Shanique Perez v. Kipp Dc Supporting Corporation, Doing Business As Kipp Dc Shaw Qalicb, Inc., Doing…

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 21, 2022 Decided June 13, 2023
No. 22-7021
SHANIQUE PEREZ,
APPELLANT
v.
KIPP DC SUPPORTING CORPORATION, DOING BUSINESS AS
KIPP DC SHAW QALICB, INC., DOING BUSINESS AS KIPP DC
DOUGLAS QALICB, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-00929)
Christina Graziano argued the cause and filed the brief for
appellant.
Gregory G. Marshall argued the cause for appellee Kipp
DC Supporting Corporation. With him on the brief was Erin K.
Sullivan.
John D. McGavin and Emily Blake were on the brief for
appellee Capital City Public Charter School, Inc.
Before: PILLARD and KATSAS, Circuit Judges, and

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RANDOLPH, Senior Circuit Judge.
Opinion for the court filed by Senior Circuit Judge
RANDOLPH.
RANDOLPH, Senior Circuit Judge: This is an appeal of the
district court’s order dismissing Shanique Perez’s complaint.
Her complaint, filed in 2021, repeated the claims she had made
against the defendants in her 2018 complaint. The district court
dismissed her 2018 complaint because the D.C. statutory
limitations period had run. See Doe v. Kipp DC Supporting
Corp., 373 F. Supp. 3d 1, 15 (D.D.C. 2019). The court
dismissed her 2021 complaint on the ground of res judicata. See
Perez v. KIPP DC Supporting Corp., 590 F. Supp. 3d 150, 159
(D.D.C. 2022).
In both of her complaints Perez alleged that in 2004, when
she was 14 years old and a student at a KIPP charter school in
the District of Columbia, one of her teachers began having
sexual relations with her. She further alleged that this man
continued to abuse her after she enrolled in another school and
that they began living together in Maryland. She claimed that
she ended her relationship with him in 2009. See id. at 153–55.
Both of Perez’s complaints named as defendants the corporation
that owned the KIPP school, the man who abused her, another
school that employed him after he left KIPP in 2005, the
principal at KIPP, and unnamed KIPP employees.1
The first issue presented is whether, as the district court
ruled, res judicata barred Perez’s second action. The issue arises
because the district court, in its judgment and in its opinion
disposing of Perez’s first complaint, stated that Perez’s “case is
Perez voluntarily dismissed her 2021 claims against the KIPP 1
principal, Susan Ettinger.

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DISMISSED WITHOUT PREJUDICE.” Doe, 373 F. Supp. 3d
at 15. The court did not explain why it chose this disposition.
As to the meaning of “dismissed without prejudice,” we
rely on Justice Scalia’s opinion for a unanimous Supreme Court:
The primary meaning of “dismissal without prejudice,”
we think, is dismissal without barring the plaintiff from
returning later, to the same court, with the same
underlying claim. That will also ordinarily (though not
always) have the consequence of not barring the claim
from other courts, but its primary meaning relates to
the dismissing court itself. Thus, Black’s Law
Dictionary (7th ed. 1999) defines “dismissed without
prejudice” as “removed from the court’s docket in such
a way that the plaintiff may refile the same suit on the
same claim,” and defines “dismissal without prejudice”
as “[a] dismissal that does not bar the plaintiff from
refiling the lawsuit within the applicable limitations
period.
Semtek Int’l, Inc. v. Lockheed Martin Corp., 531 U.S. 497,
505–06 (2001) (citations omitted).
To sum up, a “‘[d]ismissal . . . without prejudice’ is a
dismissal that does not ‘operate as an adjudication upon the
merits’ . . . and thus does not have a res judicata effect.”2
But a dismissal without prejudice is appealable as a final order. 2
“That the dismissal was without prejudice to filing another suit does
not make the cause unappealable, for denial of relief and dismissal of
the case ended this suit so far as the District Court was concerned.”
United States v. Wallace & Tiernan Co., 336 U.S. 793, 794 n.1
(1949); see also, e.g., Schering-Plough Healthcare Products, Inc. v.
Schwarz Pharma, Inc., 586 F.3d 500, 507 (7th Cir. 2009); 15A

