Mandate Means With Prejudice: Fourth Circuit Requires District Courts to Dismiss—Not Re‑Plead—Claims After Appellate Immunity Rulings

Introduction

This commentary examines the Fourth Circuit’s December 3, 2024 decision in R.A., Individually, and as lawful guardian ad litem of Minor Child G.A. v. McClenahan, Cloer, Lesane, and Brady Johnson (Nos. 24-1008, 24-1009), authored by Judge Wilkinson and joined by Judges King and Thacker. The opinion squarely enforces the mandate rule: when the appellate court reverses and directs dismissal of claims, the district court must dismiss with prejudice unless the appellate mandate expressly provides otherwise or an extraordinary exception applies.

The case arises from allegations that a special education teacher, Robin Johnson, physically and emotionally mistreated a first- and second-grade student, G.A., and that school officials negligently failed to intervene. In an earlier appeal, the Fourth Circuit held the school officials were protected by North Carolina public official immunity because the complaint failed to plausibly allege “malice” as defined by North Carolina law, and it directed that the state-law claims “must thus be dismissed.” On remand, however, the district court permitted an amended complaint—reasserting the same negligence claims—with additional details drawn from police records about other parental complaints against the teacher. The officials appealed again.

The Fourth Circuit reversed, reiterating that its prior mandate required dismissal with prejudice and that neither a concurring footnote nor cumulative “new” allegations could justify a different result. The court declined to revisit the merits of immunity, deciding the appeal solely on the mandate rule and the default operation of Federal Rule of Civil Procedure 41(b).

Summary of the Opinion

The court held that:

• The district court violated the mandate rule by allowing the state-law negligence claims against the school officials to proceed after the Fourth Circuit had already held those officials were entitled to public official immunity and directed that the claims “must thus be dismissed.”
• Under Rule 41(b), a dismissal “for failure to state a claim” is with prejudice unless the court specifically states otherwise or the dismissal is for lack of jurisdiction, improper venue, or failure to join a party. The prior dismissal here was on the merits, not jurisdictional; the mandate did not authorize dismissal without prejudice; therefore, dismissal had to be with prejudice.
• A concurring opinion’s footnote suggesting the possibility of dismissal without prejudice does not modify the majority’s binding mandate. Only the majority opinion governs.
• No “extraordinary circumstances” justified departure from the mandate. The plaintiff’s additional allegations (other parents’ reports) were cumulative and not “significant new evidence” unobtainable with due diligence. The district court did not make findings that would support any exception, and, on this record, the exception was inapplicable.

Result: The judgment is reversed again, with instructions that the state-law claims against the school officials be dismissed with prejudice in accordance with the prior mandate.

Analysis

Precedents Cited and Their Influence

• R.A. v. Johnson, 36 F.4th 537 (4th Cir. 2022): The court’s earlier decision established that North Carolina public official immunity barred the negligence claims because the complaint did not plausibly allege “malice” (defined as intending to be prejudicial or injurious). That ruling deemed the officials “entitled to immunity” and directed that the state-law claims “must thus be dismissed.” This mandate controlled on remand and framed the entire 2024 appeal.
• DOE v. CHAO, 511 F.3d 461 (4th Cir. 2007) and United States v. Bell, 5 F.3d 64 (4th Cir. 1993): These cases articulate the mandate rule: a district court must implement the letter and spirit of the appellate mandate, subject only to narrow, extraordinary exceptions (e.g., dramatic change in controlling law, significant new evidence not previously obtainable with due diligence, or clear error causing serious injustice).
• INVENTION SUBMISSION CORP. v. DUDAS, 413 F.3d 411 (4th Cir. 2005): When the appellate court orders dismissal, the district court is “not free to do anything else but to dismiss.” This underscores the nonnegotiable nature of the earlier directive.
• Federal Rule of Civil Procedure 41(b), construed in Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001), OSTRZENSKI v. SEIGEL, 177 F.3d 245 (4th Cir. 1999), and PAYNE EX REL. ESTATE OF CALZADA v. BRAKE, 439 F.3d 198 (4th Cir. 2006): A dismissal is with prejudice—an “adjudication on the merits”—unless the court states otherwise or the dismissal is for lack of jurisdiction, improper venue, or failure to join a party. Here, the prior dismissal was for failure to state a claim on substantive immunity grounds, so the default is with prejudice.
• COSTELLO v. UNITED STATES, 365 U.S. 265 (1961): Clarifies that the Rule 41(b) exceptions (jurisdiction, venue, joinder) cover initial procedural bars preventing the court from reaching the merits. The earlier immunity ruling was merits-based, not an “initial bar.”
• BELL v. HOOD, 327 U.S. 678 (1946) and Brownback v. King, 592 U.S. 209 (2021): Support that dismissals based on failure to state a claim—i.e., a conclusion that the plaintiff has no cause of action under substantive law—are merits determinations.
• Carter v. Norfolk Community Hospital Ass’n, Inc., 761 F.2d 970 (4th Cir. 1985): Illustrates that when an appellate court intends to leave discretion to dismiss with or without prejudice, it says so expressly. The earlier R.A. mandate did not do this.
• BAILEY v. KENNEDY, 349 F.3d 731 (4th Cir. 2003): Confirms the immediate appealability of denials of official immunity under North Carolina law, emphasizing that such immunity protects from suit, not merely from liability.
• Grad v. Kaasa, 312 N.C. 310 (1984): Provides the state-law definition of “malice” for piercing public official immunity: intent to be prejudicial or injurious.
• Carmody v. Board of Trustees of the University of Illinois, 893 F.3d 397 (7th Cir. 2018) (persuasive authority): Shows a similarly strict view of “new evidence” that merely amplifies an already-rejected theory without materially changing the case.
• Ashcroft v. Iqbal, 556 U.S. 662 (2009): Quoted for the substantial costs of litigation, reinforcing that immunity protects officials from the burdens of the litigation process itself.
• Richard A. Posner, The Federal Courts: Quoted to underline systemic concerns with proliferating appeals and the importance of finality and hierarchy in judicial administration.

