United States District Court, N.D. California, San Jose Division
July 31, 2014
JOHN BERMAN, Plaintiff,
KNIFE RIVER CORPORATION, et al., Defendants.
ORDER DENYING MOTION FOR A CERTIFICATE OF APPEALABILITY (Re: Docket No. 213)
PAUL S. GREWAL, Magistrate Judge.
Before the court is Plaintiff John Berman's motion to certify for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) the court's order denying Berman's motion for recusal pursuant to 28 U.S.C. § 455(a). No opposition has been filed. Pursuant to Civil L.R. 7-1(b) and Fed.R.Civ.P. 78,  the court finds the motion suitable for disposition without a hearing.
Under Section 1292(b), "the district court may certify an appeal of an interlocutory order if (1) the order involves a controlling question of law, (2) appealing the order may materially advance the ultimate termination of the litigation and (3) there is substantial ground for difference of opinion as to the question of law." All three factors must be satisfied to warrant the certification of an interlocutory appeal. The legislative history of Section 1292(b) "indicates that this section was to be used only in exceptional situations in which allowing an interlocutory appeal would avoid protracted and expensive litigation." "Section 1292(b) is a departure from the normal rule that only final judgments are appealable, and therefore must be construed narrowly."
Berman suggests that the undersigned's decision not to grant Berman's motion for recusal generates "at least two controlling questions of law." But the Ninth Circuit has already evaluated the question of whether 28 U.S.C. § 455 implicates a controlling question of law and determined that it does not. The Ninth Circuit explained that "it is difficult" to "think of a question which is more separable from and collateral to the merits of this lawsuit than is the question of [a trial judge's] recusal decision." Because "an appellate decision that recusal was improper could in no way materially affect the eventual outcome of the litigation, [the Ninth Circuit] cannot view the question as controlling." Ninth Circuit precedent "has recognized the congressional directive that section 1292(b) is to be applied sparingly and only in exceptional cases, and that the controlling question of law' requirement be interpreted in such a way to implement this policy, " Controlling case law prohibits the Ninth circuit "from disregarding the controlling question of law' requirement in the statute despite the fact that judicial resources might be saved by doing so"
In sum, because the court's order denying Berman's Section 455 motion for recusal does not involve a controlling question of law, Berman's request for a certificate of appealability is DENIED.
IT IS SO ORDERED.