Hopman v. Union Pacific Railroad
ORDER denying 74 Union Pacific's motion for reconsideration or, in the alternative, certification under 28 U.S.C. § 1292(b). Signed by Judge Kristine G. Baker on 9/9/2020. (jbh)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
Case No. 4:18-cv-00074-KGB
UNION PACIFIC RAILROAD
Before the Court is a motion for reconsideration or, in the alternative, certification under
28 U.S.C. § 1292(b) filed by defendant Union Pacific Railroad (“Union Pacific”) (Dkt. No. 74).
Plaintiff Perry Hopman has filed a response (Dkt. No. 78), and Union Pacific has filed a reply
(Dkt. No. 79). Mr. Hopman supplemented his response to advise the Court of a recent First Circuit
case supporting his position, and Union Pacific filed a response to the supplement (Dkt. Nos. 88,
89). For the following reasons, the Court denies Union Pacific’s motion for reconsideration or, in
the alternative, certification under 28 U.S.C. § 1292(b) (Dkt. No. 74).
Mr. Hopman brings this action against Union Pacific under Section 504 of the
Rehabilitation Act of 1973, as amended, (“Rehabilitation Act”), 29 U.S.C. § 794, et seq., and the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. (Dkt. No. 4, ¶ 3). Mr.
Hopman alleges that he was discriminated against and denied a reasonable accommodation in
violation of both the Rehabilitation Act and the ADA (Id., ¶¶ 18-26). Mr. Hopman asserts that he
needs the requested accommodation of working alongside his service dog in order to enjoy equal
benefits and privileges of employment, including the right to work without the burden and pain of
his post-traumatic stress disorder (“PTSD”) (Dkt. Nos. 4, ¶ 12; 59, at 1, 16-21).
On June 24, 2019, Union Pacific moved for summary judgment in this matter (Dkt. No.
54). Union Pacific argued that as a matter of law Mr. Hopman was unable to demonstrate that he
was entitled to a reasonable accommodation or suffered an adverse employment decision and that
Union Pacific should have judgment granted in its favor accordingly (Dkt. No. 54-1, at 17-24).
Additionally, Union Pacific argued that Mr. Hopman failed to identify any “benefit” or “privilege”
of employment that he could not access without an accommodation, further dooming his claims
(Dkt. No. 61, at 1-9).
On May 26, 2020, the Court entered an Order denying Union Pacific’s motion for summary
judgment (Dkt. No. 72). In that Order, the Court considered the text of the Rehabilitation Act, the
ADA, and implementing regulations for both; surveyed relevant case law; and reached several
conclusions (Id.). The Court held that Mr. Hopman was able to bring a reasonable accommodation
claim even though he was able to perform the essential functions of his job (Id., at 19-23). The
Court also overruled Union Pacific’s argument that “Mr. Hopman has not demonstrated that there
are any equal benefits or privileges of employment that he is unable to enjoy without an
accommodation and that his alleged disability does not prevent him from enjoying anything Union
Pacific has to offer” (Id., at 23 (citing Dkt. Nos. 54-1, at 19; 61, at 5-9)). On this point, viewing
the record evidence in the light most favorable to Mr. Hopman, the Court concluded that “a
reasonable juror could conclude that Mr. Hopman has a disability and requested from Union
Pacific a reasonable accommodation to enjoy equal benefits and privileges of employment as are
enjoyed by its other similarly situated employees without disabilities” (Id., at 25). The Court also
found that a reasonable juror could conclude that Mr. Hopman’s requested accommodation seems
reasonable on its face and that there were disputed genuine issues of material fact regarding
whether Mr. Hopman suffered a requisite adverse employment action necessary to maintain his
claims (Id., at 27).
On June 17, 2020, Union Pacific filed the instant motion (Dkt. No. 74).
District courts have the inherent power to reconsider an interlocutory order any time prior
to the entry of judgment. See Lovett v. Gen. Motors Corp., 975 F.2d 518, 522 (8th Cir. 1992).
