Manufactured Finality Before the MSPB
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
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More ContactRelated Posts
In United States v. Wilson, the Ninth Circuit permitted the government to appeal a discovery order in a criminal case after the government asked the district court to dismiss the indictment to facilitate an appeal. Although the order was interlocutory, the Ninth Circuit could review it under 18 U.S.C. § 3731. That’s because § 3731 doesn’t require […]
Continue reading....
In New York State Telecommunications Association v. James, the Second Circuit split over an attempt at manufacturing finality. The district court had granted a preliminary injunction after concluding that federal law preempted a New York state law. The parties then stipulated to entry of a final judgment. A majority of the Second Circuit determined that […]
Continue reading....
Courts have long held that the merger doctrine does not apply when an action is dismissed for a failure to prosecute. In Marquez v. Silver, the Second Circuit extended this holding to actions dismissed as a discovery sanction. The court explained that sanction dismissals carry the same risk of strategic behavior as failure-to-prosecute dismissals. The […]
Continue reading....
Last October, the Eleventh Circuit held in Lowery v. Amguard Insurance Co. that litigants can create a final decision by abandoning unresolved claims. As I noted at the time, this holding stood in some tension with the Eleventh Circuit’s rule that litigants cannot voluntarily dismiss discrete claims. And although I liked the outcome, I did […]
Continue reading....
Manufactured finality refers to litigants’ efforts to create a final, appealable decision through something other than a judicial resolution of all claims. The last few years have seen a spate of decisions on manufactured finality. But there is more to the topic than most think. I’ve posted an article explaining as much. In it, I […]
Continue reading....Recent Posts
In City of Martinsville v. Express Scripts, Inc., a divided Fourth Circuit held that a court must stay proceedings—and not process a remand order—if the defendant appeals before the district court can send the remand order to the state court. The majority thought that the rule of Griggs v. Provident Consumer Discount Co.—particularly as the […]
Continue reading....
Perlman Appeals in the Grand Jury Context In In re Grand Jury Subpoeans Dated Sep. 13, 2023, the Second Circuit held that the target of a grand jury investigation could appeal an order directing the target’s attorneys to disclose documents over a claim of attorney-client privilege. The order was appealable via the Perlman doctrine, which generally […]
Continue reading....
In Fleming v. United States, the Eleventh Circuit became the fifth court of appeals to reject pure Bivens appeals. The court held that federal officials cannot immediately appeal the Bivens question without also appealing the denial of qualified immunity. Unlike some of the prior decisions, this one was unanimous. And it puts the government’s record […]
Continue reading....
Last month produced decisions involving a variety of appellate-jurisdiction issues. The Fifth Circuit decertified a § 1292(b) appeal. Judge Pillard of the D.C. Circuit explained that appellate “standing” does not require re-establishing standing in the court of appeals. The Sixth Circuit said that qualified immunity and an action’s merits are intertwined, which suggests (perhaps unintentionally) […]
Continue reading....
A new cert petition asks whether the denial of derivative sovereign immunity is immediately appealable via the collateral-order doctrine.
Continue reading....