Pawlak v. United States Department of Education

Filing 13

MEMORANDUM OPINION (c/m to Appellant Elizabeth Pawlak 4/1/15 sat). Signed by Judge Deborah K. Chasanow on 4/1/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
IN RE: ELIZABETH JULIA PAWLAK
:
_________________________________
:
ELIZABETH JULIA PAWLAK
Appellant

:

v.

:

Civil Action No. DKC 14-2839

:
UNITED STATES DEPARTMENT OF
EDUCATION
Appellee

:
:

MEMORANDUM OPINION
Presently
bankruptcy
United

pending

appeal

States

is

and

a

motion

Department

(ECF No. 6).

ready

of

to

for

resolution

dismiss

Education

filed

(“DOE”

or

in

by

this

Appellee

“Appellee”).

The issues have been briefed, and the court now

rules, no hearing being deemed necessary.

Local Rule 105.6.

For the reasons that follow, the motion will be granted.
I.

Background
The facts underlying this bankruptcy appeal were discussed

in a prior memorandum opinion adjudicating a separately filed
bankruptcy appeal (arising out of the same adversary proceeding
in bankruptcy court) and need not be repeated.
Pawlak,
opinion,

520
on

certification

B.R.

177

(D.Md.

May

22,

2014,

for

direct

2014).
Appellant

interlocutory

As

See In re

explained

filed
appeal

a
to

in

request
the

that
for

United

States Court of Appeals for the Fourth Circuit regarding the May
12,

2014

order

of

the

bankruptcy

court

granting

second motion to compel production of documents.

Appellee’s

Specifically,

Ms. Pawlak sought to appeal directly to the Fourth Circuit a
bankruptcy court order requiring her to answer in full all of
the interrogatories and requests for production of documents.
(See ECF No. 1-2).

DOE opposed the motion for certification,

(ECF No. 1-4), and Ms. Pawlak replied (ECF No. 1-5).

On June

26, 2014, United States Bankruptcy Judge Wendelin I. Lipp issued
an order denying Ms. Pawlak’s motion.

Ms. Pawlak followed with

a motion for reconsideration, (ECF No. 1-7), which DOE opposed
(ECF No. 9).

Judge Lipp denied the motion for reconsideration

on July 18, 2014.

(ECF No. 1-10).

noted the instant appeal.

Subsequently, Ms. Pawlak

(ECF No. 1).

DOE moved to dismiss

the appeal on October 28, 2014, contending that the court lacks
jurisdiction to consider the appeal (ECF No. 6).

Appellant

opposed the motion (ECF No. 11), and DOE replied (ECF No. 12).
II.

Analysis
The jurisdiction of a district court to hear appeals from

bankruptcy courts is conferred by 28 U.S.C. § 158(a), which
provides in relevant part:
(a) The district courts of the United States
shall have jurisdiction to hear appeals:
(1)
from
decrees;

final

judgments,

2

orders,

and

(2) from interlocutory orders and decrees
issued under section 1121(d) of title 11
increasing or reducing the time periods
referred to in section 1121 of such title;
and
(3) with leave of the court, from
interlocutory orders and decrees[.]

other

28 U.S.C. § 158(a).
The

instant

summarized

by

appeal

DOE:

presents

“whether

the

a

narrow

issue,

Bankruptcy

Court

correctly
abused

its

discretion in not issuing a certification under [28 U.S.C.]§
158(d)(2) to permit a direct interlocutory appeal to the Fourth
Circuit

about

the

discovery

orders

that

this

Court

previous appeal dispatched for lack of jurisdiction.”
6-1,

at

2).

First,

Appellant

has

provided

no

in

the

(ECF No.

authority

to

suggest that orders of the Bankruptcy Court denying a motion to
file an interlocutory appeal to the Fourth Circuit (and a motion
for reconsideration of that denial) are reviewable on appeal to
the district court.

See, e.g., Webb v. Driver, 507 F.App’x 284,

286 (4th Cir. 2013) (“As an initial matter, Webb provides no
authority supporting the conclusion that the denial of a request
for an interlocutory appeal is itself an appealable order.”).
The

determination

interlocutory

appeal

of
is

whether
vested

to

issue

within

the

a

certificate

discretion

of

of
the

bankruptcy court, applying the standard in Section 158(d)(2)(A).
Judge Lipp issued an order on June 26, 2014, stating:
3

Before
the
Court
is
the
Corrected
Plaintiff’s Request for Certification for
Direct Interlocutory Appeal to [the] Fourth
Circuit Court of Appeals (the “Motion”) and
the Opposition thereto filed by the United
States Department of Education.
The Court
has considered the Motion and Opposition and
finds an insufficient basis to certify a
direct appeal to the United States Court of
Appeals for the Fourth Circuit pursuant to
28 U.S.C. § 158(d)(2).
(ECF No. 1-6).

Appellant has not demonstrated that this order

(or

denying

the

order

her

motion

for

reconsideration)

reviewable on appeal to the district court.

is

Moreover, reversal

of Judge Lipp’s decision to decline to issue an interlocutory
appeal certificate would not necessarily result in the questions
receiving

appellate

review

because

still decline to hear the appeal.

the

Fourth

Circuit

could

See 28 U.S.C. § 158(d)(2)(A)

(noting that even after a bankruptcy court certifies an appeal,
the court of appeals must authorize the direct appeal of the
judgment, order, or decree).
Inc.,

873

F.2d

1438,

1989

See, e.g., Fannin v. CSX Transp.,
WL

42583,

at

(4th

*2

Cir.

(“[I]nterlocutory review is not to be granted lightly.
is

a

prerequisite

district

court

to

that

our
an

jurisdiction,
interlocutory

While it

certification
order

1989)

turned

by

a

on

a

‘controlling question of law’ does not require us to grant leave
to appeal.”).
Even assuming the order issued by Judge Lipp on June 26,
2014

is

reviewable

on

appeal

and
4

is

to

be

construed

as

an

“interlocutory

order,”

Appellant

has

requirements of 28 U.S.C. § 158(a)(3).

not

satisfied

the

As explained in the

prior opinion, leave to file an interlocutory appeal should be
granted only when: 1) the order involves a controlling question
of

law,

2)

as

to

which

there

is

substantial

ground

for

a

difference of opinion, and 3) immediate appeal would materially
advance

the

termination

of

the

litigation.

See

KPMG

Peat

Marwick, LLP v. Estate of Nelco, Ltd., Inc., 250 B.R. 74, 78
(E.D.Va. 2000).

Appellant has not shown how Judge Lipp’s denial

of her motion requesting a certificate of appealability to the
Fourth Circuit regarding orders adjudicating discovery disputes
involved a controlling question of law as to which there is
substantial ground for a difference of opinion.

Finally, as DOE

argues “permitting [Appellant] to pursue an interlocutory appeal
. . . would only require the parties to brief a number of issues
that would not ultimately by themselves be dispositive of the
case.”

(ECF No. 6-1, at 12).

III. Conclusion
For

the

foregoing

will be granted.

reasons,

Appellee’s

motion

to

dismiss

A separate order will follow.

________/s/_________________________
DEBORAH K. CHASANOW
United States District Judge

5