Order | Filed: June 30, 2026
| Entered: June 30, 2026
21st Century Centennial Insurance Company et al v. United States of America et al
Torts to Land | Oregon
Order on Motion
ORDER by Judge Mustafa T. Kasubhai: Before the Court is Defendant United States' Motion for Certification for Interlocutory Appeal (ECF No. 232 in case 6:24-cv-00089-MTK; 195 in case 6:24-cv-00092-MTK; 196 in case 6:24-cv-00203-MTK; 136 in case 6:24-cv-01152-MTK; 64 in case 6:24-cv-01559-MTK; 94 in case 6:25-cv-00554-MTK) in which it seeks certification to appeal this Court's February 11, 2026, Order ("Order"), ECF No. 194 , denying its motion to dismiss. A district court may certify an order for appeal that (1) "involves a controlling question of law" (2) with "substantial ground for difference of opinion" (3) such that an "immediate appeal from the order [would] materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b); ICTSI Or., Inc. v. Int'l Longshore & Warehouse Union, 22 F.4th 1125, 1130 (9th Cir. 2022). A controlling question of law is not a question of fact and must "materially affect the outcome" of litigation in the district court. ICTSI Or., 22 F.4th at 1130. To present substantial ground for difference of opinion, an order must present "novel legal issues" such that fair-minded judges could disagree, such as an issue of first impression involving a circuit split. Id. An appeal materially advances the litigation if it "may appreciably shorten the time, effort, or expense of conducting" proceedings in the district court. Id. at 1131. The Court has unfettered discretion to certify an order for interlocutory appeal. See Swint v. Chambers County Comm'n, 514 U.S. 35, 46-47 (1995); Exec Software N. Am., Inc. v. U.S. Dist. Ct., 24 F.3d 1545, 1550 (9th Cir. 1994) (stating a district court's decision not to certify an order for appeal under § 1292(b) is "unreviewable" even where the criteria are met), overruled on other grounds, Cal. Dep't Water Res. v. Powerex Corp., 533 F.3d 1087 (9th Cir. 2008). Courts certify orders under § 1292(b) "sparingly and only in exceptional cases." In re Cement Antitrust Litig., 673 F.2d 1020, 1027 (9th Cir. 1981). The party seeking appeal must show all three criteria are satisfied. Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010)
The Court finds that certification for interlocutory appeal is not warranted in this case. The resolution of Defendant United States' Motion to Dismiss required applying binding Ninth Circuit authority to a factually intensive record developed through jurisdictional discovery. As such, the Order does not involve a question of law such that interlocutory appeal is warranted because it would require the Court of Appeals to engage in a fact-intensive analysis. See ICTSI, Or. 22 F.4th at 1130; accord McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir. 2004) ("The antithesis of a proper § 1292(b) appeal is one that turns on... whether the district court properly applied settled law to the facts or evidence of a particular case."). Nor does the Order present "novel legal issues" under § 1292(b). In Defendant United States' view, the issues are novel because fair-minded jurists may disagree over whether Kim v. United States, 940 F.3d 484 (9th Cir. 2019) or Lam v. United States, 979 F.3d 665 (9th Cir. 2020) is more applicable to this case. Def. United States' Mot. Cert. Interlocutory Appeal 10, ECF No. 232 (arguing the Court's erred in its analysis because "Lam is the more apposite case"). This rationale does not support an interlocutory appeal: "[J]ust because counsel contends that one precedent rather than another is controlling does not mean there is such a substantial difference of opinion as will support an interlocutory appeal." Couch, 611 F.3d at 633 (citation omitted). The Court does not reach the third criteria because Defendant United States has not satisfied the "controlling question of law" criteria and the "substantial grounds for difference of opinion" criteria. The Court declines to consider Defendant United States' arguments raised for the first time in its Reply. Z... (truncated)