Frank Williams, Jr. v. Lockheed Martin Corp ( 2020 )

Case: 18-31159 Document: 00515404281 Page: 1 Date Filed: 05/04/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-31159 May 4, 2020
Lyle W. Cayce
TARSIA WILLIAMS; BRECK WILLIAMS, Clerk
Plaintiffs - Appellants
v.
TAYLOR SEIDENBACH, INCORPORATED,
Defendant - Appellee
************************************************************************
Consolidated with 18-31161
TARSIA WILLIAMS; BRECK WILLIAMS,
Plaintiffs - Appellants
v.
MCCARTY CORPORATION,
Defendant - Appellee
Appeals from the United States District Court
for the Eastern District of Louisiana
Before OWEN, Chief Judge, JONES, SMITH, STEWART, DENNIS, ELROD,
SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO,
DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.
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JAMES C. HO, Circuit Judge, joined by OWEN, Chief Judge, and JONES,
STEWART, DENNIS, ELROD, HAYNES, GRAVES, HIGGINSON, and
ENGELHARDT, Circuit Judges:
When a plaintiff sues multiple defendants, counsel may need to take
certain steps to ensure the plaintiff’s right to appeal. That is because courts
of appeals have jurisdiction to review only certain types of district court
decisions.
Under 28 U.S.C. § 1291, courts of appeals may review only “final
decisions” of the district courts. Under our precedents, there is no final
decision if a plaintiff voluntarily dismisses a defendant without prejudice,
because the plaintiff “is entitled to bring a later suit on the same cause of
action.” Ryan v. Occidental Petroleum Corp., 577 F.2d 298, 302 (5th Cir. 1978).
And in a suit against multiple defendants, there is no final decision as to one
defendant until there is a final decision as to all defendants. See FED. R. CIV.
P. 54(b) (absent an order to the contrary, “any order or other decision, however
designated, that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the action as to any of the
claims or parties”).
A potential complication arises when a case implicates both of those
principles—that is, when a plaintiff sues two defendants, and then voluntarily
dismisses one defendant without prejudice, while litigating against the other
to conclusion. Some have expressed concern that the plaintiff may fall into a
“finality trap”—unable to obtain an appealable final decision, despite having
lost to the second defendant. See Terry W. Shackmann & Barry L. Pickens,
The Finality Trap: Accidentally Losing Your Right to Appeal (Part I), 58 J. MO.
B. 78, 78 (2002).
But established rules of civil procedure provide many tools to avoid that
alleged “trap.” They include amendment of the complaint to remove claims or
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parties under Federal Rule of Civil Procedure 15(a); severance of parties under
Rule 21; and entry of a partial final judgment under Rule 54(b). 1 A plaintiff
can also voluntarily dismiss a defendant with prejudice.
In this case, Plaintiffs chose Rule 54(b). As a result, there is no need to
address the other finality issues raised by the parties. Because we conclude
that the district court properly entered partial final judgment under Rule
54(b), we have jurisdiction to hear these appeals and accordingly return them
to the panel for a ruling on the merits.
I.
Plaintiffs Tarsia and Breck Williams sued twenty-four defendants after
their father died from mesothelioma. After protracted litigation before a multi-
district litigation court, several defendants, including Taylor Seidenbach, Inc.,
and McCarty Corp., obtained summary judgment.
The Williamses subsequently moved to dismiss the remaining
defendants, including CSR, Ltd., Environmental Abatement Services, Inc., and
The Gottfried Corp., pursuant to Rule 41(a). The district court granted the
Rule 41(a) dismissal motions, but it did not specify whether the dismissals
were with or without prejudice. The Williamses then appealed as to the several
defendants who had previously obtained summary judgment, including Taylor
Seidenbach and McCarty.
On appeal, this court held that CSR, Environmental Abatement
Services, and Gottfried were dismissed without prejudice. Accordingly, we
dismissed the appeal for want of a “final decision” under 28 U.S.C. § 1291.
1 Technically, Rule 54(b) allows a district court to “direct entry” of judgment—the
actual entry of judgment occurs under Rule 58. But since district courts must “mechanically
appl[y]” Rule 58, United States v. Indrelunas, 411 U.S. 216, 222 (1973) (per curiam), we use
some variation of the shorthand “entry of judgment under Rule 54(b).”
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Williams v. Taylor-Seidenbach, Inc. (Williams I), 748 F. App’x 584, 587–88 (5th
Cir. 2018).
In response, the Williamses sought and obtained partial final judgment
under Rule 54(b) as to various defendants, including Taylor Seidenbach and
McCarty, and then appealed again. A panel of this court held that the district
court lacked the power to enter partial final judgment under Rule 54(b), and
therefore dismissed the appeal once again for want of a final decision.
Williams v. Taylor Seidenbach, Inc. (Williams II), 935 F.3d 358, 360 (5th Cir.
2019), vacated on rehearing en banc, 941 F.3d 1183 (5th Cir. 2019).
We subsequently granted rehearing en banc. We now conclude that Rule
54(b) authorized the district court to enter partial final judgment following the
dismissal of the remaining defendants under Rule 41(a), and that this appeal
may therefore proceed.
II.
This case involves the intersection of two different Federal Rules of Civil
Procedure—Rules 41(a) and 54(b). Accordingly, we address Rule 41(a) briefly,
before turning to Rule 54(b).
Rule 41(a) allows plaintiffs to voluntarily dismiss “an action.” One
could—as the dissent does—plausibly construe “action” under Rule 41(a) to
refer only to the entire case and not to individual defendants. See Harvey
Aluminum, Inc. v. Am. Cyanamid Co., 203 F.2d 105, 108 (2nd Cir. 1953). But
our circuit precedents interpret “action” to cover individual defendants—thus
allowing plaintiffs, like the Williamses, to use Rule 41(a) to dismiss individual
defendants. See Nat’l City Golf Fin. v. Scott, 899 F.3d 412, 415 n.3 (5th Cir.
2018) (“Rule 41(a) permits a plaintiff to dismiss just one defendant, ‘even
though the action against another defendant would remain pending.’”)
(quoting Plains Growers, Inc. ex rel. Florists’ Mut. Ins. Co. v. Ickes-Braun
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Glasshouses, Inc., 474 F.2d 250, 253 (5th Cir. 1973)); Exxon Corp. v. Md. Cas.
Co., 599 F.2d 659, 662–63 (5th Cir. 1979) (distinguishing between
impermissible Rule 41(a) dismissals of individual claims and permissible Rule
41(a) dismissals of individual defendants).
In this en banc proceeding, the parties do not challenge the validity of
our circuit precedents permitting the Williamses to voluntarily dismiss
individual defendants under Rule 41(a). That is unsurprising. For even if we
were to reconsider our precedent and to construe Rule 41(a) to permit
voluntary dismissal only of an entire case, and not of individual defendants,
we would still conclude that there is appellate jurisdiction over this appeal.
To see why, assume that Rule 41(a) only allows dismissals of the entire
case. Then the Williamses’ Rule 41(a) dismissal, which sought to dismiss only
some of the defendants, was invalid, and an invalid Rule 41(a) dismissal is a
nullity. So the claims against the purportedly dismissed defendants would still
be “pending in district court,” as circuit precedents confirm. Exxon, 599 F.2d
at 663. See also Perry v. Schumacher Grp. of La., 891 F.3d 954, 958–59 (11th
Cir. 2018) (“[T]he [Rule 41(a)(1)(A)] Stipulation, which purported to dismiss
‘Count III of the Fourth Amended Complaint . . . without prejudice,’ was
invalid. By stroke of sheer good fortune for Dr. Perry, the Stipulation did not
divest the District Court of its jurisdiction.”).
The upshot is this: If we accept the dissent’s reading of Rule 41(a), then
the claims against the purportedly dismissed defendants were in fact never
dismissed, but instead were indisputably pending before the district court at
the time it entered partial final judgment under Rule 54(b). It therefore follows
that the partial final judgments under Rule 54(b) were valid—even under the
dissent’s understanding of Rules 41(a) and 54(b)—and that we therefore have
jurisdiction over this appeal.
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But as we shall explain, we can also reach that same result without
upsetting circuit precedent. And because that is so, we have no occasion to
reconsider our precedent. See United States v. Castillo-Rivera, 853 F.3d 218,
221 n.1 (5th Cir. 2017) (en banc) (refusing to revisit circuit precedent where it
was “not necessary to our disposition of [the] case”).
III.
We turn now to the validity—and appealability—of the partial final
judgments entered by the district court here under Rule 54(b).
The courts of appeals are courts of limited jurisdiction, “possess[ing] only
that power authorized by Constitution and statute.” Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Under 28 U.S.C. § 1291, courts
of appeals have jurisdiction to review “final decisions” of the district courts.
Congress has “empowered [the Supreme Court] to clarify when a decision
qualifies as ‘final’ for appellate review purposes, and to expand the list of orders
appealable on an interlocutory basis.” Swint v. Chambers Cty. Comm’n, 514
U.S. 35, 48 (1995). “The procedure Congress ordered for such changes,
however, is not expansion by court decision, but by rulemaking.” Id. (emphasis
added). See 28 U.S.C. § 2072(a), (c) (“The Supreme Court shall have the power
to prescribe general rules of practice and procedure . . . . Such rules may define
when a ruling of a district court is final for the purposes of appeal under section
1291 of this title.”). See also Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1712–
13 (2017) (instructing courts not to “subvert[] the final-judgment rule and the
process Congress has established for refining that rule”).
The Supreme Court has thus instructed that “Congress’ designation of
the rulemaking process as the way to define or refine when a district court
ruling is ‘final’ and when an interlocutory order is appealable warrants the
Judiciary’s full respect.” Swint, 514 U.S. at 48. So when a question arises
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about appealability in light of the final judgment rule, courts and litigants
must adhere to a simple principle: follow the rules. That is what, after various
twists and turns, the Williamses did here—they invoked Rule 54(b) to secure
a “final judgment as to one or more, but fewer than all, claims or parties.”
A.
To begin, it is important to understand what the Williamses want:
appellate review of the district court’s entry of summary judgment as to certain
defendants, without litigating all the claims they brought against all the
defendants they sued.
There are many ways they could have achieved that under current
precedent without running afoul of the final judgment rule. They could have
dismissed the remaining defendants with prejudice under Rule 41(a). See, e.g.,
Marshall v. Kan. City S. Ry. Co., 378 F.3d 495, 500 (5th Cir. 2004). They could
have amended their complaint to excise any remaining claims or parties under
Rule 15(a). See, e.g., Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473–
74 (2007) (“[W]hen a plaintiff . . . voluntarily amends the complaint, courts
look to the amended complaint to determine jurisdiction.”); Nat’l Broiler Mktg.
Ass’n v. United States, 436 U.S. 816, 819 n.5 (1978) (noting that a party used
Rule 15(a) “to facilitate the appeal”). They could have requested severance of
certain parties under Rule 21. See United States v. O’Neil, 709 F.2d 361, 368
(5th Cir. 1983). Or they could do what they did here: seek a partial final
judgment under Rule 54(b).
Federal Rule of Civil Procedure 54(b) states:
When an action presents more than one claim for relief—whether
as a claim, counterclaim, crossclaim, or third-party claim—or
when multiple parties are involved, the court may direct entry of
a final judgment as to one or more, but fewer than all, claims or
parties only if the court expressly determines that there is no just
reason for delay. Otherwise, any order or other decision, however
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designated, that adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties does not end the action
as to any of the claims or parties and may be revised at any time
before the entry of a judgment adjudicating all the claims and all
the parties’ rights and liabilities.
FED. R. CIV. P. 54(b).
Rule 54(b) thus sets forth the governing framework for determining
finality in a suit against multiple defendants. Of course, once the district court
has decided all claims against all parties, that decision is plainly final. By
contrast, any order that resolves “the rights and liabilities of fewer than all the
parties” is not final—because any such order “may be revised at any time”
before final judgment. Id. So if a party wishes to appeal such an order, it must
ask the district court to enter “a final judgment as to one or more, but fewer
than all, claims or parties,” and the court should do so, provided “there is no
just reason for delay.” Id.
By following the framework set forth in Rule 54(b) and obtaining a
partial final judgment as to Taylor Seidenbach and McCarty, the Williamses
preserved their right to appeal against those defendants.
B.
Rule 54(b) sets forth a straightforward path that the Williamses
dutifully followed. The only wrinkle is whether a district court can enter
partial final judgment where a plaintiff first litigates the case to conclusion as
to various defendants, and then voluntarily dismisses all remaining
defendants under Rule 41(a) at the end of the case—as the Williamses did here.
