United States of America v. State of Louisiana et al

Filing 465

RULING AND ORDER denying 457 Motion for Certification of Ruling as Final and Appealable, and the Court declines to certify its Order denying Defendant's Motion for Partial Summary Judgment. Signed by Judge John W. deGravelles on 8/29/2016. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA
v.

CIVIL ACTION

STATE OF LOUISIANA, ET AL.

NO. 11-470 –JWD-RLB

RULING AND ORDER
This matter comes before the Court on a motion (Doc. 457) to certify ruling as final and
appealable pursuant to 28 U.S.C. § 1292, filed by defendant, the J. Thomas Schedler, Louisiana
Secretary of State (“SOS” or “Defendant”), concerning this Court’s Order and Reasons (Doc.
456), which denied Defendant’s motion for partial summary judgment (Doc. 336-5). Plaintiff,
the United States of America (“Plaintiff” or “US”) has filed an opposition. (Doc. 459.) Oral
argument is not necessary.
Factual and Procedural Background
Plaintiff brought this action to enforce Louisiana’s obligations under the National Voter
Registration Act of 1993 (“NVRA”), 52 U.S.C. §§ 20501-20511. (Doc. 1.) Section 7 of the
NVRA provides in relevant part that all offices providing public assistance or state-funded
disability programs must offer their clients and applicants voter registration opportunities every
time they apply for benefits or services, as well as each time they conduct renewal,
recertification, or change of address transactions with respect to these services. See 52 U.S.C. §
20506. After extensive discovery, the parties filed various dispositive motions, including a
motion filed by Defendant for partial summary judgment, which sought a ruling from this Court
that Section 7(a)(6) of the NVRA does not apply to remote transactions. (See generally Doc.
336-5.) In a comprehensive Order and Reasons (Doc. 456), the Court denied Defendant’s

motion, finding, inter alia, that Section 7(a)(6) of the NVRA “must be read to encompass remote
transactions.” (Id. at 8.)
In the present motion, Defendant requests this Court certify its July 26, 2016 ruling (Doc.
456) as final and appealable, pursuant to 28 U.S.C. § 1292(b), claiming the Order meets the
criteria for certification under § 1292. (Doc. 457-1 at 1-2.) It submits the Court’s Order
determined a distinct legal claim regarding the interpretation of the NVRA’s application to
remote transactions, an issue to which the Fifth Circuit has not spoken,1 and immediate
resolution of the issue is required to promote judicial efficiency and safeguard against an
erroneous ruling. (Id. at 2.) Plaintiff staunchly opposes the motion on several grounds. (Doc.
459.)
Legal Standard
A district court retains jurisdiction over all claims in a suit and may alter its earlier
decisions until a final judgment has been issued. Medecor Pharma LLC v. Fleming Pharm., Inc.,
No. 12-291, 2014 WL 412353, at *1 (M.D.La. Feb. 3, 2014) (quoting Livingston Downs Racing
Ass'n v. Jefferson Downs Corp., 259 F.Supp.2d 471, 475 (M.D.La. 2002)). Generally, the
jurisdiction of the United States Courts of Appeals is limited to the consideration of final
decisions of the district courts. See 28 U.S.C. § 1291. A final judgment is normally deemed not
to have occurred until there has been a decision by the District Court that ends the litigation on
the merits and leaves nothing for the court to do but execute the judgment. Midland Asphalt
Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989)
(quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 521, 108 S.Ct. 1945, 1949, 100 L.Ed.2d
517 (1988)); Netsphere, Inc. v. Baron, 799 F.3d 327, 331 (5th Cir. 2015); Martin v. Halliburton,

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Although this question was posed to Fifth Circuit in Scott v. Schedler, 771 F.3d 831 (5th Cir. 2014), the court
declined deciding the issue on the merits, and instead dismissed the case on jurisdictional grounds.

