Christine M. Nordgren v. Hennepin County

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1902
___________________________
Christine M. Nordgren
Plaintiff - Appellant
v.
Hennepin County; Hennepin County Human Services and Public Health
Department; Nystrom & Associates, Ltd.; Michael O. Freeman, Hennepin County
Attorney; Katy L. Stesniak, Assistant Hennepin County Attorney; David John
Hough, Hennepin County Administrator; Jodi Wentland, Hennepin County
Director of Human Services; Joan Granger-Kopesky, Director of Hennepin County
Child and Family Services; Jodi Harpstead, Commissioner, Minnesota Department
of Human Services; Mary Kay Libra, Hennepin County Child and Family Services
Social Worker; Rochelle Anderson; Craig Rice; Susan Vinge
Defendants - Appellees
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: December 14, 2023
Filed: March 21, 2024
____________
Before ERICKSON, MELLOY, and STRAS, Circuit Judges.
____________
ERICKSON, Circuit Judge.

-- 1 of 9 --

-2-
Christine M. Nordgren’s parental rights for her two children were terminated
in Minnesota state court. She did not appeal or challenge the termination order.
Instead, Nordgren brought this federal action against the Minnesota Department of
Human Services; Hennepin County and various Hennepin County officers and
employees; and several therapists who provided therapeutic services to Nordgren’s
children while Nordgren and her children were involved in child protection
proceedings. Nordgren has alleged various constitutional, federal, and state claims.
For relief, she seeks a money judgment in the form of nominal, general, special,
compensatory, and punitive damages as well as the recovery of attorney’s fees and
costs. After the district court1 dismissed all federal claims and declined to exercise
supplemental jurisdiction over the pendent state law claims, Nordgren filed a motion
entitled “Motion to Alter or Amend Judgment Pursuant to Fed. R. Civ. P. 59(e).”
The district court construed Nordgren’s motion as a request for the court to
reconsider its prior rulings and for permission to amend her pleadings and denied it.
Nordgren then filed a notice of appeal.
More specifically, on August 25, 2021, the district court entered an order
dismissing Nordgren’s claims and her action in its entirety. In that same order, after
finding all proposed amendments would be futile, the district court denied
Nordgren’s request to amend her complaint to add additional claims and to add her
children as parties. The Clerk entered judgment on September 1, 2021.
On September 27, 2021, Nordgren filed what she characterized as a motion to
alter or amend the judgment under Rule 59(e). The defendants filed briefs opposing
Nordgren’s motion. The district court, on April 15, 2022, denied Nordgren’s motion
for several reasons. One, the court found that the motion did not fall within Rule
59(e) because Nordgren was reiterating arguments already considered by the court
and rejected. Two, the outcome Nordgren was seeking was in effect a reversal of
the court’s prior rulings to allow her a chance to file a second amended complaint
1 The Honorable John R. Tunheim, then Chief Judge of the United States
District Court for the District of Minnesota.

-- 2 of 9 --

-3-
which, according to Nordgren, “would state actionable claims against the named
defendants.” And three, because the motion was in actuality a motion to reconsider,
it was subject to denial for failure to comply with the local rules governing motions
to reconsider. Two weeks later, Nordgren filed her notice of appeal in the district
court, which was transmitted to this Court on May 2, 2022.
On May 13, 2022, the Hennepin County defendants/appellees moved to
dismiss Nordgren’s appeal as untimely under 28 U.S.C. § 2107(a) and Fed. R. App.
P. 4(a)(1). Other defendants/appellees joined the motion. 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.” The case was assigned to us for disposition and several of the appellees
renewed their arguments that the Court lacks jurisdiction because the notice of
appeal was untimely filed. We begin and end with the jurisdictional question.
The Supreme Court has determined that filing an appeal within the statutory
prescribed time frame is mandatory and jurisdictional. Bowles v. Russell, 551 U.S.
205, 209 (2007). But, unlike a statutory deadline, a time limit prescribed in a court-
made rule is a mandatory claim-processing rule subject to waiver or forfeiture. See
Hamer v. Neighborhood Hous. Servs. of Chicago, 583 U.S. 17, 20 (2017). In other
words, a properly invoked mandatory claim-processing rule must be enforced by the
court but does not compel the same result as a jurisdictional limit because a party
may waive or forfeit enforcement of the rule. Here, appellees have not waived or
forfeited enforcement of the rules governing the time for filing a notice of appeal.
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 panel’s denial of a motion to dismiss for lack
of jurisdiction was in flux. Any tension or inconsistency, however, was resolved a

