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Federal Energy Regulatory Commission v. Silkman

United States District Court, D. Maine

June 26, 2019

FEDERAL ENERGY REGULATORY COMMISSION, Petitioner,
v.
RICHARD SILKMAN, et al., Respondents.

          ORDER DENYING MOTION FOR LEAVE TO FILE INTERLOCUTORY APPEAL

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         Concluding 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 appeal.

         I. BACKGROUND

         On 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).

         II. LEGAL STANDARDS FOR INTERLOCUTORY APPEAL

         Section 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.

         The 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).

         The 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.

         III. THE PARTIES' POSITIONS

         A. The Respondents' Motion

         The 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).

         As for 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.

         The 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, ...


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