We see no reason why the order of events should alter the court’s power
under Rule 54(b). Indeed, our court allowed entry of partial final judgment
under Rule 54(b) under substantially indistinguishable circumstances in
Swope v. Columbian Chemicals Co., 281 F.3d 185 (5th Cir. 2002). In Swope,
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the district court granted summary judgment to one defendant, and then later
granted summary judgment to the second defendant as to all but one claim.
Id. at 190. In response, the plaintiff moved to dismiss the remaining claim
under Rule 41(a) and to obtain an appealable partial final judgment as to the
rest of the case under Rule 54(b). Id. The district court obliged, dismissing the
remaining claim without prejudice and then immediately entering a Rule 54(b)
judgment as to the summary judgment orders. Id. at 190–91 & nn.1–2. The
plaintiff subsequently appealed, and our court accepted jurisdiction over that
appeal. Id. at 194.
What’s more, our court in Swope expressly pointed out that the timing of
the Rule 41(a) dismissal did not matter to its analysis—the appeal of the Rule
54(b) judgment was valid regardless. As the court went out of its way to
observe, “[i]t is unnecessary to decide . . . whether the dismissal took effect
upon filing . . . of the [Rule 41] motion”—and therefore, like in this case, well
before the entry of partial final judgment under Rule 54(b)—“or upon the trial
court’s granting[] of the motion.” Id. at 192 n.15. Translation: Entry of a
partial final judgment is proper under Rule 54(b) regardless of whether it
occurs before or after the voluntary dismissal of any remaining defendants
under Rule 41(a).
Swope is correct and we apply it here. Rule 54(b) authorizes district
courts to “direct entry of a final judgment as to one or more, but fewer than all,
claims or parties.” FED. R. CIV. P. 54(b). And a voluntary dismissal of some
defendants under Rule 41(a) at the end of the case does not alter the court’s
Rule 54(b) authority in any way. A dismissed claim remains a part of the case,
absent amendment of the complaint under Rule 15. And that is so regardless
of when the Rule 41(a) dismissal occurs. Likewise, the fully litigated claims—
such as the partial summary judgment claims that the Williamses hope to
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appeal here—naturally remain pending before the court as well. See, e.g., Nat’l
City Golf Fin., 899 F.3d at 415 n.3 (“Rule 41(a) permits a plaintiff to dismiss
just one defendant, ‘even though the action against another defendant would
remain pending.’”) (quoting Plains Growers, 474 F.2d at 253). 2
So there is no reason why a district court cannot enter a partial final
judgment under Rule 54(b) when any remaining defendants are voluntarily
dismissed at the end of a case under Rule 41(a).
Notably, a distinguished panel of the Seventh Circuit reached the same
conclusion in ITOFCA, Inc. v. MegaTrans Logistics, Inc., 235 F.3d 360 (7th Cir.
2000). ITOFCA involved the same sequence of events as this case—entry of
summary judgment as to some claims, followed by dismissal of the rest of the
case without prejudice. See id. at 362–63. The Seventh Circuit concluded that
Rule 54(b) would generally authorize entry of partial final judgment under
those circumstances. Its reasoning was simple: A dismissal without prejudice
is equivalent to no dismissal at all because the claim can be refiled at any time.
Id. at 364. So we may—indeed, according to the Seventh Circuit, we “must,”
id.—act as if the claim is still pending before the district court.
To begin with, the Seventh Circuit concluded, as we did in Swope, that
the dismissal of certain claims without prejudice deprived plaintiffs of finality
as to the other claims. “[W]e must view the counterclaims dismissed without
prejudice as if they are still before the district court, which they could be at
any moment. Since we would not have appellate jurisdiction under § 1291 if
the court had not dismissed the counterclaims, we have no appellate
jurisdiction under the circumstances as they now exist.” Id. at 364.
2 Of course, if a plaintiff voluntarily dismisses an entire case under Rule 41(a), then
the case is over and there is nothing left pending in the district court. See SmallBizPros,
Inc. v. MacDonald, 618 F.3d 458, 461 (5th Cir. 2010) (per curiam).
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As a result, the Seventh Circuit concluded, the plaintiff must take some
additional step, such as entry of partial final judgment under Rule 54(b), in
order to appeal any of the other claims. That is because “Rule 54(b) authorizes
the district court to make immediately appealable a judgment that disposes,
with finality, of one or more (but not all) claims, even though other claims
remain pending in the district court so that the suit as a whole has not been
finally disposed of by that court.” Id. Thus, “[g]iven . . . that the dismissal of
MegaTrans’ counterclaims without prejudice has not created a final decision
that allows for Section 1291 review, Rule 54(b) would seem to be an adequate
alternative means of gaining appellate jurisdiction.” Id. 3
That conclusion is unsurprising given the plain text of Rule 54(b): A
district court “may direct entry of a final judgment as to one or more, but fewer
than all, claims or parties.” FED. R. CIV. P. 54(b). And a district court may do
so in any case that “presents more than one claim for relief—whether as a
claim, counterclaim, crossclaim, or third-party claim—or when multiple
parties are involved.” Id. “Otherwise”—that is, in the absence of a partial final
judgment under Rule 54(b)—“any order or other decision . . . that adjudicates
fewer than all the claims or the rights and liabilities of fewer than all the
parties does not end the action as to any of the claims or parties and may be
revised at any time.” Id.
In other words, the text of Rule 54(b) identifies the problem that it is
attempting to solve (adjudication as to only some parties or only some claims
“does not end the action” and is thus not, by itself, a final judgment), and then
3 The Seventh Circuit ultimately denied appellate jurisdiction, but only because the
parties never requested a Rule 54(b) partial final judgment. Id. at 365. The court also
identified a quirk in that case not present here—namely, the complete overlap between the
summary judgment claim and the dismissed counterclaim in ITOFCA. Id. at 364–65.
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provides the solution (district courts may enter partial final judgment to
facilitate appeal).
The Supreme Court has made clear that the Federal Rules of Civil
Procedure warrant our “full respect” as “the way to define or refine when a
district court ruling is ‘final’ and when an interlocutory order is appealable.”
Swint, 514 U.S. at 48. Consistent with that command, we conclude that Rule
54(b) provides a complete solution for plaintiffs who, like the Williamses, sue
multiple defendants, but then later seek an appealable final judgment as to
only a subset of those defendants.
C.
Plaintiffs have many options to preserve their right to appeal under
these circumstances, and the Williamses have properly exercised one of those
options here. As a result, we need not answer certain questions that have been
raised in this en banc proceeding. For example, some have argued that
voluntary dismissal of a defendant or claim without prejudice is a final decision
and thus does not deprive this court of appellate jurisdiction—and that we
should thus revisit Ryan. See Williams II, 935 F.3d at 361–62 (Haynes, J.,
concurring). Others have responded that a voluntary dismissal without
prejudice is not a “final decision” because the dismissal decides nothing—the
plaintiff can re-file—and at a minimum, stare decisis commands respect for
that understanding of finality because it is not demonstrably erroneous. See
Blue v. D.C. Pub. Sch., 764 F.3d 11, 17 (D.C. Cir. 2014) (noting that “[e]very
circuit . . . appears to acknowledge a presumption against” treating a
voluntary dismissal without prejudice as a final decision) (collecting cases).
Our decision today avoids the need to resolve those issues.
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***
The vortex of the finality trap lurks whenever a plaintiff sues a basket
of defendants. But established rules of civil procedure offer various tools for
avoiding that trap. The Williamses used one of those tools here—partial final
judgment under Rule 54(b). As a result, we have jurisdiction to hear these
appeals. We therefore return these cases to the panel for a decision on the
merits.
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JAMES C. HO, Circuit Judge, concurring:
The dissent urges a different interpretation of Rule 54(b) than the one
adopted by the majority. The dissenters’ views are entitled to respect.
Textualists can and sometimes do disagree, in good faith, about the proper
interpretation of words and provisions.
But their criticisms of the majority are mistaken, as I write separately
to explain. For example, in their introductory paragraph, the dissenters
intimate that no federal court has ever adopted the majority’s interpretation
of Rule 54(b). It is a curious attack, considering that they do not provide one
example of a court adopting their view that Rule 54(b) is unavailable in
situations like this. It is even more curious, considering that the available
circuit decisions to date all support the majority’s view that Rule 54(b) is
available here—as the dissent (grudgingly) concedes. See Swope v. Columbian
Chems. Co., 281 F.3d 185, 192 & n.15 (5th Cir. 2002); ITOFCA, Inc. v.
MegaTrans Logistics, Inc., 235 F.3d 360, 364 (7th Cir. 2000). The dissent
simply dismisses the supportive passages in Swope and ITOFCA as mere
“drive-by” “dicta” that the en banc court should reject. But as the majority
explains, and as I further detail below, both Swope and our respected
colleagues on the Seventh Circuit got it right. 1
I.
Before I respond to the dissent’s effort to overturn our Rule 54(b)
precedent, I will first address its effort to overturn our Rule 41(a) precedent.
The dissent makes special effort to point out when it cites an opinion associated with
1
Judge Easterbrook. It may be notable to them, then, that Judge Easterbrook joined ITOFCA.
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To begin, the dissent makes three valid points. First, the dissent is
correct that one important purpose of en banc rehearing is to reconsider our
circuit precedent—for example, “to better align our precedents with the text
and original understanding of the Constitution or the plain language of United
States statutes” to the maximum extent that Supreme Court precedent
permits. Alvarez v. City of Brownsville, 904 F.3d 382, 401 (5th Cir. 2018) (en
banc) (Ho, J., concurring). 2 Second, the dissent is correct that, whether the
parties dispute jurisdiction or not, we have an independent duty to confirm
that we have jurisdiction to hear cases presented to us. 3
Third, as the majority acknowledges, the dissent presents a plausible
theory that our precedents construing Rule 41(a) are wrong as a matter of text.
Section I of the dissent contends that Rule 41(a) only authorizes dismissals of
an entire “action”—and not individual defendants, as the Williamses purported
to do here. The dissent would therefore overrule our precedents in Plains
Growers, Inc. ex rel. Florists’ Mutual Insurance Co. v. Ickes-Braun Glasshouses,
Inc., 474 F.2d 250, 253 (5th Cir. 1973), and National City Golf Finance v. Scott,
899 F.3d 412, 415 n.3 (5th Cir. 2018)—not to mention Exxon Corp. v. Maryland
Casualty Co., 599 F.2d 659, 662–63 (5th Cir. 1979) (distinguishing between
2 See also Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J.,
dissenting from the denial of rehearing en banc) (“As inferior court judges, we are bound by
Supreme Court precedent[s]. . . . [But] ‘[w]e should resolve questions about the scope of those
precedents in light of and in the direction of the constitutional text and constitutional
history.’”) (fourth alteration in the original) (quoting Free Enter. Fund v. Public Co.
Accounting Oversight Bd., 537 F.3d 667, 698 (D.C. Cir. 2008) (Kavanaugh, J., dissenting)),
aff’d in part, rev’d in part, 561 U.S. 477 (2010)).
3 Notwithstanding our independent duty to confirm that we have jurisdiction, the
dissenting opinion (in both its introduction and conclusion) criticizes the majority for deciding
this case on grounds not presented by the parties. But there’s nothing wrong with what the
majority is doing—the dissenters would likewise decide this case based on grounds not
presented by the parties (namely, their effort to overturn our Rule 41(a) circuit precedent).
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impermissible Rule 41(a) dismissals of individual claims and permissible Rule
41(a) dismissals of individual defendants).
It is an interesting textual argument, and if it affected our jurisdiction
in this appeal, I might seriously consider it. But the majority explains why
overruling Plains Growers, National City Golf, and Exxon would not deprive
us of jurisdiction. The reasoning is simple: If Rule 41(a) does not let the
Williamses dismiss a subset of defendants, then their Rule 41(a) motion is
invalid. Various circuits (including ours) have made that clear. See Perry v.
Schumacher Grp. of La., 891 F.3d 954, 958–59 (11th Cir. 2018) (“[T]he [Rule
41(a)(1)(A)] Stipulation, which purported to dismiss ‘Count III of the Fourth
Amended Complaint . . . without prejudice,’ was invalid. By stroke of sheer
good fortune for Dr. Perry, the Stipulation did not divest the District Court of
its jurisdiction.”); Exxon Corp., 599 F.2d at 663 (concluding that an invalid
attempt to dismiss a claim under Rule 41(a) meant that the claim was “still
pending in district court”). If the Williamses’ Rule 41(a) dismissal was invalid,
then there were defendants and claims still before the district court. And if
that is true, then the Rule 54(b) certification is indisputably valid.
