The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WARREN RILEY CIVIL ACTION
VERSUS NO. 19-13950
LaTOYA CANTRELL, individually and SECTION M (1)
in her capacity as Mayor of the City of
New Orleans, and the CITY OF NEW
ORLEANS
ORDER & REASONS
Before the Court is a motion by defendants the City of New Orleans and LaToya Cantrell,
individually and in her capacity as Mayor of the City of New Orleans (together, “Defendants”) for
an Erie guess, or in the alternative, for certification of interlocutory appeal pursuant to 28 U.S.C.
§ 1292(b).1 Plaintiff Warren Riley responds in opposition,2 and the parties reply in support of their
respective positions.3 Also before the Court is Defendants’ motion to stay trial pending
interlocutory appeal,4 which Riley opposes.5 Having considered the parties’ memoranda, the
record, and the applicable law, the Court denies the motion for interlocutory appeal, denies as moot
the related motion to stay, and defers its Erie guess to trial.
I. BACKGROUND
This litigation arises from a politician’s unkept promise. When she was Mayor-elect,
Cantrell reneged on her offer to employ Riley as Director of Homeland Security and Public Safety
in her incoming administration. Riley accepted the at-will offer by signing a written employment
1 R. Doc. 57.
2 R. Doc. 60.
3 R. Docs. 67; 68.
4 R. Doc. 64.
5 R. Doc. 69.
agreement, subject only to a background check. Knowing that Riley had resigned from his position
with the Federal Emergency Management Agency (“FEMA”) in Georgia, Cantrell withdrew the
offer just before he was scheduled to assume the director position, ostensibly capitulating to two
constituents who allegedly expressed opposition to Riley serving as director “due to his actions as
Superintendent of the New Orleans Police Department in the aftermath of Hurricane Katrina”
(reportedly due to the now-infamous Danziger Bridge tragedy). By this lawsuit, Riley seeks to
hold Mayor Cantrell and the City accountable for the damages he incurred when he relied on her
(since-reneged) promise to employ him.
This Order & Reasons assumes familiarity with prior proceedings in this civil action. On
June 30, 2021, the Court granted in part and denied in part Defendants’ motion for summary
judgment.6 As a result, Riley’s breach-of-contract claim, unjust enrichment claim, vicarious
theory of recovery against the City, and attorney’s fees claim were all dismissed; only Riley’s
detrimental reliance claim remains pending for trial. In considering Defendants’ arguments
advanced in support of their request for summary relief on Riley’s detrimental reliance claim, the
Court considered whether a prospective at-will employee’s reliance on an offer of at-will
employment is unreasonable as a matter of law. Noting that the parties appeared to concede an
ostensible split (among divided opinions) in the Louisiana intermediate courts, the Court
determined that Defendants failed to carry their summary-judgment burden and invited trial briefs
directed to supporting an Erie guess on the issue. Defendants now request that the Court make an
Erie guess on the issue or, alternatively, they request that the Court certify its June 30, 2021 Order
& Reasons for interlocutory appeal. Defendants also request that the Court stay the trial pending
their pursuit of an interlocutory appeal.
6 R. Doc. 54.
II. PENDING MOTION
Defendants move the Court to make an Erie guess that a prospective at-will employee’s
reliance on an offer of at-will employment is unreasonable as a matter of Louisiana law. In
essence, Defendants move the Court to reconsider its prior ruling that Defendants failed to carry
their burden on this very issue. Defendants continue to submit that Louisiana law does not impose
a good faith obligation upon parties to an offer of at-will employment. If the Court is not inclined
to make an Erie guess before trial, Defendants request in the alternative that the Court certify its
June 30, 2021 Order & Reasons for interlocutory appeal to the Fifth Circuit, in the hopes that the
appellate court might certify to the Louisiana Supreme Court what Defendants submit is a
controlling legal issue. And, if the Court should grant Defendants’ alternative request for
certification, Defendants also move for a stay to avoid the time and expense of a trial.
Riley opposes Defendants’ request for certification of the detrimental reliance issue for
interlocutory appeal, contending that Defendants have needlessly delayed this litigation at every
stage and that the certification request is simply another delay tactic. Riley submits that an
immediate appeal will not materially advance the ultimate termination of the litigation; rather, if
the Fifth Circuit were to entertain the appeal, it might certify a question to the Louisiana Supreme
Court, which may or may not accept the certified question. Only after further briefing on this same
issue would the state high court then certify its answer to the Fifth Circuit, which would remand
to this Court a trial on the merits or a summary dismissal of the detrimental reliance claim, at which
time Riley could appeal those summary-judgment rulings adverse to him. Finishing the final piece
of this case in this Court by holding what will be a one-day bench trial on the detrimental reliance
claim, which would then permit any appeal or cross-appeal to be taken after final judgment, Riley
submits, would be the most efficient use of judicial and litigant resources.
