UNPUBLISHED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instructions by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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