# Freddie Goode v. Central Virginia Legal Aid Society

> Court of Appeals for the Fourth Circuit · December 9, 2015 · 807 F.3d 619

URL: https://www.frixlaw.com/law-library/cases/3161221

## Case

- **Full name:** Freddie L. GOODE, Plaintiff-Appellant, v. CENTRAL VIRGINIA LEGAL AID SOCIETY, INC., Defendant-Appellee
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** December 9, 2015
- **Citations:** 807 F.3d 619; 2015 WL 8289046
- **Precedential status:** Published
- **Opinion:** Opinion by Davis
- **Judges:** Wynn, Diaz, Davis
- **Cited by:** 572 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3161221

## How later opinions describe it (automated extraction)

- holding that this Court lacks jurisdiction over appeals “in cases in which the 2 district court granted a motion to dismiss for failure to plead sufficient facts in the complaint . . . because the plaintiff could amend the complaint to cure the pleading deficiency”
- holding that this court lacks jurisdiction over appeals “in cases in which the district court granted a motion to dismiss for failure to plead sufficient facts in the complaint . . . because the plaintiff could amend the complaint to cure the pleading deficiency”
- holding that a dismissal without prejudice for failure to state a claim upon which relief can be granted is not a final order when the plaintiff could have amended his complaint to cure pleading deficiencies
- stating that appellate jurisdiction exists over a dismissal without prejudice when the district court “clearly indicate[s] that no amendment could cure the defects in the complaint”
- holding that dismissal without prejudice is not appealable unless “the district court’s grounds for dismissal clearly indicate that no amendment could cure the complaint's defects’’

## Opinion text

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1939

FREDDIE L. GOODE,

Plaintiff – Appellant,

v.

CENTRAL VIRGINIA LEGAL AID SOCIETY, INC.,

Defendant – Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:14-cv-00281-HEH)

Argued: September 15, 2015 Decided: December 9, 2015

Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Appeal dismissed and case remanded by published opinion. Senior
Judge Davis wrote the opinion, in which Judge Wynn and Judge
Diaz concurred.

ARGUED: Barbara Allyn Queen, LAWRENCE & ASSOCIATES, Richmond,
Virginia, for Appellant. Christy E. Kiely, HUNTON & WILLIAMS
LLP, Richmond, Virginia, for Appellee. ON BRIEF: Ryan A.
Glasgow, HUNTON & WILLIAMS LLP, Richmond, Virginia; Warren David
Harless, E. Ford Stephens, CHRISTIAN & BARTON L.L.P., Richmond,
Virginia, for Appellee.
DAVIS, Senior Circuit Judge:

Freddie Lee Goode was a Senior Managing Attorney for

Central Virginia Legal Aid Society (“CVLAS”) until CVLAS’s Board

of Directors eliminated Goode’s position in March 2013. Goode

brought suit against CVLAS, alleging discrimination on the basis

of race, sex, and age. CVLAS filed a motion to dismiss pursuant

to Federal Rule of Civil Procedure 12(b)(6) on the ground that

Goode had failed to state a claim upon which relief could be

granted. The district court granted the motion to dismiss

without prejudice, and Goode timely appealed. For the reasons

that follow, we conclude that the order of dismissal was not a

final and appealable order, and we therefore dismiss this appeal

for lack of jurisdiction and remand the case to the district

court with instructions.

I.

A.

Goode, an African-American male, was 72 years old when

CVLAS terminated his employment in March 2013. He had worked at

CVLAS’s Richmond office for 25 years. He had begun working for

the organization as an unpaid volunteer in August 1988 and had

held many paid positions with CVLAS since that time. As one of

CVLAS’s two Senior Managing Attorneys in 2013, Goode was

responsible for “representing clients in civil matters; drafting

legal documents; and advising clients on their legal rights and

2
remedies, generally. [Goode also] . . . coordinat[ed] the

activities of the Social Security, elder law and public benefits

units[] and supervis[ed] the pro bono hotline.” J.A. 8. 1 Goode

reported to Executive Director Stephen Dickinson, a white male.