III. LAW & ANALYSIS
A. Certification for Interlocutory Appeal
Little has changed since the First Congress in the Judiciary Act of 1789 announced the
general federal policy of appellate jurisdiction: that is, appeals generally must await a district
court’s entry of final judgment. Midland Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989).
This final judgment rule, today embraced by Congress in 28 U.S.C. § 1291, reflects “‘a firm
congressional policy against interlocutory or “piecemeal” appeals.’” Henry v. Lake Charles Am.
Press, LLC, 566 F.3d 164, 170-71 (5th Cir. 2009) (quoting Abney v. United States, 431 U.S. 651,
656 (1977)); see 28 U.S.C. § 1291 (“The courts of appeals ... shall have jurisdiction of appeals
from all final decisions of the district courts of the United States ....”). One exception to this
general rule is articulated in 28 U.S.C. § 1292(b), which governs the certification of interlocutory
orders for appeal and provides:
When a district judge, in making in a civil action an order not otherwise appealable
under this section, shall be of the opinion 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, he shall so state in writing in such order. The Court
of Appeals which would have jurisdiction of an appeal of such action may
thereupon, in its discretion, permit an appeal to be taken from such order, if
application is made to it within ten days after the entry of the order ....
By its plain terms, § 1292(b) “confer[s] on district courts first line discretion to allow interlocutory
appeals.” Swint v. Chambers County Comm’n, 514 U.S. 35, 47 (1995). Interlocutory appeals are
“exceptional,” the Fifth Circuit cautions, and “assuredly do[ ] not lie simply to determine the
correctness” of a ruling. Clark-Dietz & Assocs.-Eng’rs, Inc. v. Basic Constr. Co., 702 F.2d 67,
67-69 (5th Cir. 1983); see also Tolson v. United States, 732 F.2d 998, 1002 (D.C. Cir. 1984)
(quoting 10 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE § 2658.2, at 80 (2d ed. 1983), for the proposition that § 1292(b) ‘“is
meant to be applied in relatively few situations and should not be read as a significant incursion
on the traditional federal policy against piecemeal appeals’”).
To permit an interlocutory appeal, the Court must be persuaded – and certify in writing –
that the three statutory criteria are met. The appealable issue must involve: (1) a controlling issue
of law; (2) a substantial ground for difference of opinion; and (3) a question whose immediate
appeal from the order will materially advance the ultimate termination of the litigation. See
Aparicio v. Swan Lake, 643 F.2d 1109, 1110 n.2 (5th Cir. 1981). In practice, this is a balancing
exercise:
The three factors should be viewed together as the statutory language equivalent of
a direction to consider the probable gains and losses of immediate appeal. The
advantages of immediate appeal increase with the probabilities of prompt reversal,
the length of the district court proceedings saved by reversal of an erroneous ruling,
and the substantiality of the burdens imposed on the parties by a wrong ruling. The
disadvantages of immediate appeal increase with the probabilities that lengthy
appellate consideration will be required, that the order will be affirmed, that
continued district-court proceedings without appeal might moot the issue, that
reversal would not substantially alter the course of district-court proceedings, or
that the parties will not be relieved of any significant burden by reversal.
16 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND
PROCEDURE § 3930, at 488-89 (3d ed. 2021) (internal footnote omitted).
Of the three criteria, the second one “has caused [courts] the least difficulty” and “judges
have not been bashful about refusing to find substantial reason to question a ruling of law.” Id. at
492. To determine whether the requisite level of contestability is present, the Court is mindful
that:
The level of uncertainty required to find a substantial ground for difference of
opinion should be adjusted to meet the importance of the question in the context of
the specific case. If proceedings that threaten to endure for several years depend
on an initial question of jurisdiction, limitations, or the like, certification may be
justified at a relatively low threshold of doubt.
Id. at 494-95. As one district court observed, courts might find the requisite contestability where:
a trial court rules in a manner which appears contrary to the rulings of all Courts of
Appeals which have reached the issue, if the circuits are in dispute on the question
and the Court of Appeals of the circuit has not spoken on the point, if complicated
questions arise under foreign law, or if novel and difficult questions of first
impression are presented.
Ryan v. Flowserve Corp., 444 F. Supp. 2d 718, 723-24 (N.D. Tex. 2006) (citation omitted). On
the other hand, “simply because a court is the first to rule on a question or counsel disagrees on
applicable precedent does not qualify the issue as one over which there is substantial
disagreement.” Id. at 724. To be sure, “[t]he threshold for establishing a ‘substantial ground for
difference of opinion’ is higher than mere disagreement or even the existence of some contrary
authority.” Coates v. Brazoria Cnty., 919 F. Supp. 2d 863, 868 (S.D. Tex. 2013).