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618 F.3d 476, 481 (5th Cir. 2010) (citing Henry v. Lake Charles Am. Press, L.L.C., 556 F.3d
164, 169 (5th Cir. 2009) (quoting Midland)).
Interlocutory orders, on the other hand, are those which do not terminate litigation on the
merits, and are governed by 28 U.S.C. § 1292(b),2 which states:
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.
(emphasis original). The district court has discretion to certify an interlocutory appeal.
Simoneaux v. E.I. du Pont de Nemours & Co., No. 12-219, 2016 WL 236239 at *6 (M.D.La. Jan.
20 2016) (quoting Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 405, n. 9, 124
S.Ct. 2576, 159 L.Ed.2d 459 (2004)). Before it does so, however, the Court must find that the
interlocutory decision (1) involves a controlling question of law as to which (2) there is a
substantial ground for difference of opinion and (3) that an immediate appeal from the order may
materially advance the ultimate termination of the litigation. Aparicio v. Swan Lake, 643 F.2d

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Interlocutory orders may be governed by either 28 U.S.C. § 1292 or Fed. R. Civ. Pro. 54(b). However, these
provisions govern two distinct situations.
The former applies only to orders that would be considered interlocutory even if presented in a
simple single-claim, two-party case. Rule 54(b) applies only to adjudications that would be final
under Section 1291 if they occurred in an action having the same limited dimensions. Therefore, if
an order is final under Section 1291, Section 1292(b) cannot apply and resort must be had to Rule
54(b) in the multiple-party or multiple-claim situation. Conversely, if an order is interlocutory,
Rule 54(b) has no bearing on any determination that might be made under Section 1292(b).
§ 10 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2658.2 (3d ed. 2016)
(internal citations omitted).

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1109, 1110 n. 2 (5th Cir. 1981); Medecor, 2014 WL 412353 at *2 (quoting Louisiana
Generating, LLC v. Illinois Union Ins. Co., No. 10-516, 2012 WL 1752685, at *1 (M.D.La. May
16, 2012)). The district court cannot certify an order for an interlocutory appeal unless the
movant has established all three criteria are present. David v. Signal Intern., LLC, 37 F.Supp.3d
836, 839 (E.D.La. 2014) (citing Aparicio, 643 F.2d at 1110 n. 2).
The proponent of the interlocutory appeal bears the burden of demonstrating its necessity.
See Clark-Dietz and Assocs-Eng’rs, Inc. v. Basic Constr. Co., 702 F.2d 67, 68 (5th Cir. 1983);
Simoneaux, 2016 WL 236239 at *3. “Interlocutory appeals are generally disfavored, and statutes
permitting them must be strictly construed.” Allen v. Okam Holdings, Inc., 116 F.3d 153, 154
(5th Cir. 1997) (quoting In re Complaint of Ingram Towing Co., 59 F.3d 513, 515 (5th Cir.
1995)). When ruling on whether certification is appropriate, the Court is mindful that
interlocutory appeals are “exceptional” and do not lie “simply to determine the correctness of a
judgment.” David, 37 F.Supp.3d at 839 (quoting Clark-Dietz, 702 F.2d at 68-69).
Law and Analysis
Defendant first argues certification for an interlocutory appeal is proper because the
applicability of Section 7 to remote transactions presents a controlling question of law. (Doc.
475-1 at 4-5.) “Although the resolution of an issue need not necessarily terminate an action in
order to be controlling, it is clear that a question of law is controlling if reversal of the order
would terminate the action.” United States v. Louisiana Generating LLC, 09-100, 2012 WL
4588437 at *1 (M.D.La. Oct. 2, 2012) (quotations omitted). However, an issue is not considered
a controlling question of law if “resolution on appeal would have little or no effect on subsequent
proceedings.” Id. (quotations omitted). A determination of whether an issue is controlling