Goode alleged in his complaint that CVLAS’s Board of

Directors had met on March 11, 2013, to discuss a loss of

government funding and the corresponding need to reorganize

attorney positions within the organization’s three offices.

When the Board discussed Goode’s position, someone in the

meeting allegedly commented that, due to Goode’s receipt of

veteran and other benefits, “he would not be impacted as much as

others by the restructuring.” J.A. 9. Goode averred that,

“[a]s a result of the restructuring, five African American

employees, including Goode, were let go.” J.A. 10. Each

terminated employee was over the age of 40, and Goode was the

oldest of CVLAS’s nine attorneys at the time and the oldest

CVLAS employee overall. Goode’s termination was effective on

March 31, 2013.

According to Goode, “CVLAS claim[ed] that it eliminated

Goode’s position because representation for Social Security

. . . cases at the litigation stage was a service available

through the private bar . . . and . . . the office was going to

1
Citations to the “J.A.” refer to the Joint Appendix that
the parties submitted in this case.

3
concentrate more on family law cases.” J.A. 11. Goode

challenged this rationale in his complaint, asserting that the

availability of private counsel to assist with Social Security

matters was “not the case across the board” and that “there

remained a substantial need for this client service” at CVLAS.

Id.

In seeking to challenge CVLAS’s purported justification for

his termination as pretextual, Goode also described in his

complaint the experiences of two other CVLAS employees who had

retained their employment despite the restructuring.

Specifically, he discussed Christianne Queiroz, 2 “a much younger,

non African American (Latin[a]) female,” and Martin Wegbreit,

CVLAS’s other Senior Managing Attorney, who is white. J.A. 9,

11. Goode alleged that Queiroz was an “attorney” but otherwise

provided no information regarding her position or duties at

CVLAS. J.A. 12. Goode further alleged that CVLAS had allowed

Queiroz to assume part-time status while continuing to earn the

same salary as she had previously.

As to Wegbreit, Goode averred that he “is substantially

younger,” “has a higher salary,” and “was a similarly-situated

employee to Goode in terms of workload and responsibility within

2This attorney’s last name is alternately spelled “Queiroz”
and “Quieroz” in the complaint. See, e.g., J.A. 11–12. We use
“Queiroz” because the complaint uses this spelling first.

4
CVLAS.” J.A. 9. As the other Senior Managing Attorney,

Wegbreit was in charge of litigation services. Goode contended

that CVLAS “used a budget shortfall as an excuse to terminate

Goode while maintaining higher salaries and favorable terms for

Wegbreit and Quieroz [sic].” J.A. 12.

Goode further challenged the proposition that CVLAS had

terminated him for financial reasons by explaining that, after

learning of the Board’s decision, Goode had proposed some cost-

saving measures that CVLAS could have implemented to keep him on

staff, but his supervisor was not amenable to these suggestions.

In rejecting one proposal, Dickinson stated that he could not

institute a 10% pay cut for employees earning over $65,000 per

year because he had already promised raises to all employees and

because two of the attorneys whose salaries would be reduced by

such a plan were single mothers. Although Dickinson told Goode

“that he could continue with CVLAS in a position supervising the

volunteer lawyer pro bono hotline,” Goode “felt that Dickinson

did not have any intention to keep him at CVLAS.” J.A. 10.

B.

Goode brought suit against CVLAS on April 17, 2014,

asserting claims for violations of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2012),

42 U.S.C. § 1981 (2012), and the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. §§ 621–34 (2012). He stated

5
in his complaint that he “believe[d] that CVLAS’s financial

considerations and their budget cuts were pretext for race, sex,

and age discrimination.” 3 J.A. 11.

