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.
2

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 
3

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.
4

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 

 2 This 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.
5

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 costsaving 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
6

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.
7

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.
8

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 
9

[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].” 
10

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) 
11

(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 
12

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 
13

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))).
14

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, 
15

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 
16

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.
17

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).
18

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 
19

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 
20

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 
21

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 
22

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 
23

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 
24

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