                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

 ANNA GALAZA,                                No. 17-17037
      Plaintiff-Appellant,
                                             D.C. No.
               v.                    2:16-cv-00878-RFB-CWH

 CHAD WOLF *,
     Defendant-Appellee.                       OPINION

          Appeal from the United States District Court
                   for the District of Nevada
        Richard F. Boulware II, District Judge, Presiding

            Argued and Submitted October 4, 2019
                  San Francisco, California

                        Filed April 8, 2020

  Before: Richard A. Paez and Daniel P. Collins, Circuit
       Judges, and Jennifer Choe-Groves, ** Judge.

                Opinion by Judge Choe-Groves;
                  Concurrence by Judge Paez;
                 Concurrence by Judge Collins
    *
     Chad Wolf is substituted for his predecessor, Jeh Charles Johnson,
as Acting Secretary, Department of Homeland Security, under Federal
Rule of Appellate Procedure 43(c)(2).
   **
      The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
2                        GALAZA V. WOLF

                          SUMMARY ***


                     Appellate Jurisdiction

    The panel dismissed an appeal for lack of appellate
jurisdiction under 28 U.S.C. § 1291 because the district
court’s decision was not final for purposes of conferring
jurisdiction in plaintiff’s action alleging claims under federal
and state law after her employment with the Transportation
Security Administration was terminated.

    Plaintiff filed a first amended complaint asserting Title
VII claims for sex discrimination, race discrimination, and
retaliation; and filed a motion for reconsideration regarding
the dismissal of her Rehabilitation Act claim. The district
court: denied the government’s motion to dismiss the first
amended complaint without prejudice to renewal; found that
plaintiff had otherwise adequately pled Title VII sex and
race discrimination claims; did not separately address
plaintiff’s Title VII retaliation claim; and denied plaintiff’s
motion for reconsideration, affirming its decision that the
Aviation and Transportation Security Act preempted the
Rehabilitation Act.

    The panel dismissed for lack of jurisdiction because
plaintiff voluntarily dismissed what she thought were her
sole remaining claims without prejudice after the district
court dismissed her Rehabilitation Act claim, and because
the district court did not meaningfully participate in the
dismissal of those claims and did not formally dismiss an

    ***
        This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                      GALAZA V. WOLF                           3

additional remaining claim. The panel further held that the
procedural posture of the case indicated that the district court
did not intend to enter a final judgment and that the
retaliation claim was still before the district court.

    Judge Paez concurred in the judgment. He agreed that
there was no subject matter jurisdiction over the appeal, but
he would reach that determination on a narrower ground.
Judge Paez would hold that plaintiff’s outstanding retaliation
claim prevented the district court’s dismissal of the
Rehabilitation Act claim from being designated as a final
judgment under 28 U.S.C. § 1291, and he would not reach
the issue of whether plaintiff’s voluntary dismissal could be
construed as one with prejudice for purposes of establishing
a final judgment.

    Judge Collins concurred in the majority opinion which
held that there was no jurisdiction over the appeal of the
dismissal of plaintiff’s Rehabilitation Act for two reasons,
and wrote separately to respond to Judge Paez’s
concurrence, which took issue with the second reason.
Judge Collins wrote that Judge Paez was wrong in
suggesting that plaintiff’s voluntary dismissal of her race and
sex discrimination claims without prejudice presented no
jurisdictional obstacle in this case; and rather, on this record,
it was the principal obstacle to appellate jurisdiction.


                         COUNSEL

Jenny L. Foley, Ph.D. (argued) and Marta Kurshumova,
HKM Employment Attorneys LLP, Las Vegas, Nevada;
Philip J. Trenchak and Victoria C. Mullins, Mullins &
Trenchak, Las Vegas, Nevada; for Plaintiff-Appellant.
4                     GALAZA V. WOLF

Holly A. Vance (argued), Assistant United States Attorney;
Elizabeth O. White, Appellate Chief; Nicholas A. Trutanich,
United States Attorney; United States Attorney’s Office,
Reno, Nevada; for Defendant-Appellee.


