Free Reply to Response to Motion - District Court of Federal Claims - federal

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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 3, 2007

REPLY OF DEFENDANT TO PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION TO CERTIFY CERTAIN ORDERS FOR INTERLOCUTORY APPEAL RONALD J. TENPAS Acting Assistant Attorney General Environment and Natural Resources Division 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 for the Defendant

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THOMAS ZIA SARA CULLEY Trial Attorneys Natural Resources Section Environment and Natural Resources Division United States Department of Justice Washington, D.C. 20044-0663 OF COUNSEL: Janet Goodwin James Porter Office of the Solicitor United States Department of the Interior

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TABLE OF CONTENTS I. II. PERTINENT FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTERLOCUTORY APPEAL IS APPROPRIATE AT THIS STAGE IN THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 THIS CASE MEETS THE STATUTORY REQUIREMENTS FOR INTERLOCUTORY APPEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

III.

IV.

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TABLE OF AUTHORITIES FEDERAL CASES AD Global Fund, LLC ex rel. North Hills Holding, Inc. v. United States, 68 Fed. Cl. 663 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Camacho v. Puerto Rico Ports Authority, 369 F.3d 570 (1st Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Ferraro v. Sec'y of United States Dept. of Health and Human Services, 780 F. Supp. 978 (E.D.N.Y. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Fisichelli v. City Known as Town of Methuen, 884 F.2d 17 (1st Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 In re Buspirone Patent Litigation, 210 F.R.D. 43 (S.D.N.Y. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 In re Investors Funding Corp. of New York Securities Litigation v. Dansker, 36 B.R. 1019 (S.D.N.Y. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 In re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007 (1st Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria, 921 F.2d 21 (2d Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 LeBeau v. United States, 474 F.3d 1334 (Fed. Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 Marriott Int'l. Resorts v. United States, 63 Fed. Cl. 144 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10 McFarlin v. Conseco Services, LLC, 381 F.3d 1251 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Menominee Tribe of Indians v. United States, 607 F.2d 1335 (Ct. Cl. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Mitchell v. Forsyth, 472 U.S. 511 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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Morton Coll. Bd. of Trustees v. Town of Cicero, 25 F. Supp. 2d 882 (N.D. Ill. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6 Nebraska Public Power Dist. v. United States, 74 Fed. Cl. 762 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11 Ockerman v. May Zima & Co., 785 F. Supp. 695 (M. D. Tenn. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Scholl v. United States, 68 Fed. Cl. 58 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 10 Testwuide v. United States, 56 Fed. Cl. 755 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Weir v. Propst, 915 F.2d 283 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Wolfchild v. United States, 62 Fed. Cl. 521 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8 Wolfchild v. United States, 68 Fed. Cl. 779 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5 Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 494 F. Supp. 1190 (E.D. Pa. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

FEDERAL STATUTES 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 28 U.S.C. § 1292 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

EXHIBITS Exhibit A, portions of Transcript of March 20, 2006 hearing . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

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Defendant, the United States, submits this reply to Plaintiffs' opposition to the United States' motion to certify certain orders for interlocutory appeal in this case. Plaintiffs claim that the motion is untimely; and that the orders at issue do not meet the requirements set forth in 28 U.S.C. § 1292(d)(2). Plaintiffs' claim of untimeliness rests in part on a misunderstanding of the procedure governing interlocutory appeals, as Defendant explains, infra. More importantly, the matter of timeliness for the purpose of interlocutory appeal should be considered in view of the extraordinary circumstances of this case. Plaintiffs' opposition, in contrast, focuses primarily on the amount of time that has passed since this Court's October 27, 2004, Order, and fails to give sufficient consideration to the extreme burden and expense to all parties and the Court of proceeding with discovery, determination of the remaining merits issues, and trial. Now that those who claim to be "lineal descendants" have been notified and the party issues have been resolved,1/ it makes sense to obtain appellate review of the October 2004, December 2005, and August 2006 Orders (all of which involve controlling questions of law), before all parties and the Court undertake the burdens of proceeding through the most expensive and time-consuming phases of the litigation. I. PERTINENT FACTS To put the matter of timeliness in context, it is helpful to review the course of proceedings following the October 27, 2004, Order. The Court issued its Order granting Plaintiffs' partial summary judgment on October 27, 2004. (Dkt. No. 35). Although Plaintiffs included class action allegations in their Complaint and First Amended Complaint, they had not,

