FEDERAL ENERGY REGULATORY COMMISSION v. SILKMAN et al

Filing 162

ORDER DENYING MOTION FOR LEAVE TO FILE INTERLOCUTORY APPEAL denying 159 Motion for Leave to File By JUDGE JOHN A. WOODCOCK, JR. (CCS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
FEDERAL ENERGY REGULATORY )
COMMISSION,
)
)
Petitioner,
)
)
v.
)
)
RICHARD SILKMAN, et al.,
)
)
Respondents.
)

1:16-cv-00205-JAW

ORDER DENYING MOTION FOR LEAVE TO FILE INTERLOCUTORY
APPEAL
Concluding that whether United States v. Meyer, 808 F.2d 912 (1st Cir. 1987)
continues to be viable despite the subsequent United States Supreme Court decisions
of Gabelli v. SEC, 568 U.S. 442 (2013), and Kokesh v. SEC, 137 S. Ct. 1635 (2017),
does not present a “controlling question of law as to which there is a substantial
ground for difference of opinion” under 28 U.S.C. § 1292(b), the Court denies a motion
for leave to file interlocutory appeal.
I.

BACKGROUND
On January 17, 2019, the Court issued an exhaustive order in which it

concluded that FERC had filed its enforcement action on a timely basis, denied the
Respondents’ motion for summary judgment and granted FERC’s motion for partial
summary judgment. Order on Mots. for Summ. J. (ECF No. 155) (Order).

On

January 24, 2019, the Respondents filed a motion for leave to file interlocutory
appeal. Resp’ts’ Mot. for Interlocutory Appeal (ECF No. 159) (Resp’ts’ Mot.). On

February 7, 2019, FERC filed its opposition to the Respondents’ motion. Pet’r’s Opp’n
to Mot. for Interlocutory Appeal (ECF No. 160) (Pet’r’s Opp’n). On February 14, 2019,
the Respondents filed their reply.

Resp’ts’ Reply Br. in Support of Mot. for

Interlocutory Appeal (ECF No. 161) (Resp’ts’ Reply).
II.

LEGAL STANDARDS FOR INTERLOCUTORY APPEAL
Section 1292(b) of title 28 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. 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.
The First Circuit has interpreted § 1292(b) as imposing three requirements for

a district court to grant leave to file an interlocutory appeal: (1) it must involve “a
controlling question of law;” (2) “as to which there is substantial ground for difference
of opinion;” and (3) for which “an immediate appeal from the order may materially
advance the ultimate termination of the litigation.” Caraballo-Seda v. Municipality
of Hormiqueros, 395 F.3d 7, 9 (1st Cir. 2005) (quoting § 1292(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). In fact, the First Circuit described
appeals proper under § 1292(b) as “hens’ teeth rare.” Camacho v. P.R. Ports Auth.,
369 F.3d 570, 573 (1st Cir. 2004).
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The First Circuit has “repeatedly emphasized that ‘interlocutory certification
under § 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. 395 F.3d at 9
(quoting Palandjian v. Pahlavi, 782 F.2d 313, 314 (1st Cir. 1986) (quoting
McGillicuddy v. Clements, 746 F.2d 76 n.1)).

The First Circuit has a decided

preference “against piecemeal litigation” and is cognizant of “prudential concerns
about mootness, ripeness, and lengthy appellate proceedings.” Id.
III.

THE PARTIES’ POSITIONS
A.

The Respondents’ Motion

The Respondents point out that they have met two of the criteria for an
interlocutory appeal in that if they are correct on the statute of limitations issue, a
“reversal would terminate the action,” Resp’ts’ Mot. at 2 (quoting Meijer, Inc. v.
Ranbaxy Inc., 245 F. Supp. 3d 312, 315 (D. Mass. 2017), and that “the requirement
that an appeal will materially advance the ultimate termination of the litigation is
closely tied to the controlling-question-of-law element.” Id. at 4 (quoting Meijer, 245
F. Supp. 3d at 315).
As for the third criterion, the “substantial ground for difference of opinion,” the
Respondents urge the Court to conclude that there is such a substantial difference,
noting that two courts ruled in their favor, while a third court reached the same result
as this Court but granted a motion for interlocutory appeal.

Id. at 4.