                         OPINION

CHOE-GROVES, Judge:

    Appellant Anna Galaza appeals the district court’s
dismissal of her Rehabilitation Act claim. As a threshold
matter, we consider whether we have jurisdiction to hear this
appeal under 28 U.S.C. § 1291. Because Galaza voluntarily
dismissed what she thought were her sole remaining claims
without prejudice after the district court dismissed her
Rehabilitation Act claim, and because the district court did
not meaningfully participate in the dismissal of those claims
and did not formally dismiss an additional remaining claim,
we dismiss the appeal for lack of jurisdiction.

                    I. BACKGROUND

   Galaza began working as a Transportation Security
Officer with the Transportation Security Administration
(“TSA”) in April 2003. After being injured several times in
2004 and 2005, Galaza was given a “permanent limited duty
position” but was eventually removed from this position in
2006. TSA terminated her employment in 2010.

    In 2016, Galaza filed a complaint in the United States
District Court for the District of Nevada, alleging numerous
federal and state law claims, including violations of Title VII
of the Civil Rights Act of 1964, and a violation of the
Rehabilitation Act based on disability discrimination. The
government filed a motion to dismiss Galaza’s claims; the
                     GALAZA V. WOLF                        5

government argued as to the Rehabilitation Act claim that
the district court lacked subject matter jurisdiction because
any such claim is preempted by the Aviation and
Transportation Security Act (“ATSA”).

    The district court granted the government’s motion with
prejudice as to all claims except the Title VII hostile work
environment, sex discrimination, and retaliation claims. The
district court granted Galaza an opportunity to amend as to
those remaining claims. The district court specifically found
the Rehabilitation Act claim preempted by the ATSA.

    Galaza then filed her first amended complaint asserting
Title VII claims for sex discrimination, race discrimination,
and retaliation. She also filed a motion for reconsideration
regarding the dismissal of her Rehabilitation Act claim. The
government filed a motion to dismiss the first amended
complaint and opposed Galaza’s motion for reconsideration.
In her opposition to the government’s motion to dismiss,
Galaza consented to the dismissal of her retaliation claim
with prejudice.

    On September 12, 2017, the district court denied the
government’s motion to dismiss without prejudice to
renewing the motion after a brief period of discovery
addressed to the issue of whether Galaza had adequately
exhausted her administrative remedies. The court found that
Galaza had otherwise adequately pled Title VII sex and race
discrimination claims. The district court did not separately
address Galaza’s Title VII retaliation claim. The district
court also denied Galaza’s motion for reconsideration,
affirming its decision that the ATSA preempts the
Rehabilitation Act.

   On October 11, 2017, Galaza filed a notice of voluntary
dismissal of her race and sex discrimination claims without
6                          GALAZA V. WOLF

prejudice under Federal Rule of Civil Procedure
41(a)(1)(A)(i), followed by a notice of appeal. 1 The district
court was never asked to, and did not, enter a separate
judgment. Before this court, Galaza only seeks review of the
dismissal of her Rehabilitation Act claim.

                            II. ANALYSIS

    We first determine whether we have jurisdiction over
this appeal. Symantec Corp. v. Global Impact, Inc., 559 F.3d
922, 923 (9th Cir. 2009) (“Although neither party raised the
issue of our jurisdiction to entertain this appeal, we have a
duty to consider it sua sponte.”). We asked the parties to
address at oral argument our jurisdiction to hear this appeal.
In response to our request, the government now asks that we
dismiss this appeal because the district court’s decision was
not final for purposes of conferring jurisdiction under
28 U.S.C. § 1291. We agree.