So the dissent should be captioned as a concurrence in the judgment.
Because if the dissent is right about Rule 41(a), then it should deny legal effect
to the Williamses’ Rule 41(a) motion for invalidly attempting to dismiss only
some of the defendants. It should not rewrite the motion to dismiss every
defendant in the entire case.
II.
As for the dissent’s attack on the majority’s Rule 54(b) textual analysis
and circuit precedent: Much of Section II of the dissent expressly relies on
Section I. So the problems noted with Section I apply equally to Section II. I
simply offer the following additional thoughts in response:
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1. The dissenters suggest that the majority’s reliance on Rule 54(b)
is unprecedented. Two problems:
First, the available precedents support the majority—as the dissenters
ultimately acknowledge. They do not deny that the Seventh Circuit agrees
with the majority but simply dismiss its extensive and thoughtful analysis as
mere “dicta.” See ITOFCA, 235 F.3d at 363–65. Likewise, the dissenters
attempt to limit the force of Swope by referring to it as a “drive-by jurisdictional
ruling.” But a “drive-by jurisdictional ruling” means there is no jurisdictional
ruling when a court doesn’t discuss jurisdiction—not when the dissent
disagrees with the discussion. See, e.g., Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 91 (1998) (describing “drive-by jurisdictional rulings” as those
where jurisdiction is “assumed without discussion”). Swope devotes an entire
section to jurisdiction—spanning five pages of the Federal Reporter and
including fourteen paragraphs and thirty footnotes. See Swope, 281 F.3d at
190–94. That is not a drive-by—that is walking in, sitting down, and staying
for cocktails, dinner, and dessert.
In addition, it is Swope’s jurisdictional analysis that the majority
discusses at length, and that supports the majority’s interpretation of Rule
54(b). As the dissent says, Swope involved the validity of a premature notice
of appeal. Id. at 191. But for the notice to be valid, there had to be a
subsequent, appealable Rule 54(b) certification. As the dissent notes, Swope
said that “a premature notice of appeal is effective if Rule 54(b) certification is
subsequently granted.” Id. (emphasis added) (quoting St. Paul Mercury Ins.
Co. v. Fair Grounds Corp., 123 F.3d 336, 338 (5th Cir. 1997)). Swope further
concluded that a valid Rule 54(b) certification existed notwithstanding the
plaintiff’s Rule 41(a) dismissal of the last remaining claim. See id. at 192 &
n.15. So the proposition for which the majority invokes Swope—that a Rule
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41(a) dismissal doesn’t bar a subsequent Rule 54(b) certification—follows
directly from the court’s analysis. 4
Second, it is the dissent’s approach that lacks precedential support. The
dissent does not identify any court that has adopted its view that Rule 54(b) is
unavailable in cases like this—or even questioned the supportive passages
from Swope and ITOFCA. 5
2. The en banc majority explains why the text of Rule 54(b)
authorizes district courts to enter partial final judgments as to certain claims
and defendants—precisely what the district court did here. So why does the
dissent disagree? The dissent appears to offer three theories—all of which, to
my mind, are hard to square with the text of Rule 54(b).
First, the dissent says Rule 54(b) cannot apply here because the entry of
the Rule 41(a) dismissal as to the remaining defendants constituted the “end
of [the] case.” But the text of Rule 54(b) expressly states that “any order or
other decision, however designated, that adjudicates fewer than all the claims
or the rights and liabilities of fewer than all the parties does not end the action
as to any of the claims or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all the parties’ rights and
4 The dissenters suggest “timing matters” as to the filing of the Rule 41(a) and 54(b)
motions—ignoring Swope’s express language that timing does not matter (as the majority
also explains). See Swope, 281 F.3d at 192 n.15 (calling the analysis “unnecessary”). They
also claim Swope “agreed with [their] reading of Rule 41(a).” Actually, Swope says “[i]t is
unnecessary to decide whether the stipulated motion properly came under Rule 41(a).” Id.
(emphasis added). And the reason it was unnecessary is because the Rule 54(b) certification
was valid under any reading of Rule 41(a)—as the majority and this concurrence point out.
5 Both Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990), and Yesh Music v.
Lakewood Church, 727 F.3d 356 (5th Cir. 2013), support the majority’s reading of Rule 54(b),
as I shall discuss. In DIRECTV, Inc. v. Budden, 420 F.3d 521 (5th Cir. 2005), the plaintiff
did not voluntarily dismiss any claim—instead, the court determined that the plaintiff failed
to prosecute, and thus abandoned, some claims while litigating the remaining claims to final
judgment. Id. at 525–26.
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liabilities.” It is unclear to me how a series of interlocutory orders ends the
entire action when Rule 54(b) says the opposite.
Second, the dissent focuses on the opening phrase of Rule 54(b): “[w]hen
an action presents more than one claim.” The dissent claims that this case
does not satisfy that opening phrase because it concludes that there are “no
claims pending” once the Rule 41(a) dismissal is entered. The dissent’s
conclusion is hardly compelled by the text—but I see another problem. The
dissent’s theory doesn’t appear to account for the immediately following phrase
“or when multiple parties are involved.” FED. R. CIV. P. 54(b). This case plainly
satisfies that condition—and the dissent to its credit does not suggest
otherwise. Parties remain “involved” in a case so long as they are “[c]onnected
by participation or association” to it. Involved, AMERICAN HERITAGE
DICTIONARY (5th ed. 2011). That accurately describes dismissed parties. They
remain in the operative complaint. Moreover, as the dissent’s own cases
acknowledge, dismissed parties may continue to participate in the litigation in
limited ways, see Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 398 (1990)
(allowing for Rule 11 sanction proceedings after a Rule 41(a) dismissal of the
complaint)—and their dismissal is subject to later reversal, see Yesh Music v.
Lakewood Church, 727 F.3d 356, 363 (5th Cir. 2013) (holding that a “voluntary
dismissal [under Rule 41(a)(1)(A)] is subject to vacatur under Rule 60(b)”).
Third and finally, the dissent claims that the majority’s reading of Rule
54(b) would render surplusage the proviso that a court may only enter partial
final judgment if it determines that “there is no just reason for delay.” After
all, as the dissent explains, cases like this—where the parties are at the end of
the entire case—will always satisfy the requirement that there is no just
reason for delay. But there is no surplusage issue unless the majority’s reading
would render the delay proviso “wholly superfluous.” Conn. Nat’l Bank v.
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Germain, 503 U.S. 249, 253 (1992) (emphasis added). And the dissent admits
it would not, conceding that the delay proviso would still apply when a partial
final judgment is entered at any other earlier stage in the litigation. Moreover,
there is a common-sense concern with the dissent’s surplusage argument:
Because cases like this will always satisfy the Rule 54(b) delay proviso, cases
like this can never satisfy Rule 54(b)? That is difficult to understand.
III.
Finally, the dissent predicts a parade of horribles that they fear will
result if we follow Swope and ITOFCA in the admittedly rare circumstance
that these issues even arise in the first place.
1. Section III.A of the dissent expresses a fear of “perpetual
jurisdiction.” It worries that, under the majority’s reading of Rule 54(b), cases
will never end, and district courts will retain jurisdiction forever.
Two responses: First, as the dissent notes, all it takes to end a case like
this is a Rule 54(b) judgment. That’s not an unreasonable burden. There are
usually steps parties or courts must take before they can perfect their appeal.
For example, courts must enter judgment in a separate document per Rule
58(b), which is expressly “[s]ubject to Rule 54(b).” But see FED. R. CIV. P.
58(c)(2) (providing for when judgment is entered even if a court fails to comply
with the separate document requirement).
Second, both the winning and losing side of a court order have an
incentive to request partial final judgment under Rule 54(b), and thus end the
district court litigation. Winning parties have an incentive to seek judgment
in order to enforce their win. See, e.g., FDIC v. McFarland, 243 F.3d 876, 892–
93 (5th Cir. 2001) (absent a Rule 54(b) order, a party who received a favorable,
partial judgment could not register it); Redding & Co. v. Russwine Constr.
Corp., 417 F.2d 721, 727 (D.C. Cir. 1969) (“We think the role Rule 54(b) plays
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with reference to the finality of a judgment for purposes of appeal has
implications as regards its finality for purposes of execution as well.”). Losing
parties have an incentive to seek partial final judgment in order to appeal the
district court’s decision—see, for example, this case. 6
2. Section III.B.1 of the dissent claims that a dismissal for lack of
subject matter jurisdiction is a dismissal without prejudice. And it suggests
that this insight is somehow fatal to the majority. But I am not sure the
premise is correct. If a claim is dismissed for lack of subject matter jurisdiction,
the plaintiff cannot refile that claim unless it first cures the jurisdictional
defect. If it cures the defect, res judicata will not bar that claim—but if it does
not, it will. See Lopez v. Pompeo, 923 F.3d 444, 447 & n.2 (5th Cir. 2019)
(collecting authorities). So as we have explained in another context: “Although
plaintiff is not totally precluded from bringing a second suit, he must,
nevertheless, prove his case preliminarily to the district court before being
allowed the right to relitigate. This requirement, unlike those normally
6 To the extent the dissent fears district courts may hold cases hostage by declining to
take the steps required to perfect an appeal, that problem exists no matter how we decide
this case. If a party loses an adverse jury verdict, the party cannot immediately appeal but
must wait for the district court to enter judgment on the verdict. See In re Deepwater Horizon,
785 F.3d 986, 998 (5th Cir. 2015) (“[U]ndocketed orders cannot be appealed.”). See also
Jung v. K. & D. Mining Co., 356 U.S. 335, 337–38 (1958) (per curiam) (holding that a district
court order dismissing the complaint with leave to amend within twenty days was not a final
decision until it formally entered an order—two years later—dismissing the case and
entering judgment under Rule 58). It is also no secret among experienced civil litigators that
a district judge who hopes to evade appellate review can refuse to enter final judgment to
pressure the parties to settle. Similarly, a district court can refuse to set a trial date in order
to pressure the parties to settle or to withdraw their claims. Those are, of course, abuses of
judicial power. But they have happened—and will continue to happen—even under the
dissent’s approach to Rule 54(b).
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imposed with a Rule 41(a)(2) dismissal, involves prejudice in a legal sense.”
LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir. 1976). 7
3. Finally, Section III.B.2 of the dissent expresses concern that the
majority’s approach will result in rampant piecemeal appeals. But the whole
point of Rule 54(b) is to permit piecemeal appeals so long as the district court
approves, just like interlocutory appeals under 28 U.S.C. § 1292(b). See FED.
R. CIV. P. 54(b) advisory committee’s note to 1946 amendment (“Rule 54(b) was
originally adopted in view of the wide scope and possible content of the newly
created ‘civil action’ in order to avoid the possible injustice of a delay in
judgment of a distinctly separate claim to await adjudication of the entire
case.”).
One other point: The dissent is concerned about piecemeal appeals when
a plaintiff dismisses his last remaining claim before seeking a Rule 54(b) order.
But what if a plaintiff seeks a piecemeal appeal after dismissing any other
claim besides the last one? The dissent expresses no concern with that. Yet
one appeal is just as piecemeal as the other.
***
We clearly disagree about the proper interpretation of certain terms and
phrases. But that is all we disagree about. Textualists can and sometimes do
disagree in good faith about the proper interpretation of words and provisions.
See, e.g., Gamble v. United States, 139 S. Ct. 1960, 1986 (2019) (Thomas, J.,
concurring); JCB, Inc. v. Horsburgh & Scott Co., 912 F.3d 238, 242 (5th Cir.
2018) (Ho, J., concurring). But the majority obviously agrees with the dissent
7 Section III.B.1 also appears to rely on the premise that “[t]he text of § 1291 demands
[a] distinction between ‘final decisions’ and ‘final judgments.’” But the Supreme Court has
suggested the opposite. See Bankers Trust Co. v. Mallis, 435 U.S. 381, 384 n.4 (1978) (per
curiam) (“A ‘judgment’ for purposes of the Federal Rules of Civil Procedure would appear to
be equivalent to a ‘final decision’ as that term is used in 28 U.S.C. § 1291.”).
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that courts cannot exercise jurisdiction where the law does not authorize it.
