MULLEN v. NORFOLK SOUTHERN RAILWAY COMPANY
MEMORANDUM RE DEFENDANT'S MOTION FOR CERTIFICATION. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 6/9/2014. 6/10/2014 ENTERED AND COPIES E-MAILED.(amas)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MEMORANDUM RE DEFENDANT’S MOTION FOR CERTIFICATION
June 9, 2014
This dispute involves a claim under 49 U.S.C. § 20109, the Federal Railroad Safety Act
(“FRSA”). Plaintiff alleges that Defendant wrongly terminated his employment after he had
protested violations of safety regulations and raised his concerns with his supervisors. On April
8, 2014, this Court issued an Order (“April 8 Order”) denying Defendant’s Motion to Dismiss
and granting Defendant’s Motion to Transfer. ECF 12. The Court then transferred the action to
the Western District of Pennsylvania. Id.
Defendant filed a Motion for a Certificate of Appealability (the “Motion”) on May 6,
2014, asking that this Court certify its April 8 Order for an interlocutory appeal and amend its
Order to permit an interlocutory appeal. ECF 16. Plaintiff filed a Response in Opposition to the
Motion on May 20, 2014, ECF 17, and Defendant filed a Reply Brief on May 30, 2014, ECF 18.
The facts relevant to this dispute were set forth in the Court’s April 8 Order and will not
be repeated here. For the following reasons, the Motion is DENIED.
In general, a matter may not be appealed to a court of appeals until a final judgment has
been rendered by the district judge under 28 U.S.C. § 1291. A district court is authorized to
certify an order for interlocutory appeal only if it finds that: (1) the order involves a controlling
question of law, (2) upon which there is substantial ground for difference of opinion, and (3) an
immediate appeal may materially advance the ultimate termination of the litigation. 28 U.S.C. §
1292(b). The decision to certify an appeal rests within the sound discretion of the district court.
Douris v. Schweiker, 229 F. Supp. 2d 391, 408 (E.D. Pa. 2002) aff’d sub nom., Douris v.
Rendell, 100 F. App’x 126 (3d Cir. 2004) (internal citation omitted). The burden is on the party
seeking certification to demonstrate that “exceptional circumstances justify a departure from the
basic policy against piecemeal litigation and of postponing appellate review until after the entry
of a final judgment.” Id. As the Third Circuit has observed:
It is quite apparent from the legislative history of the Act of
September 2, 1958 that Congress intended that section 1292(b)
should be sparingly applied. It is to be used only in exceptional
cases where an intermediate appeal may avoid protracted and
expensive litigation and is not intended to open the floodgates to a
vast number of appeals from interlocutory orders in ordinary
litigation. Both the district judge and the court of appeals are to
exercise independent judgment in each case and are not to act
Milbert v. Bison Labs., Inc., 260 F.2d 431, 433 (3d Cir. 1958). “[T]he conditions precedent to
the granting by this court of permission to appeal which are laid down by the new section
1292(b) are to be strictly construed and applied. Id. at 435.
Defendant maintains that all three conditions for immediate appellate review are met.
Plaintiff contends that there is no substantial ground for difference of opinion and that an
interlocutory appeal will not materially advance the ultimate termination of the litigation. 1
The Court acknowledges that the issue involves a question of controlling law, as the issue
involves a determination of subject matter jurisdiction. Beazer E., Inc. v. The Mead Corp.,
CIV.A.91-408, 2006 WL 2927627, at *2 (W.D. Pa. Oct. 12, 2006) (“The court believes that the
A. Substantial Ground for Difference of Opinion
Defendant argues that this Court’s opinion is in conflict with decisions of three other
district courts. Yet Defendant recognizes that this Court has already “concluded that the
decisions of these other district courts are not on point.” ECF 16-1 (Mem. of Law in Supp. of the
Mot.) at 5. As this Court explained in the Memorandum of Law accompanying its April 8 Order:
However, the case law cited by Defendant involves cases where
the employee failed to appeal or otherwise pursue his remedies
within the specified time period, and a previous decision from a
lower court thus became final. Such cases are easily distinguished
here, where Plaintiff appealed the ALJ’s decision and where his
case was before the ARB.
ECF 11 at 8. These cases do not create a difference of opinion on this issue, because they do not
address the same issue that was presented to this Court.
Defendant’s Motion here is an attempt to relitigate the issue presented in the Motion to
Dismiss. However, Defendant’s disagreement with this Court does not warrant an interlocutory
appeal. Max Daetwyler Corp. v. Meyer, 575 F. Supp. 280, 282 (E.D. Pa. 1983) certified
question answered sub nom., Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290 (3d Cir. 1985)
(“A motion for certification should not be granted merely because a party disagrees with the
ruling of the district judge.”).
B. Materially Advance the Ultimate Termination of the Litigation
The Court acknowledges here that an appellate decision in favor of Defendant’s position
would end the litigation. However, courts have often recognized that an appeal can also delay
the ultimate termination of a dispute. See Singh v. Daimler-Benz, AG, 800 F. Supp. 260, 263
(E.D. Pa. 1992) aff’d, 9 F.3d 303 (3d Cir. 1993) (“[I]f the third circuit finds that this court does
fundamental issue of subject matter jurisdiction is one of the clearest examples of a ‘controlling
question of law’ within the meaning of § 1292(b).”).
in fact have jurisdiction, the litigation will not be advanced, but will instead will be considerably
delayed.). These kinds of concerns are present in all subject matter jurisdiction determinations
and denials of motions to dismiss, yet those decisions are not generally appealable. See U.S. ex
rel. Sobek v. Educ. Mgmt., LLC, CIV.A. 10-131, 2013 WL 3852795 (W.D. Pa. July 23, 2013).
Even assuming that an interlocutory appeal could materially advance the termination of
the litigation, this Court is not persuaded the exceptional circumstances warrant immediate
appellate review exist here. “[G]iven the limited nature of [this issue] and the fact that there are
no conflicting decisions from district courts within this Circuit which would establish a need for
our Court of Appeals to resolve the same immediately, an interlocutory appeal is not warranted .
. . .” Harris v. Kellogg, Brown & Root Servs., Inc., CIV.A. 08-563, 2009 WL 1248060 (W.D.
Pa. Apr. 30, 2009).
For the foregoing reasons, the Motion is DENIED. An accompanying Order follows.
O:\Caitlin\Civil\13-6348 (Mullen)\2014.6.5 MoL re Certification.docx
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