Manion v. Spectrum Healthcare Resources et al

Filing 66

ORDER DENYING 53 Motion for Certification of Interlocutory Appeal, and DENYING 55 Motion for Certificate of Appealability, Motion to Amend, and Motion to Stay. Signed by US District Judge Terrence W. Boyle on 11/8/2013. (Fisher, M.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No: 7:12-CV-247-BO

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)
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v.
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SPECTRUM HEALTHCARE
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RESOURCES and NITELINES KUHANA )
JV LLC,
)
Defendants. )

KERNAN T. MANION, M.D.,
Plaintiff,

ORDER

This cause comes before the Court on defendants' combined petition for certification of
interlocutory appeal, to amend the August 6, 2013, order, and to stay proceedings. For the
reasons discussed below, defendants' request is denied.
BACKGROUND
This action was filed by a psychiatrist who formerly provided care to men and women at
the Deployment Health Center at the Naval Hospital Camp Lejeune. Plaintiff was terminated
from his position after he complained of certain practices at the Deployment Health Center.
Plaintiff filed this action under, inter alia, the Defense Contractor Whistleblower Protection Act,
10 U.S.C. § 2409, for illegal reprisal for protected disclosures. By order entered August 6, 2013,
the Court denied defendants' motions to dismiss and for judgment on the pleadings. In so doing,
the Court determined that plaintiff, as an independent contractor of defendants, defense
contractors, has standing to bring an action under 10 U.S.C. § 2409.
Defendants now ask that the Court amend its August 6, 2013, order to include
certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Defendants contend that

the order involves a controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal may materially advance the ultimate
termination ofthe litigation. 28 U.S.C. § 1292(b). Specifically, defendants seek certification of
the following issue: whether the term employee as used in the Defense Contractor Whistleblower
Protection Act, 10. U.S.C. § 2409, includes within its definition and protection independent
contractors of civilian defense contractors.
DISCUSSION
"Finality as a condition of review is an historic characteristic of federal appellate
procedure." Cobbledick v. United States, 309 U.S. 323, 324 (1940). While section 1292(b) was
enacted in order to permit interlocutory appeals under some circumstances, "it is a rare exception
to the final judgment rule that generally prohibits piecemeal appeals." Koehler v. Bank of

Bermuda, Ltd, 101 F.3d 863, 865 (2nd Cir. 1996). The decision to certify an interlocutory
appeal is soundly within the discretion of the court that has issued the order. State v. N C. ex rei.

Howes v. WR. Peele, Sr. Trust, 889 F. Supp. 849, 852 (E.D.N.C. 1995). Even ifthe
requirements of section 1292(b) are satisfied, the district court has "unfettered discretion" to
decline to certify an interlocutory appeal if exceptional circumstances are absent. Picard v. Katz,
466 B.R. 208, 210 (S.D.N.Y. 2012) (quotation and citation omitted).
The Court considers first whether the requirements of section 1292(b), which 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,
have been satisfied. 28 U.S.C. § 1292(b). The Court notes at the outset that upon its filing of
the August 6, 2013, order it was not of the opinion that certification of an interlocutory appeal

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was warranted or necessary, and thus defendants must ask the Court to amend its order to include
such certification.
The Court agrees that the question of plaintiffs standing under the Defense Contractor
Whistleblower Protection Act (DCWPA) is controlling. See Terry v. June, 368 F. Supp.2d. 538,
539 (W.D.W.V. 2005) (question that is dispositive is controlling). The Court would also agree
that, were the court of appeals to hold that an independent contractor does not have standing to
bring an action under the DCWPA, this litigation would end. See Arbaugh v. Y&H Corp., 546
U.S. 550, 514 (2006). The more difficult question to resolve is whether there is substantial
ground for difference of opinion.
It has been previously noted that there is a paucity of case law interpreting the DCWPA.

The absence of other controlling authority on this issue does not, however, necessarily lead to the
conclusion that there would be substantial ground for a difference of opinion. The Court's
conclusion that an independent contractor of a defense contractor would have standing under the
DCWPA is well-supported by the legislative history and amendments to the False Claims Act, an
analogous statute. Thus, the Court is not convinced that other courts presented with the same
question would not decide it in precisely the same way. Moreover, even if another court would
decide the issue differently, that would not automatically form a basis for certification of an
interlocutory appeal. See Howes, 889 F. Supp. at 852 (noting that a court need not find that
substantial ground for difference of opinion exists even where "authorities lack unanimity")
(citation omitted). The Court finds that there are not substantial grounds for difference of
opinion and that defendants have therefore failed to demonstrate that the statutory requirements
have been satisfied.

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Even assuming, however, arguendo that both of the statutory requirements have been
soundly satisfied, this is not an exceptional circumstance that would warrant approval of a
piecemeal appeal. Prior to contesting plaintiffs standing, both defendants answered the
complaint; since the entry of the Court's order defendants wish to appeal, discovery has
proceeded and the dispositive motion filing deadline is nearly upon the parties. Recognizing that
the Court's ruling on plaintiffs standing to bring suit is jurisdictional, its decision is also "a
step[] toward final judgment[] on the merits," and the advanced stage of this litigation does not
weigh in favor of finding a basis to depart from the general rule that the decisions of this Court
are more "effectively and more efficiently reviewed together in one appeal from the final
judgment." James v. Jacobson, 6 F.3d 233, 237 (4th Cir. 1993) (certification appropriate where
ruling would not be reviewable on appeal from final judgment); see also Terry, 368 F. Supp.2d
at 540 (court of appeals generally performs best where there is a complete record and final
decision on all issues). The Court simply sees no reason not to permit this case to go forward to
its conclusion, whereafter the appropriate party or parties may appeal from final judgment should
they so determine.
Accordingly, the Court in its discretion declines to amend its August 6, 2013, order to
include certification of an interlocutory appeal pursuant to 28 U .S.C. § 1292(b).
CONCLUSION
For the foregoing reasons, defendants' motions for certification of interlocutory appeal
[DE 53 & 55] are DENIED.

~A·~

TE NCEW:B0YLE

UNITED STATES DISTRICT JUDGE

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