Al-Turki v. Tomsic et al

Filing 124

ORDER Denying Defendants' 106 Motion for Certification of Interlocutory Appeal. By Judge Robert E. Blackburn on 03/24/2017. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 15-cv-00524-REB-KLM
HOMAIDAN AL-TURKI,
Plaintiff,
v.
ANN TOMSIC, in her official capacity as Chief Deputy District Attorney,
GEORGE BRAUCHLER, in his official capacity as District Attorney, and
PAUL HOLLENBECK, in his official capacity,
Defendants.

ORDER DENYING DEFENDANTS’ MOTION
FOR CERTIFICATION OF INTERLOCUTORY APPEAL
Blackburn, J.
The matter before me is the Motion for Certification Pursuant to 28 U.S.C.
§ 1292(b) of This Court’s March 25, 2016, Order From Defendants Ann Tomsic and
George Brauchler [#106]1 filed April 19, 2016. The plaintiff filed a response [#110],
and defendants Ann Tomsic and George Brauchler filed a reply [#111]. I deny the
motion.
The standard for appellate review of an interlocutory order of a district court is
codified at 28 U.S.C. § 1292. Section 1292(b) is apposite and prov ides in relevant part:
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
1

“[#106]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

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. . . .
Given the terms of the statute, four criteria must be met before an issue may be
certified for interlocutory appeal: (1) the action must be a civil action; (2) the court must
conclude that the order involves a controlling question of law; (3) there must be
substantial ground for difference of opinion as to the resolution of that question; and (4)
it must appear that an immediate appeal from the order may materially advance the
ultimate termination of the litigation. In re Grand Jury Proceedings June 1991, 767
F.Supp. 222, 223 (D. Colo. 1991).
While I have discretion in determining whether to certify an order for interlocutory
appeal under the statute, see Swint v. Chambers County Commission, 514 U.S. 35,
47 (1995), certification should be reserved for rare and extraordinary cases. State of
Utah by and through Utah State Department of Health v. Kenecott Corp., 14 F.3d
1489, 1495 (10 th Cir.), cert. denied, 115 S.Ct. 197 (1994).
The phrase “question of law” as used in 28 U.S.C. § 1292(b) does not
refer to a particular application of facts to the law, but rather “has
reference to a question of the meaning of a statutory or constitutional
provision, regulation, or common law doctrine.” Ahrenholz v. Bd. of Trs.
of the Univ. of Ill., 219 F.3d 674, 676 (7th Cir.2000). Such questions
typically involve law that is unsettled. See Gillespie v. U.S. Steel Corp.,
379 U.S. 148, 168 n. 4 (1964) (approving district court's denial of
certification when the Supreme Court had previously directly addressed
the law in question); 28 U.S.C. § 1292(b) (requiring there be a substantial
ground for difference of opinion on the controlling question of law).
Consequently, for the purposes of 28 U.S.C. § 1292(b), district courts
should certify questions when they are unsure what the law is, not when
there is merely a dispute as to how the law applies to the facts of a
particular situation.
Certain Underwriters at Lloyd's, London, Subscribing To Policy Number
501/NM03ACMB v. Nance, 2006 WL 4109675, at *3 (D.N.M.,2006)