    Under the final judgment rule embodied in 28 U.S.C.
§ 1291, the courts of appeals have jurisdiction over appeals
from all final decisions of the district courts of the United
States. Couch v. Telescope Inc., 611 F.3d 629, 632 (9th Cir.
2010). The United States Supreme Court has affirmed the

    1
       Galaza was not required to seek the district court’s permission to
voluntarily dismiss these claims, because the government never served
an answer or a motion for summary judgment. Fed. R. Civ. P.
41(a)(1)(A)(i). The district court clerk, however, initially rejected the
notice of voluntary dismissal, and it was refiled the next day. The reason
for the clerk’s action is unclear from the record, because the two notices
are identical. To the extent that the clerk’s action in rejecting the initial
notice of voluntary dismissal may have created a further issue by
rendering premature Galaza’s notice of appeal, that separate prematurity
issue was eliminated when the second notice of voluntary dismissal was
filed a day later. See Anderson v. Allstate Ins. Co., 630 F.2d 677, 680–
81 (9th Cir. 1980).
                           GALAZA V. WOLF                                  7

general rule that “the whole case and every matter in
controversy in it [must be] decided in a single appeal.”
Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1712 (2017)
(quoting McLish v. Roff, 141 U.S. 661, 665–66 (1891))
(alteration in original) (internal quotation marks omitted).

    Though there was no separate judgment entered by the
district court, we have previously ruled that a Rule 41(a)(1)
voluntary dismissal of all remaining claims with prejudice
can potentially act in some circumstances to create an
appealable final judgment under 28 U.S.C. § 1291. See
Concha v. London, 62 F.3d 1493, 1506–09 (9th Cir. 1995).
We have also ruled that a “voluntary dismissal without
prejudice is ordinarily not a final judgment from which the
plaintiff may appeal.” Id. at 1507.

    There is an exception to this general principle, as
established in James v. Price Stern Sloan, Inc., 283 F.3d
1064 (9th Cir. 2002). 2 In James, the district court granted
the plaintiff’s motion to dismiss her remaining claims so that
she could pursue an appeal after the district court had granted
partial summary judgment dismissing the majority of her
claims. Id. at 1065. Although the dismissal was without
prejudice, we determined the judgment was final and
appealable in this circumstance because: 1) there was no
evidence of any attempt to manipulate appellate jurisdiction;
and 2) the plaintiff had sought the district court’s permission
to dismiss the remaining claims. Id. at 1066–68. For these
reasons, we held that “when a party that has suffered an
    2
       We have also found that in limited circumstances it is proper for
us to treat a dismissal without prejudice as a dismissal with prejudice, if
it is consistent with the clear intent of the district court and the parties.
See Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d
738, 750 (9th Cir. 2008); Concha, 62 F.3d at 1508–09. There is no such
clear intent in this case.
8                     GALAZA V. WOLF

adverse partial judgment subsequently dismisses remaining
claims without prejudice with the approval of the district
court, and the record reveals no evidence of intent to
manipulate our appellate jurisdiction, the judgment entered
after the district court grants the motion to dismiss is final
and appealable under 28 U.S.C. § 1291.” Id. at 1070.

    We subsequently clarified that James had carved out “an
exception to the general rule that ‘[i]n the absence of [a Rule
54] determination and direction [from the court of an entry
of a final judgment], any order or other form of decision,
however designated, which adjudicates fewer than all the
claims . . . shall not terminate the action as to any of the
claims[.]’” Am. States Ins. Co. v. Dastar Corp., 318 F.3d
881, 888–89 (9th Cir. 2003) (quoting Fed. R. Civ. P. 54(b))
(alterations in original). Any interpretation otherwise
“would undermine Rule 54(b) and add uncertainty to the
final judgment rule.” Id. at 889.

    In American States Insurance Company, we found no
jurisdiction to consider an appeal because 1) both parties had
attempted to create appellate jurisdiction through
manipulation; and 2) the district court did not meaningfully
participate in the voluntary dismissal of all remaining claims
after granting partial summary judgment. Id. at 885–89. We
noted that “the active involvement of the district court . . .
would have empowered the district court to manage the
development of this action, thereby facilitating efficiency[]
[and] avoiding this premature appeal.” Id. at 889.