“When a district court is convinced that it incorrectly decided a legal question in an interlocutory
ruling, the district court may correct the decision to avoid later reversal.” Id. (citing In re Unioil,
Inc., 962 F.2d 988, 993 (10th Cir. 1992)). “A ‘motion for reconsideration’ is not described in the
Federal Rules of Civil Procedure, but such a motion is typically construed either as a Rule 59(e)
motion to alter or amend the judgment or as a Rule 60(b) motion for relief from
judgment.” Peterson v. The Travelers Indem. Co., 867 F.3d 992, 997 (8th Cir. 2017) (quoting Auto
Servs. Co. v. KPMG, LLP, 537 F.3d 853, 855 (8th Cir. 2008)). The Eighth Circuit has “determined
that motions for reconsideration are ‘nothing more than Rule 60(b) motions when directed at nonfinal orders.’” Elder-Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir. 2006) (quoting Anderson v.
Raymond Corp., 340 F.3d 520, 525 (8th Cir. 2003)).
Under Rule 60(b), the Court may relieve a party from an order on the narrow grounds of
mistake, inadvertence, surprise, or excusable neglect; newly discovered evidence; fraud,
misrepresentation, or misconduct by an opposing party; voidness; satisfaction of judgment; or “any
other reason justifying relief from the operation of the judgment.” Fed. R. Civ. P. 60(b). “The
rule ‘provides for extraordinary relief which may be granted only upon an adequate showing of
exceptional circumstances.’” Jones v. Swanson, 512 F.3d 1045, 1048 (8th Cir. 2008) (quoting
United States v. Young, 806 F.2d 805, 806 (8th Cir. 1986)); see also In re Guidant Corp.
Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863, 866 (8th Cir. 2007) (“Rule 60(b)
authorizes relief in only the most exceptional of cases.”); United States v. One Parcel of Property
Located at Tracts 10 & 11 of Lakeview Heights, Canyo Lake, Comal Cnty., Tex., 51 F.3d 117, 119
(8th Cir. 1995) (concluding that a motion to reconsider filed under Rule 60(b) requires the moving
party to establish “exceptional circumstances” to obtain the “extraordinary relief” the rule
provides). “Rule 60(b) is a motion grounded in equity and exists to prevent the [order or] judgment
from becoming a vehicle of injustice.” Harley v. Zoesch, 413 F.3d 866, 870 (8th Cir. 2005)
(internal quotation marks omitted). “Motions for reconsideration serve a limited function: to
correct manifest errors of law or fact or to present newly discovered evidence.” Arnold v. ADT
Sec. Servs., Inc., 627 F.3d 716, 721 (8th Cir. 2010). Importantly, a motion to reconsider should
not be used “to raise arguments which could have been raised prior to the issuance of” the
challenged order or judgment. Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.
1988), cert denied, 488 U.S. 820 (1988). In particular, as it pertains to Rule 60(b)(6), the Eighth
Circuit has provided the following guidance:
Relief is available under Rule 60(b)(6) only where “exceptional circumstances
prevented the moving party from seeking redress through the usual channels.” In
re Zimmerman, 869 F.2d 1126, 1128 (8th Cir. 1989). . . . “Exceptional
circumstances” are not present every time a party is subject to potentially
unfavorable consequences as a result of an adverse judgment properly arrived at.
Rather, exceptional circumstances are relevant only where they bar adequate
Atkinson v. Prudential Prop. Co., Inc., 43 F.3d 367, 373 (8th Cir. 1994).
Furthermore, “[p]ermission to allow interlocutory appeals” pursuant to certification under
28 U.S.C. § 1292(b) “should be granted sparingly and with discrimination.” Union Cty., Iowa v.
Piper Jaffray & Co., Inc., 525 F.3d 643, 646 (8th Cir. 2008). Such “motion[s] for certification
must be granted sparingly, and the movant bears the heavy burden of demonstrating that the case
is an exceptional one in which immediate appeal is warranted.” See White v. Nix, 43 F.3d 374,
376 (8th Cir. 1994). It has long been the policy of courts to discourage piece-meal appeals because
such appeals often result in additional and unnecessary burdens on the court and litigants. See
Union Cty., 525 F.3d at 646. Permission to allow an interlocutory appeal is intended to be used
only in the extraordinary cases, where resolution of the appeal might avoid protracted and
expensive litigation. Id. Section 1292(b) interlocutory appeals are not intended merely to provide
review of difficult rulings in hard cases. Id.
