky is not
relevant here, however, because the district court did not dismiss
Robinson-Reeder’s action. The parties themselves did not
indicate that they wanted the action dismissed, stipulating only
“that the remaining cause of action in the within action is
dismissed without prejudice.” Stipulation of Dismissal (J.A. 95)
(emphasis added). More important, the court did not dismiss
anything at all. Although the clerk of the court evidently
marked the electronic docket “terminated” on March 31, 2008,
9
there is no indication that the court itself ever issued a
terminating order. Cf. Murray v. Gilmore, 406 F.3d 708, 712
(D.C. Cir. 2005) (“Had the court intended to dismiss the action,
it would have done more than just remove the case from its
active calendar; it might, for example, have designated the 2002
order as ‘final and appealable,’ as did the Ciralsky district court
. . . .”). Indeed, well after the date of “termination,” Robinson-
Reeder filed -- and the court resolved -- several more motions.
See Civil Docket for Case #: 1:07-cv-00880-JDB (J.A. 6-7).
Third, Robinson-Reeder argues that, even if the district
court did not dismiss the entire action, the voluntary dismissal
of the only remaining (defamation) claim was sufficient to
permit appeal of those (Title VII) claims that the court did
adjudicate. There is little doubt that this would be so had the
remaining claim been dismissed with prejudice.5 But the
circuits, and even cases within individual circuits, are divided
over whether voluntary dismissal without prejudice of
unresolved claims can suffice to make a district court’s
judgment final -- and, if so, under what circumstances.6 In
5
See, e.g., Helm Fin. Corp. v. MNVA R.R., Inc., 212 F.3d 1076,
1080 (8th Cir. 2000); JTC Petroleum Co. v. Piasa Motor Fuels, Inc.,
190 F.3d 775, 776-77 (7th Cir. 1999); State Treasurer v. Barry, 168
F.3d 8, 15 (11th Cir. 1999); Chappelle v. Beacon Commc’ns Corp., 84
F.3d 652, 653-54 (2d Cir. 1996); Libbey-Owens-Ford Co. v. Blue
Cross & Blue Shield Mut. of Ohio, 982 F.2d 1031, 1034 (6th Cir.
1993); Cheng v. Comm’r of Internal Revenue Serv., 878 F.2d 306, 311
(9th Cir. 1989).
6
See Doe v United States, 513 F.3d 1348, 1352-53 (Fed. Cir.
2008) (collecting cases); JTC Petroleum Co., 190 F.3d at 776 (same);
see also, e.g., LNC Invs. LLC v. Republic Nicaragua, 396 F.3d 342,
346 (3d Cir. 2005) (holding as a general rule that voluntary dismissal
of a remaining claim without prejudice does not satisfy § 1291’s
finality requirement, but recognizing an exception where such a claim
10
addition, while some courts hold that voluntary dismissal of
unresolved claims without prejudice permits review of
adjudicated claims if the district court approves the dismissal
and enters judgment, see, e.g., James v. Price Stern Sloan, Inc.,
283 F.3d 1064, 1070 (9th Cir. 2002) (also requiring that “the
record reveal[] no evidence of intent to manipulate . . . appellate
jurisdiction”), others hold that even entry of a court order is
insufficient to permit review in such circumstances, see, e.g.,
Rabbi Jacob Joseph Sch. v. Province of Mendoza, 425 F.3d 207,
210-11 (2d Cir. 2005).
To date, this court has nibbled around the edges of this
issue. In Ciralsky, we held that, although “courts often regard
the dismissal without prejudice of a complaint as not final, and
thus not appealable,” the (involuntary) dismissal of an action by
a court -- “whether with or without prejudice -- is final and
appealable.” 355 F.3d at 666 (internal quotation mark omitted).
In Murray v. Gilmore, we held that a district court order
granting summary judgment on some claims but dismissing the
remaining claim “without prejudice subject to reconsideration”
was not a dismissal of the action and was not final and
appealable. 406 F.3d at 712-13. And in Outlaw v. Airtech Air
Conditioning & Heating, Inc., we held that a court order,
dismissing a plaintiff’s “remaining claims without prejudice in
an effort to cure the lack of an appealable order” with respect to
the adjudicated claims, represented a final appealable judgment.
412 F.3d at 158; see id. at 162.
Today, we continue to do no more than nibble because we
can resolve the question of our appellate jurisdiction without
taking a bigger bite. In this case, there was no court order
is “‘effectively barred’ because the statute of limitations on that claim
ha[s] lapsed”).