     Here, we are presented with a situation where there is no
overt record evidence of any attempt to manufacture
appellate jurisdiction through manipulation. Both parties at
oral argument claimed no intent to do so. Galaza’s counsel
stated during oral argument that, although Galaza had
initially dismissed her race and sex discrimination claims
                      GALAZA V. WOLF                         9

without prejudice in the hope that the exhaustion issue might
be resolved, Galaza now has no intention of refiling these
claims. It appears that the decision to voluntarily dismiss
Galaza’s remaining Title VII claims without prejudice,
versus with prejudice, was made without awareness of the
potential effects on this court’s jurisdiction.

    What is clear from the record is that there was no
meaningful district court participation in Galaza’s voluntary
dismissal of all remaining claims after the district court
denied the government’s motion to dismiss the first amended
complaint and Galaza’s motion for reconsideration. Because
Galaza never requested an entry of partial final judgment
under Rule 54(b), the district court was not informed in
advance that Galaza had any intent to appeal the dismissal of
her Rehabilitation Act claim, or that Galaza had any intent
to voluntarily dismiss her remaining claims to seek appellate
review.

    Both parties raised issues at oral argument that illustrate
the importance of district court involvement in resolving
whether a case is ripe for review. Galaza’s counsel argued
that as a practical matter, the dismissal of the race and sex
discrimination claims is now effectively with prejudice
because the statute of limitations has since expired for
Galaza’s Title VII race and sex discrimination claims.
Dismissal with prejudice would make the dismissal
potentially appealable. See Ward v. Apple Inc., 791 F.3d
1041, 1045 (9th Cir. 2015) (“We have repeatedly recognized
that voluntary dismissals with prejudice that produce an
adverse final judgment may be appealed.”). While it is true
that “subsequent events can validate a prematurely filed
appeal,” Anderson, 630 F.2d at 681, Galaza’s argument
overlooks the well-settled rule that entry of a final judgment
by the district court is still needed to make appealable an
10                   GALAZA V. WOLF

order that otherwise would have been non-final, see, e.g.,
Cato v. Fresno City, 220 F.3d 1073, 1074–75 (9th Cir.
2000); Eastport Assocs. v. City of Los Angeles, 935 F.2d
1071, 1075 (9th Cir. 1991); Anderson, 630 F.2d at 681. If
Galaza wanted to appeal the dismissal of her Rehabilitation
Act claim while she kept her race and sex discrimination
claims alive, she needed the district court’s permission to do
so. See Fed. R. Civ. P. 54(b); see also Am. States Ins. Co.,
318 F.3d at 888–89.

    The government in turn argued that there is a question
regarding whether Galaza’s retaliation claim remains active
in light of the district court’s failure to separately address
that claim in its order denying the government’s motion to
dismiss the first amended complaint. A literal reading of the
relevant record suggests that the retaliation claim is still
pending: because the district court did not separately
mention that claim, the court’s denial of the government’s
motion to dismiss in toto without prejudice presumably
extended to that claim.

    All these arguments ultimately pertain to whether an
appeal of a potential non-final order or judgment should be
allowed. This court has regularly expressed that a district
court’s involvement in the voluntary dismissal of a
plaintiff’s claims carries substantial weight in determining
whether appellate jurisdiction is proper. In James, the
district court’s participation in the dismissal of the claims
without prejudice allowed the district court to review the
plaintiff’s reasons for seeking dismissal, thus allowing the
district court in effect to make “a determination that its
adjudication of those claims was ripe for review[.]”
283 F.3d at 1069. In American States Insurance Company,
because the district court was not involved when the parties
filed a stipulation to dismiss a claim without prejudice, we
                       GALAZA V. WOLF                          11

noted that “[b]y circumventing the district court’s
involvement, even for practical considerations, parties do
not make judgments final. They merely eliminate the district
court’s gate-keeping role and unnecessarily increase [the
appellate court’s] own tasks.” 318 F.3d at 889–90.

