United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES, UNITED STATES DISTRICT JUDGE.
matter comes before the court on Plaintiffs' motion to
certify the court's Memorandum and Order filed December
17, 2018, for interlocutory appeal. (Doc. 387.) The motion is
fully briefed. (Docs. 388, 390, 394-1.) For the reasons
state herein, the motion to certify is DENIED.
allege that Spirit discriminated against them in violation of
the Age Discrimination in Employment Act (ADEA) by
terminating their employment in a reduction-in-force (RIF),
and by refusing to rehire them for new job openings.
Plaintiffs bring both a collective action and individual ADEA
claims, and some Plaintiffs also assert claims under the
Americans with Disabilities Act (ADA) and/or the Family
Medical Leave Act (FMLA).
parties agreed to conduct the litigation in two phases, with
the first phase addressing the validity of ADEA waivers
signed by some Plaintiffs at the time of the RIF.
(See Doc. 153 at 1-2.) In a Memorandum and Order
filed December 17, 2018, the court ruled on the parties'
cross-motions for summary judgment relating to the waivers.
(Doc. 385.) As to those Plaintiffs who had signed the waivers
and conceded they had received a 65-page disclosure list from
Spirit pursuant to the Older Workers Benefit Protection Act
(OWBPA), the court found the waivers were knowing and
voluntary, meaning Spirit was entitled to summary judgment on
ADEA claims covered by the waivers. (Id. at 38.) The
court found a genuine issue of fact remained with respect to
eight Plaintiffs who claimed they had not received the
65-page OWBPA disclosure list from Spirit.
ask the court to certify that order for an interlocutory
appeal pursuant to 28 U.S.C. § 1292(b). They argue the
order addressed two issues of controlling law on which there
is substantial ground for difference of opinion and as to
which an immediate appeal would materially advance the
litigation. It identifies the two issue as: 1) the meaning of
“eligibility factors” under 29 U.S.C. §
626(f)(1)(H)(i); and 2) whether the “decisional
unit” in 29 C.F.R. 1625.22(f)(3)(ii)(D) includes groups
of individuals “categorically excluded from the
reduction in force….” (Doc. 388 at 6.)
Plaintiffs argue there is conflicting case law on the meaning
of “eligibility factors, ” and that the scope of
the “decisional unit” presents a novel and
debatable legal question. Plaintiffs contend both of these
are controlling questions of law because they are
determinative of the validity of the waivers. Plaintiffs
argue an immediate appeal would further judicial economy and
advance the litigation because it would avoid the prospect of
duplicative discovery, it would avoid the risk of multiple
trials on similar issues, it would clarify OWBPA standards
for employers and employees, and it would benefit those
Plaintiffs who have serious health conditions or other
circumstances that favor a prompt determination of the
validity of their waivers. (Id. at 15-17.)
Section 1292(b) standards
statute governing Plaintiffs' motion provides:
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. The
Court of Appeals which would have jurisdiction of an appeal
of such action may thereupon, in its discretion, permit an
appeal to be taken from such order, if application is made to
it within ten days after the entry of the order: Provided,
however, That application for an appeal hereunder shall not
stay proceedings in the district court unless the district
judge or the Court of Appeals or a judge thereof shall so
28 U.S.C.A. § 1292(b).
1292(b) gives district courts “first line
discretion” to allow interlocutory appeals. Swint
v. Chambers Cty. Comm'n, 514 U.S. 35, 47 (1995). It
allows certification of an order if three elements are met:
1) the order involves a controlling question of law; (2) a
substantial ground for difference of opinion exists with
respect to the question of law; and (3) an immediate appeal
from the order may advance the ultimate termination of the
litigation materially. Little v. Budd Co., No.
16-4170-DDC-KGG, 2018 WL 5084315, at *1 (D. Kan. Oct. 18,
2018) (citing 28 U.S.C. § 1292(b)).
“question of law” involves the meaning of a
statute, constitution, regulation, or common-law doctrine, as
opposed to a question of fact. XTO Energy, Inc. v. ATD,
LLC, 189 F.Supp.3d 1174, 1193 (D. N.M. 2016) (citation
omitted). A “controlling” question is one that
could materially affect the outcome of the litigation in the
district court. City of Neodesha v. BP Corp. of N. Am.
Inc., No. 15-4025-KHV, 2016 WL 3522092, *3 (D. Kan. June
28, 2016) (citation omitted). An issue need not be
dispositive of the entire action to be controlling. “A
controlling question of law would generally constitute
reversible error on final appeal if the district court
arrived at the wrong legal conclusion.” XTO
Energy, 189 F.Supp.3d at 1194. As for “substantial
ground for difference of opinion, ” that exists if the
appears contrary to the rulings of all courts of appeals
which have reached the issue, if the circuits are in dispute
on the question and the court of appeals of the circuit has
not spoken on the point, if complicated questions arise under
foreign law, or if novel and difficult questions of first
impression are presented.
Id. (citing 2 Fed. Proc., L.Ed. § 3:218).
Finally, an immediate appeal may “advance the ultimate
termination of the litigation” if it would eliminate
the need for a trial, eliminate complex issues so as to
simplify the trial, or make discovery easier and less costly.
Id. (citations omitted). If the litigation will be
conducted in substantially the same manner regardless of the
decision, an immediate appeal will not advance the
termination of the litigation. Id. This element
turns on pragmatic considerations, assessed by reviewing the
procedural and substantive status of the case, the extent ...