On July 15, 2014, CVLAS filed a motion to dismiss for

failure to state a claim under Rule 12(b)(6). The district

court determined that Goode had failed either to present direct

or circumstantial evidence of discrimination or to make out a

prima facie case of discrimination under the framework

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Accordingly, the court stated that “Goode fail[ed] to

allege sufficient facts supporting his claim that his

termination was the result of unlawful discrimination.” Goode

v. Cent. Va. Legal Aid Soc’y, No. 3:14cv281-HEH, 2014 WL

3945870, at *6 (E.D. Va. Aug. 12, 2014). The court granted

CVLAS’s motion and dismissed the case without prejudice on

August 12, 2014, concluding that “Goode has failed to state a

3
The district court did not consider Goode’s claim of sex
discrimination because Goode had not presented a separate count
raising this claim. Goode has since abandoned this claim on
appeal, as he alleges in his opening brief only that “he was
removed from his position due to his race and age.” Appellant’s
Br. 10; see United States v. Washington, 743 F.3d 938, 941 n.1
(4th Cir. 2014) (“Issues that [the appellant] failed to raise in
his opening brief are waived.”). In part for the same reason,
the district court also disregarded Goode’s ostensible claim
under 42 U.S.C. § 1983, which Goode had listed in the
complaint’s introduction but had not mentioned elsewhere. Goode
has also abandoned this claim on appeal.

6
claim for unlawful discrimination under Title VII, 42 U.S.C.

§ 1981, and the ADEA.” Id. at *7.

Goode filed a timely notice of appeal on September 8, 2014.

For the reasons stated below, we dismiss this appeal for lack of

jurisdiction and remand the case to the district court with

instructions to allow Goode to amend his complaint. Because we

conclude that we do not have appellate jurisdiction over this

case, we do not reach the merits of the district court’s legal

conclusions.

II.

A.

This Court may exercise jurisdiction only over final

orders, 28 U.S.C. § 1291, and certain interlocutory and

collateral orders, 4 28 U.S.C. § 1292; Fed. R. Civ. P. 54(b);

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545–46

(1949). An order dismissing a complaint without prejudice is

not an appealable final order under § 1291 if “the plaintiff

4 The district court’s order in this case was not an
immediately appealable interlocutory or collateral order. See
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)
(recognizing that the collateral order exception renders only a
“small class” of decisions immediately appealable—those that
“conclusively determine the disputed question, resolve an
important issue completely separate from the merits of the
action, and [are] effectively unreviewable on appeal from a
final judgment”). The relevant question is therefore whether
the district court’s order of dismissal was appealable as a
final order.

7
could save his action by merely amending his complaint.” Domino

Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064,

1066–67 (4th Cir. 1993). In Domino Sugar, this Court held that

if “the grounds of the dismissal make clear that no amendment

could cure the defects in the plaintiff’s case, the order

dismissing the complaint is final in fact” and therefore

appealable. Id. at 1066 (quoting Coniston Corp. v. Vill. of

Hoffman Estates, 844 F.2d 461, 463 (7th Cir. 1988)); see Young

v. Nickols, 413 F.3d 416, 418 (4th Cir. 2005). Likewise, “a

plaintiff may not appeal the dismissal of his complaint without

prejudice unless the grounds for dismissal clearly indicate that

‘no amendment [in the complaint] could cure the defects in the

plaintiff’s case.’” Domino Sugar, 10 F.3d at 1067 (alteration

in original) (quoting Coniston Corp., 844 F.2d at 463).

We have interpreted Domino Sugar to “require[] [an

appellate panel] to examine the appealability of a dismissal

without prejudice based on the specific facts of the case in

order to guard against piecemeal litigation and repetitive

appeals.” Chao v. Rivendell Woods, Inc., 415 F.3d 342, 345 (4th

Cir. 2005); see Domino Sugar, 10 F.3d at 1066–67 (“[A]n

appellate court may evaluate the particular grounds for

dismissal in each case to determine whether the plaintiff could

save his action by merely amending his complaint.”). In

reaching these case-specific determinations, “[w]hat makes

8
[dismissals without prejudice] final or nonfinal is not the

speculative possibility of a new lawsuit, but that they ‘end the

litigation on the merits and leave nothing for the court to do

but execute the judgment.’” GO Comput., Inc. v. Microsoft

Corp., 508 F.3d 170, 176 (4th Cir. 2007) (quoting MDK, Inc. v.