And just as obviously, the dissenters agree with the majority that courts should
exercise jurisdiction where the law authorizes it. This is a garden variety
disagreement over statutory interpretation—not a constitutional crisis.
The dissenters end with Judge Smith’s dissent in United States v.
Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017) (en banc), and thus so will I. It
may be “handy in the interest of expediency” to dismiss this appeal for want of
jurisdiction—but it “undermines the supervisory responsibility of a federal
court of appeals” to do so. Id. at 233 (Smith, J., dissenting).
I agree. That’s why I concur with my respected colleagues in the en banc
majority and on the Seventh Circuit. There is no need to bend over backwards
to create a loophole where the text imposes none—all so that we can spring a
“trap” for litigants to be held captive by federal district courts. The majority
faithfully construes the Rules to require greater superintendence, not greater
immunity, of federal district courts. The plaintiffs are entitled to appeal.
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DON R. WILLETT, Circuit Judge, joined by LESLIE H. SOUTHWICK, Circuit
Judge, concurring in judgment:
Now and then a disconnect arises between the law and common sense.
Decades ago in Texas, a lawmaker proposed requiring would-be criminals to
give their future victims at least 24 hours’ notice, detailing the time/place of
the planned offense and the specific constitutional rights they intended to
violate. 1 Other legal oddities abound, including the so-called “finality trap,”
which has plagued the federal circuits for decades. 2 How can a case be over yet
not final—or, more specifically, not final enough for purposes of appeal yet too
final for district court alteration? 3 This case, which has commanded the
attention of about 20 federal judges over a dozen years, presents an
opportunity to remedy the finality trap’s “egregious mess.” 4 ¡Ya basta!
The majority and dissenting opinions don’t lack for rigor (or vigor). 5 I
agree on remanding to the panel. But along the way, I offer a modest proposal
for untangling our “muddled . . . wrong and illogical” precedent that leaves
1 H.B. 110, 63rd Reg. Sess. (Tex. 1973).
2 Terry W. Schackmann & Barry L. Pickens, The Finality Trap: Accidentally Losing
Your Right to Appeal (Part II), 58 J. MO. B. 138, 138 (2002) (describing the “ ‘finality trap,’
the rule that dismissal of claims without prejudice . . . may undermine the finality of any
resulting judgment and thereby bar appeal at the litigation’s end”).
3 Terry W. Schackmann & Barry L. Pickens, The Finality Trap: Accidentally Losing
Your Right to Appeal (Part I) (Finality Trap I), 58 J. MO. B. 78, 84 (2002) (“Concluding an
action in the trial court without final disposition of voluntarily-dismissed claims creates the
prospect of banishment from the appellate court, without any action left pending in the trial
court to which to return to correct the matter. The error by counsel forecloses both any appeal
from decisions during the litigation and also any further litigation in the trial court.”).
4Williams v. Taylor Seidenbach, Inc. (Williams II), 935 F.3d 358, 361 (5th Cir.)
(Haynes, J., concurring), reh’g en banc granted, 941 F.3d 1183 (5th Cir. 2019).
5 As today’s interpretive scuffle proves, good-faith disagreements among principled
textualists are not uncommon. Interpreting language is a human enterprise, not an
algorithmic one.
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parties mired in litigation limbo. 6 I would abjure any Miracle Max line-drawing
between unappealable “mostly dead” judgments and appealable “all-dead”
judgments and let plaintiffs convert the former into the latter. 7 How? By
bindingly disclaiming their right to reassert any dismissed-without-prejudice
claims.
* * *
The Williamses’ judgment is stuck in finality-trap purgatory, unable to
be fixed by the district court or appealed to us. 8 The Federal Rules “were not
adopted to set traps and pitfalls by way of technicalities for unwary litigants.” 9
Admittedly, one could quibble over whether “unwary” is the right adjective
here, as the Williamses had many tools (over many years) to achieve finality
in the district court. 10 Putting that aside, the Rules’ paramount aim is simply
6 Williams II, 935 F.3d at 361 (Haynes, J., concurring).
7 THE PRINCESS BRIDE (20th Century Fox 1987).
8 Will. v. Taylor-Seidenbach, Inc. (Williams I), 748 F. App’x 584, 587 (5th Cir.
2018); Williams II, 935 F.3d at 359–61; cf. JTC Petroleum Co. v. Piasa Motor Fuels, Inc., 190
F.3d 775, 776 (7th Cir. 1999) (noting “a problem of appellate jurisdiction, namely that two
claims against one of the applicator defendants were dismissed without prejudice . . . . [S]uch
a form of dismissal does not terminate the litigation in the district court in any realistic sense
and so is not a final decision within the meaning of 28 U.S.C. § 1291” (citations omitted));
Erie Cty. Retirees Ass’n v. Cty. of Erie, 220 F.3d 193, 201 (3d Cir. 2000) (same).
9 Hernandez v. Thaler, 630 F.3d 420, 425 (5th Cir. 2011) (quotation marks omitted);
see also, e.g., Soley v. Star & Herald Co., 390 F.2d 364, 368 (5th Cir. 1968) (“Federal rules . .
. were not promulgated to trap unwary litigants.”); U.S. ex rel Erskine v. Baker, 213 F.3d 638,
*1 n.2 (5th Cir. 2000) (per curiam) (restating “the general policy of reading the Federal Rules
in a manner which avoids ‘traps for the unwary’ ” (citation omitted)); Brennan’s Inc. v. Dickie
Brennan & Co. Inc., 376 F.3d 356, 366 (5th Cir. 2004) (lamenting that legal traps are
undesirable); Ellison v. Conoco, Inc., 950 F.2d 1196, 1201 (5th Cir. 1992) (detailing how Rule
58 was designed “not to create traps for the unwary, but rather to afford litigants greater
certainty”); 8 WRIGHT & MILLER, FED. PRAC. & PROC. § 2049.1 & n.4 (3d ed. 2010)
(stating that “it is important to avoid traps for the unwary or innocently ignorant”).
10Majority at 7 (detailing how the Williamses could have avoided the trap through
“dismiss[ing] the remaining defendants with prejudice under Rule 41(a) . . . . [A]mend[ing]
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stated, if not achieved: “the securing of speedy and inexpensive justice in a
uniform and well[-]ordered manner.” 11
Any finality-trap remedy must, of course, abide constraints on our
jurisdiction. It must preserve § 1291’s finality requirement by disallowing
piecemeal appeals and protracted, serial litigation of the same subject
matter. 12 And it cannot be allowed to flout other applicable laws or Rules.
Applying these overarching principles:
First, overruling the Ryan rule to let all voluntary dismissals create
§ 1291 jurisdiction seems a non-starter. We ought not vanquish the finality
trap by vanquishing finality. 13 Second, for what it’s worth, allowing the district
court to recapture jurisdiction (two years later) over previously entered
voluntary dismissals and convert them from “without prejudice” to “with
prejudice” is alien to any circuit. 14 Third, the malleable, case-by-case approach
their complaint to excise any remaining claims or parties under Rule 15(a) . . . . [R]equest[ing]
severance of certain parties under Rule 21 . . . Or . . . seek[ing] a partial final judgment under
Rule 54(b).” (citations omitted)).
11 Des Isles v. Evans, 225 F.2d 235, 236 (5th Cir. 1955); U.S. ex rel. Russell v. Epic
Healthcare Mgmt. Grp., 193 F.3d 304, 307 (5th Cir. 1999), abrogated by U.S. ex rel. Eisenstein
v. City of N.Y., 556 U.S. 928 (2009) (“Rule 1 . . . provides that the Rules ‘shall be construed
and administered to secure the just, speedy, and inexpensive determination of every action.’
This is a charge to resist reading the Rules in a manner that lays traps for the unwary.”).
12 Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1713 (2017) (“Repeatedly we have resisted
efforts to stretch § 1291 to permit appeals . . . that would erode the finality principle and
disserve its objectives.”); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).
13 See Swope v. Columbian Chems. Co., 281 F.3d 185, 193; Finality Trap I, 58 J. MO.
B. at 79 (“[Eliminating the trap] . . . would enable a plaintiff ‘conceivably [to] appeal as many
times as he has claims . . . .’ ”); 9 WRIGHT & MILLER, FED. PRAC. & PROC. § 3914.8 (“[A]
dismissal without prejudice that leaves the plaintiff free to reopen the entire case by filing a
new action should the challenged ruling be affirmed . . . [is] an undue threat to finality
principles . . . .”).
14For a sampling of other circuits’ views, see Santiago v. Victim Servs. Agency of
Metro. Assistance Corp., 753 F.2d 219, 221 (2d Cir. 1985) (“Once the plaintiff has dismissed
the action under [Rule 41(a)], the court loses all jurisdiction over the action.” (citation
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of the Fourth, Sixth, Eighth, and Ninth Circuits enervates § 1291 finality, and
predictability, by inviting inconsistent intra-circuit outcomes. 15
As I see it, the litigant-disclaimer solution consistently checks every box:
✅ unsprings the trap;
✅ honors finality principles; and
✅ respects the text of the Rules.
A litigant who wants to appeal a finality-trapped judgment can
affirmatively, bindingly, and permanently disclaim the right to reassert
dismissed-without-prejudice claims. 16 The Second, Third, and Seventh Circuits
omitted)); State Nat’l Ins. Co. v. County of Camden, 824 F.3d 399, 407 (3d Cir. 2016) (“ A
voluntary dismissal deprives the District Court of jurisdiction over the action.” (citation
omitted)); Commercial Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 1079–80 (9th Cir. 1999)
(“It follows . . . that the district court has no role to play once a notice of dismissal under Rule
41(a)(1) is filed. The action is terminated at that point, as if no action had ever been filed.”);
Anago Franchising, Inc. v. Shaz, LLC, 677 F.3d 1272, 1278 (11th Cir. 2012) (“[C]ourts need
not and may not take action after the [Rule 41(a)] stipulation becomes effective because the
stipulation dismisses the case and divests the district court of jurisdiction.”); Versata
Software, Inc. v. Callidus Software, Inc., 780 F.3d 1134, 1136 (Fed. Cir. 2015) (vacating its
own opinion because it was issued after the parties voluntarily dismissed their case under
Rule 41(a)); see also McCall-Bey v. Franzen, 777 F.2d 1178, 1190 (7th Cir. 1985) (“An
unconditional dismissal terminates federal jurisdiction except for the limited purpose of
reopening and setting aside the judgment of dismissal within the scope allowed by Rule
60(b).”); Smith v. Phillips, 881 F.2d 902, 904 (10th Cir. 1989) (same); Adams v. USAA Cas.
Ins. Co., 863 F.3d 1069, 1078 n.9 (8th Cir. 2017) (collecting relevant cases).
15 See, e.g., Sneller v. City of Bainbridge Island, 606 F.3d 636, 638 (9th Cir. 2010)
(exercising jurisdiction if there is no “evidence of intent to manipulate [] appellate
jurisdiction” (citation omitted)); Zayed v. United States, 368 F.3d 902, 905–06 (6th Cir. 2004)
(stating that if an “action” is clearly terminated “the order . . . is final and appealable”); Goode
v. Cent. Va. Legal Aid Soc’y, Inc., 807 F.3d 619, 623–24 (4th Cir. 2015) (similar); Hope v.
Klabal, 457 F.3d 784, 790 (8th Cir. 2006) (similar).
16 This disclaimer may be made through appellate briefing, at oral argument, or in a
post-oral-argument stipulation. Nat’l Inspection & Repairs, Inc. v. George S. May Int’l Co.,
600 F.3d 878, 883 (7th Cir. 2010).
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get this right. 17 To avoid the trap’s procedural cul-de-sac, plaintiffs simply
disavow to the circuit court their right to revive the dismissed claims, which
become barred by judicial estoppel and effectively “dismissed with prejudice.” 18
This approach—understandable, administrable, and practicable— is plug-and-
play. No required action by the district court. No ad hoc subjectivity. No
needless interpretive squabbles over governing statutes or Rules. Just
satisfying finality, as the stipulation removes any specter of piecemeal appeals
or protracted litigation. 19 The litigant-disclaimer approach elegantly achieves
what we set out to do by taking this case en banc. 20 It unsprings the trap—
fully, formally, and faithfully.