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typically “hinges upon its potential to have some impact on the course of the litigation.” Id.
(internal quotation omitted).
Defendant claims the issue raises a controlling question of law “because it would require
reversal if decided incorrectly and it would materially affect the course of the litigation.” (Doc.
457-1 at 4.) However, Defendant’s assertion is misguided; under this logic, virtually every
erroneous ruling by a district court would be rendered a “controlling question of law” subject to
interlocutory appeal. Moreover, Plaintiff correctly emphasizes that the issue of remote
transactions is but one facet in this much broader litigation; many of Plaintiff’s claims relate to
Louisiana’s compliance (or lack thereof) with Section 7 coordination activities and in-person
transactions as well as the remote transactions at issue here. (See Doc. 459 at 4-5, n. 2.)
In a similar case, Ferrand v. Schedler, 11-926, 2012 WL 2087399 (E.D.La. June 8,
2012), the court denied the defendants’ motion for certification of an interlocutory order as final
and appealable (which, incidentally, also related to the statutory interpretation of the NVRA and
whether Section 7 applies to remote transactions) because a reversal of the court’s previous order
would not terminate the litigation. Ferrand, 2012 WL 2087399 at *3. Specifically, because the
plaintiffs’ claims related to both in-person and remote transactions, the case had to be “litigated
to a final judgment regardless of any interlocutory appeal.” Id. Accordingly, the court found no
controlling question of law, and denied the plaintiffs’ motion to certify the judgment. The instant
case presents an analogous situation that leads to a congruent result. The Court must resolve the
claims arising out of Louisiana’s alleged noncompliance with in-person transactions “regardless
of any interlocutory appeal[.]” See id. Thus, even assuming arguendo the Fifth Circuit would
reverse this Court’s Order, such decision would not terminate the litigation. The issue does not
present a controlling question of law.

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Although Defendant’s failure to demonstrate a controlling question of law could end the
Court’s inquiry (see e.g., David, 37 F.Supp.3d at 839 (movant must establish all three prongs to
demonstrate entitlement to interlocutory appeal)), it will nonetheless elucidate its findings on the
second and third prongs, which supports its conclusion that Defendant is not entitled to an
interlocutory appeal. The second prong, which requires a showing of substantial grounds for a
difference of opinion on this Court’s previous ruling, further negates Defendant’s entitlement to
certification of the Court’s Order. Disagreement by a party with a district court’s judgment is
insufficient to demonstrate a substantial ground for a difference of opinion. Louisiana
Generating, 2012 WL 4588437 at *2 (citing Ryan v. Flowserve Corp., 444 F.Supp.2d 718, 728
(N.D. Tex. 2006)); Ferrand, 2012 WL 2087399 at *3 (quoting Southern U.S. Trade Ass’n v.
Unidentified Parties, 10-1669, 2011 WL 2790182 at *2 (E.D.La. July 14, 2011)). Rather, a
“substantial ground for difference of opinion ‘usually only arises out of a genuine doubt as to the
correct applicable legal standard relied on in the order.’” Louisiana Generating, 2012 WL
4588437 at *2 (quoting Property One, Inc. v. USAgencies, L.L.C., 830 F.Supp.2d 170, 182-83
(M.D. La. 2011)). Moreover, a substantial difference of opinion does not arise merely by virtue
of a court being the first to rule on a question of law. Ferrand, 2012 WL 2087399 at *3 (citing
Ryan, 444 F.Supp.2d at 723-24)).
Defendant concedes the issue of remote transactions under Section 7 has never been
addressed by a federal circuit court, and few district courts have spoken on the issue.3 (Doc. 457-

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Despite the admitted lack of jurisprudence squarely addressing this issue, Defendant suggests Arizona v. Inter
Tribal Council of Arizona, Inc., __ U.S. __, 133 S.Ct. 2247, 186 L.Ed.2d 239 (2013) supports its position that
Section 7 does not encompass remote transactions. (Doc. 457-1 at 6.) Defendant seemingly relies on dicta in which
the Court states “[t]he Act requires each State to permit prospective voters to ‘register to vote in elections for
Federal office’ by any of three methods: simultaneously with a driver’s license application, in person, or by mail. §
1973gg-2(a).” (Doc. 457-1 at 6 (quoting Inter Tribal Council, 133 S.Ct. at 2251)). However, Defendant’s reliance on
this language is misplaced; the sole issue before the Inter Tribal Council Court was whether Arizona’s requirement
that people seeking to register to vote present proof of citizenship and also provide valid identification on Election
Day violated the NVRA. The passage cited by Defendant is inapposite to the instant case. Moreover, a cursory