Legal Reasoning

The Fourth Circuit’s reasoning proceeds in three steps:

1) The district court violated the mandate

The prior appellate decision held the officials were “entitled to immunity” and directed that the state-law claims “must thus be dismissed.” That disposition left no room for repleading the same claims against the same defendants. Under Invention Submission Corp., a district court ordered to dismiss is not free to do anything else. The court emphasized that the mandate required dismissal, and, given Rule 41(b), the default is dismissal with prejudice unless the mandate or rules say otherwise—which they did not.

2) Rule 41(b) required dismissal with prejudice in these circumstances

Rule 41(b) deems a dismissal an “adjudication on the merits” (i.e., with prejudice) except for dismissals based on lack of jurisdiction, improper venue, or failure to join a party, or when the court explicitly states otherwise. Costello clarifies those enumerated exceptions as “initial bars,” not merits rulings. The earlier appeal resolved a merits question—whether the complaint stated a claim in light of public official immunity—and concluded it did not, because “malice” was not plausibly alleged under North Carolina law. BELL v. HOOD and Brownback confirm that such a determination is merits-based. Because the prior mandate did not empower the district court to dismiss without prejudice, the default presumption controls.

The court rejected the district court’s suggestion that a concurring footnote (proposing dismissal without prejudice) created discretion to do so. Separate opinions cannot modify the mandate set by the majority; within the case, only the majority opinion binds and supplies precedential force.

3) No “extraordinary circumstances” justified deviating from the mandate

Under United States v. Bell, deviation from a mandate is allowed only in extraordinary circumstances, such as a dramatic change in controlling law, significant new evidence previously unobtainable with due diligence, or a clear error that would result in serious injustice. The district court did not invoke the exception or make the requisite findings, and the Fourth Circuit concluded the record would not support it in any event.

The plaintiff’s “new evidence” consisted largely of additional parental complaints about the teacher’s misconduct. But the original complaint already alleged that officials were aware of abuse. The new allegations merely added volume to the same theory (failure to investigate and report despite knowledge), not a qualitatively different claim. Such cumulative amplification does not amount to “significant” new evidence that would justify reopening issues already decided on appeal. Moreover, because public official immunity is an immunity from suit, the appellate court had already stressed that continued litigation itself is the harm immunity is designed to prevent. Allowing repleading on “more of the same” would gut that protection.

Impact and Implications

• Mandate enforcement tightened: District courts within the Fourth Circuit must treat appellate directives to “dismiss” as requiring dismissal with prejudice unless the mandate expressly says otherwise or a qualifying Rule 41(b) exception applies. Courts cannot infer leave to replead from concurring opinions or silence.
• Narrow “new evidence” path: Parties cannot evade an unfavorable mandate by adding cumulative details. To qualify as an “extraordinary circumstance,” new evidence must materially change the case and must not have been obtainable earlier with due diligence, and the district court must make specific findings to that effect.
• Reaffirmed strength of public official immunity: Treating public official immunity as “immunity from suit, not merely from liability” ensures that officials are spared the burdens of discovery and trial once immunity is determined. This decision reinforces the procedural shield by foreclosing post-mandate repleading of the same claims.
• Litigation strategy recalibrated: Plaintiffs who lose on immunity or comparable merits grounds on appeal should seek rehearing or certiorari rather than attempting to relitigate the same claims on remand. If genuinely transformative evidence emerges, the proper approach is to seek appropriate relief consistent with the mandate rule’s exceptions—and to support it with concrete, noncumulative showings.
• Appellate clarity matters: Appellate panels wishing to leave room for dismissal without prejudice must say so explicitly. Absent such direction, Rule 41(b)’s default applies.
• Judicial administration and finality: The opinion underscores systemic concerns—rising caseloads, the dangers of serial appeals, and the need for finality. The ruling aims to prevent “two or more appeals” from a single lawsuit simply because the mandate is resisted through iterative amendments.