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The plaintiff, Homaidan Al-Turki, is a citizen of the Kingdom of Saudi Arabia. He
suffered criminal convictions in the District Court of Arapahoe County, Colorado and
was sentenced to an indeterminate term of imprisonment of eight years to life in the
Colorado Department of Corrections (DOC). He remains incarcerated on that
sentence.
While in prison, Mr. Al-Turki initiated an attempted transfer via application under
a treaty governing the international transfer of prisoners. When a foreign national is
incarcerated in a state prison, he may obtain approval of a proposed international
transfer by the sentencing state. If the sentencing state approves, the application then
is sent to the Attorney General of the United States for approval or disapproval.
The plaintiff alleges that the defendants caused Tom Clements, the then
Executive Director of DOC, to change his decision to approve the request of the plaintiff
for a transfer to his home country, Saudi Arabia. Allegedly, Mr. Clements initially
approved the transfer request and wrote, but did not send, a letter to that ef fect.
According to the plaintiff, defamatory statements by Ms. Tomsic and Mr. Brauchler
caused the director of the DOC to change his mind and then to disapprove the
application. That disapproval, Mr. Al-Turki alleges, foreclosed any possibility that his
application would be approved at the other necessary levels. Based on these factual
allegations, Mr. Al-Turki alleges violation of his right to due process of law.
The due process claim of Mr. Al-Turki is a so-called stigma-plus due process
claim. “For a plaintiff to prevail on a claim that the government has violated the Due
Process Clause by damaging [his] reputation, that plaintiff must satisfy the ‘stigma-plus’
standard. That standard requires the plaintiff to demonstrate both (1) governmental
defamation and (2) an alteration in legal status.” Martin Marietta Materials, Inc. v.
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Kansas Dept. of Transp., 810 F.3d 1161, 1184 (10th Cir. 2016) (internal quotation and
citation omitted); see also Nat’l Aeronautics & Space Admin. v. Nelson, 562 U.S.
134, 161 (2011) (stigma, standing alone, does not significantly alter a person’s legal
status so as to justify the invocation of procedural safeguards). To satisfy the second
prong, an alteration of legal status, the plaintiff must show a significant alternation of his
legal status resulting from the government defamation. Paul v. Davis, 424 U.S. 693,
711 (1976).2
Addressing the motion to dismiss [#13] of Ms. Tomsic and Mr. Brauchler, the
magistrate judge concluded that the alleged decision by the director of the DOC to
change his approval of the transfer request to a disapproval of that request does not
constitute a significant alteration of the legal status of the plaintiff. Recommendation
[#89], pp. 20 - 21. Thus, the magistrate judge concluded that the allegations in the
plaintiff’s complaint did not state a stigma-plus due process claim.
Addressing this issue in my order [#93] considering the recommendation, I
disagreed with this conclusion. I noted that Mr. Al-Turki
alleges that the actions of the defendants removed any possibility that he
could get his transfer application approved at all of the necessary levels.
Prior to the alleged falsehoods, Mr. Al-Turki alleges, he had an
opportunity to gain approval of his transfer application. After the
falsehoods, he alleges, he had no opportunity to gain such approval. In
the circumstances of Mr. Al-Turki, that is a significant change in his legal
status.
Order [#93], p. 7.
In their present motion, Ms. Tomsic and Mr. Brauchler seek certification of the
question of “whether Plaintiff possessed a liberty interest in the drafting of an approval
2

The Paul court noted state granted drivers licenses and parole privileges as forms of status
recognized by a state which, when extinguished or altered significantly, trigger a due process requirement.
Id.

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letter, which was never sent, by the Colorado Department of Corrections Executive
Director Tom Clements pursuant to the transfer treaty to which both the United States
of America and the Kingdom of Saudi Arabia are signatories.” Motion [#106], p. 2.
Stated more succinctly, the key issue is whether the alleged change of mind of the DOC
director worked a significant alteration of Mr. Al-Turki’s legal status for purposes of a
stigma-plus due process claim. Ms. Tomsic and Mr. Brauchler contend this issue is
appropriate for certification under § 1292(b).
This case is a civil action; thus, first requirement of § 1292(b) certification is
satisfied. Whether Mr. Al-Turki suffered a significant alteration of his legal status is the
controlling question of law. If he did, then he has pled a viable stigma-plus claim; if he
did not, he has not.
However, my determination of this issue, when addressing the motion to dismiss,
involved an application of the law stated in the relevant caselaw to the factual
allegations of Mr. Al-Turki. This is not a situation in which the court or the parties face
significant uncertainty about what the law is. The law in question is reasonably clear.
Rather, at this point, the key dispute is how the law applies to the particular facts
alleged by Mr. Al-Turki. Generally, disputes about how reasonably clear law applies to
particular facts are not appropriate for certification under § 1292(b).
Given these circumstances, I find and conclude that the issue for which Ms.
Tomsic and Mr. Brauchler seek certification under § 1292(b) does not involve a
controlling question of law which is unclear. Rather, the issue for which certification for
immediate interlocutory appeal is sought involves a question about how the reasonably
clear law concerning stigma-plus due process claims applies to the particular facts
alleged by Mr. Al-Turki. That mixed question of fact and law is not appropriate for
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certification under § 1292(b).
THEREFORE, IT IS ORDERED that the Motion for Certification Pursuant to
28 U.S.C. § 1292(b) of This Court’s March 25, 2016, Order From Defendants Ann
Tomsic and George Brauchler [#106] is denied.
Dated March 24, 2017, at Denver, Colorado.
BY THE COURT:

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