Reconsidering Motions-Panel Decisions on Appeal Dismissals

In Nordgren v. Hennepin County, a divided Eight Circuit held that a merits panel could reexamine a motions-panel decision on appellate jurisdiction. The majority went on to hold that a post-judgment motion—though titled a motion under Federal Rule of Civil Procedure 59(e)—was not really a Rule 59(e) motion and thus did not reset the appeal clock.

The Post-Judgment Motion in Nordgren

Simplifying a bit, the district court in Nordgren dismissed all of the plaintiff’s federal claims and refused to extend supplemental jurisdiction over the remaining state-law claims. The plaintiff then filed a motion entitled “Motion to Alter or Amend Judgment Pursuant to Fed. R. Civ. P. 59(e).”

About a month later, the district court denied this motion. Among its reasons for doing so, the district court said that the motion was not really one under Rule 59(e). That’s because the plaintiff “was reiterating arguments already considered by the court and rejected.” The motion was instead one seeking reconsideration. And the motion failed to comply with local rules governing such motions.

The Motions-Panel Decision on Timeliness

Two weeks later, the plaintiff appealed. But the defendants moved to dismiss the appeal as untimely. Their argument: the time to appeal ran from the initial dismissal of the plaintiff’s claims.

The appeal clock normally runs from the entry of the district court’s judgment. But under Federal Rule of Appellate Procedure 4(a)(4), certain post-judgment motions—including motions to alter or amend a judgment under Federal Rule of Civil Procedure 59(e)—reset that clock. When a litigant timely files one of these motions, the time to appeal runs from the district court’s disposition of the motion.

The defendants in Nordgren argued that the plaintiff’s post-judgment motion did not count as a Rule 59(e) motion. Were that the case, the time to appeal would have run from the initial dismissal, and the plaintiff’s notice of appeal would have been a few weeks late. The plaintiff responded that her motion was in fact a Rule 59(e) motion, such that the time to appeal ran from the motion’s denial.

A motions panel denied the defendant’s motion to dismiss the appeal. No explanation was given; the court simply directed the clerk to enter a one-sentence order stating, “The motion to dismiss the appeal is denied.” The case then proceeded as normal.

Reconsidering a Motions-Panel Decision

When the case got to the merits panel, a majority of the court decided that it could reconsider the motions-panel decision.

The majority thought that Eighth Circuit caselaw was not entirely clear on a merits panel’s authority to reconsider a motions-panel decision. In 2014’s Nyffeler Construction Inc. v. Secretary of Labor, the Eighth Circuit said that “the prevailing view in this circuit is that a hearing panel of this court to whom the entire case has been referred for disposition is free to revisit a motion to dismiss for want of appellate jurisdiction even though an administrative panel of the court has previously denied such a motion.” (Quotation marks omitted.) But in 2017’s Thompson v. United States, a merits panel “invoked the law of the case doctrine and declined to review an administrative panel’s denial of a motion to dismiss for lack of jurisdiction.”

The majority thought that Nordgren was distinguishable from Thompson. That’s because the circumstances in Nordgren had changed between the motions-panel decision and the ultimate disposition of the appeal. The change: the plaintiff disclaimed at oral argument any reliance on Federal Rule of Civil Procedure 60(b). A Rule 60(b) motion would have reset the appeal clock just like a Rule 59(e) motion. And the majority speculated that the motions panel might have thought the plaintiff was seeking relief under Rule 60(b). Now that the plaintiff’s intentions were clear, the court could reexamine the motion to dismiss.

Judge Melloy’s Dissent

Judge Melloy dissented on this point. As he saw things, the issue was controlled by the Eighth Circuit’s 1991 decision in McCuen v. American Casualty Co., which “held that an administrative panel decision to deny a motion to dismiss for want of jurisdiction constitutes the law of the case unless there is a showing of manifest injustice or clear error.” According to Judge Melloy, the decisions cited by the majority did not alter McCuen’s requirement of manifest injustice or clear error. And there was no manifest injustice or clear error in the Nordgren motions-panel decision. Judge Melloy also contended that nothing had changed in the case—the plaintiff had never relied on Rule 60(b), so her disclaimer of it at oral argument did not change anything.

Hindsight About Rule 59(e) Motions

The majority went on to conclude that the plaintiff had not filed a Rule 59(e) motion that would reset the appeal clock.

The court explained that the motion’s substance, not its caption, controlled. And Rule 59(e) motions exist to correct mistakes in a district court’s judgment:

Rule 59(e) was adopted as a mechanism for the district court to correct its own mistakes shortly after entering judgment. It is limited to correcting manifest errors of law or fact or as a way for a party to provide the court with newly discovered evidence. Rule 59(e) has a corrective purpose and as such cannot be used as a vehicle to tender new legal theories, raise arguments that could have been made prior to the issuance of judgment, re-argue the merits of claims, or suspend a judgment’s finality without specifically identifying for the court a manifest error of law or fact that needs correcting.

(Cleaned up.)

The plaintiff’s motion “did not explain or identify any manifest error of law or fact or any proper basis for relief under Rule 59(e).” The district court was thus correct in characterizing the motion as one for reconsideration—a motion not mentioned in the Federal Rules of Civil Procedure, much less a motion that resets the appeal deadline under Rule 4.

The appeal clock accordingly ran from the initial dismissal. The plaintiff’s notice of appeal—filed six weeks later—was untimely.

Two Problems with Nordgren

Putting aside the issue on which the court split, I see two problems with the decision in Nordgren.

First, I don’t get the court’s statement that a motion to reconsider does not reset the appeal time. Motions to reconsider can be treated as Rule 59(e) or Rule 60(b) motions. Or they can just reset the appeal clock under what Blair v. Equifax Check Services, Inc. called the background rule of federal practice:

Rule 4(a)(4) just restates an accepted rule of practice: federal courts long have held that a motion for reconsideration tolls the time for appeal, provided that the motion is made within the time for appeal. The practice is independent of Rule 4(a)(4), or any other rule.

Second, I’m not a fan of appellate courts holding that a post-trial motion did not count as a Rule 59(e) motion. I criticized the Eleventh Circuit for doing so a few weeks ago. Nordgren solidifies my view.

A much better rule would say that so long as a motion was arguably a Rule 59(e) motion, it’s good enough to reset the appeal clock. And a motion that is titled one under Rule 59(e) is arguably a Rule 59(e) motion. I cannot imagine that an appellee would ever be harmed by such an approach.

Nordgren v. Hennepin County, 2024 WL 1205817 (8th Cir. Mar. 21, 2024), available at the Eighth Circuit and Westlaw