Mike’s Train House, Inc., 27 F.3d 116, 119 (4th Cir. 1994)).

Notwithstanding this emphasis on the need for case-by-case

determinations, courts considering this issue have established

some guidelines. For instance, an appellate panel may consider

whether the district court expressly dismissed the “action . . .

in its entirety” or merely dismissed the complaint, as courts

have generally considered the former, but not the latter,

appealable. Chao, 415 F.3d at 345; see also Zayed v. United

States, 368 F.3d 902, 905 (6th Cir. 2004) (“Where an action, and

not merely an amendable complaint (or petition), is dismissed

without prejudice, the order of dismissal is final and

appealable.”). As this Court suggested in Domino Sugar,

however, considering whether the district court merely dismissed

the complaint or expressly dismissed the action as a whole is

essentially one way of determining whether “the grounds of the

dismissal make clear that no amendment could cure the defects in

the plaintiff’s case, [such that] the order dismissing the

complaint is final in fact and [appellate jurisdiction exists].”

9
10 F.3d at 1066–67 (second alteration in original) (quoting

Coniston Corp., 844 F.2d at 463).

Moreover, in cases in which the district court granted a

motion to dismiss on procedural grounds that no amendment to the

pleadings could cure, we have found that the dismissal was final

and appealable. In Domino Sugar, for instance, we held that the

district court’s order of dismissal based on “failure to exhaust

contractual remedies” was final and appealable because no

amendment to the complaint could cure this procedural

shortcoming. 10 F.3d at 1067. Likewise, we have determined

that orders of dismissal without prejudice were final and

appealable when cases were dismissed for procedural reasons

unrelated to the contents of the pleadings, as in a case

dismissed because the plaintiffs had no right to bring the

particular causes of action, see GO Comput., Inc., 508 F.3d at

176, and in a case dismissed because the claims were barred by

Heck v. Humphrey, see Young, 413 F.3d at 418.

By contrast, in cases in which the district court granted a

motion to dismiss for failure to plead sufficient facts in the

complaint, we have consistently found, albeit in unpublished,

non-precedential decisions, that we lacked appellate

jurisdiction because the plaintiff could amend the complaint to

cure the pleading deficiency. See, e.g., Shackleford v.

Riverside Reg’l Med. Ctr., 466 F. App’x 287, 287 (4th Cir. 2012)

10
(per curiam) (unpublished) (“Because the deficiency identified

by the district court—that the complaint did not assert

sufficient allegations in support of its legal conclusions—may

be remedied by the filing of a complaint that articulates

adequate allegations, we conclude that the order . . . is

neither a final order nor an appealable interlocutory or

collateral order.”); Hankins v. Ayers, 327 F. App’x 388, 388–89

(4th Cir. 2009) (per curiam) (unpublished); Green v. Booker, 149

F. App’x 140, 141 (4th Cir. 2005) (per curiam) (unpublished);

Sindram v. Raker, 119 F. App’x 528, 529 (4th Cir. 2005) (per

curiam) (unpublished). We think the time has come to enshrine

this salutary rule in a precedential opinion, and we do so here.

B.

1.

CVLAS argues that the district court’s order granting its

motion to dismiss without prejudice was not appealable because

Goode could have amended his complaint to cure the pleading

deficiencies that the district court identified. In other

words, CVLAS contends that we lack jurisdiction over this

appeal. We agree.

The district court’s grounds for dismissal did not clearly

indicate that no amendment could cure the defects in the

complaint, so the order of dismissal was not final and

appealable. To the contrary, the district court stated several

11
grounds for dismissal, each of which is readily curable by

amendment. We consider each in turn.

