Opinion
CIVIL ACTION NO. SA-99-CA-1110 OG
March 24, 2003
ORDER GRANTING MOTION FOR CERTIFICATION UNDER 28 U.S.C. § 1292 (b)
The matter before the Court is the motion to certify for appeal pursuant to 28 U.S.C. § 1292 (b), as originally filed by defendant on April 29, 2002 (docket entry 73), and supplemented by the parties in the status conference held on April 30, 2002 and their agreed proposed scheduling order submitted on May 13, 2002 (docket entry 75).
On March 28, 2002, the Court granted summary judgment for the plaintiffs, finding the defendant City liable under the Uniform Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. § 4301, et seq. The Magistrate Judge then convened a status conference with the parties for the purpose of developing a schedule to govern resolution of remaining damages questions and entry of an order setting trial. The motion to certify the March 28th Order for immediate appeal was filed the day before the hearing. At that hearing the parties made the Court aware that another pending legal issue — determination of the statute of limitations applicable to damages — needed to be resolved before the arduous task of calculating damages for the fifteen plaintiffs could begin. Accordingly, the parties agreed to submit the damages limitations issue to the Court by way of cross-motions for summary judgment. They further agreed to abate consideration of the pending motion for interlocutory appeal, pending ruling on the damage limitations motion, so that the anticipated order on damage limitations could be included with the interlocutory appeal. The parties agreed to consent to the jurisdiction of the Magistrate Judge to determine their anticipated motions for summary judgment on the damage limitations issue. They also agreed to consent to her jurisdiction to rule on the motion to certify. On March 4, 2003 Magistrate Judge Nowak entered her Order on cross-motions for summary judgment, adopting the residual federal statute of limitations of four years as applicable to the plaintiffs' claims.
Docket entry 71.
See Proceeding Memo, Status Conference, docket sheet entry of April 30, 2002.
Docket entry 76.
Docket entry 89.
Despite the parties' consent to the jurisdiction of the Magistrate Judge with respect to the motion to certify, the Court is concerned whether 28 U.S.C. § 636 (c) permits the Magistrate Judge to certify for interlocutory appeal an Order entered by a District Judge. Accordingly, in an abundance of caution, the Court has determined that the interests of justice warrant consideration of the motion to certify by the District Judge, and not by the Magistrate Judge.
By way of additional background to the consideration of the motion to certify, the parties filed a Joint Advisory on March 12, 2003 in which the defendant explained that it is reconsidering whether to seek interlocutory appeal of the Court's March 4, 2003 Order on the damages limitations issue, or whether to pursue its appeal of the damages limitation ruling after final judgment is entered. In that same Joint Advisory plaintiffs suggest that they may oppose a request for interlocutory appeal that does not present the liability and damage limitations issues jointly.
Docket entry 90.
The above recitation of the procedural history of this case reflects that the parties jointly participated with the Court, to an unusual degree, to craft what they believed to be the most efficient process for the resolution of the novel legal issues and application of those legal determinations to the individual situations of each of the fifteen plaintiffs in this dispute. The agreed process involved (1) the Court's consideration of the liability claims, and, when later raised, (2) the Court's legal determination of the applicable limitations period for calculating damages, to be followed by (3) submission of the rulings on these legal issues to the Fifth Circuit for interlocutory appeal, prior to (4) determination of damages by the trial court with the benefit of guidance from the appellate court. That process was discussed at the April 30, 2002 status conference and is reflected in the Agreed Proposed Scheduling Order of May 13, 2002. Plaintiffs did not oppose the April 29, 2002 motion to certify, understanding that the certification would include the liability and damage limitations rulings. The Court adopted the proposed scheduling order with that assumption. Accordingly, the Court will construe the motion to certify, as supplemented by the procedural history recited above, as a request for immediate appeal of the March 28, 2002 Order, as well as the March 4, 2003 Order.
Docket entry 77, Order adopting the proposed scheduling order.
Discussion
Section 1292(b) of Title 28 governs the City's motion for certification. It provides, in pertinent part:
(b) 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. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order.