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There appears to be one party-related motion still pending, which, in the United States' view, likely will not take long to resolve.

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as of the time the Court issued its October 27, 2004, Order, moved to certify a class. The Court ordered Plaintiffs to move to certify a class or subclasses or file a proposed means of providing notice to interested parties, by January 10, 2005. (Dkt. 35). Plaintiffs moved to file a proposed Second Amended Complaint; and then withdrew it and substituted another Second Amended Complaint, adding additional Plaintiffs, on January 31, 2005. Following a status conference in February 2005, the Court extended until March 21, 2005, the time within which Plaintiffs were to file their motion for class certification or alternative provision for notice. At the same time, the Court extended until April 25, 2005, the time within which Defendant was to file notice that it was going to seek a summons, if it intended to do so. (Dkt. 57). Defendant filed its Answer to the Second Amended Complaint, and its motion for reconsideration of the October 2004 Order, on March 21, 2005.2/ The Court issued its Opinion and Order on the motion for reconsideration in December 2005. In that December 2005, Order, the Court authorized and directed Plaintiffs to publish notice of the lawsuit to persons who might be "lineal descendants" of the "loyal Mdewakanton." Wolfchild v. United States, 68 Fed. Cl. 779, 801 (2005)(Wolfchild II). Notice was published in 2006, and a deluge of motions to intervene ensued. The Court twice extended the deadline for motions to intervene. Even after those deadlines expired in July 2006, more motions were filed. The Court noted that the further along the litigation proceeded, interlocutory appeal might not make sense;3/ however, the Court

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The United States noted its intention to file such a motion, during the February 2005 status conference. Transcript of March 20, 2006, hearing, at 31 (The transcript excerpts referred to herein are attached, collectively, as Exhibit A.)
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consistently has asserted that all admitted intervenors (and lineal descendants) should have the opportunity to participate in proceedings on the merits. (See, e.g., Tr. of March 20, 2006, hearing, at 17: "the Court has emphasized from the outset that one of its responsibilities . . . [is] to make sure that everyone who has a potential interest in the case is involved in the case at critical aspects.".) Indeed, the Court stayed proceedings on certain motions filed by Plaintiffs pending the intervention of additional purported lineal descendants. (March 20, 2006, Order, Dkt. 106). Plaintiffs did not assert that it was too late for interlocutory appeal; on the contrary, they stated that interlocutory appeal should follow a decision on their March 2006 motion for partial summary judgment, which was contained in Plaintiffs' motion to issue summonses to the Shakopee Mdewakanton Sioux Indian Community and the Prairie Island Indian Community. (Tr. of March 20, 2006, hearing, at 32-33.) In response to a query from the Court at the January 25, 2007, hearing in this case, counsel for the United States stated that the United States was considering interlocutory appeal.4/ After an extensive review process culminating in authorization by the Solicitor General of the United States, the United States filed its motion to certify for interlocutory appeal on July 16, 2007. Plaintiffs filed their opposition on July 30, 2007. II. INTERLOCUTORY APPEAL IS APPROPRIATE AT THIS STAGE IN THE CASE This case involves a request for appeal of three orders that were not immediately

Defendant notes that contrary to Plaintiffs' assertions in their opposition memorandum, Benjamin Longstreth, previous counsel of record for the United States, did not foreclose the possibility that the United States might consider interlocutory appeal; rather, he asserted that he would "endeavor to reach a decision at this point whether, based on the orders the Court has issued to date, the department would like to pursue an interlocutory appeal on the trust issue with all expedition." Tr. of March 20, 2006, hearing, at 30-31.

