Ciralsky v. C.I.A.

Citation355 F.3d 661
Decision Date30 January 2004
Docket NumberNo. 02-5306.,02-5306.
PartiesAdam J. CIRALSKY, Appellant, v. CENTRAL INTELLIGENCE AGENCY, et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (No. 00cv01709).

David H. Shapiro argued the cause for appellant. With him on the briefs were Edward Tolchin and Janine M. Brookner.

Ara B. Gershengorn, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Peter D. Keisler, Assistant Attorney General, Roscoe C. Howard, Jr., U.S. Attorney, and Freddi Lipstein, Senior Counsel, U.S. Department of Justice.

Before: GINSBURG, Chief Judge, GARLAND, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Adam J. Ciralsky appeals from the district court's dismissals without prejudice of both his complaint and his lawsuit against his former employer, the Central Intelligence Agency. The court ordered the dismissals on the ground that the complaint did not contain "a short and plain statement of the claim," as required by Federal Rule of Civil Procedure 8(a)(2). Ciralsky also challenges the district court's denial of his subsequent motions under Rules 59(e) and 15(a) to alter the court's judgment and to amend his complaint. He argues that, due to a statute of limitations problem, the dismissals without prejudice effectively amounted to dismissals with prejudice. Although we do not find that the district court abused its discretion, we remand to permit that court to decide whether, in light of the limitations problem, the plaintiff should be given another opportunity to amend his complaint.


On December 13, 1999, Ciralsky was terminated from his job as a lawyer for the Central Intelligence Agency (CIA). On July 19, 2000, Ciralsky filed suit against the CIA, the Federal Bureau of Investigation, and nine of their employees and agents, alleging that he had been "interrogated, harassed, surveilled and terminated from his employment with the CIA solely because he is a Jew and practices the Jewish religion." Compl. at 3. The complaint alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq. (Title VII); the Privacy Act, 5 U.S.C. § 552a; the Freedom of Information Act, 5 U.S.C. § 552; the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq.; 42 U.S.C. §§ 1985, 1986; the First, Fourth, and Fifth Amendments to the Constitution; and the common law of contract.

Ciralsky's initial complaint was 119 pages long and contained 367 numbered paragraphs. On August 21, 2000, the defendants moved to strike the complaint under Federal Rule of Civil Procedure 8(a) because it did not contain "a short and plain statement of the claim." FED R.CIV.P. 8(a)(2). The district court granted the defendants' motion on February 27, 2001, finding that the complaint was "filled with a mass of details, most of which are not required to provide the defendants with adequate notice of the plaintiff's claims." Ciralsky v. CIA, Mem. & Order at 5 (D.D.C. Feb. 27, 2001) [hereinafter Feb. 2001 Mem. & Order]. The court ordered the plaintiff to "eliminate[]" the "excess," and gave him leave to file, within 21 days, an amended complaint "that complies with Rule 8(a)(2)." Id. at 8-9.

Ciralsky timely complied with the district court's order, filing his first amended complaint on March 20, 2001. The amended complaint was 61 pages long and contained 105 paragraphs. On April 2, 2001, the defendants moved to dismiss the action with prejudice, again for failure to comply with Rule 8(a), arguing that "the amended complaint is largely the same as the initial complaint, except for formatting changes and one substantial deletion." Defs.' Mot. to Dismiss at 2.

On December 28, 2001, the district court found that the "plaintiff's amended complaint still fatally suffers from an excess of unnecessary evidentiary detail." Ciralsky v. CIA, Mem. Op. at 1 (D.D.C. Dec. 28, 2001) [hereinafter Dec. 2001 Mem. Op.]. It ordered that the amended complaint be dismissed and further granted the defendants' motion to dismiss the action. Ciralsky v. CIA, Order at 1 (D.D.C. Dec. 28, 2001) [hereinafter Dec. 2001 Order]. Although the court denied the defendants' request that the dismissal be "with prejudice," it warned Ciralsky "that should he re-file his complaint in a form that still does not comply with Rule 8, my next dismissal will be with prejudice." Dec. 2001 Mem. Op. at 8.

In January 2002, Ciralsky moved to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e), and for leave to file a second amended complaint pursuant to Rule 15(a). As grounds for the motion to alter the judgment, Ciralsky contended that he "may be unfairly prejudiced if he is not allowed to file a second amended complaint as the statute of limitations may be deemed to have run on some of his claims if he is not allowed to proceed." Pl.'s Mot. to Alter or Amend J. at 1. At the same time, Ciralsky attached a 28-page second amended complaint and moved for leave to file it pursuant to Rule 15(a).