-- 3 of 9 --

-4-
decade ago. In Nyffeler Constr., Inc. v. Sec’y of Labor, 760 F.3d 837 (8th Cir. 2014),
the Clerk, at the direction of the Court, entered an order stating: “Appellee’s motion
to dismiss has been considered by the court, and the motion is denied.” The case
was set on for argument before a hearing panel, with the Secretary maintaining that
it was unnecessary to reach the merits because the Court lacked subject matter
jurisdiction. In disposing of the case, the Court noted several unique aspects of an
administrative panel’s review that differed from a hearing panel’s review, including
that review is “generally summary in character, often made on a scanty record, and
not entitled to the weight of a decision made after plenary submission.” Id. at 841.
After reciting those aspects of administrative panel review, the Court succinctly
stated 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.” Id. (citations omitted). The Nyffeler
Court expressly rejected application of law of the case doctrine in this context
“where a decision fails to provide ‘sufficient directness and clarity to establish the
settled expectations of the parties necessary for the subsequent application of the law
of the case doctrine.’” Id. (quoting First Union Nat’l Bank v. Pictet Overseas Trust
Corp., Ltd., 477 F.3d 616, 621 (8th Cir. 2007)).
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) (quoting Williams v. Emp’lrs Mut. Cas. Co., 845 F.3d 891, 897 (8th Cir.
2017); see McCuen v. Am. Cas. Co. of Reading, Penn., 946 F.2d 1401, 1403 (8th
Cir. 1991) (stating a hearing panel has the power to re-examine a motion to dismiss
for want of jurisdiction but an administrative panel’s decision is the law of the case).
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.”

-- 4 of 9 --

-5-
The situation before us, however, is distinguishable from Thompson where
the Court stated that the record on the jurisdictional question was unchanged. It is
also distinguishable from other cases, like McCuen, where the Court found no
showing of compelling circumstances to warrant review of the jurisdictional issue.
See McCuen, 946 F.2d at 1403 (declining to review motion to dismiss after “see[ing]
no such compelling circumstances here”). The record in this case has been
developed since the administrative panel’s summary denial. With the summary
nature of the Clerk’s order, which lacked sufficient directness or clarity, we cannot
discern whether the administrative panel might have relied on any other alternative
avenue set forth in Rule 4(a)(4) for tolling the appeal deadline. See, e.g., Fed. R.
App. 4(a)(4)(vi) (listing a motion under Fed. R. Civ. P. 60(b) as one that tolls the
appeal deadline until the motion is decided). The administrative panel might have
been concerned about the possibility that Nordgren had sought relief under Rule
60(b). 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. Nyffeler, 760 F.3d at 841-42.
Although Nordgren captioned her motion as seeking relief under Rule 59(e),
it is “the substance of a motion rather than the form of a motion [that] is controlling.”
BBCA, Inc. v. United States, 954 F.2d 1429, 1431-32 (8th Cir. 1992). Rule 59(e)
was adopted as a mechanism for the district court to correct its own mistakes shortly
after entering judgment. Banister v. Davis, 580 U.S. __, 140 S. Ct. 1698, 1703
(2020). 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. Innovative Home Health
Care, Inc. v. P.T.-O.T. Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir.
1998) (quoting Hagerman v. Yukon Energy Corp., 839 F.2d 407, 413 (8th Cir.
1988)). 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

-- 5 of 9 --

-6-
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. See id.
Nordgren 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 did not err in
characterizing Nordgren’s motion as one for reconsideration of its order dismissing
her claims. The Federal Rules of Civil Procedure do not mention motions for
reconsideration. A motion to reconsider is not recognized as one that will extend
the period for filing a notice of appeal. See Fed. R. App. P. 4(a)(4). Because
Nordgren did not present the district court with a motion that satisfied the purposes
of Rule 59(e), the appeal period began to run on September 1, 2021, the date
judgment was entered. Because Nordgren did not file her appeal within 30 days
after entry of the judgment dismissing her claims, her notice of appeal was untimely.
For the foregoing reasons, we dismiss the appeal for want of jurisdiction.
MELLOY, Circuit Judge, dissenting.
I respectfully dissent from dismissal of the appeal in this case. The issue of
the timeliness of the appeal has been decided by an administrative panel of our court
and therefore constitutes the law of the case. Without a showing of clear error or
manifest injustice, it is my belief that the administrative panel decision should result
in a denial of the renewed motion to dismiss. I submit we should proceed to decide
the merits of the case and not revisit the administrative panel decision.
The majority opinion indicates that there was a period during which a hearing
panel’s authority to review an administrative panel decision for lack of jurisdiction
was in flux. I must respectfully disagree. 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

