Ewing v. Aliera Healthcare
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
Plaintiff requested a certificate of appealability under 28 U.S.C. § 1292(b) to appeal the district court's order overruling his objection to a magistrate judge's denial of recusal. The court denied the request, finding that the recusal issue did not involve a controlling question of law with substantial ground for difference of opinion.
| What the court decided | The model |
|---|---|
Plaintiff's request for a certificate of appealability under 28 U.S.C. § 1292(b) is denied.“Plaintiff’s request is DENIED.” | agree with court The court correctly applied the statutory requirements of 28 U.S.C. § 1292(b). The order recites that the underlying issue (recusal) does not meet the threshold of a 'controlling question of law as to which there is substantial ground for difference of opinion.' The citation to In re Cement Antitrust Litig. supports the proposition that recusal decisions are highly collateral and rarely warrant interlocutory review. The decision follows from the law and the record recited. |
The order itself: sound — The order is concise but legally sufficient. It identifies the specific statutory test for § 1292(b) certification, applies it to the specific facts (recusal objection), and cites relevant Ninth Circuit authority (via a district court citation) to support the conclusion that recusal issues are collateral and unlikely to meet the 'substantial ground for difference of opinion' standard. The reasoning directly answers the motion with the right authorities.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTON EWING, Case No.: 19-cv-845-CAB-LL 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. REQUEST FOR PERMISSION TO FILE INTERLOCUTORY APPEAL 14 ALIERA HEALTHCARE, 15 Defendant. [Doc. No. 36] 16 18 On August 12, 2019, the Court overruled Plaintiff’s objection to Magistrate Judge 19 Lopez’s order denying his request that she recuse from this case. [Doc. No. 33.] Plaintiff 20 now requests a certificate of appealability pursuant to 28 U.S.C. § 1292(b). Because the 21 Court’s order denying Plaintiff’s objection does not “involve[] a controlling question of 22 law as to which there is substantial ground for difference of opinion and that an immediate 23 appeal from the order may materially advance the ultimate termination of the litigation,” 24 see 28 U.S.C. § 1292(b), Plaintiff’s request is DENIED. Cf. Berman v. Knife River Corp., 25 No. 5:11-CV-03698-PSG, 2014 WL 12647735, at *1 (N.D. Cal. July 31, 2014) (noting that 26 in In re Cement Antitrust Litig., 673 F.2d 1020, 1027 (9th Cir. 1982), “[t]he Ninth Circuit 27 explained that “‘it is difficult’ to ‘think of a question which is more separable from and 28 1 ||collateral to the merits of this lawsuit than is the question of [a trial judge’s] recusal 2 || decision.’”’). 3 It is SO ORDERED. 4 ||Dated: August 19, 2019 (ib 5 Hon. Cathy Ann Bencivengo 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28