On August 30, 2002, the district court denied Ciralsky's motion to alter or amend the judgment, finding no manifest injustice. The court explained that Ciralsky had offered "no substantiation, detail or supporting citations" for his concerns about the statute of limitations. Ciralsky v. CIA, Mem. Op. & Order at 3 (D.D.C. Aug. 30, 2002) [hereinafter Aug. 2002 Mem. Op. & Order]. Moreover, the court noted that Ciralsky had never previously alerted it to a possible time bar nor "indicated any desire to amend the complaint before this case was dismissed." Id. at 3-4. The court stated that "[m]anifest injustice does not exist where, as here, a party could have easily avoided the outcome, but instead elected not to act until after a final order had been entered." Id. at 4. Having denied the Rule 59(e) motion to alter the judgment, the district court denied the plaintiff's Rule 15(a) motion to file an amended complaint as moot. Id.


We begin with a question of appellate jurisdiction. This court has jurisdiction over appeals from final decisions of the district courts. 28 U.S.C. § 1291. The government's brief states that "it is not clear" whether we have jurisdiction to review the district court's December 2001 decision granting the defendants' motion to dismiss. Appellees' Br. at 1. That uncertainty, the government says, arises from the court's statement that the dismissal was "without prejudice," notwithstanding that the court also denominated its decision as a "final appealable order." Dec.2001 Order.

The dismissal with prejudice of either a complaint or an action is final and appealable. See, e.g., Heffernan v. Hunter, 189 F.3d 405, 408 (3d Cir.1999); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir.1988). However, courts often regard the dismissal without prejudice of a complaint as "not final, and thus not appealable under 28 U.S.C. § 1291, because the plaintiff is free to amend his pleading and continue the litigation." Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir.2003); see also WMX Tech., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.1997); 19 JAMES W. MOORE, MOORE'S FEDERAL PRACTICE § 201.14 (3d ed.2003) [hereinafter MOORE'S].1 The dismissal without prejudice of an action (or "case"), by contrast, is a different matter. As the Supreme Court said in United States v. Wallace & Tiernan Co.: "That the dismissal was without prejudice to filing another suit does not make the cause unappealable, for denial of relief and dismissal of the case ended this suit as far as the District Court was concerned." 336 U.S. 793, 794-95 n. 1, 69 S.Ct. 824, 825-26 n. 1, 93 L.Ed. 1042 (1949). Most courts that have considered the question have followed the Supreme Court's lead, holding that the dismissal of an action — whether with or without prejudice — is final and appealable.2 We, of course, will do the same. Cf. United States v. Mitchell, 551 F.2d 1252, 1260 n. 35 (D.C.Cir.1976) (finding that an appeal of a denial without prejudice of a petition was appropriate under 28 U.S.C. § 1291, citing Wallace & Tiernan).

If the district court did in fact dismiss Ciralsky's action, it thereby ended his case. Although it is true that he may be able to re-file because the dismissal was without prejudice,3 that does not change the fact that, in the absence of such an affirmative act on Ciralsky's part, the case is at an end. See Rinieri v. News Syndicate Co., 385 F.2d 818, 821 (2d Cir.1967) ("Although a dismissal without prejudice permits a new action (assuming the statute of limitations has not run) without regard to res judicata principles, the order of dismissal, nevertheless, is a final order from which an appeal lies."). Analogously, the fact that a plaintiff may suspend the finality of a dismissal with prejudice by filing a Rule 59 motion to reconsider does not affect the finality of that dismissal in the absence of such a motion. See 12 MOORE'S §§ 59.32[1], 59.53[1]; 19 MOORE'S § 202.11[1][a].

Unfortunately, it is not always clear whether a district court intended its order to dismiss the action or merely the complaint.4 This case presents some difficulties in that regard, as the court's December 2001 Memorandum Opinion spoke several times of dismissing the complaint. Dec. 2001 Mem. Op. at 1, 8. The court's attached order, however, both dismissed the complaint and, in a separate ordering paragraph, granted the defendants' April 2, 2001 motion to dismiss. See Dec. 2001 Order. That motion had expressly asked the court "to dismiss this action." Defs.' Mot. to Dismiss (emphasis added). Moreover, the court's December 2001 Order expressly stated that it was "a final appealable order." Dec.2001 Order. Although that characterization cannot bind us,...

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