The dissenting opinion frets that the litigant-disclaimer approach is: (1)
technically unfaithful to our jurisdictional limitations, thus allowing litigants
17 Jewish People for the Betterment of Westhampton Beach v. Vill. of Westhampton
Beach (Jewish People), 778 F.3d 390, 394 (2d Cir. 2015) (“[A] plaintiff may cure such a defect
in appellate jurisdiction by disclaiming an intent to revive the dismissed claim [which is then
binding under estoppel principles] . . . .”); JTC Petro. Co., 190 F.3d at 776–77 (“[T]he [lawyer]
. . . agreed that we could treat the dismissal of the two claims as . . . with prejudice, thus
winding up the litigation and eliminating the bar to our jurisdiction.” (citation omitted)); Erie
Cty. Retirees Ass’n, 220 F.3d at 201–02 (similar).
18 Jethroe v. Omnova Sols., Inc., 412 F.3d 598, 600 (5th Cir. 2005) (“A court should
apply judicial estoppel if (1) the position of the party against which estoppel is sought is
plainly inconsistent with its prior legal position; (2) the party against which estoppel is
sought convinced a court to accept the prior position; and (3) the party [acted intentionally].”).
19Microsoft Corp., 137 S. Ct. at 1712–13; 9 WRIGHT & MILLER, FED. PRAC. &
PROC. § 3911.1 (“There is much to be said for a rule that routinely permits a plaintiff to
manufacture finality by abandoning all remaining parts of a case but that forbids any
attempt at recapture.”).
20 United States v. Castillo-Rivera, 853 F.3d 218, 236 (5th Cir. 2017) (Smith, J.
dissenting) (“By declining to take the fork in the road—that is, by refusing to address and
decide one of the two questions on which the court decided to rehear this case en banc—the
court [erred] . . . .”).
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to “manufacture finality;” 21 and (2) temporally open-ended, thus allowing
litigants to wire around appellate deadlines. 22 Respectfully, neither “worry” is
genuinely worrisome.
Nobody disputes that finality—our jurisdiction precondition—is
essential in every case, big and small. The rule of law is most certainly the law
of rules. 23 And generally, the brighter the lines and sharper the corners the
better. But for nearly two centuries, the Supreme Court has grasped the
futility of a unified theory of finality. 24 Within “the ‘twilight zone’ of finality,”25
the Supreme Court has repeatedly cautioned against “rigidity,” recognizing
that questions of finality and appealability involve “considerations that always
compete.” 26 The Court thus instructs us to approach the determination not
prudishly but prudently. That is, our duty to ensure finality entails discretion.
And since § 1291 often poses “a close question,” 27 we must assess finality
21 Dissent at 53–54.
22 Dissent at 54–55.
23 See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175
(1989).
“No verbal formula yet devised can explain prior finality decisions with unerring
24
accuracy or provide an utterly reliable guide for the future.” Eisen v. Carlisle & Jacquelin,
417 U.S. 156, 170 (1974) (footnote omitted). The Supreme Court put it forthrightly a half-
century ago: “[W]hether a ruling is ‘final’ within the meaning of [§] 1291 is frequently so close
a question that decision of that issue either way can be supported with equally forceful
arguments, and . . . it is impossible to devise a formula to resolve all marginal cases coming
within what might well be called the ‘twilight zone’ of finality.” Gillespie v. U.S. Steel Corp.,
379 U.S. 148, 152 (1964).
25 Gillespie, 379 U.S. at 152.
26 Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511 (1950).
Eisen, 417 U.S. at 170; McGourkey v. Toledo & O.C. Ry. Co., 146 U.S. 536, 544–45
27
(1892) (“Probably no question of equity practice has been the subject of more frequent
discussion in this court than the finality of decrees . . . . The cases, it must be conceded, are
not altogether harmonious.”).
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neither too flexibly nor too inflexibly, but rather with “just right” Goldilocks
pragmatism.
True, litigants cannot concoct finality by stipulating away fatal
jurisdictional defects. 28 “[E]very federal appellate court has a special obligation
to ‘satisfy itself . . . of its own jurisdiction . . .’ even though the parties are
prepared to concede it.” 29 But in fulfilling that obligation, we enjoy a measure
of real-world leeway. Section 1291 proscribes our review of non-final decisions
but doesn’t prescribe what constitutes finality. So, while I share the dissent’s
unease with whims and ipse dixits, such concern is misplaced here. A litigant’s
binding disclaimer of voluntarily dismissed claims induces no trickery or
gamesmanship—just the opposite. No reassertion means no recapturing of the
merits. No serial litigation. No piecemeal appeals. None of the oft-cited
debilitating burdens on judicial administration. The litigant-disclaimer
approach in no way upends finality; it upholds it. 30
As for the dissent’s temporal concern—that there’s no deadline by which
a party must disclaim its dismissed-without-prejudice claims—this seems
rooted in a belief that “final decision” under § 1291 necessarily means a
decision that was final at the time it was made. Respectfully, this collides with
the Supreme Court’s centuries-old insistence—first spoken through Chief
28 Dissent at 53–54.
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (quoting Mitchell
29
v. Maurer, 293 U.S. 237, 244 (1934)).
30 Microsoft Corp., 137 S. Ct. at 1712 (recounting how finality “preserves the proper
balance between trial and appellate courts, minimizes the harassment and delay that would
result from repeated interlocutory appeals, and promotes the efficient administration of
justice”).
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Justice Marshall 31 and recently reaffirmed in Microsoft 32—that “finality is to
be given a practical rather than a technical construction.” 33 As to timing
specifically, the Court stressed 80 years ago that “finality . . . is not a technical
concept of temporal or physical termination. It is the means for achieving a
healthy legal system.” 34 Our focus must always be, the High Court
admonishes, on “the competing considerations underlying all questions of
finality,” 35 specifically, as Justice Jackson wrote for the Court, “the
inconvenience and costs of piecemeal review on the one hand and the danger
of denying justice on the other.” 36 The Court’s direction is plain: Carefully
weigh the underlying considerations, and approach the finality determination
practically—not technically. 37
Indeed, our own cases respect the Supreme Court’s preference for
pragmatism. We commonsensibly consider events that occur post-appeal-filing
when making “final decision” decisions. Under our settled precedent, for
example, where a voluntarily dismissed claim would be time-barred upon
refiling, “[w]e treat the dismissal without prejudice as a dismissal with
prejudice.” 38 That is, where limitations would bar reassertion of a dismissed-
31 Bank of Columbia v. Sweeny, 26 U.S. (1 Pet.) 567, 569 (1828).
32 137 S. Ct. at 1712.
33Id.; see Cohen, 337 U.S. at 546; see also United States v. River Rouge Improvement
Co., 269 U.S. 411, 414 (1926); Cobbledick v. United States, 309 U.S. 323, 328 (1940).
34 Cobbledick, 309 U.S. at 326.
35 Eisen, 417 U.S. at 171.
36 Dickinson, 338 U.S. at 511 (footnote omitted).
37 Microsoft Corp., 137 S. Ct. at 1712–13; Eisen, 417 U.S. at 170–71.
38Sealed Appellant v. Sealed Appellee, 452 F.3d 415, 417 (5th Cir. 2006); see also, e.g.,
Berry v. Cigna/RSI-Cigna, 975 F.2d 1188, 1191–92 (5th Cir. 1992).
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without-prejudice claim, we have deemed the without-prejudice dismissal as,
functionally, a with-prejudice final decision—the “prejudice” being extrinsic to
the court’s order. Take Berry, where we treated a dismissal without prejudice
as final and reviewable “as if it were a dismissal with prejudice” because
“further litigation of [the dismissed-without-prejudice] claim [would] be time-
barred.” 39
In short, we have dutifully heeded that Court’s command to tackle
finality determinations with levelheaded workability, “a practical rather than
a technical” approach that is, hopefully, less sophistic than sophisticated. So
too would be a binding disclaimer from a finality-trapped litigant.
* * *
Summing up: I concur in the judgment to remand Williams II to the
panel, where I would let the Williamses bindingly disclaim any right to
reassert their voluntarily dismissed claims—if they choose to do so.
39 975 F.2d at 1191–92.
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ANDREW S. OLDHAM, Circuit Judge, joined by SMITH, COSTA, and
DUNCAN, Circuit Judges, dissenting:
We took this case en banc to address the so-called “finality trap.” We
needed to do so to exorcise the “ghostly magic” that prevents certain dismissals
from becoming appealable. Williams v. Taylor Seidenbach, Inc. (Williams II),
935 F.3d 358, 361 (5th Cir. 2019) (Haynes, J., concurring), vacated on rehearing
en banc, 941 F.3d 1183 (5th Cir. 2019). For whatever reason, the majority gave
up that ghost. Instead, it authorizes a district court to grant a Rule 54(b)
motion filed after the conclusion of a case. We didn’t do that in Swope. The
Seventh Circuit didn’t do it in ITOFCA either. No federal court has ever done
that before—not one time since the adoption of Rule 54(b) in 1939. With
greatest respect for my learned colleagues, I dissent.
I.
Today’s decision conflicts with foundational rules and statutes governing
our jurisdiction. Let’s start with Rule 41(a). The majority ignores that Rule’s
text. And in so doing, it exercises jurisdiction in a way that Article III prohibits.
A.
Rule 41(a) provides that “an action may be dismissed [by court order] at
the plaintiff ’s request.” FED. R. CIV. P. 41(a)(2) (emphasis added); see also FED.
R. CIV. P. 41(a)(1)(A) (setting out the circumstances in which a “plaintiff may
dismiss an action”). The Williamses and the district court purported to rely on
Rule 41(a) “to dismiss the remaining claim” in the case. Ante, at 7 (majority
op.) (emphasis added). That was the first mistake—an action is not
synonymous with a claim.
Rule 41(a) allows a plaintiff to dismiss an “action.” FED. R. CIV.
P. 41(a)(2). An “action” is the entire lawsuit, not just one part of it. See Action,
BLACK’S LAW DICTIONARY (11th ed. 2019) (defs. 3 & 4). A “claim,” by contrast,
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is a subpart of the action. Id. at Claim (def. 3) (defining “claim” as a “part of a
complaint in a civil action”); see also Ryan v. Occidental Petroleum Corp., 577
F.2d 298, 302 n.2 (5th Cir. 1978) (describing a “claim” as “a fragment of an
action”).
The Rules employ this distinction. For example, the subsection that
immediately follows in Rule 41 gives the defendant the choice between
“mov[ing] to dismiss the action or any claim against it” in the event “plaintiff
fails to prosecute.” FED. R. CIV. P. 41(b) (emphasis added). And Rule 54
contemplates an instance “[w]hen an action presents more than one claim for
relief.” FED R. CIV. P. 54(b); see also Exxon Corp. v. Md. Cas. Co., 599 F.2d 659,
662 (5th Cir. 1979) (“When Rule 41(a) refers to dismissal of an ‘action,’ there
is no reason to suppose that the term is intended to include the separate claims
which make up an action. When dismissal of a claim is intended, as in Rule
41(b), that concept is spelled out in plain language.” (quotation omitted)).
Rule 41(a) therefore does not allow a plaintiff to pick and choose among
claims as candidates for dismissal: Under the Rule, it’s dismissal of the action,
or of nothing at all. See Perry v. Schumacher Grp. of La., 891 F.3d 954, 958
(11th Cir. 2018) (“It is clear from the text that only an ‘action’ may be
dismissed. There is no mention in the Rule of the option to [dismiss] a portion
of a plaintiff’s lawsuit—e.g., a particular claim—while leaving a different part
of the lawsuit pending before the trial court.”); Berthold Types Ltd. v. Adobe
Sys. Inc., 242 F.3d 772, 777 (7th Cir. 2001) (Easterbrook, J.) (Rule [41(a)] does
not speak of dismissing one claim in a suit; it speaks of dismissing ‘an action’—
which is to say, the whole case.”); State Treasurer of Mich. v. Barry, 168 F.3d
8, 15 (11th Cir. 1999) (in a case where a party attempted to use Rule 41(a) to
dismiss an individual claim, noting that “Rule 41 is not meant for the use the
parties in this case and others like it have put it: the rule speaks of voluntary
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dismissal of ‘an action,’ not a claim”) (quotation omitted)); Harvey Aluminum,
Inc. v. Am. Cyanamid Co., 203 F.2d 105, 108 (2d Cir. 1953) (“Rule 41(a) . . .
provides for the voluntary dismissal of an ‘action’ not a ‘claim’; the word ‘action’
as used in the Rules denotes the entire controversy, whereas ‘claim’ refers to
what has traditionally been termed ‘cause of action.’ ”).
This inability to dismiss individual claims under Rule 41(a) is not as
harsh as it may at first seem. As the majority notes, ante, at 7, the Rules
provide other routes to a plaintiff looking to dismiss undesirable claims or
parties. Rule 15 explains how a party may “amend its pleading.” FED. R. CIV.
