|This matter comes before the Court on Defendant TRW’s Motion for Certification of Interlocutory Appeal (“TRW’s Motion”), pursuant to 28 U.S.C. § 1292(b), of this Court’s December 12, 2000 Order Granting Plaintiffs’ Motion For Partial Summary Judgment On The Odyssey Claim.|
Certification of this interlocutory decision for immediate appeal is controlled by 28 U.S.C. § 1292(b), which provides in relevant part:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.
TRW’s Motion relies in part on the Court’s prefatory language in its December 12, 2000 Order stating that:
- Before turning to the facts and analysis, the Court is compelled to note that in excellent briefs and oral argument, all the parties recognized that the outcome of these motions requires the Court to construe regulations, legislative history and administrative pronouncements that are far from clear, consistent or coherent. The Court agrees. Both sides also pointed out that the other side’s analysis and interpretations would make sense only if portions of those regulations, legislative history and pronouncements are deemed superfluous. That, too, is true. When is a contract not a contract but a memorialization of a “cooperative agreement”? Does “sponsored” mean the same as “required”? Do both mean “paid”? When an apparent change in a regulation makes costs allowable that arguably were not previously recoverable, but does so only “to the extent they . . . are not otherwise unallowable” has there really been a change? That a decision as potentially consequential as this requires the Court to delve into such a linguistic morass is regrettable. But as the parties presented the issues, there is no choice.
December 12, 2000 Order at 2.
The Court is not compelled to find that there is a “substantial ground for difference of opinion” as to the result reached in its prior Order merely because the decision was a difficult one. In fact, the Court is unaware of any conflicting authority on the issue. The Court need not revisit the opposing arguments that were at issue on the cross-motions for summary judgment. Suffice it to say the fact that TRW and other interested government contractors disagree with the result reached by the Court is not compelling or even persuasive on this factor.
The Court must also consider whether the Odyssey ruling involved a “controlling question of law.” Of course, an issue of law is “controlling” if reversal on appeal would terminate the litigation in its entirety. See Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 24 (2d Cir. 1990). The Court recognizes that an issue of law may be “controlling” in instances where the entire lawsuit would not necessarily be terminated by reversal of an interlocutory district court order, such as the dismissal of all claims against some but not all parties. See, e.g., id. However, the Odyssey claims are “not dispositive of the entire case against [TRW].” Federal Deposit Insurance Corporation v. Jackson-Shaw Partners No. 46, Ltd., No. 92-20556 SW, 1995 WL 594866, at *2 (N.D. Cal. Oct. 4, 1995). In fact, the Odyssey claims do not even appear to account for the bulk of the claims against TRW. Therefore, the Court finds that its prior Order is not on a sufficiently “controlling” question of law.
The Court is not persuaded by TRW’s assertion that the Court’s Odyssey Order has far-reaching implications for the defense contracting industry. See Mot. at 4 n.1. Although the Court’s Order may go unreviewed as an interlocutory order and as precedent it may affect many members of the defense contracting industry, nevertheless the Order is not binding on non-parties or other contracts. Therefore, if TRW, or anyone else, strongly believes that the Court got it wrong, they are free to continue charging similar costs as “B&P” and re-litigate the issue if necessary.
Next, the Court must consider whether “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Again, the Court is unpersuaded that whether the Odyssey claims remain in the case will materially affect the efficient resolution of this litigation. Although trial on the Odyssey claims would be unnecessary if the Court’s December 12, 2000 Order were reversed, “[i]t is difficult to ascertain the amount of the remaining claims and the time it will take to litigate them. Further, settlement on the remaining claims is far from certain.” Jackson-Shaw Partners, at *4. Because a substantial amount of litigation remains in this complex case regardless of the correctness of the Court’s Odyssey Order, TRW’s arguments that interlocutory appeal would advance the resolution of this litigation are unpersuasive.
Finally, an immediate appeal could unnecessarily consume appellate resources if the Court were affirmed. On the other hand, the incremental additional costs of a trial on the Odyssey claim on top of the other four claims do not justify the extraordinary relief TRW seeks here. Moreover, the government represented at the hearing that the other two pending motions for partial summary judgment involve the interpretation of regulations that are no less of a linguistic morass than the regulations at issue in the Odyssey motions. It would be inefficient for the Court to certify its Odyssey Order for interlocutory appeal when another of the pending summary judgment motions might also warrant interlocutory appeal under the same reasoning. Such piecemeal litigation is what the presumption against interlocutory review is intended to avoid.
In summary, the Court is not convinced that TRW has carried its heavy burden to show that “exceptional circumstances justify departure from the basic rule that appellate review becomes available only after entry of final judgment.” Jackson-Shaw Partners, at *1. For all the foregoing reasons, and good cause appearing therefor, TRW’s Motion is DENIED.
IT IS SO ORDERED.
DATE: March 26, 2001
A. Howard Matz
United States District Judge