    Despite the lack of evidence of any attempt to
manufacture appellate jurisdiction through manipulation, the
circumstances of this case emphasize the need for district
court involvement in this sort of dismissal so that the district
court can offer a “clear indication of finality[,]” which would
avoid “confus[ing] the parties and the public.” Id. at 889. In
this case, the procedural posture indicates that the district
court did not intend to enter a final judgment and that the
retaliation claim is still before the district court. Either
circumstance would be sufficient to warrant dismissal of the
appeal. Though Rule 41(a)(1) may not have required Galaza
to seek permission of the court to voluntarily dismiss her
remaining claims, the district court’s involvement was
needed to establish whether that dismissal would produce a
final, appealable judgment or order. We therefore hold that
when a party that has suffered an adverse partial judgment
subsequently dismisses any remaining claims without
prejudice, and does so without the approval and meaningful
participation of the district court, this court lacks jurisdiction
under 28 U.S.C. § 1291.

    Thus, this appeal is DISMISSED for lack of appellate
jurisdiction.
12                   GALAZA V. WOLF

PAEZ, Circuit Judge, concurring in the judgment:

    I agree with the majority that we lack subject-matter
jurisdiction over Galaza’s appeal, but I reach this
determination on a narrower ground.

    There are two hurdles Galaza must clear to establish that
the dismissal of her Rehabilitation Act disability
discrimination claim is a final, appealable judgment under
28 U.S.C. § 1291: her unresolved Title VII retaliation claim,
and her voluntary dismissal without prejudice of her Title
VII race and gender claims under Federal Rule of Civil
Procedure 41(a)(1)(A)(i). The majority concludes we lack
subject-matter jurisdiction because the pending retaliation
claim precludes a final judgment and the “district court’s
involvement was needed” to establish whether Galaza’s
voluntary dismissal resulted in an appealable final judgment.
See Maj. Op. 4, 11.

    I agree that Galaza fails to cross the first hurdle. Her
outstanding retaliation claim prevents the court’s dismissal
of the Rehabilitation Act claim from being designated as a
final judgment under 28 U.S.C. § 1291. I disagree that
Galaza’s voluntary dismissal cannot be construed as one
with prejudice for purposes of establishing a final judgment;
but, because Galaza’s pending retaliation claim alone
forecloses subject-matter jurisdiction, I would not reach the
issue.

    After a district court rules on a dismissal or summary-
judgment motion, a plaintiff may voluntarily dismiss her
remaining claims without prejudice under Rule
41(a)(1)(A)(i). Such a dismissal, however, will ordinarily
not result in a final judgment a plaintiff may appeal. See
Coursen v. A.H. Robins Co., Inc., 764 F.2d 1329, 1342 (9th
Cir. 1985), corrected, 733 F.2d 1049. As this case
                       GALAZA V. WOLF                          13

demonstrates, when the district court dismisses or grants
summary judgment on fewer than all the plaintiff’s claims
and the plaintiff dismisses her remaining claims in order to
appeal the dismissal or partial summary judgment order, the
finality of the court’s partial judgment is called into question.
Allowing the plaintiff to immediately appeal the partial order
would fragment the litigation and prevent the case from
being reviewed in one proceeding. See Premium Serv. Corp.
v. Sperry & Hutchinson Co., 511 F.2d 225, 228 (9th Cir.
1975).

    But we have adopted a “pragmatic evaluation of
finality,” Am. States Ins. Co. v. Dastar Corp., 318 F.3d 881,
890 (9th Cir. 2003), and carved out exceptions under which
voluntary dismissals without prejudice can effectively result
in final decisions under section 1291, see James v. Price
Stern Sloan, Inc., 283 F.3d 1064, 1068 (9th Cir. 2002).
These exceptions still require “sufficient prejudice in a legal
sense,” Coursen, 764 F.2d at 1342, or, some assurance that
no part of the plaintiff’s claim will remain in the district court
and create a risk of piecemeal appeals of the same case. See
Anderson v. Allstate Ins. Co., 630 F.2d 677, 681 (9th Cir.
1980).