B. Analysis
The June 30, 2021 Order & Reasons denying in part Defendants’ motion for summary
judgment “is a paradigmatic example of an interlocutory order that normally is not appealable
[until final judgment].” Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674, 675 (7th Cir. 2000).
Defendants thus bear the burden of showing that all three statutory criteria for certifying a
permissive appeal are satisfied. They fail to do so.
That Defendants fail to persuade the Court that there is sufficient possibility of reversal of
the June 2021 ruling to justify an interlocutory appeal dooms their motion for certification. Here,
the necessary level of disagreement does not exist for the issue Defendants request certification.
Defendants merely disagree with the Court’s ruling and hope that the Fifth Circuit might certify
the issue to the Louisiana Supreme Court in order to determine the correctness of the Court’s
ruling. They fail to satisfy the Court that there is the requisite level of contestability: that is, they
fail to show that there is substantial ground for difference of opinion. Even assuming that the
specific disputed issue is considered novel in Louisiana, it is not particularly difficult to resolve
the issue in favor of a cause of action predicated on an explicit Louisiana Civil Code article.
Because Defendants fail to persuade the Court that the second statutory criterion is
satisfied, it is unnecessary to consider whether the first and third might be met. Nevertheless, the
Court observes that the June 30, 2021 Order & Reasons does involve a controlling question of law.
Whether a prospective employee may reasonably rely on an offer of at-will employment is
certainly a pure or abstract question of law. The issue is fairly considered “controlling” because
it is dispositive: the Court’s ruling that the plaintiff has a viable claim for detrimental reliance
would require reversal if decided incorrectly. If the Fifth Circuit or the Louisiana Supreme Court
determine that Riley cannot reasonably rely on an offer of at-will employment, then Riley has no
detrimental reliance cause of action. The legal question thus controls whether the plaintiff’s
remaining claim for detrimental reliance must be tried. The first criterion, then, is clearly met.
However, the third criterion – whether resolution of the controlling question of law would
materially advance the ultimate termination of the litigation – is at best a close-call. If the Fifth
Circuit agreed to take up the interlocutory appeal, it decided that certification to the Louisiana
Supreme Court was necessary, the Louisiana Supreme Court entertained briefing and answered
the question in Defendants’ favor, and the Fifth Circuit then remanded the case to this Court for
summary dismissal, then the Court would enter final judgment, at which time Riley could finally
appeal this Court’s summary-judgment rulings adverse to him. Although that trajectory would
obviate the one-day bench trial of the detrimental reliance claim, the Court is not persuaded that
the sought-for efficiencies would be achieved given the delays inherent in Defendants’
interlocutory appeal. This factor mandates an assessment of the trade-off between the risk of an
unnecessary trial and the risk of two or more appeals in the same case. As for the risk of an
unnecessary trial, the lone remaining claim will be tried by a judge in a single day, during which
admitted evidence will be largely duplicative of the undisputed summary-judgment record already
existing on the merits of this legal theory of recovery. Notably, here, it is the interlocutory appeal
process – and the prospect of a later, second appeal – which promises to be protracted. And, from
an efficiencies assessment standpoint, the inevitably protracted nature of the interlocutory appeal
overshadows the possibility that the Fifth Circuit (with or without the assistance of the Louisiana
Supreme Court) will reverse the Court’s ruling on the detrimental reliance claim such that the
parties and this Court would have needlessly expended resources on a one-day bench trial. (Had
Defendants moved to dismiss the detrimental reliance theory at the outset of the litigation, instead
of nearly two years after the case was filed, the efficiencies analysis would be different.)
Thus, notwithstanding that the first criterion is satisfied and – regardless of whether the
third might be satisfied – because the Court finds that the second criterion is absent, Defendants
may not pursue an interlocutory appeal. Strictly limited by the statutory criteria, certification is
not warranted.
IV. CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Defendants’ motion for an Erie guess (R. Doc. 57) is DEFERRED.
The Court will resolve the Erie-guess issue in its post-trial findings of fact and conclusions of law.
IT IS FURTHER ORDERED that Defendants’ motion for certification of interlocutory
appeal pursuant to 28 U.S.C. § 1292(b) (R. Doc. 57) is DENIED.
IT IS FURTHER ORDERED that Defendants’ motion to stay pending interlocutory appeal
(R. Doc. 64) is DENIED AS MOOT.
New Orleans, Louisiana, this 23rd day of March, 2022.
________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE