Graff v. Federal Bureau of Investigation

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) BARBARA FEINMAN and ) GARRETT M. GRAFF, ) ) Plaintiffs, ) ) v. ) Civil Action No. 09-2047 (ESH) ) FEDERAL BUREAU OF ) INVESTIGATION, et al., ) ) Defendants. ) __________________________________________)

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

1 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

considerations and 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).) 1

1 Further, defendants’ counsel represents that it has been advised that Feinman has filed her own FOIA request for the information originally sought by Beirne. (Def.’s Opp’n to Pl.’s Mot. at 8 n.2.) If true, and if defendants were to deny that request, Feinman could bring suit in her own name without any need for the appellate court to reach the question of assignment.

2 Accordingly, the Court concludes that her questions are inappropriate for interlocutory review.

SO ORDERED.

/s/ ELLEN SEGAL HUVELLE United States District Judge

DATE: March 15, 2010