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Wednesday, February 22, 2023

Judge cannot certify appeal of prior order by prior judge in same case

From In re Sensipar Anitrust Litigation:

District Judge Leonard Stark issued an interlocutory decision. He was elevated to the Federal Circuit five days later and the case transferred to a different district judge, Colm Connelly. The defendant moved, unopposed, for a § 1292(b) certification for immediate appeal. Connelly holds he lacks authority to certify. Section 1292 speaks of a "judge" issuing a decision and certifying the § 1292(b) elements, which means the same judge must issue the order and certify; a different judge cannot certify, including in the same case. The key is that § 1292 does not use judge and court interchangeably; thus while both judges are the "court" hearing the case, they remain different judges for one order.

The textual point is well-taken, I suppose. At the same time, this cannot be the right answer. I know of no other statute or rule that gives a judge less-than-full control and power over a transferred case than had she been assigned the case from the outset. The answer may lie in a different textual point.

Section 1292(b) says that when the judge is of the opinion that an interlocutory order satisfies the elements of (b) and warrants immediate review, " he shall so state in writing in such order." In other words, the statute contemplates that the parties and court work out certification in advance and one order will resolve the underlying issue and certify for appeal. On that framing, this problem--Judge2 certifying Judge1's order--never should arise because Judge1 adjudicates and certifies in one order. Thus, Judge Connelly's interpretation, if correct, has no adverse consequences because it never arises.

In practice, however, parties argue appealability and the court certifies after the the target order. That happened here--Judge Stark issued the underlying order on March 11, 2022, Judge Stark was elevated on March 16, the case was reassigned to Judge Connelly, the parties briefed the certification motion, and Connelly decided the motion 11 months later. This practice is inconsistent with § 1292(b), to the extent the judge certifies in a subsequent order rather than "in such order" to be appealed. The court's interpretation, if right, now has absurd consequences--certification becomes impossible if something unexpected, even tragic, requires the case be transferred between the underlying order and the certification decision. And certification becomes impossible not only in a case such as this  (eleven months lapsed between original order and ruling on certification), but in a case in which things move quickly (Order on Monday, Judge1 dies on Tuesday, case transferred to Judge2 on Wednesday, certification decision on Thursday).

But we can apply textualism to a different piece of text. Taking (b) seriously and reconciling text and practice, a judge can certify subsequent to the underlying order--but must do so not through a new-and-separate order but by amending the original order to add the (b) findings. The power to alter or amend an order rests with the court, meaning any judge assigned the case can alter or amend any order, including the prior judge's order. Connelly thus could have issued an amended version of the March 11, 2022 order, fully repeating and adopting Stark's conclusion while adding the (b) certification. This makes the amended order of February 2023--containing the content of the March 11 decision--an order that Judge Connelly made and therefore can certify for interlocutory appeal.

I am curious what happens next. The denial of certification is obviously not final and appealable. But a determined defendant might seek mandamus on the issue, asking the Third Circuit to order Judge Connelly to grant--or at least consider, which he has not done--certification, because his failure to do so is clearly erroneous

Posted by Howard Wasserman on February 22, 2023 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink


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