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Saturday, December 29, 2018

A tale of two appeals

The Ninth Circuit accepted the district court's § 1292(b) certification in the climate-change litigation, paving the way for review of the denial of motions to dismiss for failure to state a claim, lack of standing, and other bases. This after a series of failed attempts by the government to get the Ninth Circuit or SCOTUS to grant mandamus, stay the case, or provide other relief. Dissenting, Judge Friedland suggested that the district court did not genuinely believe the requirements of § 1292(b) were met and did not "so state," especially as to whether immediate review would "materially advance the ultimate termination of the litigation," and the the district court was strong-armed by the government's repeated attempts to bypass normal litigation procedures.

The thing that has bothered me all along is I do not see how the first prong of § 1292(b) is satisfied--that the interlocutory "order involves a controlling question of law," which should be limited to purely legal questions such as the meaning of a law, not to questions of application of known law to fact. The court found that plaintiffs have standing and that the plaintiffs stated a claim, accepting as sufficiently pleaded a creative application of the state-created danger theory of substantive due process. Standing is not purely legal--the requirements of standing are well-known, the issue here is whether they were satisfied. Perhaps the allowance of  the state-created danger theory would qualify. But then what about the non-legal issues? dDoes everything else (such as standing) go with it on pendent appellate jurisdiction? Is the standing question "inextricably intertwined" with the constitutional question over which the court of appeals has jurisdiction?

Meanwhile, all sides are urging the district court in the ACA litigation to certify its decision under § 1292(b). This reads as a more appropriate case for interloctuory review, as the court decided an obvious question of law as to the constitutional validity of the individual mandate and the severability of the rest of the statute. And then does the standing decision (which should be the appropriate basis for getting rid of this case) similarly go along for the ride on pendent jurisdiction?

Posted by Howard Wasserman on December 29, 2018 at 08:34 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink


The certification order of the district court , can be reached here :


Posted by: El roam | Dec 29, 2018 10:04:20 AM

Interesting indeed. But the issue presented by the dissenting opinion, is bit difference :

What the judge has asserted, is that formally the criteria are met, but, only formally.yet,Actually I quote :

The district court - having, among other things, direct experience with the parties, knowledge of the status of discovery, and the ability to sequence issues for trial - is far better positioned to assess how to resolve the litigation most efficiently.

End of quotation :

As if hinting,that the district court, could avoid the certification, by digging deeper into facts and the case, and extract so, every possibility for resolving the matter, without such certification for interlocutory appeal.

By the way, can be supported by the language or wording of the rule :

" that an immediate appeal from the order may materially advance the ultimate termination of the litigation..."

End of quotation :

" Ultimate termination " that is emphasizing rather, the strategic importance, without which, no termination would be possible it seems.

But of course, the dissenting judge, is based here upon a hunch it seems, no facts or findings concerning what could do better the district court.


Posted by: El roam | Dec 29, 2018 9:46:56 AM

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