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appealable as of right. The answer to the question whether interlocutory appeal is "timely" in this case is intertwined with the conclusion that the circumstances of this case meet the requirements of 28 U.S.C. § 1292 (d)(2). Examination of both issues compels the conclusion that this is an exceptional case, well-suited for interlocutory appeal, because appeal now "may materially advance the ultimate termination of the litigation" (28 U.S.C. § 1292 (d)(2)) and avoid tremendously costly and time-consuming proceedings for all concerned. As threshold matter, this Court should disregard Plaintiffs' suggestion that the United States should have sought relief directly from the Federal Circuit, or that the United States had an opportunity to do so, if it had sought review from the Federal Circuit within 60 days of the Orders at issue.5/ The United States never had a right to seek interlocutory review of the Orders in question from the Federal Circuit; instead, seeking certification from this Court is the necessary first step. Similarly, unlike much of the authority on which Plaintiffs rely, this case does not concern a ruling on qualified immunity, which would have entitled a defendant to immediate review from the appellate court under the collateral order doctrine, provided the appeal was taken within 30 days. See, e.g., 28 U.S.C. § 1291; Fisichelli v. City Known as Town of Methuen, 884 F.2d 17, 18 (1st Cir. 1989); Mitchell v. Forsyth, 472 U.S. 511, 525-26 (1985).

Plaintiffs assert that the United States had an "absolute right" to petition the United States Court of Appeals for the Federal Circuit (for interlocutory appeal) directly within 60 days of each of the Orders as to which it seeks certification now, but "lost" that right; and that is the reason it must seek certification of the Orders from this Court now. That is not a correct interpretation of the governing authority. Federal Rule of Appellate Procedure 5 is a rule of procedure for requesting permission to appeal where appeals are discretionary (including appeals under 28 U.S.C. § 1292(d)(2)); neither it nor Rule 4 (which concerns time limits for filing notices of appeal), creates any right to petition the Federal Circuit directly for interlocutory appeal.

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The Court should also reject Plaintiffs' claim that the timing of the United States' motion is the result of "gratuitous delay" since the Court's October 27, 2004, Order issued. In fact, threshold issues of importance to all parties needed to be addressed in the meantime. For example, it was not until March 2005 that Plaintiffs made clear whether they intended to seek class certification. See, e.g., Wolfchild II, 68 Fed. Cl. at 795-96 (referring to Plaintiffs stating in their Second Amended Complaint that they would not seek class certification). Indeed, it is only at this point that all the parties to the litigation have been joined. Plaintiffs' related assertion that it was improper for the United States to file a motion for reconsideration is also ill-founded. There is no evidence that the United States' motion to reconsider was filed for the purpose of delay or any other improper purpose. As noted in Part I, above, both parties submitted additional evidence to the Court relating to that motion to reconsider. Moreover, for the reasons United States explained in its motion to certify, the Court's December 2005 Opinion and Order denying the motion involved controlling questions in this litigation; and that Order meets the requirements for certification under 28 U.S.C. § 1292 (b)(2), independently of the October 2004 Order. The cases on which Plaintiffs rely for their claim of untimeliness are inapposite here. In the cases Plaintiffs cite, the parties offered little explanation of why it was an appropriate time to seek interlocutory appeal.6/ In contrast, the United States has fully explained not only the

See, e.g., Weir v. Propst, 915 F.2d 283, 287 (7th Cir. 1990) (the parties failed to "present[] any reason for the delay"); Scholl v. United States, 68 Fed. Cl. 58, 60 (2005) (argument for timeliness offered only in a footnote); Morton Coll. Bd. Of Trustees v. Town of Cicero, 25 F. Supp. 2d 882, 885 (N.D. Ill. 1998) (party gave "only one reason for its delay in filing the motion for certification"); Ferraro v. Sec'y of United States Dept. of Health and Human Services, 780 F. Supp. 978, 979 (E.D.N.Y. 1992) (no justification for party's delay); In re Buspirone Patent