First, the district court concluded, as to Goode’s race

discrimination claims under Title VII and § 1981, that Goode had

failed to present direct or circumstantial evidence of

discrimination or to make out a prima facie case of

discrimination. Goode argues that the district court erred in

requiring him to establish a prima facie case of race

discrimination at the pleading stage, relying primarily on

Swierkiewicz v. Sorema, N. A., 534 U.S. 506, 508 (2002).

Accordingly, we must first consider whether it is appropriate

for this Court to examine if Goode could have amended the

complaint to meet an allegedly erroneous standard.

2.

Because the relevant jurisdictional inquiry is whether “the

grounds of the dismissal make clear that no amendment could cure

the defects in the plaintiff’s case,” Domino Sugar, 10 F.3d at

1066 (emphasis added) (quoting Coniston Corp., 844 F.2d at 463),

we conclude that it is appropriate to consider whether a

plaintiff could have amended the complaint to satisfy the

pleading standards that the district court imposed. In this

case, a primary ground for the district court’s dismissal of

Goode’s race discrimination claims was Goode’s failure to allege

sufficient facts to present direct or circumstantial evidence of

12
discrimination or to establish a prima facie case of

discrimination. We therefore analyze whether Goode could have

amended his complaint to cure these supposed pleading defects,

regardless of whether the district court was correct in imposing

these requirements. Accordingly, we need not determine at this

juncture whether the district court in fact applied an erroneous

legal standard in dismissing Goode’s complaint. 5

Such an analysis serves to bolster the efficiency and

smooth operation of the judiciary. This Court has recognized

that § 1291 preserves judicial economy by ensuring that a

district court maintains authority over a case until it issues a

final and appealable order, thus preventing piecemeal litigation

and repeated appeals. See Chao, 415 F.3d at 345; Domino Sugar,

10 F.3d at 1067. If a plaintiff were able to appeal an

otherwise unappealable order of dismissal by contending that the

district court had applied an erroneous standard, the plaintiff

would seemingly be able to bypass the amendment process in the

5
For purposes of this jurisdictional inquiry, we therefore
assume without deciding that the district court applied the
correct legal standards in assessing the motion to dismiss. As
such, our discussion of the pleading standards employed by the
district court should not be read to indicate that we would hold
that the district court’s analysis was free from error were we
to consider this issue on the merits. Cf. SD3, LLC v. Black &
Decker (U.S.) Inc., 801 F.3d 412, 441 (4th Cir. 2015) (“Iqbal
and Twombly do not require a plaintiff to prove his case in the
complaint.” (quoting Robertson v. Sea Pines Real Estate Cos.,
Inc., 679 F.3d 278, 291 (4th Cir. 2012))).

13
district court and autonomously render the order appealable,

largely defeating the purpose of § 1291.

Moreover, allowing appellate jurisdiction to rest on an

argument that the district court had applied an improper

standard would paradoxically require this Court to assess the

merits of a district court’s decision in order to determine

whether we have jurisdiction to do so—putting the cart before

the horse. We thus consider whether Goode could have amended

his complaint to cure the defects that the district court

identified—including his failure to make out a prima facie case

of discrimination—rather than considering whether Goode could

have amended his complaint to satisfy some other legal standards

that the district court did not impose.

C.

1.

To establish a prima facie case of race discrimination

under McDonnell Douglas, a plaintiff must demonstrate

“(1) membership in a protected class; (2) satisfactory job

performance; (3) adverse employment action; and (4) different

treatment from similarly situated employees outside the

protected class.” Coleman v. Md. Court of Appeals, 626 F.3d

187, 190 (4th Cir. 2010), aff’d sub nom. Coleman v. Court of

Appeals of Md., 132 S. Ct. 1327 (2012) (citing White v. BFI

Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004)). Here,

14
the district court determined that the complaint did not provide

sufficient factual allegations to show that Goode’s job

performance was satisfactory at the time of his termination or

that CVLAS treated Goode differently than similarly situated

employees outside the protected class.

