Kathy Little v. Louisville Gas & Electric Co.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0262p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

KATHY LITTLE; GREG WALKER; DEBRA L. WALKER; ┐
RICHARD EVANS; PHILLIP WHITAKER; FAYE │
WHITAKER, on behalf of themselves and all others │
similarly situated, │ No. 14-6499
Plaintiffs-Appellees, │
>
│
│
v.
│
│
LOUISVILLE GAS & ELECTRIC COMPANY; PPL │
CORPORATION, │
Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 3:13-cv-01214—Joseph H. McKinley, Jr., Chief District Judge.
Argued: August 6, 2015
Decided and Filed: November 2, 2015

Before: SILER, ROGERS, and STRANCH, Circuit Judges.

_________________

COUNSEL

ARGUED: Paul D. Clement, BANCROFT PLLC, Washington, D.C., for Appellants. Steve W.
Berman, HAGENS BERMAN SOBOL SHAPIRO LLP, Seattle, Washington, for Appellees.
ON BRIEF: Paul D. Clement, Erin E. Murphy, BANCROFT PLLC, Washington, D.C., Sheryl
G. Snyder, Jason P. Renzelmann, FROST BROWN TODD LLC, Louisville, Kentucky, F.
William Brownell, HUNTON & WILLIAMS LLP, Washington, D.C., John C. Bender, Richard
Clayton Larkin, DINSMORE & SHOHL LLP, Lexington, Kentucky, Robert M. Rolfe,
HUNTON & WILLIAMS LLP, Richmond, Virginia, Nash E. Long, Brent A. Rosser, Sarah
Anna Santos, HUNTON & WILLIAMS LLP, Charlotte, North Carolina, for Appellants. Steve
W. Berman, HAGENS BERMAN SOBOL SHAPIRO LLP, Seattle, Washington, Noah Axler,
DONOVAN AXLER, LLC, Philadelphia, Pennsylvania, Jeffrey M. Sanders, JEFFREY M.
SANDERS PLLC, Fort Thomas, Kentucky, Charles L. Williams, WILLIAMS & SKILLING,
P.C., Richmond, Virginia, for Appellees. J. Philip Calabrese, PORTER WRIGHT MORRIS &

1
No. 14-6499 Little, et al. v. Louisville Gas & Electric Co., et al. Page 2

ARTHUR LLP, Cleveland, Ohio, Robert L. Brubaker, L. Bradfield Hughes, Eric B. Gallon,
PORTER WRIGHT MORRIS & ARTHUR LLP, Columbus, Ohio, Quin M. Sorenson, SIDLEY
AUSTIN LLP, Washington, D.C., for Amici Curiae.

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OPINION
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ROGERS, Circuit Judge. Defendant Louisville Gas & Electric brings this interlocutory
appeal pursuant to 28 U.S.C. § 1292(b) challenging the district court’s order refusing to dismiss
state law nuisance, trespass, and negligence claims that defendant argued were preempted by the
federal Clean Air Act. That order must be affirmed under today’s holding in the companion
interlocutory appeal of Merrick, et al. v. Diageo Americas Supply, Inc., 14-6198. Plaintiffs
additionally challenge the district court’s adverse interlocutory orders regarding distinct federal
law claims, without having cross-petitioned for interlocutory appeal under 28 U.S.C. § 1292(b)
with respect to those orders. We lack jurisdiction to review those distinct interlocutory orders,
even though they were handed down in the same document as the order properly appealed from.

