McCarroll v. Somerby of Mobile, LLC
ORDER, DENYING 67 Motion to challenge certain federal statutes pursuant to Federal Rule of Civil Procedure 5.1. Signed by Judge Callie V. S. Granade on 1/12/2015. (copy to pltf) (mab)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOMERBY OF MOBILE, LLC,
Civil Action No. 12-0709-CG-M
On February 6, 2014, this Court granted a motion for summary judgment
against Plaintiff Anthony McCarroll (Doc. 50) and entered a final judgment. (Doc.
51). About one month later, McCarroll filed a notice of appeal. (Doc. 59). On April 16,
2014, McCarroll filed a motion to challenge certain federal statutes pursuant to
Federal Rule of Civil Procedure 5.1. (Doc. 67). Because McCarroll filed his motion
challenging the federal statutes after he filed his notice of appeal, the Court lacked
authority to consider the motion at that time. United States v. Tovar–Rico, 61 F.3d
1529, 1532 (11th Cir. 1995) (“The filing of a notice of appeal . . . confers jurisdiction
on the court of appeals and divests the district court of its control over the aspects of
the case involved in the appeal.”). On December 12, 2014, the Eleventh Circuit
affirmed the judgment of this Court (Doc. 75), and issued the mandate on January
12, 2015 (Doc. 76). As a result, this Court may now consider the Rule 5.1 motion
challenging the federal statutes. (Doc. 67).
“Federal Rule of Civil Procedure 5.1 requires a party contesting the
constitutionality of a federal statute to serve the Attorney General of the United
States with notice of the action.” Okla. ex rel Edmondson v. Pope, 516 F.3d 1214,
1215 (10th Cir. 2008). Additionally, Rule 5.1(b) reminds the Court that it has an
independent duty to certify constitutional challenges to the Attorney General under
28 U.S.C. § 2403. Section 2403(a) provides that whenever “the constitutionality of
any Act of Congress affecting the public interest is drawn in question, the court shall
certify such fact to the Attorney General, and shall permit the United States to
intervene for presentation of evidence ... and for argument on the question of
The federal statutes at issue here are the Americans with Disabilities Act
(“ADA”) and the Family and Medical Leave Act (“FMLA”).1 (Doc. 67, p. 1). Although
McCaroll filed his motion pursuant to Rule 5.1, he does not challenge their
constitutionality. Rather, he filed the “motion and notice so that the Attorney
General is able to determine whether to seek intervention” to assert McCarroll’s
constitutional rights. (Doc. 67, p. 1). McCarroll claims he is a “Constitutional[ly]
protected individual who required medical leave for a serious mental condition under
the laws and statutes of the [ADA] and [FMLA].” (Doc. 67, p. 2). Thus McCarroll
seeks protection pursuant to the ADA and FMLA. McCarroll does not contend that
the ADA and FMLA are unconstitutional.
The ADA is codified at 42 U.S.C. §§ 12101 - 213. The FMLA is codified at 29 U.S.C. §§ 2601 54.
McCarroll further argues he can prove he is eligible for FMLA leave, and he is
disabled within the meaning of the ADA. (Doc. 67, pp. 1 – 2). McCaroll, however,
previously raised these FMLA and ADA issues and lost at the summary judgment
stage. (Doc. 50, pp. 3 – 9). McCaroll then appealed this Court’s ruling, and lost on
appeal. (Doc. 75). McCarroll is now attempting to use his Rule 5.1 motion to have the
Attorney General intervene on his behalf and challenge the ruling of this Court and
the termination of his employment. (Doc. 67, p. 1). Rule 5.1, however, is limited to
determining whether statutes are constitutional; it is not a mechanism for having
the Attorney General assert claims on a plaintiff’s behalf or re-litigate a case that
has already been decided on the merits.
Because the Rule 5.1 motion does not challenge the constitutionality of the
ADA or FMLA, it is ORDERED that the motion (Doc. 67) is DENIED.
DONE and ORDERED this 12th day of January, 2015.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
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