We conclude that Goode could have amended his complaint to

add factual allegations to satisfy these standards, and the

district court’s order did not indicate otherwise. For

instance, Goode could have provided facts to support his

allegation that he had “always met or exceeded the performance

expectations of CVLAS.” J.A. 9. He could have referenced

positive feedback or performance reviews that he had received

from his CVLAS supervisor since 2009—the year that, according to

the district court, Goode’s allegations last suggested that he

had performed satisfactorily.

Likewise, Goode could have presented factual allegations to

support his assertions that the other Senior Managing Attorney,

Martin Wegbreit, “was a similarly-situated employee to Goode in

terms of workload and responsibility within CVLAS,” id., and

that Wegbreit received more favorable treatment than Goode.

Goode could have amended his complaint to include facts

demonstrating the similarities between his workload and that of

Wegbreit, perhaps clarifying why Wegbreit’s higher salary and

15
his responsibilities as the attorney in charge of litigation did

not belie Goode’s claim that the two were similarly situated.

The district court also based its order of dismissal on its

determination that Goode had failed to set forth facts

indicating that CVLAS “did not treat . . . race neutrally when

making its decision.” Goode, 2014 WL 3945870, at *6 (alteration

in original) (quoting Causey v. Balog, 162 F.3d 795, 802 (4th

Cir. 1998)). In other words, the court concluded that Goode did

not state a plausible claim that CVLAS discriminated against him

because of his race. In doing so, the court determined that

Goode’s allegations impliedly conceded that CVLAS’s purported

financial reasons for his termination were at least partially

true, and the court thus concluded that “Goode essentially

ple[d] himself out of court.” See id. at *4.

Again, these are precisely the kinds of pleading

deficiencies that amendment to the complaint could have cured,

and the order of dismissal did not preclude this remedy; to the

contrary, a dismissal without prejudice invites such an

amendment. Goode could have rectified the apparent defects by

presenting factual allegations to demonstrate why he believed

that his termination had been racially motivated and, perhaps

more importantly, to show why CVLAS’s purported justifications

were pretextual, thus bolstering his claim that CVLAS had

intentionally discriminated against him based on race.

16
Goode could also have responded to the district court’s

observation that he had apparently “ple[d] himself out of court”

by amending his complaint to clarify that he was not conceding

that CVLAS’s alleged financial reasons for his termination were

true. A plaintiff who wishes to amend a complaint is not

limited merely to adding allegations to the original pleadings;

rather, the plaintiff may remove or, plainly, amend the original

allegations by filing an amended complaint. 6 That is to say,

even if Goode’s complaint contained allegations that rendered

his claims of discrimination facially untenable, amendment to

the complaint could have cured this defect. As the district

court’s dismissal of the original complaint without prejudice

plainly anticipated, pleading a plausible claim of race

discrimination hardly involves heavy lifting.

6
See Staggs v. Doctor’s Hosp. of Manteca, Inc., No. 2:11-
cv-00414-MCE-KJN, 2015 WL 6951759, at *3 (E.D. Cal. Nov. 10,
2015) (recognizing that case law “does not forbid a plaintiff
from changing or deleting previously pled factual allegations in
an amended complaint”); cf. Scott v. Chuhak & Tecson, P.C., 725
F.3d 772, 783 (7th Cir. 2013) (“[W]here the original complaint
and an amended complaint contain contradictory or mutually
exclusive claims, only the claims in the amended complaint are
considered; the contradicted claims in the original complaint
are knocked out.”). But cf. United States v. McKeon, 738 F.2d
26, 31 (2d Cir. 1984) (noting that the original admission of a
litigant who amends the pleadings to replace one version of the
facts with another is admissible at trial).

17
2.

