IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 26, 2009
No. 08-00042 Charles R. Fulbruge III
Clerk
LARRY I. LINTON
Plaintiff - Respondent
v.
SHELL OIL CO. ET AL.
Defendants - Petitioners
Petition for Leave to Appeal from Interlocutory Orders
Before JOLLY, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:
We issue a written opinion on this motion for leave to appeal pursuant
to 28 U.S.C. § 1292(b) in order to alert district judges to the need to provide in
their certification orders some demonstration that the governing standards
for an interlocutory appeal have been met. The instant motion is made in the
course of litigation between Plaintiff-Respondent Larry Linton (“Plaintiff”)
and Defendants-Petitioners Shell Oil Company et al.
Plaintiff was employed as a worker on the NaKika Floating Production
Facility (“NaKika”), which is located above the Outer Continental Shelf
adjacent to the State of Louisiana and is owned by Defendant Shell Oil Co.
(“Shell”). Plaintiff alleged that he was injured while working on the NaKika
and brought suit contending that because the NaKika is a vessel he is a
No. 09-00004
seaman under the Jones Act, 46 U.S.C. § 30101 et seq. Shell moved for
summary judgment. In one order the district court denied Shell’s motion for
summary judgment and certified to us “the issues raised in the Motion for
Summary Judgment..., in the Memoranda in Support thereof, and an
Opposition to the Motion for Summary Judgment.” However, the district
court’s order does not contain findings of facts, conclusions of law, or any
application of law to facts, and the motion for summary judgment, opposition
and memorandum in support have not been filed with us.
The district court stated that the issues it had decided in denying
Shell’s motion for summary judgment “include: (1) whether Louisiana law
applies, as surrogate federal law, under the Outer Continental Shelf Lands
Act, 43 U.S.C. § 1331 et seq., to the claims brought by Plaintiff in these
proceedings, without regard to whether the Nakika is a vessel or an artificial
island and (2) whether the Nakika is a ‘vessel’ for purposes of the Jones Act,
46 U.S.C. § 30101, et seq.”
Using the statutory language of section 1292(b), the district court
opined that these issues involve controlling questions 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. No further justification for the interlocutory appeal was given.
Preliminarily, it should be noted, that section 1292(b) authorizes
certification of orders for interlocutory appeal, not certification of questions.
See Isra Fruit v. Agrexco, 804 F.2d 24, 25 (2d Cir. 1986); United States v.
Banco Cafetero Panama, 797 F.2d 1154, 1156-57 (2d Cir. 1986); Chemical
Bank v. Arthur Andersen & Co., 726 F.2d 930, 936 n.10 (2d Cir.), cert. denied,
469 U.S. 884 (1984). Of course, in certifying an order for interlocutory review
it is helpful if the district judge frames the controlling question(s) that the
judge believes is presented by the order being certified, as the district court
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No. 09-00004
did in this case. See 16 Charles A. Wright, Arthur R. Miller, & Edward H.
Cooper, Federal Practice & Procedure § 3929 n.61 (2d ed. 2008) (citing Isra
Fruit, 804 F.2d at 25); see also Banco Cafetero Panama, 797 F.2d at 1157;
SCM Corp. v. Xerox Corp., 599 F.2d 32, 33 (2d Cir. 1979). In the instant case,
however, the defendants should have sought certification not only of these
bare questions of law but also of the district court’s order giving its reasoning
as to how these questions were resolved and why that resolution led to the
denial of Shell’ s motion for summary judgment. Indeed, it appears that the
district court may have concluded that there are genuine issues of material
facts concerning whether the Nikika is a vessel that must be resolved before
reaching these legal questions.
Further, we strongly suggest to district judges the advisability of
stating more than an abstract description of the legal questions involved or a
bare finding that the statutory requirements of section 1292(b) have been
met. This circuit, as well as other circuits, have repeatedly made the same or
similar points with respect to certifications under Fed.R.Civ.P. 54(b). See, e.g.,
Rothenberg v. Security Management Co., Inc., 617 F.2d 1149, 1150 (5th Cir.
1980); Huckeby v. Frozen Food Express, 555 F.2d 542, 550 (5th Cir. 1977); see
also Cullen v. Margiotta, 618 F.2d 226, 228 (2d Cir. 1980); Gumer v.
Shearson, Hammill & Co., Inc., 516 F.2d 283, 286 (2d Cir. 1974); Arlinghaus
v. Ritenour, 543 F.2d 461, 464 (2d Cir.1976). Though it will often be evident
why the question presented by the certified order is “controlling,” elaboration
by the district judge will normally be helpful in understanding why the judge
believes that there is a “substantial ground for difference of opinion” and that
“immediate appeal from the order may materially advance the ultimate
termination of the litigation.” See 16 Charles A. Wright, Arthur R. Miller, &
Edward H. Cooper, Federal Practice & Procedure § 3930 n.10 (2d ed. 2008).
For these reasons, the application for leave to appeal is DENIED.
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