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passage of time from the entry of the orders it seeks to certify and its motion at issue, but the fact that with the potential Plaintiffs notified, and the party issues resolved, this is an appropriate juncture for interlocutory review. Furthermore, unlike this one, the cases Plaintiffs cite did not involve events, documents, or statutes that had their genesis over 100 years ago. Moreover, in the majority of Plaintiffs' cases, the parties failed to meet the statutory criteria for certification. E.g., Scholl v. United States, 68 Fed. Cl. at 62; Morton Coll. Bd. Of Trustees, 25 F. Supp. 2d at 885-86; In re Buspirone Patent Litigation, 210 F.R.D. at 50. Here, Defendant has demonstrated that the October 27, 2004, December, 16, 2005, and August 22, 2006, Orders meet the criteria set forth in § 1292(d)(2). Furthermore, it makes sense to consider all of the Orders together on appeal, as they all involve aspects of the fundamental controlling questions in the case: whether the Appropriations Acts gave rise to a trust; and the proper interpretation of the 1980 Act, including whether the 1980 Act terminated any allegedly pre-existing trust. III. THIS CASE MEETS THE STATUTORY REQUIREMENTS FOR INTERLOCUTORY APPEAL Plaintiffs assert that the Orders at issue do not contain controlling questions of law within the meaning of 28 U.S.C. § 1292, because there was an extensive factual record before the Court when those questions were decided. Yet the October 2004 and December 2005 Orders were concerned with whether partial summary judgment was appropriate, on key issues in the case. By definition, those determinations concerned matters of law. The Court made clear that it had decided only the most fundamental issues, including that the Appropriations Acts gave rise to a

Litigation, 210 F.R.D. 43, 49 (S.D.N.Y. 2002) (delay was unexplained).

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trust, and that the 1980 Act did not terminate the trust. Wolfchild v. United States, 62 Fed. Cl. 521, 551 (2004). The existence of a voluminous record does not make interlocutory appellate review of the Court's Orders on those issues inappropriate. Likewise ill-founded is Plaintiffs' claim that interlocutory appeal is not appropriate because if the case proceeds in the trial court now, still more facts might emerge, relating to already-decided legal issues. Plaintiffs sought, and obtained, certain determinations of threshold issues based on the record before the Court at the time those rulings were made. The Court's conclusion that it has jurisdiction over Plaintiffs' claims was based on those rulings. The United States challenges those rulings and the Court's jurisdiction. It is entirely appropriate to obtain interlocutory review of those questions now, before more than 21,000 parties, and the Court, proceed with the other phases of the case. Plaintiffs' assertion that the question whether the Act terminated any supposedly preexisting trust does not constitute a controlling question in this case is particularly ill-founded. Plaintiffs' various iterations of their Complaint, and Plaintiffs' and Intervenors' joint status reports make clear that their primary focus and interest are post-1980 events and gaming revenues. As the United States noted in its motion to certify, if the United States prevails on its appeal regarding the interpretation of the 1980 Act, the "ultimate termination of the litigation" will be vastly accelerated. Likewise, if the appellate court determines the Appropriations Acts did not give rise to a trust, the case is over. Such questions, determined as matters of law in the trial court, and involved in all three Orders Defendant seeks to have certified, fit the bill for interlocutory appeal. Plaintiffs dismiss the United States' request to certify the August 22, 2006, Order for

