PHILADELPHIA – A panel of federal appellate court judges dismissed the appeal of a former Drexel University medical student who filed a racial discrimination lawsuit against the academic institution, for lack of jurisdiction and without prejudice.

On April 3, U.S. Court of Appeals for the Third Circuit judges Joseph A. Greenaway Jr., Morton I. Greenberg and Jane R. Roth dismissed the appeal of Lei Ke versus Drexel University, John Fry, Richard Homan, Samuel Parrish, Amy Fuchs, Jennifer Hamilton and Anthony Sahar.

Ke is a former Drexel University medical student who filed suit against the university and several of its employees, alleging racial discrimination and several other claims. After a long series of proceedings, the District Court ultimately entered summary judgment in the defendants’ favor, a verdict later affirmed by the Third Circuit.

The defendants filed a bill of costs with the District Court seeking an award of costs under Federal Rule of Civil Procedure 54(d)(1). Following the Third Circuit’s upholding, Ke filed objections to the bill of costs. On June 1, 2016, the Clerk of the District Court overruled Ke’s objections and issued a judgment taxing costs against him in the amount of $4,503.15.

Ke filed an official “notice of objection” to the taxation of costs, which is still pending in the District Court. Ke later filed this appeal from the Clerk’s judgment on the taxing costs. After briefing was complete, the Third Circuit’s Clerk directed the parties to file supplemental briefs covering appellate jurisdiction.

“The parties argue that, despite the pendency of Ke’s objection in the District Court, the Clerk’s taxation of costs is final and we have jurisdiction to review it. The parties’ agreement on that point does not confer jurisdiction on us because we have an independent obligation to consider that issue. Having done so, we conclude that we lack jurisdiction, and we will dismiss this appeal on that basis,” the Third Circuit stated.

“In this case, Ke filed a timely objection to the Clerk’s taxation of costs in the District Court, and that objection remains pending. The parties nevertheless ask us to disregard that filing. Ke argues that he intended it as a ‘motion for reconsideration [by the Clerk] as the Clerk’s Office is not headed by a judge.’ Defendants, for their part, ask us to treat Ke’s objection as a ‘nullity’ because he already filed objections to their bill of costs,” the federal appellate court said.

But, the Third Circuit did not do so, labeling Ke’s objection as “cursory” and one that “squarely takes issue with specific aspects of the Clerk’s taxation of costs and it does not state that it was directed only toward the Clerk and not the District Court.”

“We recognize that Ke, in an apparent effort to manufacture appellate jurisdiction, now disclaims any intent to seek review by the District Court. The facts remain, however, that Ke filed an actual objection with the District Court, that he has not withdrawn it, and that it is still pending. Indeed, if Ke had not filed such an objection, then he might very well have lost the very right to appellate review that he is presently attempting to exercise,” the Third Circuit said.

“Thus, we decline to disregard Ke’s objection. We express no opinion on the merits of that objection or on whether it is sufficient to place any particular issue before the District Court for review. Instead, we hold only that the pendency of that objection means that there is no final decision on costs that is appealable under Section 1291 or otherwise. Thus, we will dismiss this appeal without prejudice to further proceedings with respect to costs in the District Court,” the Third Circuit concluded.

The Third Circuit proceeded to dismiss Ke’s appeal and denied the request to order reassignment of the case to a different District Judge.

The defendants are represented by Peter Samson and Julia Jacobelli of Cipriani & Werner in Blue Bell, George C. Morrison of White & Williams in Center Valley and Stefanie Anderson of Litchfield Cavo, in Philadelphia.

U.S. Court of Appeals for the Third Circuit case 16-2960

U.S. District Court for the Eastern District of Pennsylvania case 2:11-cv-06708

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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