Section 1292(b) establishes three criteria for certification. The Court must be of the
opinion that: (1) the order involves a controlling question of law; (2) there is substantial ground
for difference of opinion; and (3) certification will materially advance the ultimate termination of
the litigation. See White, 43 F.3d at 377. “Even if the requirements are satisfied, [the Eighth
Circuit] may deny appeal for any reason.” Lloyd’s Acceptance Corp. v. Affiliated FM Ins. Co.,
557 Fed. App’x 618, 619 (8th Cir. 2014) (unpublished) (citing Union Cty., 525 F.3d at 646).
Union Pacific moves for reconsideration of the Court’s Order denying its motion for
summary judgment (Dkt. No. 74, ¶¶ 1-2). In the alternative, Union Pacific seeks certification
under 28 U.S.C. § 1292(b) allowing Union Pacific to petition the Eighth Circuit for interlocutory
review on whether the term “benefits and privileges of employment” is limited to employersponsored services, programs, and facilities and, if necessary, whether the ADA requires an
employer to accommodate an employee under the “essential functions” prong when the employee
is able to perform all of his or her essential job functions without an accommodation (Dkt. Nos.
74, ¶ 3; 75, at 3). Union Pacific argues that the “benefits and privileges of employment” should
be properly understood as limited to services, programs, and facilities affirmatively sponsored or
provided by an employer (Dkt. No. 75, 3-8). Union Pacific maintains that the Equal Employment
Opportunity Commission’s interpretive guidance confirms that the “benefits and privileges of
employment” does not extend beyond employer-sponsored services, programs, or facilities (Id., at
8-9). Union Pacific also retreads its argument that the ADA does not require an employer to
accommodate an employee under the “essential functions” prong when the employee is able to
perform all of her essential job functions without an accommodation (Id., at 11-16). Should the
Court deny its motion for reconsideration, Union Pacific requests certification under 28 U.S.C. §
1292(b) (Id., at 16-18).
Union Pacific asserts that its interlocutory appeal would involve
controlling questions of law, that the legal questions at issue entail a substantial ground for a
difference of opinion, that an immediate appeal may materially advance the ultimate termination
of the litigation, and that a short stay of the proceedings would be appropriate in the event that the
Court enters a certification under § 1292(b) (Id.).
In response, Mr. Hopman argues that the relief Union Pacific seeks is unavailable at this
stage of the litigation, particularly to the extent Union Pacific seeks to advance new arguments or
legal theories (Dkt. No. 78, at 1-3). To the extent Union Pacific seeks relief under Rule 59(e), Mr.
Hopman maintains that the challenged order is not appealable and is therefore inappropriate for
consideration (Id., at 2). To the extent Union Pacific seeks relief under Rule 60(b), Mr. Hopman
maintains that there are no exceptional circumstances justifying Union Pacific’s request (Id.). Mr.
Hopman also asserts that the “extraordinary relief” § 1292(b) affords should be unavailable in this
case (Id., at 2-3, 8). Additionally, Mr. Hopman asserts that Union Pacific’s argument fails on the
merits (Id., at 3-8).
In reply, Union Pacific states that the Court has the inherent authority to reconsider its
previous orders and that Rule 60(b)(6), which allows relief from an interlocutory order for “any
other reason that justifies relief,” applies here (Dkt. No. 79, at 2-3). Union Pacific also maintains
that it has not presented any new arguments or legal theories, though Union Pacific does note that
its current motion further explores the “benefits or privileges of employment” as a result of having
the benefit of the Court’s decision and rationale (Id., at 3-4). Union Pacific reiterates its position
that the “benefits and privileges of employment” are limited to employee-sponsored services,
programs, and facilities, and Union Pacific maintains that the ADA regulations supporting this
position cannot be interpreted beyond what their governing texts allow (Id., at 4-7). As to
certification, Union Pacific asserts that the legal issues at stake are sufficiently extraordinary to
merit the Eighth Circuit’s guidance before committing to a potentially wasteful trial and that
substantial authority exists to support its position (Id., at 7-8).
Motion For Reconsideration
Union Pacific states that it moves for reconsideration pursuant to Rule 60(b)(6), which
allows relief from an interlocutory order for “any other reason that justifies relief” (Dkt. No. 79,
at 2). Fed. R. Civ. P. 60(b)(6). As the Eighth Circuit has noted, Rule 60(b)(6) requires the movant
to demonstrate “exceptional circumstances” warranting reconsideration. Atkinson, 43 F.3d at 373.