P. 15(a)(1); see also Perry, 891 F.3d at 958 (“There are multiple ways to dismiss
a single claim without dismissing an entire action. The easiest and most
obvious is to seek and obtain leave to amend the complaint to eliminate the
remaining claim, pursuant to Rule 15.”); Ryan, 577 F.2d at 302 n.2 (noting that
“the plaintiff ’s elimination of a fragment of an action . . . is more appropriately
considered to be an amendment to the complaint under Rule 15”). And Rule 21
lets the district court, “[o]n a motion or on its own, . . . add or drop a party.”
FED. R. CIV. P. 21; see also Harvey Aluminum, 203 F.2d at 108 (suggesting that
plaintiffs use Rule 21, rather than Rule 41, to eliminate a party from a
multiparty action). We need not stretch Rule 41(a) beyond its text to do the
work of other Rules.
B.
When a plaintiff sidesteps these other routes and chooses to proceed via
Rule 41(a), he chooses to dismiss the entire action—every single claim in the
case. That choice has consequences: It deprives us of jurisdiction to hear the
appeal.
For a case or controversy to engage our Article III jurisdiction, there
must be adversity, “extant at all stages of review, not merely at the time the
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complaint is filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67
(1997) (quotation omitted). A case becomes moot, and non-adverse, “when the
issues are no longer live . . . [n]o matter how vehemently the parties continue
to dispute the lawfulness of the conduct that precipitated the lawsuit . . . .”
Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quotation omitted).
One way a party can moot a case is to agree not to proceed with it. That’s
why a settlement terminates Article III jurisdiction. See Summers v. Earth
Island Inst., 555 U.S. 488, 494 (2009). So does the issuance of “a covenant not
to sue.” Already, LLC, 568 U.S. at 90. Under this rubric, a voluntary dismissal
with prejudice plainly moots a case: “When the plaintiffs ask[ ] the District
Court to dismiss their claims, they consent[ ] to the judgment against them and
disavow[ ] any right to relief . . . .” Microsoft Corp. v. Baker, 137 S. Ct. 1702,
1717 (2017) (Thomas, J., concurring in the judgment).
So too for voluntary dismissals without prejudice. Although the plaintiff
“is entitled to bring a later suit on the same cause of action,” he has agreed
that this one should go no further. Ryan, 577 F.2d at 302. It follows, then, that
a Rule 41(a) dismissal represents a voluntary abandonment of the entire
action, and deprives us of jurisdiction over any element of the dispute. If, as
the parties and the majority assume, we are dealing with an appeal from a
Rule 41(a) dismissal, we have no constitutional authority to hear this case.
C.
The majority does not disagree with this interpretation of Rule 41(a). It
merely feigns surprise that I would raise an argument not raised by the parties
themselves. But a correct understanding of Rule 41(a) has jurisdictional
consequences, so we have an independent obligation to get it right, regardless
of the parties’ views. As the Supreme Court has repeatedly reminded us:
“Every federal appellate court has a special obligation to satisfy itself not only
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of its own jurisdiction, but also that of the lower courts in a cause under review,
even though the parties are prepared to concede it.” Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 95 (1998) (quotation omitted). So the majority cannot
ignore the problem just because the parties did so.
Nor does it matter that we’ve previously misread Rule 41(a). See, e.g.,
Plains Growers, Inc. v. Ickes-Braun Glasshouses, Inc., 474 F.2d 250 (5th Cir.
1973). In Plains Growers, we rejected a textualist approach to Rule 41(a)(1)
and pursued instead “[t]he purpose of the Rule.” Id. at 254. At least in 1973,
we found “[t]he purpose” of the Rule was “to permit the plaintiff voluntarily to
take the case out of court if no other party will be prejudiced.” Ibid. 1 So we
allowed a plaintiff to use Rule 41 to dismiss a single defendant without
dismissing the entire “action” because, in our view, that was the result
“intended by the rule-makers.” Id. at 255. Such purposivist-cum-intent-of-the-
framers reasoning was quite common in the 1970s. See, e.g., Train v. Colo. Pub.
Interest Research Grp., Inc., 426 U.S. 1, 10 (1976) (reversing the court of
appeals because it “excluded reference to the legislative history of the [law] in
discerning its meaning”); Philbrook v Glodgett, 421 U.S. 707, 713 (1975) (“Our
objective . . . is to ascertain the congressional intent and give effect to the
1 Even that framing of the Rule’s “purpose” requires the plaintiff to “take the case”—
not just part of the case—“out of court.” Plains Growers, 474 F.2d at 254 (emphasis added).
And even on its own terms, it’s unclear how Plains Growers understood the Rule’s purpose to
conflict with its text. The court suggested that “action” must mean the same thing in Rule
41(a)(1) (which allows the plaintiff voluntarily to dismiss the “action” without leave of court
at the outset of the case) and in Rule 41(a)(2) (which requires leave of court to dismiss the
“action” on the plaintiff ’s motion after the outset of the case). Ibid. That’s obviously correct;
“action” means the same thing in both subsections. But then the court said that if the plaintiff
can use Rule 41(a)(1) to dismiss only the entire “action,” then Rule 41(a)(2) somehow would
prevent the court from dismissing less-than-the-entire “action.” See ibid. It’s true that a court
can dismiss only an entire “action” under Rule 41(a)(2), but it’s obviously not true (as Plains
Growers appeared to worry) that courts are therefore powerless to “dismiss the action as to
less than all defendants upon motion.” Ibid. The court has that power under all sorts of other
Rules, including Rules 12, 21, 54, and 56—just not Rule 41.
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legislative will.”); ANTONIN SCALIA & BRYAN GARNER, READING LAW 383 (2012)
(describing the 1970s and 1980s as the “heyday of legislative history”). But
even in those days, when we adopted a purpose-first approach to Rule 41, we
found the textualist argument “persuasive.” Plains Growers, 474 F.2d at 254.
The text of Rule 41(a) is more than persuasive; it’s determinative.
Purposivism has been out of fashion for a long time. And the whole reason we
went en banc in this case was to revisit our jurisdictional precedents—as we
have many times in the past. See, e.g., Williams v. Catoe, 946 F.3d 278 (5th
Cir. 2020) (en banc) (overturning a 1985 panel opinion on appellate jurisdiction
over district court orders denying counsel to civil plaintiffs); Smallwood v.
Illinois Cent. R.R. Co., 385 F.3d 568 (5th Cir. 2004) (en banc) (reconsidering
panel precedent on district court jurisdiction over certain in-state defendants
in diversity cases); Marathon Oil Co. v. Ruhrgas, 145 F.3d 211, 215 (5th Cir.
1998) (en banc) (using en banc review to “reconcile the conflicting circuit
precedent” regarding the adjudication of motions to dismiss for lack of subject-
matter and personal jurisdiction), rev’d 526 U.S. 574 (1999); Newpark
Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399 (5th Cir. 1984) (en
banc) (harmonizing circuit precedent on the finality requirement for review of
Benefits Review Board orders); United States v. Mendoza, 581 F.2d 89 (5th Cir.
1978) (en banc) (going en banc to review panel precedent concerning district
court jurisdiction over motions to reduce sentence).
We have an independent obligation to right our jurisdictional wrongs.
This case provides us with an opportunity to do so. It is therefore of no moment
that the parties have nothing to say about the issue, or that outmoded panel
precedent goes the other way.
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II.
Next, let’s talk about Rule 54(b). The majority’s approach finds no
support in that Rule’s text, its 81-year history, or precedent.
A.
The text of Rule 54(b) says: “When an action presents more than one
claim for relief—whether as a claim, counterclaim, crossclaim, or third-party
claim—or when multiple parties are involved, the court may direct entry of a
final judgment as to one or more, but fewer than all, claims or parties . . . .”
FED. R. CIV. P. 54(b) (emphases added). In the majority’s view, a Rule 54(b)
certification is available even after every single claim pending before the
district court has been dismissed.
No. Since the adoption of Rule 54(b) in 1939, 2 that Rule has never
authorized an appeal at the end of a case. As Justice Jackson explained, Rule
54(b) allows an appeal before “the determination of all issues as to all parties”
and “before a final judgment can be had.” Dickinson v. Petroleum Conversion
Corp., 338 U.S. 507, 511 (1950) (emphasis added).
The italicized phrases in Rule 54(b) above tell you everything you need
to know. First, “[w]hen an action presents more than one claim.” That is, the
action must—in the present tense—present more than one claim. It’s
2 Rule 54(b) was first adopted in 1939, along with the rest of the Federal Rules of Civil
Procedure. See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 432–33 (1956). The text was
not a model of clarity, and courts had a hard time figuring out what sorts of orders could be
appealed under the Rule. See id. at 434. So the Rule “was amended, in 1946, to take effect in
1948.” Ibid. Those amendments included the clarification that a Rule 54(b) certification
would create a “final judgment,” and the addition of the requirement that the district court
“express[ly] determin[e] that there is no just reason for delay.” Id. at 434–35 (quotation
omitted). In 1961, the Rule was updated to answer affirmatively the question of whether it
applied to multi-party actions just as it applied to multi-claim cases. See FED. R. CIV. P. 54(b)
advisory committee’s note to 1961 amendment. The 2007 amendments made some stylistic
changes, but otherwise modified none of the substance of Rule 54(b). See FED. R. CIV. P. 54(b)
advisory committee’s note to 2007 amendment.
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insufficient that the action might have presented more than one claim in the
past. It must present more than one claim now. Of course, if the plaintiff has
dismissed the action under Rule 41(a), then the action presents zero claims—
there isn’t an action at all.
Let’s imagine, then, that the Williamses instead used Rule 15 or 21 to
modify their complaint and remove the remaining, unresolved claims from the
action. Then what? Rule 54(b) kicks in only when the court can direct entry of
final judgment “as to one or more, but fewer than all” the claims. Obviously,
the district court can do that only if other claims remain pending. When the
plaintiff instead uses Rules 15 and 21 to strip out the unresolved parties and
claims from the complaint, 3 there are no other claims “present[ed]” in the
action. No Rule 54(b) order is permissible, or even necessary: At the end of the
case, when all the claims have been dismissed, the district court is no longer
directing entry of judgment on “fewer than all claims”; it’s just entering
judgment. See FED. R. CIV. P. 58; 10 JAMES W. MOORE ET AL., MOORE’S
FEDERAL PRACTICE § 54.22[2][c], at 73 (3d ed. 2020) [hereinafter MOORE’S
FEDERAL PRACTICE] (“[I]f the plaintiff voluntarily dismisses the unadjudicated
claims against the other defendants, an earlier order as to one or more but
fewer than all defendants becomes appealable despite the absence of a Rule
54(b) judgment.”).
Perhaps the most damning piece of text is the one thing the district court
must find in every Rule 54(b) certification: “that there is no just reason for
delay.” FED. R. CIV. P. 54(b). Now that makes sense when Rule 54(b) is
applied—as it always has been—to partial appeals. But what possible work
3 Or Rule 41(a), insofar as the majority understands that Rule to permit dismissal of
individual claims.
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does the no-just-reason-for-delay requirement serve when all the claims in the
case have already been decided? Of course there’s no reason to delay the appeal
then—because there’s nothing left to do but appeal. Imagine getting to the end
of a movie, watching the credits run to the end, and then seeing a screen
permitting you to leave the theater “if there’s no just reason for delay.” What
else were you going to do?
After today, it’s unclear how to apply the current no-just-reason-for-
delay caselaw, all of which is predicated on the existence of undismissed claims
pending in the district court. Consider:
• The Supreme Court says that the district court, while mulling over a
Rule 54(b) motion, may consider the amount of time “the rest of the
litigation would be expected to continue.” Curtiss-Wright Corp. v. Gen.
Elec. Co., 446 U.S. 1, 11 (1980). Of course, that makes no sense if there’s
nothing left to litigate in the district court.
• Courts of appeals should “scrutinize the district court’s evaluation of
such factors as the interrelationship” between the adjudicated claims
and the unadjudicated claims. Id. at 10. How can they, when there are
no unadjudicated claims outstanding?
• Some courts ask whether “the need to review the issues currently
appealed may be mooted by future developments in the district court.”
Sussex Drug Prods. v. Kanasco, Ltd., 920 F.2d 1150, 1156 (3d Cir. 1990);
see also Consol. Rail Corp. v. Fore River Ry. Co., 861 F.2d 322, 326 (1st
Cir. 1988) (similar). How does that work when there’s nothing left to
develop in the district court?