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interlocutory review, yet that Order relies on, encompasses, and expands upon the Court's earlier-issued Orders and the controlling questions involved therein. The controlling questions whether the Appropriations Act gave rise to a trust, and whether the 1980 Act terminated that trust, are inextricably bound up in the August 2006 Order. An interlocutory appeal from the August 22, 2006, Order would necessarily involve the 2004 and 2005 Orders, and appealing from all of those Orders at one time supports, rather than contravenes, Plaintiffs' stated desire to avoid piecemeal litigation. In addition, the grant of intervention to the Lower Sioux, contained in that Order, depended on the Court's assertion of an agency relationship. The fact that Plaintiffs want to develop the agency theory further in litigation does not mean the Order cannot be appealed now, or that it does not involve a "controlling question." Plaintiffs' assertion that there are not substantial grounds for difference of opinion on the identified questions should also fail. Conflicts between or within a given federal circuit would surely give rise to substantial grounds for difference of opinion, but they are not the only possible sources of such grounds. The Court's application of United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003) in this case, and its rejection of Menominee Tribe of Indians v. United States, 607 F.2d 1335 (Ct. Cl. 1979), suggesting that that case was no longer good law7/ are but two examples of substantial grounds for difference of opinion in this case, within the meaning of 28 U.S.C. § 1292 (d)(2). In sum, the controlling questions at issue here do not involve merely disputes between the parties, as Plaintiffs suggest. The recently-decided case of LeBeau v. United States, 474 F.3d 1334 (Fed. Cir. 2007)

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Wolfchild I, 62 Fed. Cl. at 549.

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illustrates why interlocutory appeal is appropriate here.8/ In LeBeau, eight years after the suit was filed, the Federal Circuit reversed the trial court's ruling (on appeal after final judgment) and held that to permit recovery on a breach of trust claim where Congress has acted to reallocate the share of judgment fund money going to lineal descendants "would defeat Congressional intent." LeBeau, supra, 474 F.3d at 1343, n. 6. Here, appellate review of similarly complex legal questions may determine those issues, affecting over 20,000 putative "lineal descendants," without any party or this Court having to incur the burden and expense of proceeding to final judgment before an appeal may be taken. Plaintiffs' assertion that this case is not one of the "rare" or "exceptional" cases that is appropriate for interlocutory appeal misses the mark. Indeed, many of the decisions on which Plaintiffs rely actually support a finding that this lawsuit is such a rare or exceptional case. For

example, the court in AD Global Fund, LLC ex rel. North Hills Holding, Inc. v. United States, explained that interlocutory appeal was appropriate, because "[i]f the Federal Circuit were to overturn the lower court's order . . ., the litigation would terminate. Trial on the merits would not be required, which the parties generally agree would consume eighteen months alone for discovery and pre-trial preparation." 68 Fed. Cl. 663, 666 (2005). The AD Global Fund court noted that "a question of law [is] controlling when it `materially affect[s] issues remaining to be

LeBeau also supports the United States' position that substantial grounds for difference of opinion exist as to the controlling questions the United States identified in its motion. Among other things, it supports the United States' position in Wolfchild that no breach of trust claim cognizable in this Court may arise from the transfer described and mandated by the 1980 Act, and that, consistent with Menominee Tribe of Indians, 607 F.2d 1335 (Cl. Ct. 1979), only a violation by the executive branch of a treaty or statute, and not Congressional action, might give rise to an actionable breach of trust. LeBeau, supra, 474 F. 3d 1334.

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decided in the trial court[.]' " Id. at 665 (quoting Jade Trading, LLC v. United States, 65 Fed. Cl. 443, 447 (2005)). Moreover, the court stated that "[i]ssues of statutory interpretation often involve issues of law that are appropriate for certification." Id. (citing 9 James Wm. Moore et al., Moore's Federal Practice ¶ 110.22 [2] & n. 11 (2d ed.1992)). Plaintiffs also cite Marriott Int'l. Resorts v. United States, in which this Court found interlocutory appeal was appropriate when "definitive resolution of the . . . issue would manifestly benefit these consolidated cases" despite the facts that the parties had spent over two years debating the issue and an interlocutory appeal "would mean that a significant additional period would pass before the merits could be addressed." 63 Fed. Cl. 144, 146 (2004). In Testwuide v. United States, on which Plaintiffs also rely, the court appeared to consider interlocutory appeal appropriate in part because the case was so large. 56 Fed. Cl. 755, 767 (2003) (considering the fact that 2,000 plaintiffs were currently involved in the case and additional suits might be brought if a class was not certified). In Camacho v. Puerto Rico Ports Authority, 369 F.3d 570 (1st Cir. 2004), the court concluded that it should consider the interlocutory appeal because it involved an open legal question and "the litigation would benefit from prompt resolution of that question." Id. at 573. 9/