The Eighth Circuit cautions that “‘[e]xceptional circumstances” are not present every time a party
is subject to potentially unfavorable consequences as a result of an adverse judgment properly
arrived at,” but “are relevant only where they bar adequate redress.” Id. In this case, Union Pacific
has not demonstrated exceptional circumstances meriting the requested relief under Rule 60(b)(6).
Union Pacific’s argument boils down to a disagreement with the Court’s legal conclusions and
understanding of the term “privileges and benefits of employment.” The Court considered the
factual record, the parties’ arguments, and the relevant legal authorities, and the Court concluded
that Union Pacific’s motion for summary judgment should be denied for the reasons explained in
its May 26, 2020, Order (Dkt. No. 72). Union Pacific has had a “full and fair opportunity to litigate
[its] claim,” and there have been no “exceptional circumstances” that “have prevented the moving
party from receiving adequate redress.” Zoesch, 413 F.3d at 871 (citing Atkinson, 43 F.3d at 373).
Additionally, the “usual channels,” In re Zimmerman, 869 F.2d at 1128, remain available for
Union Pacific to argue and vindicate its position—namely, trial and the normal appeals process, if
applicable. Thus, at this stage of the litigation, the Court considers Union Pacific’s motion for
reconsideration unfounded and denies the request for reconsideration sought therein (Dkt. No. 74).
Certification Under 28 U.S.C. § 1292(b)
The Court reiterates that under Eighth Circuit precedent a district court may certify an order
for interlocutory appeal if: (1) the order involves a controlling question of law; (2) there is
substantial ground for difference of opinion; and (3) certification will materially advance the
ultimate termination of the litigation. See White, 43 F.3d at 377. Assuming without deciding that
Union Pacific has demonstrated that there is substantial ground for difference of opinion, the Court
concludes that Union Pacific has failed to satisfy the first and third elements for certification under
The questions of law Union Pacific addresses in its motion cannot be severed from the
contested factual record present in this case. If this case “turned on a pure question of law,
something the court of appeals could decide quickly and cleanly without having to study the record,
the court should be enabled to do so without having to wait till the end of the case.” Delock v.
Securitas Sec. Servs. USA, Inc., 2012 WL 3150391, at *7 (E.D. Ark. Aug. 1, 2012) (quoting
Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674, 677 (7th Cir. 2000)); see also Adair v.
Conagra Foods, Inc., No. 09-0018-CV-W-DW, 2012 WL 12903713, at *2 (W.D. Mo. Sept. 11,
2012) (concluding that movant satisfied the first element of the Eighth Circuit’s standard for
certification under § 1292(b) because the challenged issue was “a pure question of law”). The case
at bar is not such a case. Mr. Hopman’s claims against Union Pacific and the evidence before the
Court involve genuine disputes of material facts and complicated questions of the ADA’s
applicability to and governance of the disputed factual issues at hand.
Further, the Court is unconvinced that certification will materially advance the ultimate
termination of the litigation. This matter is set for jury trial sometime during the week of
September 28, 2020 (Dkt. No. 81). With this case on the cusp of trial, “the ultimate termination
of the litigation” looms in just over two months. This action is ready to be tried, and the potential
to save resources by avoiding trial is not as great as it would have been earlier in the proceedings.
The Court has considered both the costs and the benefits to allowing an interlocutory appeal.
See S.E.C. v. Credit Bancorp, Ltd., 103 F. Supp. 2d 223, 226 (S.D.N.Y. 2000) (“[T]he benefit to
the district court of avoiding unnecessary trial must be weighed against the inefficiency of having
the Court of Appeals hear multiple appeals in the same case.”). Given the nature and posture of
the present action, the Court finds that the action does not fall within the narrow and extraordinary
circumstances where certification for interlocutory appeal may be appropriate.
Accordingly, the Court denies Union Pacific’s alternative request for certification under
§1292(b) (Dkt. No. 74).
For the foregoing reasons, the Court denies Union Pacific’s motion for reconsideration or,
in the alternative, certification under 28 U.S.C. § 1292(b) (Dkt. No. 74).
It is so ordered this 9th day of September, 2020.
Kristine G. Baker
United States District Judge
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