I suppose we’ll have to wait for another en banc petition to figure out the
answers to these questions.
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B.
The majority attempts to square its position with the text of the Rule. It
can’t.
The majority’s textualist argument for its use of Rule 54(b) goes
something like this: (1) a dismissed claim technically remains part of the
complaint, “absent amendment,” ante, at 9; (2) so even when all claims have
been dismissed, an action may still “present[] more than one claim for relief,”
FED. R. CIV. P. 54(b); and (3) that means, even when the entire case is
dismissed, “fewer than all the claims” have been “adjudicate[d]”—so Rule 54(b)
certification is available, ibid.; see ante, at 9 (“[A] voluntary dismissal of some
defendants under Rule 41(a) at the end of the case does not alter the court’s
Rule 54(b) authority in any way.”). Every single proposition in that argument
is wrong.
Proposition (1) is wrong because a Rule 41(a) dismissal gets rid of the
entire action, so there’s no operative complaint to speak of. See supra Part I.A.
Proposition (2) is wrong because, when all claims have been dismissed, the
action no longer “presents more than one claim for relief ”—it presents none at
all. See supra Part II.A. Still, even if (1) and (2) are correct, Proposition (3) is
wrong: a court-ordered dismissal under Rule 41(a) of all remaining claims
“adjudicates” those claims, foreclosing Rule 54(b) relief.
Rule 54(b) is clear: “any order or other decision . . . that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties
does not end the action . . . and may be revised at any time before the entry of
a judgment . . . .” FED. R. CIV. P. 54(b). So if an order does adjudicate whatever
claims remain, it ends the action and may not be revised. To “adjudicate”
simply means “[t]o rule on judicially.” Adjudicate, BLACK’S LAW DICTIONARY
(11th ed. 2019). That word, as it is used by the Federal Rules of Civil Procedure,
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requires only a decision by the court—it does not require a decision on the
merits. That’s why the Rules take pains to indicate when an adjudication is
also a merits decision. See, e.g., FED. R. CIV. P. 41(a)(1)(B) (providing that a
plaintiff ’s first voluntary dismissal of a claim is “without prejudice,” but a
second dismissal of that claim “operates as an adjudication on the merits”
(emphasis added)).
In this case, the district court dismissed the action under Rule 41(a).
That obviously constituted a judicial ruling. It follows, then, that the Rule 41(a)
dismissal “adjudicated” the plaintiffs’ claims. And because there were no
claims pending after that adjudication, Rule 54(b) was (and still is) completely
irrelevant. See 10 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 2656 (4th ed.) [hereinafter WRIGHT & MILLER] (observing that
“no [Rule 54(b)] certificate is needed if no claims remain pending”).
C.
Precedent does not save the majority, either. The Supreme Court has
told us: Once all claims have been dismissed, the “action is no longer
pending”—even if the dismissals are voluntary and without prejudice. Cooter
& Gell v. Hartmarx Corp., 496 U.S. 384, 395 (1990). And the termination of the
action through voluntary dismissal means that the district court loses the
power to tinker with the merits of the case. Id. at 396.
This unambiguous description of district court jurisdiction makes swift
work of the majority’s view that a voluntarily dismissed claim remains
pending. Compare ante, at 9 (“A dismissed claim remains a part of the case . . .
and that is so regardless of when the Rule 41(a) dismissal occurs.”), with Yesh
Music v. Lakewood Church, 727 F.3d 356, 360 & n.5 (5th Cir. 2013) (observing
that a “voluntary dismissal terminates, closes, and ends [plaintiff’s] cause of
action,” and that “it ends the pending action” (quotation omitted)), and
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DIRECTV, Inc. v. Budden, 420 F.3d 521, 524–26 (5th Cir. 2005) (considering
Rule 54(b) inapplicable when summary judgment had been granted on some
claims and “the remaining claims ha[d] already been abandoned”).
Against the text of Rule 54(b) and an unbroken line of cases spanning
the Rule’s 81-year lifetime, the majority offers two authorities: our decision in
Swope v. Columbian Chems. Co., 281 F.3d 185 (5th Cir. 2002), and the Seventh
Circuit’s decision in ITOFCA, Inc. v. MegaTrans Logistics, Inc., 235 F.3d 360
(7th Cir. 2000). But the very most that can be said about Swope is that it was
a drive-by jurisdictional ruling on its way to an altogether different question
about premature notices of appeal. And ITOFCA was not a Rule 54(b) case at
all.
Take Swope. In that case, the district court granted summary judgment
on fewer than all claims and left one claim pending. 281 F.3d at 190. The
plaintiffs then filed three things: (1) a notice of appeal from the summary-
judgment rulings, (2) a request that the district court certify those rulings as
final judgments under Rule 54(b), and (3) a Rule 41(a) motion to dismiss the
one undismissed claim. Id. at 190–91. The district court granted (2) and (3).
Ibid. But defendants moved to dismiss the appeal based on (1): They argued
we lacked jurisdiction “because appellants’ notice of appeal preceded the trial
court’s designation of its summary judgment decisions as final.” Id. at 191.
Our decision likewise focused on (1)—the premature notice of appeal. We
recognized that a notice of appeal should ordinarily be filed only after a final
decision, not before it. Ibid.; see FED. R. APP. P. 4(a)(1)(A) (“[T]he notice of
appeal . . . must be filed with the district clerk within 30 days after entry of the
judgment or order appealed from.” (emphasis added)). But the panel permitted
the appeal to proceed anyway, applying a narrow exception “that a premature
notice of appeal is effective if Rule 54(b) certification is subsequently granted.”
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Swope, 281 F.3d at 191 (quotation omitted). The rest of Swope’s analysis was
the sort of “drive-by jurisdictional ruling[ ]” that has “no precedential effect.”
Steel Co., 523 U.S. at 91.
And as drive-by jurisdictional decisions go, this one undercuts the
majority in three important ways. First, the Rule 54(b) motion in Swope was
filed before the Rule 41(a) motion was granted. That timing matters. Before
the district court granted the Rule 41(a) motion, it still had jurisdiction over
the case. See supra Part I. And before the district court granted the Rule 41(a)
motion, it had “adjudicate[d] fewer than all the claims” under Rule 54(b).
Second, the Swope court agreed with my reading of Rule 41(a). See 281
F.3d at 192 n.15. It recognized that the text of “Rule 41(a) contemplates
dismissal of an ‘action’ rather than a ‘claim’ or ‘claims.’ ” Ibid. And it recognized
that our court previously interpreted Rule 41(a) to permit only dismissal of
actions, not claims. See ibid. (citing, inter alia, Ryan, 577 F.2d at 302 n.2). The
Swope court thought it needn’t address this problem because the district court
granted its Rule 54(b) certification and its Rule 41(a) dismissal on the same
day, and the former sufficed to create finality. See 281 F.3d at 192 & n.15. That
obviously says nothing about our problem—where the Williamses filed their
Rule 54(b) motion years after dismissing the entire “action” under Rule 41(a).
And in all events, Swope’s agreement with my reading of Rule 41(a) makes the
majority’s embrace of the decision quite awkward.
Finally, as the majority concedes, the Swope panel expressly declined to
consider how or why a valid Rule 41(a) dismissal might deprive the district
court of jurisdiction and thereby render a subsequent Rule 54(b) certification
a nullity. See ante, at 9 (quoting Swope, 281 F.3d at 192 n.15). That’s
understandable—the Swope panel was focused on the interplay between Rule
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54(b) and notices of appeal, not between Rules 41(a) and 54(b). But it also
means that Swope does not support, much less dictate, today’s result.
Even less relevant is ITOFCA. See ante, at 10 (relying on the decision).
The district court in that case did not enter a Rule 54(b) certification at all, so
the Seventh Circuit had no occasion to exercise jurisdiction over such a
certification. In fact, the Seventh Circuit held it had no jurisdiction at all and
dismissed the appeal of a non-final decision under § 1291. So the only part of
the ITOFCA decision that today’s majority invokes is its dicta about some other
hypothetical case that might be appealable under § 1291. And even that dicta
was equivocal: The Seventh Circuit said “Rule 54(b) would seem to be an
adequate alternative means of gaining appellate jurisdiction” in some other
hypothesized case. 235 F.3d at 364 (emphasis added). That subjunctive aside
is hardly a firm foundation for today’s decision.
All this is to say: If we went en banc to ensure that our court’s decisions
are uniform and correct, see FED. R. APP. P. 35(a), uncritical reliance on Swope
and ITOFCA isn’t going to cut it.
III.
If the majority opinion is remarkable for what it does not do—follow the
plain meaning of Rule 54(b), as recognized in an unbroken line of decisions
spanning eight decades—it is more remarkable for what it does do. The new
rules of civil procedure announced today will confer on district courts perpetual
jurisdiction over long-dismissed claims. It also permits an end-run around the
limits of our appellate jurisdiction set by Congress.
A.
Until today, the contours of district court jurisdiction were well-defined:
While claims are pending, a court may exercise its authority over an action.
See Cooter & Gell, 496 U.S. at 395. Once all claims are dismissed, however, the
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court may only “consider collateral issues,” such as Rule 11 sanctions and
requests for attorney’s fees. Ibid. No more. The majority’s regime imbues
district courts with perpetual jurisdiction over long-dead claims.
Imagine, as the majority does, that Rule 41(a) permits piecemeal
dismissals of individual claims within a multi-claim action. And suppose a
plaintiff brings an action with three claims. Claim 1 and Claim 2 are
adjudicated at summary judgment, but Claim 3 survives and remains pending.
If the parties stipulate to dismiss Claim 3 under FED. R. CIV. P. 41(a)(1)(A)(ii),
it is well-settled that, “[a]fter the dismissal, the action no longer is pending in
the district court and no further proceedings in the action are proper.” 9
WRIGHT & MILLER § 2367 (3d ed.); see also ibid. (collecting cases). That’s
because “[a] stipulation of dismissal under that rule ordinarily—and
automatically—strips the district court of subject-matter jurisdiction.” Nat’l
City Golf Fin. v. Scott, 899 F.3d 412, 415–16 (5th Cir. 2018). This rule is so
airtight that “any action by the district court” on the merits of the case “after
the filing of such a stipulation can have no force or effect . . . .” SmallBizPros,
Inc. v. MacDonald, 618 F.3d 458, 463 (5th Cir. 2010). So, under settled, near-
unanimous precedent, there’s nothing more to be done. The case is over.
Now consider the majority’s approach. Under that understanding of Rule
54(b), the case is never final because there’s no “final judgment,” all claims
remain pending before the district court, and that court retains jurisdiction
over those claims forever. What’s to stop a plaintiff from moving for a Rule
54(b) order years after dismissal of the entire action? Or a district court from
granting it? That’s precisely what happened in this case, and that’s precisely
the sort of never-ending litigation the majority opinion condones.
It’s unclear how appeals are even supposed to work in this brave new
world. In our hypothetical case, once Claim 3 is dismissed, when does the 30-
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day clock for filing a notice of appeal start to run? It should be obvious that the
answer is when Count 3 is dismissed—the whole reason we went en banc was
because current Fifth Circuit precedent (unmodified by today’s opinion) tells
us that the voluntary dismissal of the last remaining claim makes the action
“final” within the district court. See Williams II, 935 F.3d at 361 (Haynes, J.,
concurring). But, again, under the majority’s approach, because there’s no
“final judgment,” the action never becomes final in the district court, and that
court retains jurisdiction in perpetuity—at least until it grants a Rule 54(b)
order.
B.
These problems hint at another unacceptable result of the majority
opinion: The greatly diminished role of 28 U.S.C. § 1291, a congressionally
imposed limit to our appellate jurisdiction.
1.
The majority’s theory is that only “final judgments” may proceed through
§ 1291, while other final orders need Rule 54(b) certification to be appealable.
Wrong again.
Congress gave us appellate jurisdiction over the “final decisions of the
district courts of the United States.” 28 U.S.C. § 1291 (emphasis added). As a
general matter, “[d]ismissals without prejudice are canonically non-final and
hence not appealable under 28 U.S.C. § 1291.” Am. States Ins. Co. v. Capital
Assocs. of Jackson Cty., Inc., 392 F.3d 939, 940 (7th Cir. 2004) (Easterbrook,
J.). That is so because “without prejudice” is shorthand for “without prejudice
to refiling.” See Dismissal, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining
“dismissal without prejudice” as “[a] dismissal that does not bar the plaintiff
from refiling the lawsuit . . . .”). And the very potentiality of refiling makes the
decision not “final.” See Ryan, 577 F.2d at 302.
