MILLAY v. STATE OF MAINE DEPARTMENT OF LABOR
Filing
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ORDER ON DEFENDANTS MOTION FOR CERTIFICATE OF APPEALABILITY denying 37 Motion for Certificate of Appealability; denying 37 Motion to Stay By JUDGE NANCY TORRESEN. (dfr)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JOHN M. MILLAY,
Plaintiff,
v.
STATE OF MAINE DEPARTMENT
OF LABOR
Bureau of Rehabilitation Services
Division for the Blind and Visually
Impaired,
Defendant.
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) Civil no. 1:11-cv-00438-NT
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ORDER ON DEFENDANT’S MOTION FOR CERTIFICATE OF
APPEALABILITY
BACKGROUND
In November of 2011, the Plaintiff, John Millay, brought a civil action against
the Defendant, the State of Maine Department of Labor Bureau of Rehabilitation
Services, Division for the Blind and Visually Impaired (the “DBVI”), alleging that
the DBVI discriminated against him by denying him certain rehabilitation services.
Pl’s Compl. and Demand for Jury Trial (ECF No. 1). The Defendant moved to
dismiss the complaint, and Magistrate Judge Kravchuk issued a recommended
decision, which the Court affirmed, granting the motion to dismiss but recognizing
that the Plaintiff might have a viable claim against the Defendant under 29 U.S.C.
§ 722(c)(5)(J). See Rec Dec. (ECF No. 12); Order Affirming the Rec. Dec. of the
Magistrate Judge (ECF No. 32).
The Plaintiff then moved to amend his complaint to assert a claim under
722(c)(5)(J), and Judge Kravchuk issued a recommended decision granting the
motion. Rec. Dec. on Pl.’s Second Mot. to Amend (ECF No. 31). In her recommended
decision, Judge Kravchuk concluded that under the Supreme Court’s decision in
Jones v. R. R. Donnelly & Sons Co., 541 U.S. 369 (2004), and the plain language of
section 1658, section 1658(a)’s four-year statute of limitations applies to 722(c)(5)(J)
actions. Therefore, the Plaintiff’s proposed claim remained timely, and amendment
was not futile. The Court affirmed the recommended decision. Order Affirming the
Rec. Dec. of the Magistrate Judge (ECF No. 35).
The Defendant now moves the Court to certify for interlocutory appeal under
28 U.S.C. § 1292(b) the following issue:
Whether Maine’s 30 day statute of limitation for judicial review of
state administrative decisions (the most analogous state law statute of
limitations) or the federal catch-all four year statute of limitations
contained in 28 U.S.C. § 1658(a) applies to claims under 29 U.S.C. §
722(c)(5)(J).
Def.’s Mot. for Certification of Order for Interlocutory Appeal and for Stay of
Proceedings (ECF No. 37). For the reasons briefly stated below, the Defendant’s
motion is DENIED.
DISCUSSION
Section 1292(b) 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.
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28 U.S.C. § 1929(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). The First Circuit has “repeatedly emphasized that ‘interlocutory certification
under 28 U.S.C. § 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 v. Municipality of Hormigueros, 395 F.3d 7, 9 (2005) (quoting
McGillicuddy v. Clements, 746 F.2d 76, 76 n.1); see Camacho v. P.R. Ports Auth.,
369 F.3d 570, 573 (1st Cir. 2004) (such appeals are “hen’s-teeth rare”). “As a general
rule,” the First Circuit does not grant interlocutory appeals from a denial of a
motion to dismiss. Caraballo-Seda, 395 F.3d at 9; see McGillicuddy, 746 F.2d at 76
n.1.
The Court disagrees that there is substantial ground for difference of opinion
as to the applicability of section 1658(a), or that the Defendant’s issue for
interlocutory appeal presents “one or more difficult and pivotal questions of law not
settled by controlling authority.” The Court declines to revisit the Defendant’s
arguments to the contrary, which were thoughtfully rejected in Judge Kravchuk’s
recommended decision, which the Court affirmed.
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CONCLUSION
The Defendant’s Motion for Certification of Order for Interlocutory Appeal and for
Stay of Proceedings is hereby DENIED.
SO ORDERED.
Dated this 8th day of January, 2013.
/s/ Nancy Torresen
United States District Judge
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