11
dismissing the remaining claim;7 rather, dismissal was
accomplished by stipulation of the parties alone pursuant to
Federal Rule of Civil Procedure 41(a)(1). Compare FED. R. CIV.
P. 41(a)(1) (providing for dismissal “without a court order by
filing . . . a stipulation of dismissal signed by all parties”), with
id. 41(a)(2) (providing for dismissal “by court order”). As noted
above, Rule 54(b) states: “[T]he court may direct entry of a
final judgment as to one or more, but fewer than all, claims . . .
only if the court expressly determines that there is no just reason
for delay. Otherwise, any order or other decision, however
designated, that adjudicates fewer than all the claims . . . does
not end the action as to any of the claims . . . and may be revised
at any time before the entry of a judgment adjudicating all the
claims . . . .” FED. R. CIV. P. 54(b). Here, the district court
adjudicated fewer than all the claims: it dismissed only the Title
VII claims, and never ruled on the amended defamation claim.
All we have is the parties’ stipulation, which cannot substitute
for a court order under the Rule. Moreover, the court never
determined -- “expressly” or otherwise -- that there was “no just
reason for delay.” Id. Accordingly, it remains the case that the
dismissal of the Title VII claims “does not end the action as to
any of the claims,” id., and hence is not an appealable “final
decision” under 28 U.S.C. § 1291. Cf. Blackman v. District of
Columbia, 456 F.3d 167, 174-75 & n.9 (D.C. Cir. 2006)
(holding that orders that “do not dispose of all the claims of all
of the parties” are nonfinal and nonappealable in the absence of
an express determination that there is no just reason for delay).
7
Nor has Robinson-Reeder suggested that the voluntary dismissal
of her defamation claim was effectively “final because [she] could not
refile it due to a lapsed statute of limitations” or any other analogous
constraint. Murray, 406 F.3d at 712; see Ciralsky, 355 F.3d at 666
n.1; LNC Invs. LLC, 396 F.3d at 346.
12
Were we to permit the parties’ dismissal without prejudice
to generate an appealable judgment, we would effectively
transfer to the litigants the “dispatcher” function that Rule 54(b)
vests in the district court. See Sears, Roebuck & Co. v. Mackey,
351 U.S. 427, 435 (1956) (explaining that under Rule 54(b), “the
District Court is used as a ‘dispatcher’ . . . to determine, in the
first instance, the appropriate time when each ‘final decision’
upon ‘one or more but [fewer] than all’ of the claims in a
multiple claims action is ready for appeal”). There would then
be nothing to prevent two parties who have received a decision
on only one of several claims, but who would like the views of
the appellate court on the decided claim before proceeding to
trial on the remaining claims, from obtaining review simply by
dismissing the remaining claims without prejudice. At least in
the absence of a statute-of-limitations or comparable problem,
see supra notes 6 & 7, those voluntarily dismissed claims could
thereafter be reinstated and the litigation recommenced. Not
only would this weaken the policy against “piecemeal appeals”
in general, but it would also “undermine the independence of the
district judge, as well as the special role that individual plays in
our judicial system.” Cunningham, 527 U.S. at 203 (quoting
Firestone Tire & Rubber Co., 449 U.S. at 374).
Robinson-Reeder worries that, “[i]f the dismissal without
prejudice of [her] defamation claim [is found to preclude] the
finality of the decision below, she will never have a chance to
appeal the ruling on her finally dismissed Title VII claim.”
Amicus Curiae Br. 22. But that conclusion simply does not
follow, as there are several steps Robinson-Reeder can take,
which, if successful, will clearly create a final appealable
judgment. She can: (1) obtain a Rule 54(b) determination from
the district court; (2) secure dismissal of her defamation claim
with prejudice; or (3) move that the district court adjudicate her
13
defamation claim and then enter final judgment.8 Whether there
are other steps as well is a question we need not decide today,
but there is no cause for concern that Robinson-Reeder will be
denied an opportunity to appeal once the district court enters a
final judgment in her case.
III
For the foregoing reasons, we dismiss this appeal for lack
of appellate jurisdiction.
So ordered.
8
The third option is complicated, but not eliminated, by the fact
that Robinson-Reeder has also filed her defamation claim as part of a
free-standing lawsuit in the Superior Court of the District of
Columbia.