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As with all general rules, however, this one has an exception. Some
without-prejudice dismissals are final. Take subject-matter jurisdiction, for
example. If a party fails to allege subject-matter jurisdiction, it fails to properly
invoke the machinery of the Article III courts. And when that happens, the
plaintiff is not entitled to a judgment on the merits or a with-prejudice
dismissal. 4 It’s entitled to nothing. That’s why we merely announce the fact
and dismiss. Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868). That
decision is obviously “final” because the district court is forever done with it.
So the plaintiff can appeal under § 1291. See, e.g., 16 Front Street, LLC v. Miss.
Silicon, LLC, 886 F.3d 549, 561 (5th Cir. 2018).
The text of § 1291 demands the distinction between “final decisions” and
“final judgments.” Congress could have written § 1291 to give us appellate
jurisdiction only over “final judgments.” That obviously would prevent appeals
where the district court dismissed the claim for lack of jurisdiction and hence
for lack of judicial power to enter a judgment. Of course, that’s not the statute
Congress wrote. It used the broader term “final decisions”—and with it, gave
us judicial power over some without-prejudice dismissals, and some orders that
aren’t dismissals at all. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541, 546 (holding that § 1291 permits appeals from certain decisions “collateral
to[ ] rights asserted in the action,” even when there’s no final judgment);
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (holding “that a district court’s
4 A with-prejudice dismissal ordinarily is an adjudication on the merits that carries with
it, among other things, the preclusive effects of the law of judgments. See, e.g., Fernandez-
Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 n.8 (5th Cir. 1993). Obviously, if the plaintiff
has failed to properly invoke the powers of Article III courts, the federal courts cannot
adjudicate a claim on the merits and trigger the various preclusion doctrines. See FED. R.
CIV. P. 41(b) (providing that a dismissal “for lack of jurisdiction” does not “operate[ ] as an
adjudication on the merits”); 18A WRIGHT & MILLER § 4436 (3d ed.) (“[A] dismissal for lack
of jurisdiction does not bar a second action as a matter of claim preclusion . . . .”).
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denial of a claim of qualified immunity . . . is an appealable ‘final decision’
within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final
judgment”).
The line between final and non-final dismissals can be difficult to draw.
See, e.g., 15A WRIGHT & MILLER § 3914.6 (2d ed.). And this difficulty can lead
to mistakes in the district court. Often, for example, a district court will
announce its lack of jurisdiction, dismiss the case without prejudice, and then
purport to enter a “final judgment” under Rule 58. See, e.g., Warren v. Am.
Bankers Ins. of Fla., 507 F.3d 1239, 1243 (10th Cir. 2007) (opining that the
district court should have entered a Rule 58 judgment after dismissing the case
for lack of subject-matter jurisdiction). That last step is obviously wrong
because, again, the lack of jurisdiction means the lack of federal judicial power
to do anything beyond announce the fact and dismiss. See Am. Nat’l Bank of
Jacksonville v. FDIC, 710 F.2d 1528, 1535–36 (11th Cir. 1983) (observing that
final judgments are unnecessary when an action is dismissed for lack of
subject-matter jurisdiction). True, the entry of a purported “judgment” clearly
communicates to the parties and to us that the district court is done and that
its decision is “final” for purposes of § 1291. The important point for present
purposes, however, is that the existence of a without-prejudice dismissal—
standing alone—tells us nothing about whether it’s appealable under § 1291.
The fact that some without-prejudice dismissals may create appealable
final decisions under § 1291 poses another problem for the majority. The
majority’s theory is that without-prejudice dismissals are never final or
appealable until “final judgment” has been entered, see ante, at 8, hence the
need for Rule 54(b) certification. But if dismissals for lack of subject-matter
jurisdiction don’t need an accompanying final judgment to be final and
appealable, how can the majority be correct? It can’t and it’s not. A dismissal
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that gets rid of all claims pending before the district court strips away the
district court’s power to enter a Rule 54(b) order, judgment or no judgment.
2.
All this is to say: The majority’s misreading vastly expands Rule 54(b)’s
reach. In so doing, our court impermissibly undermines the policy decisions
Congress made when it enacted 28 U.S.C. § 1291.
The existence of our Court is constitutionally permitted but not
constitutionally required. See U.S. CONST. art. III, § 1. By virtue of the
Madisonian Compromise, “the creation of lower federal courts” was “left to the
wisdom of Congress.” Haywood v. Drown, 556 U.S. 729, 746 (2009) (Thomas,
J., dissenting). And “it [is] entirely discretionary with Congress to what extent
it . . . vest[s] Federal judicial power in them.” Ibid. (quotation omitted).
“The jurisdiction of the courts of appeals over decisions of the district
courts is controlled primarily by 28 U.S.C. § 1291.” 10 MOORE’S FEDERAL
PRACTICE § 54.20[2], at 8. In limiting our appellate review to “final decisions”
of district courts, 28 U.S.C. § 1291, Congress codified the longstanding “general
rule . . . that the whole case and every matter in controversy in it must be
decided in a single appeal,” Microsoft, 137 S. Ct. at 1712 (quotation omitted).
Section 1291 therefore “preserves the proper balance between trial and
appellate courts, minimizes the harassment and delay that would result from
repeated interlocutory appeals, and promotes the efficient administration of
justice.” Ibid.
Rule 54(b) should do the same thing. Recognizing that multi-party,
multi-claim actions had become more common in federal court, Congress and
the Supreme Court promulgated Rule 54(b) to allow for appeals from some
final judgments—even as litigation continues in district court. Sears, Roebuck
& Co. v. Mackey, 351 U.S. 427, 431–33 (1956). Still, because piecemeal appeals
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“undermine[ ] efficient judicial administration,” Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 106 (2009) (quotation omitted), the Supreme Court
has “repeatedly” warned against attempts by plaintiffs and lower courts to
“erode the finality principle and disserve its objectives,” Microsoft, 137 S. Ct.
at 1712; see also id. at 1714 (“These changes are to come from rulemaking, . . .
not judicial decisions . . . or inventive litigation ploys.”).
For example, in Microsoft v. Baker, the plaintiffs, who had been
unsuccessful in procuring class certification, voluntarily “dismiss[ed] their
claims with prejudice—subject . . . to the right to ‘revive’ those claims if the
denial of class certification [wa]s reversed on appeal.” 137 S. Ct. at 1715. In
other words, plaintiffs wanted the benefits of finality (an appeal of right under
§ 1291) without any of the burdens that come with a with-prejudice dismissal
(res judicata and the related preclusion doctrines). No dice, the Supreme Court
said: That’s not a final decision at all. Ibid. If it were, “Congress’ final decision
rule would end up a pretty puny one.” Ibid. (quotation omitted).
Microsoft tells us that if a plaintiff dismisses his remaining claims and
brings litigation to an end in the district court, § 1291 is his only door to an
appeal. And that door is only open if the dismissal truly creates a “final
decision.” That is the balance Congress chose to strike. We have no power to
strike a different one.
The rule that voluntary dismissals without prejudice are ordinarily not
appealable therefore effectuates Congress’s choice. That’s because the
existence of a without-prejudice dismissal does not stop the plaintiff from filing
the exact same claim again, undermining the one-appeal rule. See, e.g., State
Treasurer of Mich., 168 F.3d at 13–14 (holding the court lacked jurisdiction
over the appeal because “it [wa]s possible that the claim dismissed without
prejudice w[ould] be refiled,” so exercising jurisdiction “would undermine the
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policies of judicial efficiency [and] avoiding piecemeal litigation” (quotation
omitted)). With-prejudice dismissals, on the other hand, have res judicata
implications and therefore prevent gamesmanship by plaintiffs and their
lawyers. Cf. Ryan, 577 F.2d at 301–02. Again: If a party wants to dismiss its
remaining claims and then appeal, Congress and precedent require those
dismissals to be with-prejudice, and the appeal to be taken through § 1291.
The majority’s decision cannot be squared with these rules. Under
today’s new approach to Rule 54(b), a plaintiff need not be concerned that his
last remaining claim is dismissed without prejudice. Instead of appealing
under § 1291, he can just secure a Rule 54(b) order from the district court,
despite the absence of any pending litigation in the district court, and despite
the absence of district court jurisdiction now that the litigation is finished. If
the plaintiff fares well on appeal, he can re-file his voluntarily dismissed claim
without any fear of claim preclusion. If the appeal fails, he can re-file the
voluntarily dismissed claims anyway. Either way, the plaintiff has lost nothing
from his dismissal, but the courts are burdened with piecemeal litigation and
appeals. And the plaintiff gets all this without ever having to satisfy the
finality requirement of § 1291. That result was impermissible in Microsoft. It’s
equally impermissible here.
IV.
I also worry about the “litigant-disclaimer solution.” Ante, at 27 (Willett,
J., concurring). As I understand it, the concurrence would allow parties to
manufacture finality by “disclaim[ing] the right to reassert dismissed-without-
prejudice claims.” Ibid. But I cannot find anything in the Federal Rules or
§ 1291 that allows a party’s say-so to turn a non-final decision into a final one.
Rather, we must determine our judicial power in every case, irrespective of
what the parties might say or do:
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The parties cannot confer on a federal court jurisdiction that has
not been vested in that court by the Constitution and Congress.
This means that the parties cannot waive lack of subject matter
jurisdiction by express consent, or by conduct, or even by estoppel.
The subject matter jurisdiction of the federal courts is too
fundamental a concern to be left to the whims and tactical concerns
of the litigants.
13 WRIGHT & MILLER § 3522 (3d ed.) (emphasis added; footnotes omitted).
That’s why we don’t let parties stipulate away jurisdictional defects. See, e.g.,
Frank v. Gaos, 139 S. Ct. 1041, 1046 (2019) (per curiam) (noting that, even
when parties agree to settle, a court may not exercise the judicial power while
questions of standing remain unresolved); Nike, 568 U.S. at 91 (explaining that
a plaintiff may not overcome mootness merely by asserting that the case isn’t
moot); Steel Co., 523 U.S. at 95 (requiring courts to ignore the parties’
jurisdictional concessions and make an independent determination as to
jurisdiction). Yet the “litigant-disclaimer solution” would convert a decision
over which we have no jurisdiction into one over which we do, through nothing
more than an appellant’s ipse dixit.
Moreover, I worry that the “litigant-disclaimer” proposal causes the
problem it seeks to avoid: “vanquish[ing] the finality trap by vanquishing
finality.” Ante, at 26 (Willett, J., concurring). When is the deadline for a party
to transmute-by-disclaimer a without-prejudice dismissal into a with-prejudice
final decision? If this case is anything to go by, the answer is “never”: The
without-prejudice dismissal at issue here was entered in November 2016. Yet
the concurrence proposes allowing the Williamses to “bindingly disclaim any
right to reassert their voluntarily dismissed claims” on remand to a three-judge
panel of this court—no matter that this disclaimer may arrive almost four
years after the dismissal. Id. at 32.
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Alternatively, if the normal rules apply and the plaintiff must disclaim
and appeal within the 30-day deadline to file a notice of appeal from the
dismissal, see FED. R. APP. P. 4(a)(1)(A) & 28 U.S.C. § 2107(a), that time came
and went three years ago—without any mention of a disclaimer, see Williams
v. Lockheed Martin, Corp., No. 16-31238 (5th Cir. Feb. 15, 2017) (per curiam)
(dismissing appeal from the Rule 41(a) dismissal after the Williamses
“concede[d] that a Rule 54 order is necessary to invoke this court’s
jurisdiction”). That was the time to determine the finality of the district court’s
decision. And the Williamses failure to hew to that 30-day deadline carries
jurisdictional consequences today. See Bowles v. Russell, 551 U.S. 205, 213
(2007).
* * *
We can never forget that the rule of law is the law of rules. See Antonin
Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989). And
few rules are more important than the ones that limit our jurisdiction and
hence legitimize our exercise of it. This case gave us a chance to address the
inconsistencies in our jurisdictional precedents, but instead we’ve made them
worse. I hope that we’ll come back and fix these errors. Cf. United States v.
Castillo-Rivera, 853 F.3d 218, 237 (5th Cir. 2017) (en banc) (Smith, J.,
dissenting) (observing, of an en banc court’s refusal to tackle an issue presented
for en banc consideration, that “[r]efusing to take this fork in the road is the
easy way, but not the right one”). Until then, I respectfully dissent.
55