    In Concha v. London, we held that the plaintiffs’
voluntary dismissal without prejudice of their claims was a
final, appealable judgment under 28 U.S.C. § 1291 because
the parties had entered into a stipulation that assured us the
plaintiffs intended to dismiss their claims with prejudice.
62 F.3d 1493, 1508–09 (9th Cir. 1995). The parties had
agreed that if the district court denied the plaintiffs’ motion
to remand the case to state court, the plaintiffs would dismiss
their complaint while preserving “any and all appeal rights
in the state action.” Id. at 1505. This stipulation, we
explained, made clear that the parties “intended that the
14                    GALAZA V. WOLF

Conchas be afforded the right to appeal the denial of the
motion to remand,” an intention which could be
accomplished only through a dismissal with prejudice. Id.
at 1508.

    In James, we echoed the reasoning in Concha and held
that the plaintiff’s voluntary dismissal of her remaining
claims rendered the district court’s partial grant of summary
judgment an appealable order. 283 F.3d at 1066–70. We
explained that James’s reasons for seeking dismissal of her
remaining claims “seem[ed] entirely legitimate,” and the
district court had actively participated in the dismissal
because it was brought under Rule 41(a)(2), not 41(a)(1). Id.
at 1068. Although James could theoretically resurrect her
dismissed claims at a later date, by dismissing her claims she
“assume[d] the risk that, by the time the case returns to
district court, the claim will be barred by the statute of
limitations or laches.” Id. at 1066.

    We have continued to construe voluntary dismissals
without prejudice under Rule 41(a)(1) as being with
prejudice where it is clear that is what the parties intended.
See, e.g., Robertson v. Dean Witter Reynolds, Inc., 749 F.2d
530, 533 (9th Cir. 1984); Romoland Sch. Dist. v. Inland
Empire Energy Ctr., LLC, 548 F.3d 738, 746–51 (9th Cir.
2008). We do not have jurisdiction, as the majority notes,
over appeals where the appealing party acted contrary to the
express intent or instruction of the district court, see Fletcher
v. Gagosian, 604 F.2d 637, 638–39 (9th Cir. 1979), or where
the parties intended to preserve the possibility of re-filing
their dismissed claims at a later date, see Dannenberg v.
Software Toolworks Inc., 16 F.3d 1073, 1074–75 (9th Cir.
1994); Cheng v. C.I.R., 878 F.2d 306, 311 (9th Cir. 1989).

    There are clear indications Galaza intended her dismissal
of the race and gender claims to be final. She effectively
                      GALAZA V. WOLF                         15

conceded in the district court she failed to administratively
exhaust these claims and did not indicate she had returned to
the EEOC, risking them being barred by the statute of
limitations or foreclosed by laches. See James, 283 F.3d
at 1066; see also 42 U.S.C. § 2000e-5(e). She did not
structure an agreement or otherwise attempt to preserve her
rights to re-file these claims in the district court. See James,
283 F.3d at 1066. And although the district court did not
actively participate in the dismissal of her remaining claims,
she did not act contrary to the court’s instructions. She
appears to have dismissed the remaining claims in order to
pursue an appeal of the Rehabilitation Act claim. See id.
at 1069. Galaza’s voluntary dismissal under Rule 41(a),
then, is likely effectively “with prejudice” under Concha and
the cases that follow it. For these reasons—had the
retaliation claim been formally dismissed, either by Galaza
or the district court—the order dismissing her Rehabilitation
Act claim would likely be final for purposes of our
jurisdiction under section 1291.