-- 6 of 9 --

-7-
law of the case unless there is a showing of manifest injustice or clear error. Id. Any
flux was created when a subsequent panel took a different approach in Nyffeler
Construction, Incorporated v. Secretary of Labor, 760 F.3d 837, 842 (8th Cir. 2014).
The Nyffeler opinion instituted a new test for determining whether a prior
administrative panel ruling will be followed by a merits panel. The Nyffeler court
indicated that an administrative panel decision did not have to be followed if it “lacks
‘sufficient directness and clarity.’” Id. (quoting First Union Nat’l Bank v. Pictet
Overseas Trust Corp., 477 F.3d 616, 621 (8th Cir. 2007)). But this standard as
announced in Nyffeler came from our court’s discussion of the “law of the case” as
applied to an unappealed district court decision. See First Union Nat’l Bank, 477
F.3d at 621. It did not originate from an analysis of a prior court of appeals decision
in the same case.
I do not agree that the Nyffeler court resolved any inconsistency or tension in
the law. As indicated in the majority opinion, after the issuance of Nyffeler, at least
two decisions from our court followed the dictates of the McCuen decision and
applied the law of the case to an administrative panel decision. See Thompson v.
United States, 872 F.3d 560, 564–65 (8th Cir. 2017) (“‘an administrative panel’s
denial of a motion to dismiss for lack of jurisdiction typically is the law of the case,
ordinarily to be adhered to in the absence of clear error or manifest injustice’”
(quoting Williams v. Emp’rs Mut. Cas. Co., 845 F.3d 891, 897 (8th Cir. 2017) (also
following McCuen)). See also Ritchie Special Credit Invs., Ltd., v. U.S. Trustee,
620 F.3d 847, 856 (8th Cir. 2010), (Colloton, J., concurring in the judgment) (“An
administrative panel of this court previously denied the appellees’ motion to dismiss
the appeal for lack of jurisdiction, see Order (Nov. 9, 2009), and that decision ‘is the
law of the case, ordinarily to be adhered to in the absence of clear error or manifest
injustice’” (quoting McCuen, 946 F.2d at 1403)). Any inconsistency was created by
the Nyffeler decision and the subsequent panel decisions that correctly chose to
follow the earlier McCuen decision.
Our court “definitively” decided in Mader v. United States, 654 F.3d 794, 800
(8th Cir. 2011) (en banc), that when a hearing panel is faced with conflicting prior

-- 7 of 9 --

-8-
panel opinions, the earliest opinion must be followed and controls any subsequent
decisions. Under our first-in-time rule, I believe we should follow the opinion in
McCuen and hold that the prior administrative panel decision denying the motion to
dismiss for want of jurisdiction is the law of the case. In this case, no argument nor
showing has been made that the administrative panel decision was manifestly unjust
or clearly erroneous.
The majority attempts to distinguish our prior precedent that traces its lineage
back to the McCuen case by holding that the present record has now been more fully
developed since the administrative panel’s summary denial and that the record now
establishes the administrative panel considered an inapplicable basis for potential
tolling of the appeal period. Under those circumstances, the majority holds that
controlling precedent allows the merits panel to reconsider the jurisdictional issue
raised by the appellees.
I do not agree that anything has changed since the issuance of the
administrative panel order denying the motion to dismiss. The only new
development of the record is the statement by counsel at oral argument that she did
not bring the motion before the district court under Federal Rule of Civil Procedure
60(b). However, that has always been the case. The motion before the district court
was styled as a Rule of Civil Procedure 59(e) motion and was argued to the district
court as such. The appellees responded before the district court by arguing that the
Rule 59(e) motion was not a true 59(e) motion but rather a disguised motion to
reconsider. The district court addressed the motion on the merits but also indicated
that it would be procedurally barred because the district court felt the motion was in
fact a disguised motion to reconsider.
Those are the same issues raised before the administrative 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. Nowhere
in the moving papers nor the resistance is there any mention that the motion was

-- 8 of 9 --

-9-
brought under Rule 60(b). So it is not surprising that appellant’s counsel conceded
at oral argument that she was not bringing the motion under Rule 60(b). There is
nothing new about that statement since it has always been understood by the movant
and the respondent that the motion made in the district court was made under Rule
59(e) and was argued as such. If the appellant were to argue the motion was timely
under Rule 60(b) at this late date, I have no doubt that we would summarily reject
that argument as having been waived since it had never been raised nor briefed at
any time prior to the questions at oral argument.
I conclude by referring again to the Thompson case. There, citing Nyffeler,
the court stated, “‘For the law of the case doctrine to have any application, however,
the prior administrative panel must have actually decided the specific jurisdictional
issue.’” 872 F.3d at 565. The Thompson court went on to state, “[T]he specific
jurisdictional issue presented to the administrative panel and to us is the same:
whether Thompson’s notice of appeal was timely.” Id. That is the issue which faced
the administrative panel in this case. 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.
Accordingly, I dissent from the dismissal of the appeal.
______________________________

-- 9 of 9 --