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Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990)
(citation omitted) (quoting Fed. R. Civ. P. 41(a)(1)).
It follows that res judicata could not serve as the basis for
dismissing Perez’s second complaint. Yet one might wonder
whether that matters. Wholly aside from res judicata, the court’s
dismissal of Perez’s 2018 complaint on statute of limitations
grounds would seem to doom her second complaint as similarly
untimely. See Ciralsky v. CIA, 355 F.3d 661, 672 (D.C. Cir.
2004); Cohen v. Bd. of Trs. of Univ. of D.C., 819 F.3d 476,
478–79, 484 (D.C. Cir. 2016).
But on May 3, 2019, the District of Columbia’s Sexual
Abuse Statute of Limitations Amendment Act went into effect.
See Perez, 590 F. Supp. 3d at 155. This Act applies to all civil
actions “arising out of” sexual abuse of a victim under the age
of 35. Sexual Abuse Statute of Limitations Amendment Act of3
2018, D.C. Law 22-311 § 3(a), 66 D.C. Reg. 1398, 1399 (Feb. 1,
2019). The new and expanded limitations period extends to “the
date the victim attains the age of 40 years, or 5 years from when
the victim knew, or reasonably should have known, of any act
constituting sexual abuse, whichever is later.” Id.; see also D.C.
Code § 12-301(11) (2019). Section 5 of the Act further
provides: “Notwithstanding any other provision of law, a claim
for the recovery of damages that would be time-barred” under
the previous statute of limitations “but that would not be
Charles Alan Wright, Arthur R. Miller, & Edward Cooper, Federal
Practice and Procedure § 3914.6 (3d ed. 2022). But compare
Wilcox v. Georgetown University, 987 F.3d 143, 149 (D.C. Cir. 2021),
with id. at 154 (Randolph, J., dissenting).
Originally, the statute of limitations applied only to damages 3
“arising out of sexual abuse that occurred while the victim was a
minor.” D.C. Code § 12-301(11) (2009).

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time-barred under [the Act’s revised statute of limitations] is
revived,” though only if the plaintiff’s suit “commence[s] within
2 years after the effective date of this act.” D.C. Law 22-311
§ 5(a)(2).
Perez was under 40 years of age when she filed her second
complaint in April 2021 within the two-year period specified in
the new Act. Even so, the district court held that the Act “does
not apply to claims such as Ms. Perez’s, which were adjudicated
and dismissed as time-barred under the previous statute of
limitations.” Perez, 590 F. Supp. 3d at 163. The district court
reached this interpretation of the Act in reliance of the doctrine
of construing legislation to avoid constitutional doubts.4
The doctrine is this: “if one permissible reading will be
constitutional and another will not be, the former must be
chosen, since courts should not assume the legislature would
have intended to act vainly.” Henry J. Friendly, Benchmarks
210 (1967). Judge Friendly warned that unless the constitutional
doubt is “exceedingly real,” this rule “of statutory interpretation
or, more accurately, of constitutional adjudication––still more
accurately, of constitutional nonadjudication––is likely to
become one of evisceration and tergiversation.” Id. at 211,
211–12.
The constitutional doubt the district court identified here
does not fit Judge Friendly’s proposal that it must be
“exceedingly real.” The district court reasoned that “any
interpretation” of the D.C. Act that would “revive finally
adjudicated claims such as [Perez’s] would risk running afoul of
the constitutional principles of separation of powers.” Perez,
590 F. Supp. 3d at 161. For this proposition the district court
See Antonin Scalia & Bryan A. Garner, Reading Law: The 4
Interpretation of Legal Texts 247–51 (2012).

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invoked Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).5
Plaut decided that if a federal statute ordered district courts to
“reinstate[]” a lawsuit that was dismissed “with prejudice,” the
statute violated the separation of powers by “retroactively
commanding the federal courts to reopen final judgments.” Id.
at 217, 219.
Plaut is inapposite. The Supreme Court addressed only
legislation setting aside or reopening judgments of federal courts
rendered “with prejudice.” Id. at 217. That in itself
distinguishes Plaut. The judgment here was not “with prejudice.
The very point of a dismissal “without prejudice” is that the
losing party may file a new lawsuit against the same parties
containing the same or a similar cause of action. Of course, the
plaintiff will usually lose again if nothing changed, factually or
legally. But here there was a change, a rather dramatic change
in the law.
We have decided to reverse and remand this case in view of
the remaining issues. The district court did not decide whether
the old or the new D.C. statute of limitations applied to several
of Perez’s claims. See Perez, 590 F. Supp. 3d at 160 n.6 & 163
n. 8. The court also concluded that its interpretation of the new
Act depended on constitutional avoidance, which we have
determined to be inapplicable.
Reversed and remanded.
The “same general principles” of separation of powers apply to 5
the federal government and the D.C. government, Wilson v. Kelly, 615
A.2d 229, 231 (D.C. 1992), and so “we will assume without deciding”
that Plaut’s separation of powers principles bind the D.C. legislature
just like they bind Congress, Sanchez v. Off. of State Superintendent
of Educ., 45 F.4th 388, 401 (D.C. Cir. 2022).

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