United States District Court, E.D. Michigan, Southern Division
JAN BURGESS, and all 2, 959 individuals identified in the Burgess FTCA administrative Complaint, Plaintiffs,
UNITED STATES OF AMERICA, Defendant. WILLIAM THOMAS, and all 1, 923 individuals identified in the Thomas FTCA administrative Complaint, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
OPINION AND ORDER DENYING DEFENDANT’S MOTION
FOR CERTIFICATION OF INTERLOCUTORY APPEAL UNDER 28 U.S.C.
V. PARKER U.S. DISTRICT JUDGE.
April 18, 2019, this Court decided that the discretionary
function exception found in 28 U.S.C. § 2680(a) does not
shield Defendant, the United States of America, from immunity
under the Federal Tort Claims Act (“FTCA”). (ECF
No. 38.) The Court also decided that Plaintiffs plead
state-law liability to proceed under the FTCA. The United
States seeks to immediately appeal that decision to the Sixth
Circuit Court of Appeals and, therefore, has filed a Motion
for Certification of Interlocutory Appeal under 28 U.S.C.
§ 1292(b). The motion has been fully briefed. For the
reasons set forth below, the Court is denying the motion.
§ 1292(b), a district court may certify an order for
immediate appeal upon finding that it “involves a
controlling question of law as to which there is a
substantial ground for difference of opinion and that an
immediate appeal … may materially advance the ultimate
termination of the litigation[.]” 28 U.S.C. §
1929. The Sixth Circuit has warned that “[r]eview under
§ 1292(b) should be sparingly granted and then only in
exceptional cases.” Vitols v. Citizens Banking
Co., 984 F.2d 168, 170 (6th Cir. 1993) (citation
legal issue is controlling if it could materially affect the
outcome of the case.” In re City of Memphis,
293 F.3d 345, 351 (6th Cir. 2002) (citing In re
Baker & Getty Fin. Servs., Inc., 954 F.2d
1169, 1172 n.8 (6th Cir. 1992)). Interpreting the meaning of
this requirement, the Seventh Circuit Court of Appeals has
We think [the framers of § 1292] used “question of
law” in much the same way a lay person might, as
referring to a “pure” question of law rather than
merely to an issue that might be free from a factual contest.
The idea was that if a case turned on a pure question of law,
something the court of appeals could decide quickly and
cleanly without having to study the record, the court should
be enabled to do so without having to wait until the end of
Ahrenholz v. Bd. of Trustees. of the Univ. of
Illinois, 219 F.3d 674, 676-77 (7th Cir. 2000). “
‘[Q]uestion of law’ as used in § 1292(b) has
reference to a question of the meaning of a statutory or
constitutional provision, regulation, or common law doctrine
….” Id. at 676. “The term . . .
does not mean the application of settled law to fact.”
McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1258
(11th Cir. 2004) (citing Ahrenholz, 219 F.3d at
Court’s holdings with respect to the government’s
motion to dismiss was too fact-intensive an inquiry for
interlocutory review. It required the Court to dig deeply
into a substantial factual record. Moreover, at this stage of
the proceedings, the facts remain to be developed and future
discovery may impact the Court’s analysis.
the Court does not believe that an immediate appeal will
expedite the resolution of this case. Litigation of this
matter already has been substantially delayed to address the
issues raised in the United States’ motion to dismiss.
Allowing an interlocutory appeal would only further delay its
progression. As well, there is an ongoing mediation
concerning the Flint Water Crisis involving the parties to
this case, as well as officials from the State of Michigan
and the City of Flint. The United States has been unwilling
to fully engage in those discussion while its motion to
dismiss was pending. Denying the government’s request
for interlocutory appeal may advance those discussions and an
ultimate resolution of, not only this case, but the numerous
additional lawsuits arising from this tragic crisis.
the Court is DENYING the United
States’ Motion for Certification of Interlocutory
Appeal under 28 U.S.C. § 1292(b) in the above-captioned
cases. The Court also is DENYING WITHOUT
PREJUDICE the Motion to Strike, which is pending in
Thomas. (ECF No. 8.)
IS SO ORDERED
 The Court intends to schedule a
conference with counsel in the related FTCA cases to discuss
how these matters should proceed. The Court will likely
consolidate the cases. In that instance, it seems that the
question of which lawsuit should ...