     But, because I agree that Galaza’s outstanding retaliation
claim forecloses any possibility that the district court’s
dismissal order is a final judgment disposing of the entire
litigation, I agree with the court’s judgment dismissing this
appeal for lack of jurisdiction. I would not reach whether
Galaza’s voluntary dismissal also precludes our jurisdiction.
Therefore, I concur only in the judgment.
16                    GALAZA V. WOLF

COLLINS, Circuit Judge, concurring:

    I concur in Judge Choe-Groves’ majority opinion, which
correctly holds that we lack jurisdiction over Galaza’s appeal
of the dismissal of her Rehabilitation Act claim because
(1) Galaza failed to formally dismiss her separate retaliation
claim (which the parties agreed should be dismissed with
prejudice), and (2) she filed her appeal without first
obtaining the “approval and meaningful participation of the
district court” in the dismissal of her remaining race and sex
discrimination claims without prejudice. See Majority
Opinion at 11. I write briefly to respond to Judge Paez’s
concurrence, which takes issue with the second holding.

    According to Judge Paez, Galaza’s voluntary dismissal
of her race and sex discrimination claims without prejudice
probably presents no jurisdictional obstacle because this
case “likely” falls within a line of authority in which we have
“construe[d] voluntary dismissals without prejudice under
[Federal] Rule [of Civil Procedure] 41(a)(1) as being with
prejudice where it is clear that is what the parties intended.”
See J. Paez Concurrence at 14–15 (emphasis added). The
suggestion that Galaza clearly intended a with-prejudice
dismissal of these claims rests on the premise that Galaza
“effectively conceded in the district court she failed to
administratively exhaust these claims and did not indicate
she had returned to the EEOC, risking them being barred by
the statute of limitations or foreclosed by laches.” See id.
at 14–15. However, both the premise and the conclusion of
this argument are wrong. Galaza never conceded in the
district court that her race and sex discrimination claims
were unexhausted. And nothing about the objective record
provides the requisite “unambiguous evidence” that
Galaza’s dismissal, at the time it was filed, was intended to
be with prejudice. Romoland Sch. Dist. v. Inland Empire
                      GALAZA V. WOLF                         17

Energy Ctr., LLC, 548 F.3d 738, 751 (9th Cir. 2008); see
also Concha v. London, 62 F.3d 1493, 1509 (9th Cir. 1995)
(recharacterizing without-prejudice dismissal as with
prejudice when it was “clear” from the record that that was
the effect the parties “intended the dismissal to have”).

     The course of the litigation up to the time of Galaza’s
voluntary dismissal refutes any suggestion that Galaza
effectively conceded that she had failed to administratively
exhaust her race and sex discrimination claims. Far from
conceding the exhaustion point, Galaza expressly opposed
the Government’s request for dismissal of those claims for
lack of exhaustion; she conceded only that her retaliation
claim had not been exhausted. Moreover, the Government
itself initially conceded in connection with its first motion to
dismiss that the sex discrimination claim had been
exhausted, and only in its subsequent motion to dismiss did
it argue that both the race and sex discrimination claims were
unexhausted. Galaza, however, opposed that second motion
to dismiss these claims and did so successfully: the district
court denied that motion as inadequately supported. In doing
so, the court ordered the parties to undertake a brief period
of discovery addressed to the exhaustion issue, after which
the Government could file a further motion to dismiss if
warranted. Shortly thereafter, Galaza dismissed her race and
sex discrimination claims without prejudice and filed an
appeal of the dismissal of her Rehabilitation Act claim.
Accordingly, at the time of that voluntary dismissal, Galaza
had      consistently—and       successfully—opposed         the
Government’s arguments that her race and sex
discrimination claims were unexhausted. On this record, the
suggestion that Galaza had “effectively conceded in the
district court she failed to administratively exhaust these
claims,” see J. Paez Concurrence at 14–15, is inaccurate.
18                    GALAZA V. WOLF