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1 at 5-6.) In addition to this Court’s Order (Doc. 456 at 84-87) addressing the applicability of
Section 7 to remote transactions, only two other district courts have tackled this issue. See
Ferrand, 2012 WL 1570094 at *8—*12; Georgia State Conf. of the NAACP v. Kemp, 841
F.Supp.2d 1320, 1329-32 (N.D. Ga. 2012). Both of these rulings are consistent with this Court’s
conclusion that Section 7 encompasses remote transactions. See Ferrand, 2012 WL 1570094 at
*9 (“Ultimately, this Court finds that the language in Section7(a)(6)(A) is indicative of an
application to both in person transactions and remote transactions, including those via the
internet, telephone and mail.”); Kemp, 841 F.Supp.2d at 1329 (“At bottom, the language of
paragraph (a)(6) of Section 7 is unambiguous… There is no clear textual basis in the operative
language of Section 7 paragraph (a)(6) for the proviso found in the Georgia statute implementing
the NVRA, which limits the application of the mandatory distribution of forms to only those
instances ‘when such application, recertification, renewal, or change of address is made in
person.’”) (emphasis original) (citation omitted). Based on the foregoing, Defendant has failed
to establish the existence of any difference of opinion, let alone a substantial one.
Finally, Defendant asserts an interlocutory appeal is proper because it would materially
advance the disposition of the litigation, and it would suffer immediate harm if the certification is
not granted and the Fifth Circuit ultimately concludes the Act does not encompass remote
transactions. (Doc. 457-1 at 7.) It further submits that a definitive resolution of the issue by the
Fifth Circuit at this juncture would benefit all parties and promote judicial efficiency by assuring
the Court will apply the correct legal standard. (Id. at 2-3.) It alleges it “would constitute a waste

reading of the cited passage leads to the exact opposite conclusion than that which Defendant proposes; that an
individual may register to vote “by any of three methods” including by mail indicates the Court envisioned remote
transactions under the Act, as one may logically conclude transactions conducted via mail are necessarily not inperson transactions. See Inter Tribal Council, 133 S.Ct. at 2251. Defendant offers no support, in law or in fact, for
its contrary conclusion.

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of time and resources if the case proceeded to trial of all agency transactions and it proved out
after appeal that only a portion of the transactions should have been tried,” but this Court can
ameliorate the necessity of “undergo[ing] the expense and burdens of a trial and risk harm from
an erroneous ruling” by granting an immediate appeal. Id.
Again, Defendant’s logic is circular and misguided; every erroneous ruling by a district
court has potential to harm litigants affected by the judgment, just as every erroneous ruling will
likely lead to additional expense of judicial resources to reach a just resolution. However, this
does not render every erroneous ruling subject to interlocutory appeal. Moreover, Defendant’s
argument under this prong is premised on the underlying assumption that this Court’s ruling is
erroneous. However, this premise is undermined by the fact that, as discussed above, there is no
difference of opinion on this issue of remote transactions under Section 7, and the few rulings
rendered on the subject are consistent with this Court’s. Defendant has offered no persuasive
arguments to convince this Court the Fifth Circuit would disagree with its previous Order.
Moreover, even accepting Defendant’s contention under this prong at face value, it does not
negate Defendant’s failure to establish the first two prongs of the test for certification have been
satisfied.
Conclusion
After reviewing the memoranda of the parties and the applicable law, Defendant’s
Motion for Certification of Ruling as Final and Appealable is DENIED, and the Court declines
to certify its Order denying Defendant’s motion for partial summary judgment.
Signed in Baton Rouge, Louisiana, on August 29, 2016.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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