United States District Court, D. Maine
ORDER DENYING MOTION FOR LEAVE TO FILE INTERLOCUTORY
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
that whether United States v. Meyer, 808 F.2d 912
(1st Cir. 1987) continues to be viable despite the subsequent
United States Supreme Court decisions of Gabelli v.
SEC, 568 U.S. 442 (2013), and Kokesh v. SEC,
137 S.Ct. 1635 (2017), does not present a “controlling
question of law as to which there is a substantial ground for
difference of opinion” under 28 U.S.C. § 1292(b),
the Court denies a motion for leave to file interlocutory
January 17, 2019, the Court issued an exhaustive order in
which it concluded that FERC had filed its enforcement action
on a timely basis, denied the Respondents' motion for
summary judgment and granted FERC's motion for partial
summary judgment. Order on Mots. for Summ. J. (ECF
No. 155) (Order). On January 24, 2019, the
Respondents filed a motion for leave to file interlocutory
appeal. Resp'ts' Mot. for Interlocutory
Appeal (ECF No. 159) (Resp'ts' Mot.).
On February 7, 2019, FERC filed its opposition to the
Respondents' motion. Pet'r's Opp'n to
Mot. for Interlocutory Appeal (ECF No. 160)
(Pet'r's Opp'n). On February 14, 2019,
the Respondents filed their reply. Resp'ts' Reply
Br. in Support of Mot. for Interlocutory Appeal (ECF No.
161) (Resp'ts' Reply).
LEGAL STANDARDS FOR INTERLOCUTORY APPEAL
1292(b) of title 28 provides:
When a district judge, in making in a civil action an order
not otherwise appealable under this section, shall be of the
opinion that such order involves a controlling question of
law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the
litigation, he shall so state in writing in such order. The
Court of Appeals which would have jurisdiction of an appeal
of such action may thereupon, in its discretion, permit an
appeal to be taken from such order, if application is made to
it within ten days after the entry of the order:
Provided, however, That application for an appeal
hereunder shall not stay proceedings in the district court
unless the district judge or the Court of Appeals or a judge
thereof shall so order.
First Circuit has interpreted § 1292(b) as imposing
three requirements for a district court to grant leave to
file an interlocutory appeal: (1) it must involve “a
controlling question of law;” (2) “as to which
there is substantial ground for difference of opinion;”
and (3) for which “an immediate appeal from the order
may materially advance the ultimate termination of the
litigation.” Caraballo-Seda v. Municipality
of Hormiqueros, 395 F.3d 7, 9 (1st Cir. 2005)
(quoting § 1292(b)). “Certifications under §
1292(b) are not looked upon with favor by the First
Circuit.” Lawson v. FMR LLC, 724
F.Supp.2d 167, 168 (D. Mass. 2010). In fact, the First
Circuit described appeals proper under § 1292(b) as
“hens' teeth rare.” Camacho v. P.R. Ports
Auth., 369 F.3d 570, 573 (1st Cir. 2004).
First Circuit has “repeatedly emphasized that
‘interlocutory certification under § 1292(b)
should be used sparingly and only in exceptional
circumstances, and where the proposed intermediate appeal
presents one or more difficult and pivotal questions of law
not settled by controlling authority.'”
Caraballo-Seda. 395 F.3d at 9 (quoting
Palandjian v. Pahlavi, 782 F.2d 313, 314 (1st Cir.
1986) (quoting McGillicuddy v. Clements, 746 F.2d 76
n.1)). The First Circuit has a decided preference
“against piecemeal litigation” and is cognizant
of “prudential concerns about mootness, ripeness, and
lengthy appellate proceedings.” Id.
THE PARTIES' POSITIONS
The Respondents' Motion
Respondents point out that they have met two of the criteria
for an interlocutory appeal in that if they are correct on
the statute of limitations issue, a “reversal would
terminate the action, ” Resp'ts' Mot.
at 2 (quoting Meijer, Inc. v. Ranbaxy Inc., 245
F.Supp.3d 312, 315 (D. Mass. 2017), and that “the
requirement that an appeal will materially advance the
ultimate termination of the litigation is closely tied to the
controlling-question-of-law element.” Id. at 4
(quoting Meijer, 245 F.Supp.3d at 315).
the third criterion, the “substantial ground for
difference of opinion, ” the Respondents urge the Court
to conclude that there is such a substantial difference,
noting that two courts ruled in their favor, while a third
court reached the same result as this Court but granted a
motion for interlocutory appeal. Id. at 4. The
Respondents maintain that the situation in which “the
district court feels compelled to follow a circuit court
precedent that the losing party argues has been superseded by
subsequent Supreme Court precedent” offers “one
of the most compelling circumstances for allowing an
interlocutory appeal to allow the First Circuit to sort out
which Supreme Court precedent governed in a preemption
case.” Id. at 6.
Respondents draw support from FERC v. Powhatan Energy
Fund, LLC, 345 F.Supp.3d 682 (E.D. Va. 2018), where the
district court ordered a brief stay of its order on the same
issue to allow the parties to pursue, if they chose to do so,
an interlocutory appeal to the Fourth Circuit Court of
Appeals. Id. at 711. Then, on November 5, 2018, the
Fourth Circuit granted the petition for permission to appeal.
Notice of Supp. Information attach. 1, Order of
Court of Appeals for the Fourth Circuit (Nov. 5, ...