United States of America v. State of Rhode Island Department of Corrections et al

Filing 45

ORDER denying 29 Motion for Leave to Appeal. So Ordered by Chief Judge William E. Smith on 9/21/2015. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
UNITED STATES OF AMERICA,
)
)
Plaintiff,
)
)
v.
)
C.A. No. 14-78 S
)
RHODE ISLAND DEPARTMENT OF
)
CORRECTIONS; and
)
STATE OF RHODE ISLAND,
)
)
Defendants.
)
___________________________________)
ORDER
WILLIAM E. SMITH, Chief Judge.
Defendants filed a motion to dismiss this action brought by
the United States Attorney General (“Government”) under Section
707 of Title VII.

(ECF No. 9.)

Although captioned as a motion

to dismiss, the motion was, in practical effect, a motion to
limit damages, seeking to partially cut off liability under a
statute of limitations.

(See Mem. & Order 2 n.2, ECF No. 22.)

The Court denied the motion.

(See id.)

Defendants now move for

an order certifying the denial of their motion to dismiss for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
29.)

The Government opposes.

(ECF No. 34.)

(ECF No.

The motion is

denied.
Under Section 1292(b), a district court is permitted to
certify an interlocutory order for an immediate appeal where the

“order involves a controlling question of law as to which there
is substantial ground for difference of opinion and . . . an
immediate

appeal

from

the

order

may

materially

ultimate termination of the litigation.”
“Section

1292(b)

is

meant

to

be

used

advance

the

28 U.S.C. § 1292(b).
sparingly,

under it are, accordingly, hen’s-teeth rare.”

and

appeals

Camacho v. Puerto

Rico Ports Auth., 369 F.3d 570, 573 (1st Cir. 2004).

Obtaining

certification of a denial of a motion to dismiss is even more
difficult:
grant

“As a general rule, [the First Circuit] do[es] not

interlocutory

dismiss”

because

litigation,

as

of
well

appeals
a

from

“policy

as

a

denial

preference

prudential

of

Hormigueros,

395

concerns

F.3d

7,

a

motion

against

ripeness, and lengthy appellate proceedings.”
Municipality

of

to

piecemeal

about

mootness,

Caraballo-Seda v.
9

(1st

Cir.

2005)

(citation omitted).
Defendants here are unable to show that certification is
warranted.

The issues for which Defendants seek review relate

to the extent of their potential damages for backpay.

Thus,

Defendants’ motion to dismiss did not involve a “controlling
question of law,” 28 U.S.C. § 1292(b), at least not for the
liability phase of this bifurcated case.

See Atrion Networking

Corp. v. Marble Play, LLC, 31 F. Supp. 3d 357, 359 (D.R.I. 2014)
(“In the context of motions for interlocutory certification, the
term

‘controlling’

means

‘serious
2

to

the

conduct

of

the

litigation, either practically or legally[.]’” (quoting Bank of
N.Y. v. Hoyt, 108 F.R.D. 184, 188-89 (D.R.I. 1985))).

Discovery

and litigation in the liability phase of this case will not be
impacted by appellate review of the issues for which Defendants
seek

certification.

See

id.

(“[A]

legal

question

cannot

be

termed ‘controlling’ if litigation would be conducted in much
the same manner regardless of the disposition of the question
upon appeal.” (quoting Hoyt, 108 F.R.D. at 188)).
Additionally,

the

Court

finds

that

there

is

not

a

substantial ground for difference of opinion with respect to the
issues for which certification is sought.

To be sure, there is

a dearth of authority on the issues raised by Defendants’ motion
to

dismiss.

However,
not

“substantial

exist

merely

ground

because

for
is

a

dearth

of

opinion

does

cases.”

Atrion, 31 F. Supp. 3d at 360 (quoting White v. Nix, 43

F.3d 374, 378 (8th Cir. 1994)).

there

difference

of

Defendants’ reliance on dicta

contained in United States v. Fresno Unified Sch. Dist., 592
F.2d

1088

(9th

Cir.

1979),

and

the

distinguishable

case

of

United States v. City of Warren, 138 F.3d 1083 (6th Cir. 1998),
(see Defs.’ Mot. 6-8, ECF No. 29-1) fails to convince this Court
that there is a substantial ground for difference of opinion.
The same can be said for the remaining authority identified by
Defendants

(see

id.

at

8-10),

subsequent precedent.
3

which

has

been

eroded

by

Finally,

an

interlocutory

appeal

would

advance the termination of the litigation.
can

claim

settlement
likelihood

that

success

position.
of

on

But

appeal
the

settlement

does

materially

At most, Defendants

will

strengthen

potential
not

not

for

their

an

increased

constitute

material

advancement of the termination of the litigation, at least where
(as here with respect to the liability phase) “discovery, trial
preparation, and litigation will progress in substantially the
same manner whether or not the question . . . is certified.”
Ashmore v. Ne. Petro. Div. of Cargill, Inc., 855 F. Supp. 438,
440 (D. Me. 1994).
which

Defendants

Moreover, appellate review of the issues for
seek

certification

might

never

occur;

if

Defendants prevail on the liability phase, the questions about
the

extent

of

damages

Caraballo-Seda,

395

for

F.3d

back
at

9

pay

will

become

(explaining

that

moot.
the

See
First

Circuit’s abhorrence of interlocutory appeals from denials of
motions to dismiss stems from considerations of mootness, among
others).
For these reasons, Defendants’ motion is DENIED.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: September 21, 2015

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