Finally, the district court concluded that Goode had also

failed to allege a plausible claim of discrimination based on

age. The court explained that to present a claim of age

discrimination under the ADEA, a plaintiff must allege

“membership in a protected class, satisfactory job performance,

and adverse employment action,” id. at *6 (citing Causey, 162

F.3d at 802), as well as facts establishing that the plaintiff

was “replaced by someone outside the protected class with

comparable qualifications,” id. As in the context of race

discrimination, the court determined that Goode had not pled

sufficient facts demonstrating his satisfactory job performance

at the time of his termination. Further, the court concluded

that Goode had failed to plead facts showing that he was

replaced by someone outside the protected class; in fact, the

court construed Goode’s allegations to indicate that “his

position and some of his job duties were eliminated” such that

he was “not replaced, let alone by someone outside the protected

class.” Id.

Again, it is clear to us that the district court’s order

did not prevent Goode from amending his complaint to correct

these supposed pleading deficiencies. Goode could have cured

the first alleged defect—the lack of sufficient factual

allegations demonstrating satisfactory job performance—through

18
amendment, as discussed above. As to the second alleged

shortcoming—failure to satisfy the fourth element of a prima

facie case of age discrimination—the court similarly did not

“make clear” that Goode could not have amended his complaint to

allege that he was replaced by someone outside the protected

class. The district court’s order stated that “Goode does not

allege he was replaced by anyone at all,” id. (emphasis added),

but it did not indicate that Goode could not have done so, or,

of equal import, that he could not allege his duties were

dispersed to remaining, younger former colleagues. Instead, the

district court drew the inference from Goode’s allegations that

he was not replaced by anyone, and it thus concluded that “Goode

fail[ed] to allege sufficient facts that his termination

resulted from age discrimination.” Id. The district court’s

order therefore did not clearly preclude Goode from amending his

complaint to correct any pleading inadequacy.

In this regard, while Goode’s complaint “acknowledges that

his position and some of his job duties were eliminated,” id.,

the district court’s order did not preclude Goode from otherwise

establishing a prima facie case under the ADEA. It is certainly

possible, for instance, that Goode could have submitted an

amended complaint with factual allegations demonstrating that

CVLAS had distributed some of Goode’s job duties to

substantially younger employees, thus establishing a prima facie

19
case through an alternate route. See Duffy v. Belk, Inc., 477

F. App’x 91, 94–95 (4th Cir. 2012) (unpublished) (“We have

determined before that a transfer of some of a terminated

plaintiff’s duties to younger workers is sufficient to satisfy

the fourth element of a prima facie case of age

discrimination.”). Accordingly, the district court did not make

clear that no amendment could have cured the grounds for

dismissal. Because Goode could have amended his complaint, the

district court’s order dismissing the complaint without

prejudice is not, and should not be treated as, final and

appealable.

D.

It puzzles us that, for his part, Goode repeatedly asserts

that he “was not afforded the ability to amend his complaint,”

Appellant’s Br. 49, and that, because “the [district court] did

not allow Goode to amend his Complaint in the decision, the

Order should be treated as a final order and this Court should

have jurisdiction over this matter,” Appellant’s Reply Br. 16–

17. This argument flips the relevant standard on its head. A

district court’s decision is not final and appealable merely

because the court did not affirmatively state that the plaintiff

could have amended the complaint; rather, we may only exercise

appellate jurisdiction where a district court’s order clearly

indicates that amendment to the complaint could not cure the

20
complaint’s defects. See Domino Sugar, 10 F.3d at 1066. A

litigant may not presume the finality of a district court’s

order—particularly an order expressly granting a motion to

dismiss “without prejudice” on the basis of pleading

inadequacies that could be rectified with little effort by

amendment.

Moreover, Goode’s argument that he “was not afforded the

ability to amend his complaint,” Appellant’s Br. 49, rings

hollow, as he never attempted to amend his complaint and never

sought leave to do so (even assuming he needed to seek leave

after a dismissal without prejudice of the original complaint).

