You know that you don’t have a live appeal unless you have an appealable order. And you don’t have an appealable order unless the order is a final decision under 28 U.S.C. § 1291 or an order that allows an interlocutory appeal. You can ask the district court to certify an order for interlocutory appeal, but if the court declines then you’re left with few options. One option you don’t have—as the Fourth Circuit has now reminded us—is to voluntarily dismiss your claims then appeal the order dismissing your claims.

Erin Keena sued the coupon clearinghouse Groupon after receiving a refund that she could only use to buy more Groupon goods and services. Groupon responded by noting that Keena had agreed to arbitrate any disputes with Groupon when she signed up for Groupon. The Western District of North Carolina ordered arbitration.

Keena decided that the costs of arbitration outweighed the possible recovery; she moved to amend the arbitration order so that it would dismiss her complaint with prejudice (and, in the alternative, asked for certification of an interlocutory appeal). The district court assented to Keena’s request and dismissed her complaint but declined to certify the order for interlocutory appeal. Then Keena appealed.

The Fourth Circuit dismissed Keena’s appeal for lack of jurisdiction. While Keena’s appeal was pending, the U.S. Supreme Court held that a voluntary dismissal did not create a final decision as required by Section 1291. After the Supreme Court’s decision, the Fourth Circuit requested supplemental briefing; Groupon argued there was no difference between the appeal rejected by the Supreme Court and Keena’s appeal. The Fourth Circuit agreed.

The Fourth Circuit held that allowing a plaintiff to voluntarily dismiss a complaint just to secure a final, appealable decision would usurp the Court of Appeals’ authority to decide what interlocutory orders it allows as appeals. And “the final-judgment rule will not tolerate that effort.” The “tactic also fails to account for the longstanding principle that a party is not entitled to appeal from a consensual dismissal of her claims.” (And if you think standing might be an issue here then you’re not alone: The Supreme Court decision that resolved Keena’s attempted appeal was 5-3, with the minority concurring in dismissal on just that basis).

Read the Fourth Circuit’s opinion here.