UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
March 15, 2010
BARBARA FEINMAN AND GARRETT M. GRAFF, PLAINTIFFS,
FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
MEMORANDUM OPINION AND ORDER
On January 26, 2010, the Court granted defendants' partial motion to dismiss the complaint as to plaintiff Barbara Feinman's claims under the Freedom of Information Act ("FOIA"). [Dkt. 8.] Feinman had sought to challenge the denial of a FOIA request made by someone else, Catherine Beirne, who had assigned her rights and interests in that request to Feinman. See Feinman v. F.B.I., No. 09-CV-2047, 2010 WL 276176, at *1 (D.D.C. Jan. 26, 2010). The Court concluded that Beirne's pre-litigation assignment of her FOIA rights was insufficient to confer standing upon Feinman to bring a civil action to vindicate those rights. Id. at *6. Now before the Court is Feinman's Motion for Certification of Interlocutory Appeal. [Dkt. 13.] Feinman seeks this Court's certification of two questions: whether FOIA permits a requester to assign her rights to another for purposes of establishing standing to sue in federal court and whether, if FOIA is ambiguous on this issue, policy interests counsel in favor of permitting such assignments. For the reasons explained herein, it is hereby ORDERED that plaintiff Barbara Feinman's Motion for Certification of Interlocutory Appeal is DENIED.
A district court has discretion to certify a non-final order for interlocutory review under 28 U.S.C. § 1292(b) when the court determines 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." A controlling question of law "is one that would require reversal if decided incorrectly or that could materially affect the course of litigation with resulting savings of the court's or the parties' resources." Judicial Watch Inc. v. Nat'l Energy Policy Dev. Grp., 233 F. Supp. 2d 16, 19 (D.D.C. 2002) (internal quotation marks omitted). Courts permit interlocutory appeals infrequently. Graham v. Mukasey, 608 F. Supp. 2d 56, 57 (D.D.C. 2009). A party requesting certification for interlocutory review "must meet a high standard to overcome the strong congressional policy against piecemeal review, and against obstructing or impeding an ongoing judicial proceeding . . . ." Id. (internal quotation marks omitted). "The movant must show that exceptional circumstances justify a departure from the traditional structure of litigation where appellate review is postponed until after the entry of final judgment." Id.
Feinman has failed to show exceptional circumstances that would justify an interlocutory appeal. She has not raised a substantial ground for difference of opinion as to the controlling question of law, particularly with respect to the Court's analysis of the relevant policy considerationsand of Sinito v. Dep't of Justice, 176 F.3d 512 (D.C. Cir. 1999). Even if she had, she effectively concedes that the answers to her proposed questions for certification would not materially advance the ultimate termination of Counts Two through Five of the complaint, all of which pertain only to plaintiff Graff's claims. (See Pl.'s Reply at 7-8 (arguing that her claims are relevant to disposition of Graff's motion for partial summary judgment on Count Six).)*fn1
Accordingly, the Court concludes that her questions are inappropriate for interlocutory review.