Had he sought leave to amend, the district court surely would

have granted this motion, given the liberal standard that

governs a request to amend a complaint under Federal Rule of

Civil Procedure 15(a)(2). See Fed. R. Civ. P. 15(a)(2) (“The

court should freely give leave when justice so requires.”);

Foman v. Davis, 371 U.S. 178, 182 (1962); Galustian v. Peter,

591 F.3d 724, 729 (4th Cir. 2010) (“It is this Circuit’s policy

to liberally allow amendment in keeping with the spirit of

Federal Rule of Civil Procedure 15(a).”). Goode also was not

barred from amending his complaint by any statute of

limitations, as an amended complaint would have related back to

the date that the original complaint had been filed. See Fed.

R. Civ. P. 15(c)(1)(B) (“An amendment to a pleading relates back

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to the date of the original pleading when: . . . the amendment

asserts a claim or defense that arose out of the conduct,

transaction, or occurrence set out—or attempted to be set out—in

the original pleading.”).

Similarly, Goode’s decision not to amend the complaint did

not itself render the order of dismissal final and appealable.

To be sure, we recognized in Chao that a court assessing

appellate jurisdiction may consider whether a plaintiff has

chosen to “stand on the complaint,” treating the order as final

and appealable rather than seeking amendment in the district

court. See 415 F.3d at 345. As part of its case-specific

jurisdictional analysis, the Court in Chao considered such a

decision by the plaintiff-appellant, and the Court ultimately

concluded that it had appellate jurisdiction in that case. Id.

at 345–46.

Yet Chao does not stand for the general proposition that a

plaintiff may choose not to amend a complaint in order to

single-handedly render an order of dismissal final and

appealable under all circumstances. As we explained above, it

is the province of the district court—not of the party seeking

an appeal—to indicate that an order is final and appealable.

Chao also involved a unique set of facts that differ

significantly from those in the case before us. In Chao, the

Secretary of Labor appealed the district court’s dismissal of

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her action against various defendants for violations of the Fair

Labor Standards Act. Id. at 343. Because the Secretary

contended “that she must be able to employ similarly-worded

complaints throughout the country for consistency,” she

“elect[ed] to stand on the complaint presented to the district

court.” Id. at 345. In doing so, “the Secretary . . . waived

the right to later amend . . . thus protect[ing] against the

possibility of repetitive appeals that concerned [this Court] in

Domino Sugar.” Id.

The Court in Chao therefore considered the weighty

assurances of the Secretary of Labor that the objectives of

Domino Sugar and § 1291 would best be served by the Court’s

exercise of appellate jurisdiction in that case, particularly in

light of the institutional interests of the Executive Branch.

Goode, by contrast, cannot and does not attempt to make these

assurances, and he does not seek to vindicate such institutional

interests. Goode’s failure to seek leave to amend the complaint

thus does not favor appealability of the district court’s order

of dismissal.

Goode also contends that we have appellate jurisdiction

based on the proposition that an order dismissing an action in

its entirety rather than one dismissing only the complaint

imputes greater finality and therefore favors appealability.

Indeed, the district court’s order does state that “Defendant’s

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Motion to Dismiss is granted and the case is dismissed without

prejudice.” Goode, 2014 WL 3945870, at *7 (emphasis added).

Nevertheless, we see no indication that the district court

intended for its use of the word “case” rather than “complaint”

to hold any special meaning or for it to signify any particular

finality, especially in light of the court’s express statement

that the dismissal was “without prejudice”—a phrase that

generally indicates that a court’s decision is not final.

Given the emphasis in this Circuit’s governing precedent on

case-by-case review, we are unconvinced that the district

court’s use of the word “case” rather than “complaint” is

determinative, or even highly probative, of the order’s

appealability. Rather, the proper inquiry is whether the

district court’s grounds for dismissal clearly indicate that no

amendment could cure the complaint’s defects. We hold that the

grounds for dismissal in this case did not clearly preclude

amendment. Accordingly, we lack jurisdiction to review the

district court’s decision.

III.

For the foregoing reasons, we dismiss this appeal for lack

of jurisdiction and remand the case to the district court with

instructions to allow Goode to amend his complaint.

DISMISSED AND REMANDED

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3161221. Public record. Not legal advice.