Whitaker et al v. Department of Commerce

Filing 46

DECISION denying 33 Motion for Certificate of Appealability; granting 43 Motion for Leave to File A Reply Brief In Response To Supplemental Brief re: 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment. Signed by Chief Judge Geoffrey W. Crawford on 4/26/2018. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

U.S. l::STR!CT COURT
DISTRICT C:::- ~.HMONT
F.: ;_. !~~ :'J

2018 APR 26 PH 2: 40

STEPHEN WHITAKER and DAVID GRAM,
Plaintiffs,
Case No. 5:l 7-cv-192

V.

DEPARTMENT OF COMMERCE,
Defendant.

DECISION ON PLAINTIFFS' MOTION FOR CERTIFICATION OF
INTERLOCUTORY APPEAL AND DEFENDANT'S MOTION FOR LEAVE TO FILE A
REPLY BRIEF IN RESPONSE TO PLAINTIFFS' SUPPLEMENTAL BRIEF
(Docs. 33, 43)
In its December 20, 2017 decision, the court adjudicated Counts 1-17 of the Complaint
against the Plaintiffs and reserved judgment on summary judgment as to Count 18, ordering the
parties to submit supplemental briefing. The Plaintiffs moved for certification of the court's
December 20, 2017 decision for interlocutory appeal. (See Doc. 33.) The parties have submitted
supplemental briefs as directed by the court, and the DOC has requested leave to file a reply brief
in response to the Plaintiffs' supplemental brief. For the reasons set forth herein, the Plaintiffs'
motion for certification of interlocutory appeal (Doc. 33) is denied, the Defendant's motion for
leave to file a reply brief (Doc. 43) is granted. The Defendant's reply brief (Doc. 44) is accepted
for consideration, and the Plaintiffs are granted leave to file a surreply.

I.

Interlocutory Appeal (Doc. 33)

Certification for interlocutory appeal is appropriate when a district court's decision
involves a controlling question of law on which there is substantial ground for difference of
opinion and immediate appeal may materially advance the termination of the litigation. See 28
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U.S.C § 1292(b). The court is satisfied that immediate appeal of its decision on Counts 1-17
will not materially advance the termination of the litigation. The pending disposition of Count
18, which involves the application of a statutory provision that has never been interpreted by the
Second Circuit, is practically certain to give rise to another appealable issue. The piecemeal
appellate review requested by the Plaintiffs will only prolong this litigation. Because this is an
independently sufficient basis for the court's conclusion that interlocutory appeal is not
appropriate, the court does not consider whether its prior decision involved controlling questions
of law or whether there is substantial ground for difference of opinion on those questions. The
Plaintiffs' motion is denied.

II.

Leave to File Reply (Doc. 43)

The court directed the Defendant to file its supplemental brief first, as the court had
identified a number of issues for the Defendant to address. The court anticipated that the
Plaintiffs supplemental brief, to be filed after the Defendant's, would be limited in scope to the
matters set forth in Defendant's briefing. Instead, the Plaintiffs filed a supplemental brief in
which they attempted to raise a new issue as to whether the Nationwide Public Safety Broadband
Network was operational, a matter of fact that had until then been undisputed.
The language of the court's order did not unambiguously reflect its expectations as to the
scope of the Plaintiffs' supplemental brief, and the Plaintiffs' interpretation of the court's order
was not unreasonable. Nevertheless, the Plaintiffs supplemental brief has effectively enlarged
the summary judgment record and advanced new arguments. The Plaintiffs' objections to the
protracted course that briefing this matter has taken, see Doc. 45 at 2, are inconsistent with their
use of their own supplemental brief to put new facts in issue. The court will not deny the
Defendant an opportunity to respond. The Defendant's motion is granted. The Defendant has

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already filed its reply brief. (See Doc. 44). The court will consider that filing in reaching its
decision on summary judgment with respect to Count 18 of the complaint.
The Plaintiffs are likewise entitled to an opportunity to respond to the arguments made by
the Defendant in its reply brief, and they have requested this opportunity. (See Doc. 45 at 3 n.1.)
The court grants the Plaintiffs leave to file a surreply within two weeks of the issuance of this
order. The scope of the surreply is strictly limited to argument on the matters raised in the
Defendant's reply brief. The summary judgment record is closed, and the Plaintiffs are not to
attempt to raise new facts in their surreply. The court adopts this course as an alternative to
striking the facts introduced in the Plaintiffs' supplemental brief, having carefully considered and
balanced the need for a full and accurate summary judgment record with the need to render a
final decision. The parties are advised that no additional briefing beyond that authorized by this
decision will be accepted without prior leave of court.

CONCLUSION
The Plaintiffs' Motion for Certification oflnterlocutory Appeal (Doc. 33) is DENIED.
The Defendant's Motion for Leave to File a Reply Brief (Doc. 43) is GRANTED, and the court
will consider the Defendant's Reply (Doc. 44). The Plaintiffs are granted leave to file a surreply,
limited in scope as set forth herein, within two weeks of the issuance of this order.
Dated at Rutland, in the District of Vermont, thi;:z( day of April, 2018.

Geoffrey W. Crawford, Chief Judge
United States District Court

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