The district court summarized the facts underlying this appeal as follows:

This case involves the operation of the Cane Run power plant in
southwestern Louisville [which is owned and operated by Louisville Gas and
Electric Company (“LGE”)]. The Plaintiffs allege that beginning in 2008, they
and their neighbors began noticing a persistent film of dust that coated their
homes and properties. They allege that the Cane Run power plant emits dust and
coal ash into the air and onto their homes and properties several times a month.
The Plaintiffs state that the dust and coal ash have been emitted from: (1) Cane
Run’s emission stacks, through which solid particulates are released during the
coal burning process; and (2) Cane Run’s sludge plant, where the ash is mixed
with a cementing agent. Further, the Plaintiffs state that ash, dust, and other coal
combustion byproducts blow onto their properties because they are placed in an
insufficiently-covered landfill. The Plaintiffs allege that the ash, dust, and coal
combustion by-products are not only annoying, but also, they are composed of
dangerous elements, including arsenic, silica, lead, and chromium.
Louisville’s Air Pollution Control District (the “District”) is the agency
charged with enforcing [federal and state] environmental regulations in Jefferson
County. In 2010, the District began investigating complaints about Cane Run. As
a result of the investigation, the District issued several Notices of Violation
(“NOVs”) to [LGE] concerning particulate emissions and the odors produced by
No. 14-6499 Little, et al. v. Louisville Gas & Electric Co., et al. Page 3

Cane Run. Specifically, in July of 2011, the District issued an NOV finding that
LGE allowed fly ash particulate emissions to enter the air and be carried beyond
its property line. Four months later, in November of 2011, the District issued a
second NOV, detailing more violations involving the emission of dust and ash
from Cane Run. Subsequently, between July of 2012 and August of 2013, the
District issued four additional NOVs. These NOVs were resolved by an
administrative proceeding before Louisville’s Air Pollution Control Board (“the
Board”), which resulted in an Agreed Board Order (“ABO”).
The ABO required LGE to implement, and comply, with a “Plant-Wide
Odor, Fugitive Dust, and Maintenance Emissions Control Plan.” In the ABO, the
Board specifically found that: (1) the required measures would “fully address” the
alleged violations cited in the NOVs; (2) LGE “demonstrated compliance at the
Cane Run Generating Station” by submitting to the ABO’s control plan; and (3)
the proposed resolution in the ABO was “reasonable and adequate under the
circumstances.” After a public hearing on November 20, 2013, the District
adopted the ABO.
On September 6, 2013, the Plaintiffs provided a Notice of Intent to Sue
(“NOI”) to the Defendants, the District’s Director, the EPA Administrators, the
Director of Kentucky’s Division of Waste Management, the Commissioner of
Kentucky’s Department of Environmental Protection, and the U.S. Attorney
General. The Plaintiffs filed this action more than 90 days from when the notices
were delivered. In the action, the Plaintiffs allege violations of the Clean Air Act
(“CAA”) and Resource Conservation and Recovery Act (“RCRA”). They also
bring state-law claims of nuisance, trespass, negligence, negligence per se, and
gross negligence. LGE and [its parent company,] PPL Corporation (collectively
“defendants”), argue that the claims must be dismissed under Fed. R. Civ. P.
12(b)(1) and (b)(6).

Little v. Louisville Gas & Elec. Co., 33 F. Supp. 3d 791, 796–97 (W.D. Ky. 2014) (citations and
some abbreviations amended). In all, plaintiffs’ complaint featured nine counts. Counts I and II
alleged past and ongoing violations of RCRA. Count III alleged past and ongoing violations of
the Clean Air Act. The remaining counts in the complaint sought damages under state common
law doctrines including nuisance, trespass, and negligence.

In a “Memorandum and Order” issued on July 17, 2014, the district court dismissed all of
plaintiffs’ federal law claims except the claim that defendants were operating Cane Run without
a valid Clean Air Act permit. Id. at 798–814. In the same “Memorandum and Order,” the
district court rejected defendants’ argument that the Clean Air Act preempted plaintiffs’ state
common law claims. Id. at 814–17.
No. 14-6499 Little, et al. v. Louisville Gas & Electric Co., et al. Page 4

The district court certified for interlocutory appeal “the portion of its July 17, 2014
Memorandum Opinion and Order that denied Defendants’ motion to dismiss Plaintiffs’ state
common law claims on preemption grounds under the Clean Air Act.” A panel of this court
granted the appeal pursuant to 28 U.S.C. § 1292(b), stating:

The issue of whether the CAA preempts the plaintiffs’ state-law claims is an
unresolved, controlling issue of law that may materially advance the termination
of the action below. Accordingly, the petition to appeal the July 17, 2014,
Memorandum Opinion and Order granting in part and denying in part the
defendants’ motion to dismiss is GRANTED. The parties may brief any issues
fairly included within that order, and the merits panel will determine which of the
briefed issues should be resolved in the interlocutory appeal.

