United States District Court, M.D. Louisiana
JUNE MEDICAL SERVICES LLC, ET AL.
REBEKAH GEE, ET AL.
RULING AND ORDFR
A. JACKSON, CHIEF JUDGE.
the Court is the Motion for Interlocutory Appeal
(Doc. 89) filed by Defendants in this action.
Defendants seek interlocutory review of the portion of the
Court's ruling that found a claim challenging H.B. 1019,
which mandates that doctors provide an informational document
concerning fetal genetic abnormities to women seeking
abortions, ripe for adjudication. (Doc. 89 at p. 1). For the
reasons that follow, the motion is DENIED.
doctors and a clinic that provide abortion services, filed a
lawsuit challenging recently enacted laws by the Louisiana
Legislature that address the provision of abortion services
within the state. (Doc. 84 at p. 3). The Court issued a
ruling on three motions to dismiss filed by Defendants.
(Id. at p. 1). Relevant to the motion sub
judice, the Court found that Plaintiffs' claims
concerning H.B. 1019's mandate that women receive an
informational document concerning fetal genetic abnormities
could proceed. (Id. at p. 25).
certify a ruling for interlocutory review, a court must find
that its ruling " involves a controlling question of
law as to which  there is a substantial ground for
difference of opinion and  that an immediate appeal from
the order may materially advance the ultimate termination of
the litigation." 28 U.S.C. § 1292(b). The Fifth
Circuit strictly construes the requirements of §
1292(b), and all three criteria must be met before the court
may certify an interlocutory appeal. See Aparicio u. Swan
Lake, 643 F.2d 1109, 1110 n.2 (5th Cir. 1981); Ala.
Labor Council v. Alabama, 453 F.2d 922, 924 (5th Cir.
1972). "The basic rule of appellate jurisdiction
restricts review to final judgments, avoiding the delay and
extra effort of piecemeal appeals"; therefore,
interlocutory appeals are "exceptional."
Clark-Dietz & Assocs.-Engineers, Inc. v. Basic Const.
Co., 702 F.2d 67, 69 (5th Cir. 1983).
Controlling Question of Law
ripeness of Plaintiffs challenge to H.B. 1019 is a question
of law, but it is a closer question whether the issue is
controlling. "[Resolution of an issue need not
necessarily terminate an action in order to be controlling
.... Whether an issue of law is controlling usually
'hinges upon its potential to have some impact on the
course of the litigation.'" United States v. La.
Generating L.L.C., No. 09-cv-100, 2012 WL 4588437, at *1
(M.D. La. Oct. 2, 2012) (quoting Tesco v.
Weatherford Int'l, Inc. 722 F.Supp.2d 755, 7666
(S.D. Tex. 2010)). However, this ruling's impact on the
course of the litigation is slight because terminating any
one claim in this complex constitutional challenge
will have only a marginal impact on the
course of proceedings. Moreover, the Louisiana Department of
Health ("LDH") is presumably working towards it
obligation under the law to develop and promulgate the
informational document. (Doc. 22-2 at p. 3 11. 24-30). When
that document is promulgated, it will likely moot
Defendants' ripeness challenge. Therefore, it is unclear
what-if any-impact on the litigation certification of this
interlocutory question would have.
Substantial Ground for a Difference of Opinion
traditionally will find that a substantial ground for
difference of opinion exists where 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." Mitchell v.
Hood, 13-5875, 2014 WL 1764779, at *5 (E.D. La. May 2,
2014) (quoting Couch v. Telescope Inc., 611 F.3d
629, 633 (9th Cir. 2010)). At this point in the litigation,
the only holding by the Court on this issue is that the claim
is ripe for adjudication and may proceed. (Doc. 84 at p. 25).
Although Defendants undoubtedly disagree with the Court's
resolution of the ripeness issue, the ripeness doctrine is
well established. Disagreement with the Court's ruling is
insufficient to establish a substantial ground for a
difference of opinion. See Ryan v. Flowserue Corp.,
444 F.Supp.2d 718, 724 (N. D. Tex. 2006).
Materially Advance Ultimate Termination of the
assuming that the Court's ruling on H.B. 1019 is a
controlling question of law about which there is a
substantial ground for a difference of opinion, an immediate
appeal from the order would not materially advance the
ultimate termination of the litigation. See28U.S.C. §
1292(b). At best, an interlocutory appeal would resolve just
one of many issues in this litigation. Regardless of the
outcome of the proposed interlocutory appeal, this action
will proceed through extensive discovery, summary judgment, a
potential trial, and an almost inevitable appeal. Therefore,
interlocutory review would not "speed up the litigation,
" which is a key consideration in any decision to
certify an appeal under § 1292(b). Ryan, 444
F.Supp.2d at 723 (quoting Ahrenholz v. Bd. of
Trustees, 219 F.3d 674, 675 (7th Cir. 2000)). Granting
interlocutory review on just one issue in this case would
impede, not speed up, termination of this litigation.