Appellate Decisions

Manufactured Finality Before the MSPB

The Fourth Circuit nicely explained that manufactured finality comes in a variety of forms, some of which are acceptable and some of which aren’t.

June 19, 2024

By Bryan Lammon

In Jones v. U.S. Merit Systems Protection Board, the Fourth Circuit reviewed a decision of the Merit Systems Protection Board even though the petitioners voluntarily dismissed some of their theories of relief. That voluntary dismissal was with prejudice, which made it highly unlikely that the voluntarily dismissed theories would ever resurface. So the petitioners were not trying to improperly manufacture an interlocutory appeal.

The opinion nicely recognizes that not all varieties of manufactured finality should be treated the same.

The Voluntarily Dismissed Theories in Jones

Simplifying a fair bit, the petitioners in Jones worked for Customs and Border Protection. The petitioners alleged that their supervisors retaliated against them for blowing the whistle on Custom and Border Protections’ failure to comply with the DNA Fingerprints Act of 2005.

An administrative law judge rejected several—though not all—of the petitioners’ theories of relief. Wanting to obtain appellate review of the rejected theories, the petitioners voluntarily dismissed their remaining theories with prejudice. The petitioners then sought review in the Fourth Circuit.

The Fourth Circuit on Different Kinds of Manufactured Finality

The Fourth Circuit determined that it had jurisdiction despite the petitioners’ attempts to secure an appealable decision.

The court recognized that voluntary dismissals of unresolved claims can create risks of piecemeal review and might involve efforts to circumvent established avenues of appellate review. But not all attempts to manufacture an appealable decision are the same. One scenario in which manufactured finality is acceptable is when the litigants will not be able to reinstate the voluntarily dismissed theories.

That was the case in Jones. The petitioners had voluntarily dismissed their unresolved theories with prejudice, which would preclude reinstating them.

Granted, the Board could reopen a dismissed claim on its own authority. But “it need not be legally impossible for a dismissed claim to be reinstated in order to permit … review on appeal.” After all, the petitioners had no intention to reinstate their dismissed theories. And an agency’s general authority to reopen a matter does not preclude finality. There was no “realistic possibility” of reinstatement and thus no real risk of piecemeal review.

Jones v. U.S. Merit Systems Protection Board, 2024 WL 2855029 (4th Cir. June 6, 2024), available at the Fourth Circuit and Westlaw

recent posts

The Month in Federal Appellate Jurisdiction: October 2024
A wide variety of discovery appeals. Plus the prison-mailbox/mistaken-filing rule, appealing the Yearsley doctrine, and more.
Finality in § 1782 Proceedings
The Ninth Circuit held that a discovery order under 28 U.S.C. § 1782 was not appealable until the district court resolved any objections to the discovery request.
No Perlman Appeals When the Same Issues Could Be Raised via Contempt
The Eleventh Circuit held that a privilege claimant cannot take a Perlman appeal when the claimant could have raised the same issues via its own contempt appeal.
A Rule 4 Conflict: The Prison-Mailbox Rule v. the Mistaken-Filing Rule
The Fifth Circuit held that when an imprisoned appellant mistakenly mails a notice of appeal to the court of appeals, the notice is deemed filed when deposited in the prison mail system.
The Month in Federal Appellate Jurisdiction: September 2024
Another split on pure Bivens appeals, no equitable exceptions for Rule 4(a)(4), another failure to apply the Rule 3(c) amendments, and more.

related posts

Manufactured Finality & Dispositive Interlocutory Orders
The Second Circuit split over whether it had jurisdiction after a stipulated judgment, particularly whether a preliminary-injunction decision effectively resolved an action.
The Merger Doctrine After Sanction Dismissals
The Second Circuit held that interlocutory orders do not merge into a final judgment when the action was dismissed as a discovery sanction.
Abandoning a Claim v. Amending a Complaint to Create Finality
Ditching its initial holding that abandoning unresolved claims creates a final decision, the Eleventh Circuit treated a purported abandonment as a successful attempt to amend a complaint.
New Article on Manufactured Finality
I have a new article on the variables that go into manufactured finality, its various forms, and its likely future.
Abandoning (Rather than Dismissing) Claims to Create Finality
The Eleventh Circuit held that claimants can create a final decision by “abandoning” unresolved claims, which stands in some tension with that court’s rule that litigants cannot voluntarily dismiss discrete claims.