UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1403
JEFFREY C. SKEENS, as Administrator of the Estate of Grover
Skeens; CAROLYN D. DAVIS, as Administratrix of the Estate
of Charles T. Davis; OWEN T. DAVIS, as Administrator of the
Estate of Cory Davis,
Plaintiffs - Appellants,
v.
ALPHA NATURAL RESOURCES, INC.; ALPHA APPALACHIA HOLDINGS,
INC., f/k/a Massey Energy Company,
Defendants - Appellees.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Irene C. Berger,
District Judge. (2:14-cv-27781; 5:12-cv-06854)
Submitted: November 29, 2016 Decided: January 5, 2017
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Dismissed in part, vacated in part, and remanded with
instructions by unpublished per curiam opinion.
J. Michael Ranson, RANSON LAW OFFICES, PLLC, Charleston, West
Virginia; G. Patrick Jacobs, JACOBS LAW OFFICE, Charleston, West
Virginia, for Appellants. A.L. Emch, Gretchen M. Callas,
JACKSON KELLY PLLC, Charleston, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey C. Skeens, Carolyn D. Davis, and Owen T. Davis
(Appellants), as administrators of the estates of Grover Skeens,
Charles T. Davis, and Cory Davis, respectively, seek to appeal
the district court’s orders dismissing without prejudice their
amended complaint against Alpha Natural Resources, Inc., and
Alpha Appalachia Holdings, Inc., (Alpha) in Case No. 5:12–cv–
06854 and dismissing with prejudice their complaint against
Alpha in Case No. 2:14-cv-27781. We dismiss the appeals and, in
the appeal from Case No. 2:14-cv-27781, we vacate that part of
the court’s order dismissing the case with prejudice and remand
with instructions to dismiss the case without prejudice.
With respect to Case No. 5:12–cv–06854, we note that we
have already twice declined to consider the Plaintiffs’ appeal
of the district court’s dismissal of their case without
prejudice. See Skeens v. Alpha Nat. Res., Inc., No. 13–1727
(4th Cir. ECF No. 41); Skeens v. Alpha Nat. Res., Inc., 583 F.
App’x 200, 201 (4th Cir. Sept. 17, 2014) (No. 13-2444). We
discern no difference in the posture of this case that would
require us to disturb our prior decisions. See, e.g., Sierra
Club v. Khanjee Holding (US) Inc., 655 F.3d 699, 705 (7th Cir.
2011) (finding “no significant differences” in the legal
landscape that would warrant re-examination of prior
jurisdictional ruling). The district court’s dismissal in this
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case remains an interlocutory order that is not subject to
appeal. See Domino Sugar Corp. v. Sugar Workers Local Union
392, 10 F.3d 1064, 1067 (4th Cir. 1993). Accordingly, we once
again dismiss the appeal of the district court’s order in Case
No. 5:12–cv–06854.
Turning to the Plaintiffs’ appeal of the district court’s
order in Case No. 2:14-cv-27781, we note that the Plaintiffs
fail to challenge in their appellate brief the court’s
dispositive finding that they lacked standing because
enforcement of the nonprosecution agreement (NPA) remained
solely with the United States, and its determination as to
whether Alpha violated the terms of the NPA was not subject to
review by any court. Because Plaintiffs do not challenge the
court’s dispositive finding, they have waived review. See
N.L.R.B. v. Bluefield Hosp. Co., LLC, 821 F.3d 534, 545 n.8 (4th
Cir. 2016).
The district court should have dismissed the complaint for
lack of jurisdiction based on its conclusion that the Appellants
did not have standing. Further, because the court lacked
jurisdiction, “any alternate holdings based on consideration of
and conclusions on the merits were beyond the power of the
district court.” S. Walk at Broadlands Homeowner’s Ass’n,
Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 n.4 (4th
Cir. 2013).
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Accordingly, because the Appellants waived review of the
district court’s conclusion regarding standing in Case No. 2:14-
cv-27781, we dismiss the appeal. Because a dismissal for lack
of standing must be without prejudice, we vacate the court’s
order to the extent that the dismissal was with prejudice, and
remand with instructions that the case be dismissed without
prejudice. Id. at 185.
DISMISSED IN PART, VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS
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