The

Respondents maintain that the situation in which “the district court feels compelled

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to follow a circuit court precedent that the losing party argues has been superseded
by subsequent Supreme Court precedent” offers “one of the most compelling
circumstances for allowing an interlocutory appeal to allow the First Circuit to sort
out which Supreme Court precedent governed in a preemption case.” Id. at 6.
The Respondents draw support from FERC v. Powhatan Energy Fund, LLC,
345 F. Supp. 3d 682 (E.D. Va. 2018), where the district court ordered a brief stay of
its order on the same issue to allow the parties to pursue, if they chose to do so, an
interlocutory appeal to the Fourth Circuit Court of Appeals. Id. at 711. Then, on
November 5, 2018, the Fourth Circuit granted the petition for permission to appeal.
Notice of Supp. Information attach. 1, Order of Court of Appeals for the Fourth Circuit
(Nov. 5, 2018) (ECF No. 154). There is no indication that the Fourth Circuit has
issued an opinion on the interlocutory appeal in Powhatan.
B.

FERC’s Position

In its opposition, FERC emphasizes the spare and exceptional use of
interlocutory appeals. FERC Opp’n at 1-2. FERC cited this Court’s decision in United
States ex rel. McDermott v. Genentech, Inc., 518 F. Supp. 2d 289, 290-92 (D. Me. 2007),
as an apt example of how the Respondents’ motion for leave to file interlocutory
appeal should be analyzed. Id. at 2-3. FERC maintains that this Court properly
concluded that United States v. Meyer, 808 F.2d 912 (1st Cir. 1987) is still “controlling
caselaw in the First Circuit.” Id. at 4-5. It also says that there is no “substantial
ground for difference of opinion” as required by 28 U.S.C. § 1292(b). Id. at 5-9.

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Arguing that the Respondents may not have met the third prong of § 1292(b),
FERC notes that the Respondents have not identified the precise question they wish
to present on appeal. Id. at 2 n.1. In FERC’s view, depending on what issues the
Respondents present to the First Circuit and what issues the First Circuit resolves,
the appeal might or might not resolve all pending litigation. Id.
C.

The Respondents’ Reply

The Respondents contend that FERC is making “two arguments that are at
war with each other.” Resp’ts’ Reply at 1. On the one hand, the Respondents say,
“FERC argues that the Court should deny the motion for interlocutory appeal because
the Court’s statute of limitations ruling is correct under [Meyer].” Id. On the other
hand, Respondents contend, “FERC argues that the Court should deny the motion . .
. because neither the Supreme Court nor the First Circuit has expressly overruled
Meyer.” Id. (emphasis in Respondents’ reply). Respondents posit that it is “the entire
point of an interlocutory appeal,” namely “the First Circuit should be given the
opportunity to consider the continuing correctness of Meyer on this threshold,
dispositive issue in light of the subsequent, unanimous Supreme Court decisions in
Gabelli v. SEC, 568 U.S. 442 (2013), and Kokesh v. SEC, 137 S. Ct. 1635 (2017).” Id.
at 1-2.
The Respondents distinguish other cases in which this Court denied motions
for leave to file interlocutory appeal as not involving intervening Supreme Court
authority. Id. at 2-3. The Respondents argue that even if this Court may not overrule
Meyer, “the First Circuit certainly can.” Id. at 3.

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Answering FERC’s argument that the First Circuit can always address the
statute of limitations issue after the litigation has run its course, the Respondents
note that “two Maine papermills FERC also sued went bankrupt before they could
litigate this issue to final judgment.” Id. at 5. They urge the Court to allow the
resolution of “this dispositive, threshold issue now.” Id. (emphasis in original). Citing
the specter of Bleak House 1, the Respondents write “the First Circuit should be given
the opportunity to revisit Meyer in light of Gabelli and Kokesh.” Id. at 6.
IV.