The remainder of the cases cited by Plaintiffs can be distinguished from this lawsuit. In McFarlin v. Conseco Services, LLC, the court denied a request for interlocutory appeal, in part, because the questions arose "from the application of well-accepted law to the particular facts of a pleading in a specific case." 381 F.3d 1251, 1260, 1262 (11th Cir. 2004). In In re Investors Funding Corp. of New York Securities Litigation v. Dansker, the court found that interloctuory appeal was not appropriate, in part, because some of the claims had been settled and others were "relatively minor in the context of the broad scope of this action and ancillary to the central issues in the case." 36 B.R. 1019, 1022-23 (S.D.N.Y. 1983). In Scholl v. United States, the court concluded that interlocutory appeal was not appropriate, because it was untimely and the court found that defendant's concerns about the controversial nature of discovery were

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Additional authority from this Court, and other federal district and appellate courts, also supports the conclusion that interlocutory appeal is appropriate in this case. For example, in Nebraska Public Power Dist. v. United States, the court concluded that the requirements for interlocutory appeal were satisfied, in part, because it "makes eminent sense to seek appellate confirmation as to whether [a certain] argument should be presented before proceeding to what might be a complicated resolution of that issue (one that, indeed, might require a trial)." 74 Fed. Cl. 762, 764 (2006). In In re San Juan Dupont Plaza Hotel Fire Litigation, the court concluded that interlocutory appeal was appropriate because the question was "sufficiently novel and important, and the circumstances sufficiently out of the ordinary, as to fulfill the statutory requisites." 859 F.2d 1007, 1010 n.1 (1st Cir. 1988). Similarly, in Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria, the United States Court of Appeals for the Second Circuit noted that its "review of the statute and relevant authorities convinces us that a `controlling question of law' under section 1292(b) need not affect a wide range of pending cases . . . ." 921 F.2d 21, 24 (2d Cir. 1990). Although certification under section 1292(b) has not been restricted in practice to exceptionally complex or protracted litigation, it remains especially suitable for use in such cases. Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 494 F.Supp. 1190, 1244 (E.D. Pa. 1980). In Zenith Radio, the court noted that "[i]n actual practice, the scope of application of 1292(b) has not been restricted narrowly to "exceptional cases." Id. (Citations omitted). Similarly, in Ockerman v. May Zima & Co., the court noted that "[t]he authors of this provision §

unfounded. 68 Fed. Cl. 58, 59, 61 (2005).

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intended it to be used in protracted and expensive litigation such as is now before the Court." 785 F. Supp. 695, 706 ( M. D. Tenn. 1992). IV. CONCLUSION For all of these reasons, and those set forth in the United States' motion to certify certain orders for interlocutory appeal, that motion should be granted.

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Dated: August 3, 2007.

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

/s Laura Maroldy 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. 20044-0663

OF COUNSEL: Janet Goodwin James Porter Office of the Solicitor United States Department of the Interior

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Case 1:03-cv-02684-CFL

Document 519

Filed 08/03/2007

Page 19 of 19

CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of August, 2007, I directed that the NOTICE OF ELECTRONIC FILING of the foregoing Reply of the United States to Plaintiffs' Opposition to the United States' Motion to Certify Certain Orders 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 Francis 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 3, 2007

/s Laura Maroldy Laura Maroldy

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