Based on the quoted statutory language, courts of appeals have discretionary jurisdiction to hear an appeal from an interlocutory order under section 1292(b) if the district court certifies the following: (1) the case involves a controlling question of law, (2) about which there is substantial ground for difference of opinion, and (3) an immediate appeal from the order may materially advance the ultimate termination of the litigation. This form of appellate jurisdiction is discretionary at two levels: (1) the district court has discretion whether or not to approve a section 1292(b) certification request, and (2) the appellate court has discretion whether or not to accept a section 1292(b) certification.
See Ducre v. Mine Safety Appliances, 573 F. Supp. 388, 395 (D.C. La. 1983), aff'd in part. rev'd in part on other grounds, 742 F.2d 976 (5th Cir. 1985); S.B.L. v. Evans, 80 F.3d 307, 310 (8th Cir. 1996); andBilling v. Ravin, Greenberg Zackin. P.A., 22 F.3d 1242, 1244-45 (3d Cir. 1994), cert. denied, 513 U.S. 999 (1994).
Id.
The Court can hardly imagine a better case for certification under section 1292(b). Both Orders required resolution of questions of first impression in the Fifth Circuit Court of Appeals. In the March 28, 2002 Order, the Court determined the burden of proof applicable to discrimination cases brought under USERRA. Plaintiffs advocated adoption of the "but for" test as the proper burden of proof, as opposed to the burden-shifting analysis used in traditional Title VII cases and relied upon by the City. The Court also addressed whether plaintiffs' claims were properly brought under the broad provisions of USERRA prohibiting discrimination in employment rights, pay and benefits, 38 U.S.C. § 4311 (a-c), or whether, as the City contended, plaintiffs' claims are controlled by section 4316 of the Act on the basis that the benefits at issue are seniority-based. In its March 4, 2003 Order, the Court determined the limitations period applicable to the damages sought under USERRA, adopting the residual federal statute of limitations, codified in 28 U.S.C. § 1658, of four years. This is the first case, to this Court's knowledge, which has considered the application of section 1658 in the context of a lawsuit brought under USERRA. These are novel issues on which there is dearth of case law and substantial grounds for differences of opinion.
Additionally, the interlocutory appeal of both the March 28, 2002 and March 4, 2003 Orders is warranted because it will materially advance the ultimate resolution of this litigation. Since the March 28, 2002 Order, the City has clearly stated its intention to appeal. In light of the limited case precedent and the unsettled state of the law, the Court finds it prudent, and indeed necessary, to allow the parties to proceed to the Fifth Circuit Court of Appeals for review at this time, before the parties expend additional resources preparing for a bench trial to determine the amount of damages due each of the fifteen separate plaintiffs.
If the interlocutory appeal is not accepted, the next stage of the proceedings before the trial court will involve determination of the damages due the fifteen plaintiffs. This will require exacting review of voluminous pay and leave records of these employees, going back to 1995, This review will require a tremendous number of hours to accomplish. If the liability ruling is ultimately overturned by the Fifth Circuit, it would obviate the need for a bench trial on the issue of damages altogether. If the appellate court adopts the defendant's argument and finds a two year of statute of limitations applicable to plaintiffs' claims, the pay and leave records to be examined will be fewer. The Fifth Circuit's review of these legal determinations now, as opposed to after submission of evidence concerning damages and painstaking examination of that evidence, will greatly benefit the parties and this Court.
Thus, the Court concludes that both the March 28, 2002 and March 4, 2003 summary judgment rulings "involve a controlling question of law to which there is a substantial ground for difference of opinion and that an immediate appeal from [these orders] may materially advance the ultimate termination of the litigation . . . ." 28 U.S.C. § 1292 (b).
Accordingly, it is ORDERED that the motion for certification under 28 U.S.C. § 1292 (b) is hereby GRANTED and CERTIFIES for interlocutory appeal the following Orders:
1. Docket entry 71, Memorandum of Decision and Order on cross-motions for partial summary judgment on liability under USERRA, and
2. Docket entry 89, Order Concerning Cross-Motions for Partial Summary Judgment on the Issue of Limitations.