WILLIAM THOMAS, and all 1,923 individuals identified in the Thomas FTCA administrative Complaint v. United States of America
Filing
46
OPINION and ORDER Denying Defendant's 40 Motion for Certification of Interlocutory Appeal Under 28 U.S.C. § 1292(b). Signed by District Judge Linda V. Parker. (RLou)
UNITED STATE DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAN BURGESS, and all 2,959 individuals
identified in the Burgess FTCA administrative
Complaint,
Plaintiffs,
Civil Case No. 17-11218
Honorable Linda V. Parker
v.
UNITED STATES OF AMERICA,
Defendant.
__________________________________/
WILLIAM THOMAS, and all 1,923 individuals
identified in the Thomas FTCA administrative
Complaint,
Plaintiffs,
Civil Case No. 18-10243
Honorable Linda V. Parker
v.
UNITED STATES OF AMERICA,
Defendant.
__________________________________/
OPINION AND ORDER DENYING DEFENDANT’S MOTION
FOR CERTIFICATION OF INTERLOCUTORY APPEAL
UNDER 28 U.S.C. § 1292(b)
On April 18, 2019, this Court decided that the discretionary function
exception found in 28 U.S.C. § 2680(a) does not shield Defendant, the United
States of America, from immunity under the Federal Tort Claims Act (“FTCA”).
(ECF No. 38.) The Court also decided that Plaintiffs plead state-law liability to
proceed under the FTCA. The United States seeks to immediately appeal that
decision to the Sixth Circuit Court of Appeals and, therefore, has filed a Motion for
Certification of Interlocutory Appeal under 28 U.S.C. § 1292(b). The motion has
been fully briefed. For the reasons set forth below, the Court is denying the
motion.
Under § 1292(b), a district court may certify an order for immediate appeal
upon finding that it “involves a controlling question of law as to which there is a
substantial ground for difference of opinion and that an immediate appeal … may
materially advance the ultimate termination of the litigation[.]” 28 U.S.C. § 1929.
The Sixth Circuit has warned that “[r]eview under § 1292(b) should be sparingly
granted and then only in exceptional cases.” Vitols v. Citizens Banking Co., 984
F.2d 168, 170 (6th Cir. 1993) (citation omitted).
“A legal issue is controlling if it could materially affect the outcome of the
case.” In re City of Memphis, 293 F.3d 345, 351 (6th Cir. 2002) (citing In re Baker
& Getty Fin. Servs., Inc., 954 F.2d 1169, 1172 n.8 (6th Cir. 1992)). Interpreting
the meaning of this requirement, the Seventh Circuit Court of Appeals has
explained:
We think [the framers of § 1292] used “question of law” in much the
same way a lay person might, as referring to a “pure” question of law
rather than merely to an issue that might be free from a factual
contest. The idea was that if a case turned on a pure question of law,
2
something the court of appeals could decide quickly and cleanly
without having to study the record, the court should be enabled to do
so without having to wait until the end of the case.
Ahrenholz v. Bd. of Trustees. of the Univ. of Illinois, 219 F.3d 674, 676-77 (7th Cir.
2000). “ ‘[Q]uestion of law’ as used in § 1292(b) has reference to a question of the
meaning of a statutory or constitutional provision, regulation, or common law
doctrine ….” Id. at 676. “The term . . . does not mean the application of settled
law to fact.” McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1258 (11th Cir.
2004) (citing Ahrenholz, 219 F.3d at 676).
The Court’s holdings with respect to the government’s motion to dismiss
was too fact-intensive an inquiry for interlocutory review. It required the Court to
dig deeply into a substantial factual record. Moreover, at this stage of the
proceedings, the facts remain to be developed and future discovery may impact the
Court’s analysis.
Additionally, the Court does not believe that an immediate appeal will
expedite the resolution of this case. Litigation of this matter already has been
substantially delayed to address the issues raised in the United States’ motion to
dismiss. Allowing an interlocutory appeal would only further delay its
progression. As well, there is an ongoing mediation concerning the Flint Water
Crisis involving the parties to this case, as well as officials from the State of
Michigan and the City of Flint. The United States has been unwilling to fully
3
engage in those discussion while its motion to dismiss was pending. Denying the
government’s request for interlocutory appeal may advance those discussions and
an ultimate resolution of, not only this case, but the numerous additional lawsuits
arising from this tragic crisis.
Accordingly, the Court is DENYING the United States’ Motion for
Certification of Interlocutory Appeal under 28 U.S.C. § 1292(b) in the abovecaptioned cases. The Court also is DENYING WITHOUT PREJUDICE the
Motion to Strike, which is pending in Thomas.1 (ECF No. 8.)
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: September 27, 2019
1
The Court intends to schedule a conference with counsel in the related
FTCA cases to discuss how these matters should proceed. The Court will likely
consolidate the cases. In that instance, it seems that the question of which lawsuit
should include certain plaintiffs will no longer be relevant.
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?