On appeal, defendants contest the district court’s denial of their motion to dismiss, on
preemption grounds, plaintiffs’ state law claims, while plaintiffs contest the district court’s
dismissal of their federal law claims.

Defendants’ Clean Air Act preemption arguments are disposed of by our decision in
Merrick v. Diageo Americas Supply, No. 14-6198. Plaintiffs’ state common law claims are not
materially distinguishable from the state common law claims raised in Merrick. For the reasons
set forth in that opinion, the Clean Air Act does not preempt plaintiffs’ state common law claims.

We lack jurisdiction to consider plaintiffs’ challenge to the district court’s orders that
dismissed most of plaintiffs’ federal law claims. Under 28 U.S.C. § 1292(b), this court has
jurisdiction to review an interlocutory order only to the extent a district court has certified that
order for interlocutory appeal. The word “order,” in the context of § 1292(b), refers to a specific
direction or command from the district court, not to the document or opinion in which the court
explains that direction or command. This plain reading is compelled by the purpose of the
statute and avoids a formalistic anomaly. The only order the district court certified for
interlocutory appeal here was its order denying defendants’ motion to dismiss plaintiffs’ state
common law claims. Indeed, that is the only order as to which any party sought certification for
appeal; plaintiffs never filed a cross-petition seeking leave to appeal the district court’s orders
dismissing most of plaintiffs’ federal law claims. See Fed. R. App. P. 5(b)(2). Because the
district court did not certify for interlocutory appeal its orders dismissing most of plaintiffs’
No. 14-6499 Little, et al. v. Louisville Gas & Electric Co., et al. Page 5

federal law claims, § 1292(b) does not empower this court to consider those orders on
interlocutory appeal.

It is true that the last paragraph of the motions panel’s order granting defendants leave to
appeal included a statement that the parties could brief “any issues fairly included within [the
district court’s July 17, 2014 Memorandum and Order].” While perhaps subject to a broader
reading, the language can have referred only, for example, to threshold issues or different
arguments regarding the order appealed from, and not to different orders regarding different
claims under different statutes, even if the distinct orders were contained in a single document
entitled “Order.” Indeed, the district court made explicit that its certification extended only to
“the portion of its July 17, 2014 Memorandum Opinion and Order that denied Defendants’
motion to dismiss Plaintiffs’ state common law claims on preemption grounds under the Clean
Air Act.”

We recognize of course that a district court’s certification of an order as containing a
controlling question of law permits appellate consideration of other legal questions that are
presented by the certified order. See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 204
(1996). But additional legal questions implicated in one order are different from additional
orders that are included in one document that happens to be labeled “order.” Yamaha involved
the former, an “anterior issue” that was “pivotal” with respect to the certified order. Id.
Plaintiffs’ arguments in this case involve the latter.

Allowing interlocutory appeal of directions or commands in a district court opinion, for
the formal reason that the district court labeled the opinion an “Order,” would be inconsistent
with the purpose of § 1292(b). That purpose—permitting appellate courts to timely resolve
disputed, controlling legal questions when doing so might avoid the need for protracted and
expensive litigation—serves the twin aims of judicial and party economy. See 16 Charles A.
Wright et al., Federal Practice and Procedure § 3929 (3d ed. 2012). The purpose is plainly not
furthered by interpreting § 1292(b) to require appellate review of every direction or command
given in a district court opinion when only one of those directions or commands “involves a
controlling question of law as to which there is substantial ground for difference of opinion,” the
resolution of which on appeal “may materially advance the ultimate termination of the
No. 14-6499 Little, et al. v. Louisville Gas & Electric Co., et al. Page 6

