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 two appeals—Clark v. Louisville-Jefferson County Metro Government and Salter v. City of Detroit, the Sixth Circuit spoke at length about its jurisdiction to review certain Brady issues as part of qualified-immunity appeals. The cases produced a total of six opinions, several of which dove into this jurisdictional issue.
Continue reading....
In Rossy v. City of Buffalo, the Second Circuit appeared to both dismiss a qualified-immunity appeal for a lack of jurisdiction and exercise pendent appellate jurisdiction over a plaintiff’s cross-appeal. This is odd. Pendent appellate jurisdiction allows normally non-appealable issues to tag along with appealable ones. But if the denial of qualified immunity was not […]
Continue reading....
I’ve frequently written about the problem of fact-based qualified-immunity appeals both on this website and in my research. I recently decided to collect some new data on how much needless delay these appeals add to civil-rights litigation. I had done something similar a few years ago when writing about the need to sanction defendants for […]
Continue reading....
Yesterday, I filed an amicus brief in support of the petitioner in Parrish v. United States, which is currently pending before the Supreme Court. The case asks if an appellant must file a new notice of appeal after the district court reopens the time to appeal under Federal Rule of Appellate Procedure 4(a)(6). Both the […]
Continue reading....
Last month saw another rejection of pure Bivens appeals, an analysis of Perlman appeals in the grand-jury context, and a ruling on mandatory stays during a remand appeal. Plus an odd sovereign-immunity appeal, appeals without the express resolution of all claims, and much more.
Continue reading....