                                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

                                              21
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

                                                  22
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

                                             23
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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