In Nordgren v. Hennepin Cnty., No. 22-1902 (8th Cir. Mar. 21, 2024), a 2-1 Eighth Circuit panel holds that a merits panel may reconsider the timeliness of an appeal even after a motion panel has already denied a motion to dismiss on the same ground, notwithstanding the “law of the case” doctrine.
In a § 1983 action challenging termination of parental rights, the district court dismissed the federal claims and declined to exercise supplemental jurisdiction over the state law claims. The plaintiff then filed what the district court construed as a Rule 59 motion to reconsider, which it denied on August 25, 2021; judgment was entered September 1, 2021.
On September 27, 2021, the plaintiff filed a post-judgment motion, captioned as a Rule 59(e) motion to alter or amend the judgment. On April 15, 2023, the district court denied that motion as well, ruling among other things that it was in substance really just another a motion to reconsider on the same grounds as the first motion. Plaintiff then filed a notice of appeal, docketed on May 2, 2022.
Defendants moved to dismiss the appeal on the ground that the notice of appeal was untimely. “The appellees asserted Nordgren’s appeal was untimely because she did not timely appeal from the judgment entered on September 1, 2021, and the district court’s order denying her motion for reconsideration was not separately appealable and did not operate to toll the appeal period. On June 1, 2022, at the direction of the Court, the Clerk entered a one-sentence order on the motion, stating: ‘The motion to dismiss the appeal is denied.’”
Nevertheless, the panel majority holds that it can revisit that prior decision by the motion panel and decide, contrary to the first decision, that the notice of appeal is untimely.
“A threshold issue we must first address is our authority to consider the jurisdictional issue. Our case law reflects a period during which a hearing panel’s authority to review an administrative [motion] panel’s denial of a motion to dismiss for lack of jurisdiction was in flux.” Yet the panel majority concludes that Nyffeler Constr., Inc. v. Sec’y of Labor, 760 F.3d 837 (8th Cir. 2014), resolved the intracircuit split. “[T]he 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.”
“Despite our prior panel rule, a hearing panel in 2017 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. Thompson v. United States, 872 F.3d 560, 565 (8th Cir. 2017) . . . . Like in this case and in Nyffeler, the Clerk in Thompson, at the direction of an administrative panel, entered a one-sentence order stating: ‘Appellee’s motion to dismiss the appeal is denied.’”
Yet the panel majority distinguishes the present case from Thompson by finding that the “record in this case has been developed since the administrative panel’s summary denial . . . . At oral argument, any uncertainty was resolved. Nordgren’s counsel expressly disavowed application of any other rule, including specifically Rule 60(b) of the Federal Rules of Civil Procedure, insisting that relief was attempted to be sought solely under Rule 59(e). And we already know from the district court’s order that Nordgren did not file a proper Rule 59(e) motion. Under these circumstances, controlling precedent permits us to consider the jurisdictional question raised via a motion and renewed by appellees in their briefs.”
The panel then goes on to hold that the second post-judgment motion did not toll the running of the 30 days for filing a notice of appeal under Fed. R. App. P. 4(a)(4), and dismisses the appeal.
Judge Melloy dissents, holding that the motion panel had the same record before it in substance, and its decision was law of the case under binding circuit authority. “This issue was definitively decided by our court in McCuen v. American Casualty Company of Reading, Pennsylvania, 946 F.2d 1401, 1403 (8th Cir. 1991). The McCuen court 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.” Nyffeler, Judge Melloy would hold, was the outlier that was subsequently disregarded by Thompson and Ritchie Special Credit Invs., Ltd., v. U.S. Trustee, 620 F.3d 847 (8th Cir. 2010). “Any inconsistency was created by the Nyffeler decision and the subsequent panel decisions that correctly chose to follow the earlier McCuen decision.”
Judge Melloy also disagrees that the record had changed since the motion panel. “The relief sought by the appellees was a dismissal because the appellant had not filed a proper Rule 59 motion so as to toll her appeal time. The appellant resisted the motion by arguing extensively why the motion was, in fact, a proper Rule 59 motion . . . . The appellees moved to dismiss the appeal as untimely and the motion was denied. I believe that decision constitutes the law of the case for the reasons stated.”
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