    Other features of the objective record further negate any
suggestion that Galaza actually meant to abandon her race
and sex discrimination claims with prejudice. Because the
district court left the parties free to conduct whatever
discovery or other inquiry was necessary to resolve the
exhaustion issue, nothing about the subsequent without-
prejudice dismissal required Galaza or the Government to
cease their own efforts to examine the underlying facts
concerning exhaustion. The posture of the case, as framed
by Galaza, thus created a clear opportunity for her to pursue
an interlocutory appeal of the dismissal of the Rehabilitation
Act claim—without the district court’s permission—while
simultaneously reviewing the available records on the issue
of exhaustion and assessing whether these claims could
survive a future renewed motion to dismiss. This objective
opportunity to attempt a two-track litigation strategy further
negates any suggestion that, from the outset, Galaza intended
her without-prejudice dismissal to actually be with
prejudice. Indeed, at the oral argument in this case, Galaza’s
counsel acknowledged that Galaza had hoped that the
exhaustion issue might be satisfactorily resolved after the
dismissal.     See Majority Opinion at 8–9.               This
acknowledgement simply confirmed what is already
apparent from the district court record: Galaza’s without-
prejudice dismissal did not represent a definitive
abandonment of her race and sex discrimination claims. We
therefore cannot recharacterize that dismissal as having been
intended to be with prejudice.

    It makes no difference that, as Judge Paez notes, Galaza
“appears to have dismissed the remaining claims in order to
pursue an appeal of the Rehabilitation Act claim.” See
J. Paez Concurrence at 15. Indeed, to allow that fact by itself
to support recharacterizing a without-prejudice dismissal as
a with-prejudice dismissal would effectively eliminate the
                      GALAZA V. WOLF                          19

well-settled rule—acknowledged by Judge Paez’s
concurrence—that a plaintiff’s dismissal of his or her
remaining claims without prejudice “will ordinarily not
result in a final judgment a plaintiff may appeal.” See J. Paez
Concurrence at 12; see also Concha, 62 F.3d at 1507 (“A
voluntary dismissal without prejudice is ordinarily not a final
judgment from which the plaintiff may appeal.”). If a
without-prejudice dismissal followed by an appeal were
enough to convert the dismissal into a with-prejudice
dismissal, then the ordinary rule would never apply. Here,
the objective possibility that Galaza was trying to take an
unauthorized interlocutory appeal without abandoning her
remaining claims is affirmatively a reason to apply the
ordinary rule.

    In all events, there is no basis in this record for
concluding that it is “clear,” Concha, 62 F.3d at 1509, or
“unambiguous,” Romoland, 548 F.3d at 751, that Galaza
actually intended to dismiss her race and sex discrimination
claims with prejudice at the time that they were dismissed.
If anything, the record is clear that this was not Galaza’s
intent. But if there were any doubts on this score, we would
have to resolve them in favor of leaving undisturbed
Galaza’s express designation of her dismissal of these claims
as being “without prejudice.”

    Finally, as the majority opinion correctly notes, the fact
that Galaza now has effectively abandoned her race and sex
discrimination claims does not retroactively create appellate
jurisdiction over her unauthorized appeal. See Majority
Opinion at 9–10. The ability to recharacterize a without-
prejudice dismissal as being a with-prejudice dismissal
applies only if it is clear at the time of dismissal that that is
what was intended. Romoland, 548 F.3d at 747–51; Concha,
62 F.3d at 1506–09. By contrast, we have never allowed a
20                       GALAZA V. WOLF

party, who objectively kept his or her options open while
pursuing an unauthorized appeal, to later invoke a change of
heart as a basis for subsequently validating such an appeal.

    For all of these reasons, Judge Paez is wrong in
suggesting that Galaza’s voluntary dismissal of her race and
sex discrimination claims without prejudice presents no
jurisdictional obstacle to us in this case. Rather, on this
record, it is the principal obstacle to our jurisdiction. 1 I
therefore concur in Judge Choe-Groves’ opinion in full.




     1
      By contrast, Galaza’s failure to realize that her retaliation claim
was technically still pending is a jurisdictional defect of the most
formalist sort. While I agree that this defect should be cured as well
before Galaza pursues any subsequent appeal in this case, see Majority
Opinion at 11, that defect—unlike Galaza’s dismissal of the race and sex
discrimination claims without prejudice—reflects an inadvertent failure
to formally implement the unambiguous and clear intent of Galaza (and
the Government) that this claim be dismissed with prejudice.
