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

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