Free Supplemental Brief - District Court of Federal Claims - federal

Case 1:03-cv-02684-CFL

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ SHELDON PETERS WOLFCHILD, et al., ) ) ) Plaintiffs, ) ) ) v. ) ) ) THE UNITED STATES OF AMERICA ) ) Defendant. ) ____________________________________)

Case No. 03-2684L Hon. Charles F. Lettow Electronically filed on August 17, 2007

DEFENDANT'S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS MOTION TO CERTIFY CERTAIN ORDERS (Dkt. No. 510) FOR INTERLOCUTORY APPEAL Defendant, the United States, respectfully submits this supplemental brief in support of its motion to certify certain orders for interlocutory appeal (Dkt. No. 510) to address, very briefly, an issue that concerned the Court during the hearing on the motion on August 6, 2007.1 I. THE TIMELINESS OF THE MOTION

The issue before the Court, in deciding whether to certify this case for interlocutory appeal, is not whether the United States sought certification as promptly as it might have; rather, the issue is whether an interlocutory appeal at this point in time would promote judicial efficiency. "What is most important is the soundness of the certification at the time it is made, not an inquest into the comparative desirability of a vanished opportunity for earlier appeal." 16 Wright, Miller & Cooper, Federal Practice and Procedure § 3929, p. 395 (2d ed. 1996); see also
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Plaintiffs filed their opposition memorandum (Dkt. No. 517) on July 30, 2007; and the United States' reply memorandum was due on August 13, 2007, pursuant to RCFC 6(a) and 7.2; however, the United States prepared and filed its reply memorandum (Dkt. No. 519) in a

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Riley v. Dow Corning Corp., 876 F. Supp. 728, 731 (M.D.N.C. 1992) ("The core question in the certification process is whether an immediate reversal of an issue at the appellate level will save the parties unnecessary time and expense."). Thus, for example, a trial court has the authority to vacate and reenter a certification order under 28 U.S. C. § 1292(b), to allow a new period for filing an interlocutory review, if it determines that the previous justification for a certification continues to exist. See Aparicio v. Swan Lake, 643 F.2d 1109, 1112 (5th Cir. 1981). Every federal circuit that has considered this issue has reached the same conclusion. See Jenkins v. BellSouth Corp., ___ F.3d ___, 2007 WL 1881294 at *2 (11th Cir. 2007) (collecting cases). Significantly, in Aparicio, over a year passed after the original certification order before the trial court entered a second order adopting the earlier order and, in effect, recertifying the interlocutory appeal. 643 F.2d at 1111. The fact that a case may have been fit for an interlocutory appeal six months or a year ago does not mean that it is not fit for such an appeal now. A trial court's determination of whether to certify a case for an interlocutory appeal turns on an assessment that is essentially prospective in nature, not retrospective. Accordingly, even if the Court believes that the United States should have moved more quickly and should have pursued an interlocutory appeal at an earlier juncture in this litigation, that does not compel, or even support, denial of certification at this point. II. AN INTERLOCUTORY APPEAL IS ESPECIALLY APPROPRIATE IN THIS CASE

This is precisely the type of case for which 28 U.S.C. § 1292 was created. In enacting this provision, the House Committee on the Judiciary stated:

compressed time-frame of 3 days (by August 3) to ensure it was before the Court and all parties before the August 6 status conference. 2

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There should be some way, for example, in long-drawn-out cases such as antitrust and conspiracy cases, to dispose of vital questions which are raised in the trial without having to wait for the taking of testimony and the conclusion of the trial before the questions can be finally determined on appeal. Without cataloging all of the cases in which interlocutory appeals could be proper, the following categories are those which would generally be affected: (a) cases where an accounting is necessary upon an adjudication of liability under a contract, (b) cases where a long trial would be necessary for the determination of liability or damages upon a decision overruling a defense going to the right to maintain the action, (c) cases involving third party defendants where there would be no reason for continuing the actions if the third parties could not be held liable and (d) causes relating to the transfer of the action where it is claimed that the transfer is not authorized by law. H. Rep. No. 1667 at 1, 2 (1958); see also Koehler v. Bank of Bermuda, Ltd., 101 F.3d 863, 866 (2d Cir. 1996) (discussing legislative history of the provision); Note, Interlocutory Appeals in the Federal Courts Under 28 U.S.C. § 1292(b), 88 Harv.L.Rev. 607, 611-12 (1975) (same). This case fits clearly into both of the first two categories. It is a prototype of the sort of litigation for which the interlocutory appeal mechanism of § 1292 was developed to enhance judicial efficiency for the benefit of the trial court and the litigants.2 In addition, for the reasons it gave in its motion and during the August 6 proceeding, the United States believes that the most efficient course of action is to stay this matter pending the outcome of the interlocutory appeal. In any event, interlocutory appeal is especially appropriate in this case and should be granted.

See also Steering Committee v. United States, 6 F.3d 572, 575-76 (9th Cir. 1993) (trial court's determination of liability in air crash properly certified for interlocutory review when it might avoid unnecessary delay and expense engendered by taking further evidence on the question of damages); 16 Wright, Miller & Cooper, Federal Practice and Procedure § 3931, p. 467 (2d ed. 1996) ("Appeals are frequently certified from orders--particularly those granting summary judgment--that establish some or all issues of liability, leaving other matters open for further proceedings.")

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Dated: August 17, 2007

Respectfully submitted, RONALD J. TENPAS Acting Assistant Attorney General Environment and Natural Resources Division

Laura Maroldy by Sara Culley LAURA MAROLDY Natural Resources Section Environment and Natural Resources Division United States Department of Justice Benjamin Franklin Station, P.O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 514-4565 Facsimile: (202) 305-0506 Email: [email protected] Attorneys of Record for the Defendant THOMAS ZIA SARA CULLEY Trial Attorneys Natural Resources Section Environment and Natural Resources Division United States Department of Justice Washington, D.C. 20044

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CERTIFICATE OF SERVICE I hereby certify that on this 17th day of August, 2007, I directed that the NOTICE OF ELECTRONIC FILING of the foregoing DEFENDANT'S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS MOTION TO CERTIFY CERTAIN ORDERS (Dkt. No. 510) FOR INTERLOCUTORY APPEAL be sent by U.S. MAIL, FIRST-CLASS POSTAGE PREPAID, to: Kermit A. Belgarde, # 905798 Airway Heights Correction Center NORA UNIT B-39-L P.O. Box 1839 Airway Heights, WA 99001-1839 Frances Felix P.O. Box 141232 Minneapolis, MN 55414 Philip Baker-Shenk Holland & Knight, LLP 2099 Pennsylvania Avenue, NW Suite 100 Washington, DC 20006

Dated: August 17, 2007

Laura Maroldy by Sara Culley Laura Maroldy

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