Complex Concepts Simplified

• Mandate rule: Once an appellate court decides an issue and sends the case back, the district court must follow both the explicit instructions and the underlying rationale. It cannot revisit settled issues unless a narrow exception applies.
• Dismissal with prejudice vs. without prejudice:
  • With prejudice: The claim is terminated on the merits and cannot be refiled in the same court; it carries significant preclusion effects.
  • Without prejudice: The claim is dismissed for a reason that does not adjudicate the merits (e.g., lack of jurisdiction), allowing refiling.
  • Rule 41(b) default: Unless the court says otherwise, a dismissal for failure to state a claim is with prejudice.
• Immunity from suit vs. immunity from liability:
  • Immunity from suit protects a defendant from the burdens of litigation itself, not just from a final judgment. That is why denials of immunity often are immediately appealable.
• Public official immunity (North Carolina law):
  • Protects officials performing discretionary acts within the scope of their authority unless they act with malice (or corruption or outside scope).
  • “Malice” requires an intent to be prejudicial or injurious to another. Reckless indifference or negligence is not enough.
• “Extraordinary circumstances” exception to mandate rule:
  • Narrowly confined to rare situations: intervening change in controlling law, significant new evidence previously unobtainable with due diligence, or clear error causing serious injustice.
  • Cumulative, marginally stronger allegations do not suffice.
• Effect of concurring opinions:
  • Concurrences can be persuasive but do not define the binding mandate. Only the majority opinion controls in the case.

Practical Guidance

• For district judges:
  • Read the mandate closely. If the appellate court orders dismissal and does not specify “without prejudice,” dismiss with prejudice under Rule 41(b).
  • Do not rely on separate opinions to modify the mandate.
  • If a party invokes a mandate-rule exception, make explicit findings on novelty, significance, and prior unavailability of evidence, and explain why the exception applies.
• For plaintiffs:
  • After an adverse appellate ruling directing dismissal, the available routes are rehearing or certiorari—not repleading the same claim with incremental details.
  • If genuinely transformative, previously unobtainable evidence arises, present it through the proper procedural vehicle and be prepared to show why it qualifies as “extraordinary.”
• For defendants (especially public officials):
  • Invoke the mandate rule promptly if a district court entertains repleading after an appellate dismissal.
  • Emphasize the “immunity from suit” principle to forestall discovery and trial burdens inconsistent with the appellate mandate.

What This Decision Does—and Does Not—Do

• Does:
  • Require dismissal with prejudice of the state-law negligence claims against the school officials in this case, consistent with the 2022 mandate.
  • Reinforce strict compliance with appellate mandates and Rule 41(b)’s default rule.
  • Constrain use of the “new evidence” exception to genuinely extraordinary circumstances.
• Does not:
  • Revisit or alter the substantive North Carolina malice standard or the prior immunity holding.
  • Speak to claims or defendants not at issue in this appeal.
  • Authorize district courts to draw mandate flexibility from concurring opinions.

Conclusion

The Fourth Circuit’s decision is a firm restatement of core tenets of appellate procedure and civil practice. Once the court of appeals decided in 2022 that public official immunity barred the negligence claims and directed that they “must thus be dismissed,” the district court’s task was to dismiss—nothing more. Rule 41(b) solidifies the default that such a merits dismissal is with prejudice unless expressly stated otherwise. The opinion also trims attempts to reopen closed issues by branding cumulative allegations as “new evidence,” and it cautions against treating concurrences as if they could modify a majority mandate.

Beyond the parties, the ruling protects the institutional values of finality, hierarchy, and judicial economy. It strengthens the practical force of immunities designed to shield public officials from the burdens of litigation and ensures that appellate mandates remain commands, not suggestions. The key takeaway is crisp: when an appellate court says “dismiss,” district courts must dismiss with prejudice unless the mandate or the rules unmistakably point to a different outcome—and only truly extraordinary circumstances can justify any deviation.