DISCUSSION
In its January 4, 2019 order on the motions for summary judgment, the Court

extensively analyzed the Respondents’ contention that the Supreme Court cases of
Gabelli and Kokesh effectively overruled the First Circuit decision in Meyer and
concluded that Meyer remains good law in this Circuit. The Court can do no better
today in explaining its reasoning than it did in January. Order at 1-94.
What is before the Court is not a motion for reconsideration where a party asks
the same court to revisit its own opinion. If it were, the Court would have little
difficulty affirming itself under the standards for a motion for reconsideration. D.
ME. LOC. R. 7(f) (“manifest error of fact or law”). The Respondents have not presented
any arguments in the pending motion they did not raise in the dispositive motions
and there would be no reason for this Court to second-guess itself.
Rather, the Respondents filed a motion for leave to file interlocutory appeal,
where a party asks a trial court to allow the appellate court to take the case out of

1

CHARLES DICKENS, BLEAK HOUSE (1853).

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order, stop proceedings in the trial court, and wait for the appellate court to rule.
Section 1292(b) of title 28 contains its own substantial restrictions against
interlocutory appeals, requiring “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.” To these
rigorous statutory standards, the First Circuit added that a district court should not
easily grant a motion for leave to file an interlocutory appeal because of concerns
about piecemeal litigation, delay in the disposition of the underlying lawsuit, and
mootness. Caraballo-Seda, 395 F.3d at 9.
Skipping over the first two issues on the assumption that the Respondents are
clever enough to present the First Circuit with an argument that, if accepted, would
dispose of the case, the Court turns to the heart of this motion: whether there truly
is “a controlling question of law” as to which there is “substantial ground for
difference of opinion.” This issue focuses on how confident this Court is that Gabelli
and Kokesh have not eclipsed Meyer. Even though the Respondents presented an
exceptionally well-written argument, the Court is simply not convinced that the
Gabelli and Kokesh are directly on point and that their dicta undermine the First
Circuit’s holding in Meyer.
The Court acknowledges that the issue, for the purposes of interlocutory
appeal, is not the same as whether this Court would be bound by First Circuit
precedent. As the Court described in its order, a district court owes its allegiance to
binding authority from its controlling circuit court. Order at 89. Here, the Court was

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not and is not convinced that Gabelli and Kokesh “unmistakably . . . cast [Meyer] into
disrepute.” Eulitt v. Me. Dep’t of Educ., 386 F.3d 344, 349 (1st Cir. 2004). But the
First Circuit itself is slightly freer to loosen the bounds of stare decisis. Id. (“[A] panel
of the court of appeals has some flexibility, modest though it may be, with respect to
its own precedents”). Even so, First Circuit panels approach prior First Circuit
precedent knowing that “our precedent-based system of justice places a premium on
finality, stability, and certainty in the law.” Id. (quoting Stewart v. Dutra Constr.
Co., 230 F.3d 461, 467 (1st Cir. 2000)).
The “most well-known exception” to the rule of stare decisis occurs when “[a]n
existing panel decision [is] undermined by controlling authority, subsequently
announced, such as the opinion of the Supreme Court.” United States v. Holloway,
630 F.3d 252, 258 (1st Cir. 2011) (quoting Igartúa v. United States, 626 F.3d 592, 603
(1st Cir. 2010) (quoting Williams v. Ashland Eng’g Co., 45 F.3d 588, 592 (1st Cir.
1995)). As this Court explained in its order, the Court simply does not agree with the
Respondents’ argument that the Supreme Court has overruled Meyer and doubts that
the First Circuit would conclude that it has.
The opinion of the district court of the Eastern District of Virginia in Powhaten
to certify an interlocutory appeal to the Fourth Circuit and the Fourth Circuit’s
acceptance of that appeal give this Court some pause. This Court could certify the
question and wait with the parties to see whether the First Circuit in its discretion
accepted the appeal.

Certainly, such an approach would end up satisfying the

Respondents, if dissatisfying FERC. But, neither the district court in Virginia nor

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the Fourth Circuit is bound by Meyer and, even though certification to appease the
earnest arguments of a party has a certain attractiveness, the Court cannot do so in
good conscience within the constraints imposed by statute and caselaw because it still
believes that Meyer is good law and that the First Circuit would join this Court in
that conclusion.
V.

CONCLUSION
The Court DENIES the Respondents’ Motion for Interlocutory Appeal (ECF

No. 159) because the issues the Respondents wish to present to the Court of Appeals
for the First Circuit do not meet the statutory criteria of 28 U.S.C. § 1292(b) as
restrictively interpreted by the First Circuit.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 26th day of June, 2019

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