litigation.” 28 U.S.C. § 1292(b). Plaintiffs could have cross-petitioned for interlocutory appeal
of the orders they now challenge. See Fed. R. App. P. 5(b). That would have given the district
court and this court the opportunity to evaluate whether interlocutory appeal of the district
court’s orders was warranted. If granted, moreover, this procedure would have permitted a
proper sequencing of briefs in a cross-appeal, such that the cross-appellee would have been
entitled to file a response brief not confined to the length of a reply brief. See Fed. R. App. P.
28.1(c); Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 689–90 (9th Cir. 2011).
Interpreting “order” as a specific direction or command from the district court avoids such a
circumvention of orderly procedure.

Other circuits have similarly interpreted the word “order” in § 1292(b) to mean a district
court’s direction or command resolving a discrete motion or claim. In Homeland Stores, Inc. v.
Resolution Trust Corp., 17 F.3d 1269, 1271 (10th Cir. 1994), for example, the defendant in a
contract case sought dismissal on the grounds that a statute precluded jurisdiction over the
damages claim, and in addition that injunctive relief was not available. The district court
indicated that injunctive relief was not available, but that jurisdiction was not precluded. Id. The
district court certified the jurisdiction issue for interlocutory appeal, but specifically declined to
certify the question of whether injunctive relief was available, although the court had discussed
the issue in the same document. Id. The court of appeals subsequently refused to reach the
injunctive relief issue, reasoning as follows:

Homeland correctly points out that it is the district court order that is certified
under § 1292(b) and not the specific question of law deemed controlling by the
district court. Homeland contends that, because the certified order discussed the
question of injunctive relief along with the question of federal jurisdiction, we can
and should address the injunctive relief issue in this appeal. We disagree.
If we find that a particular question other than the question specifically
identified by the district court controls the disposition of the certified order, we
may, and indeed should, address that question. In this case, however, whether
injunctive relief is available against the RTC is not such an alternate controlling
question. The order appealed from concerns whether Homeland’s complaint
states a claim upon which relief can be granted. Homeland’s request for injunctive
relief is only as a specific type of remedy for its breach of contract claims.
Because we hold . . . that Homeland’s complaint does state a claim and, at
minimum, relief would be available in the form of damages at law, we need not
No. 14-6499 Little, et al. v. Louisville Gas & Electric Co., et al. Page 7

decide on the availability of any specific type of alternate relief here. Thus, we do
not address the question of the availability of injunctive relief.

Id. at 1271–72 (internal citations omitted).

FDIC v. Dye, 642 F.2d 833 (5th Cir. Unit B Apr. 1981), is similar. The district court in
that case had denied the petitioner’s motion for summary judgment on four counterclaims raised
by the respondent. Id. at 835. Although the district court had certified just one of those rulings
for interlocutory appeal, the petitioner sought review of the district court’s rulings with respect to
all four counterclaims. Id. at 836–37. The Fifth Circuit rejected the petitioner’s attempt to
appeal the uncertified rulings, noting that “we have not accepted [those rulings] for appeal
pursuant to § 1292(b).” Id. at 837. The Fifth Circuit further explained that

[a]lthough grouped nominally in the same order, the denials of summary
judgment . . . should be considered different orders under § 1292(b). See
generally Garner v. Wolfinbarger, 433 F.2d 117 (5th Cir. 1970) (party should not
be allowed to use valid appeal as vehicle for making other appeals which would
otherwise be impermissible).

Id. at 837 n.6. The reasoning of the Tenth and Fifth Circuits in these cases supports the
conclusion that we lack jurisdiction to consider the plaintiffs’ challenges to the dismissal of
federal law claims on this interlocutory appeal.

The district court’s order denying defendants’ motion to dismiss plaintiffs’ state common
law claims is affirmed. We lack jurisdiction to consider the other, unrelated orders challenged
by the plaintiffs in their brief on this interlocutory appeal.