Case 2:20-cv-00885-NR Document 49 Filed 09/14/21 Page 1 of 6
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`Plaintiff,
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`Defendant.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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`ALEXIS D. JOHNSON,
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`2:20-cv-885-NR
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`PG PUBLISHING COMPANY,
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`MEMORANDUM ORDER
`On August 17, 2021, the Court issued an order denying Defendant PG
`Publishing Company’s motion to dismiss. ECF 37. PG Publishing now moves for the
`Court to certify that order for interlocutory appeal, under 28 U.S.C. § 1292(b). ECF
`41. Specifically, PG Publishing asks the Court to certify two questions for
`interlocutory appeal:
`1. Whether the First Amendment bars liability under 42 U.S.C. § 1981
`(“Section 1981”) where the alleged discriminatory conduct is limited to an
`editorial decision about what stories to pursue; and
`2. Whether a plaintiff has failed to plead but-for causation as required by
`Section 1981 where the assignment decision was made based on an ethical
`standard of journalism that was applied equally to all staff members,
`regardless of race.
`ECF 41.
`For the following reasons, the Court denies the motion.
`In seeking certification of the prior order for interlocutory appeal under Section
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`1292(b),1 PG Publishing must show that: (1) the Court’s order involves a controlling
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`1 Section 1292(b) states: “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
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`Case 2:20-cv-00885-NR Document 49 Filed 09/14/21 Page 2 of 6
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`question of law, (2) there is substantial ground for difference of opinion with respect
`to that question, and (3) an immediate appeal may materially advance the ultimate
`termination of the litigation. Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir.
`1974); Premick v. Dick’s Sporting Goods, No. 06-0530, 2007 WL 588992, at *1 (W.D.
`Pa. Feb. 20, 2007) (McVerry, J.). PG Publishing, as the movant, bears the burden of
`showing that all three requirements are met. See, e.g., Premick, 2007 WL 588992, at
`*1; Glover v. Udren, No. 08-990, 2013 WL 3072377, at *1 (W.D. Pa. June 18, 2013)
`(Ambrose, J.). And even if all three elements are satisfied, “a district court may still
`deny certification, as the decision is entirely within the district court’s discretion.”
`Premick, 2007 WL 588992, at *1 (citations omitted); see also Bachowski v. Usery, 545
`F.2d 363, 368 (3d Cir. 1976) (“The certification procedure is not mandatory; indeed,
`permission to appeal is wholly within the discretion of the courts, even if the criteria
`are present.”); Glover, 2013 WL 3072377, at *1. “Certification of an interlocutory
`appeal is granted sparingly and only in exceptional circumstances.” Premick, 2007
`WL 588992, at *1 (citations omitted); see also Milbert v. Bison Laboratories, Inc., 260
`F.2d 431, 433 (3d Cir. 1958).
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`Controlling question of law. Turning to the first element for certification,
`the Court finds that PG Publishing has not made a sufficient showing for
`certification. A controlling question of law includes “order[s] which, if erroneous,
`would be reversible error on final appeal.” Glover, 2013 WL 3072377, at *2 (quoting
`Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974)). A court’s order does
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`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: Provided,
`however, That application for an appeal hereunder shall not stay proceedings in the
`district court unless the district judge or the Court of Appeals or a judge thereof shall
`so order.” 28 U.S.C. § 1292(b).
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`Case 2:20-cv-00885-NR Document 49 Filed 09/14/21 Page 3 of 6
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`not include a requisite controlling question of law, however, when the dispute turns
`on the court’s application and interpretation of the facts. E.g., Glover, 2013 WL
`3072377, at *2 (“A question that appears to be a controlling question of law but
`nevertheless presents a question about a court’s application of the facts of the case to
`the established legal standards are not controlling questions of law for purposes of
`section 1292(b).” (cleaned up)); Premick, 2007 WL 588992, at *2 (same); see also
`McCoy v. Favata, No. 17-1046, 2020 WL 5891898, at *2 (D. Del. Oct. 5, 2020); Kapossy
`v. McGraw-Hill, Inc., 942 F. Supp. 996, 1002 (D.N.J. 1996).
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`In seeking certification on the First Amendment issue, PG Publishing relies on
`many of the same First Amendment arguments that it raised in its motion-to-dismiss
`briefing. ECF 42, pp. 3-6. The Court has no doubt that these are weighty and
`important constitutional issues; but they are simply not positioned to be addressed
`on the current factual record. As the Court stated in its prior order, factual issues
`and disputes must be resolved before the Court can decide PG Publishing’s First
`Amendment arguments. ECF 37, p. 2. The Court’s order turned on its understanding
`and interpretation of the facts alleged in the complaint. Put simply, the Court did
`not reject PG Publishing’s First Amendment legal arguments—the Court only
`concluded that the factual record first needed to be developed.2
`Thus, while PG Publishing may disagree that any factual resolution is
`necessary, the Court’s order, as related to the First Amendment issue, did not include
`a requisite controlling question of law. See, e.g., Glover, 2013 WL 3072377, at *2
`(“Legal questions in which the exercise of the district court’s discretion is necessarily
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`2 Indeed, many of the principal cases upon which PG Publishing relies for its First
`Amendment defenses were decided on a more developed record, such as at summary
`judgment or trial, or after an administrative fact-finding hearing. See, e.g., Hurley v.
`Irish-Am. Gay, Lesbian, & Bisexual Grp. of Boston, 515 U.S. 557 (1995); Newspaper
`Guild of Greater Phila., Local 10 v. NLRB, 636 F.2d 550 (D.C. Cir. 1980); Nelson v.
`McClatchy Newspapers, Inc., 936 P.2d 1123 (Wash. 1997).
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`intertwined with its understanding of the facts of the case are not questions
`contemplated to fall within the purview of section 1292(b).” (cleaned up)); McCoy,
`2020 WL 5891898, at *2 (“An order involves a controlling question of law when it
`concerns a question of law, as opposed to one of fact or a mixed question of law and
`fact.” (cleaned up)); cf. Katz, 496 F.2d at 754 (“[L]eave to appeal may be denied for
`entirely unrelated reasons such as the state of the appellate docket or the desire to
`have a full record before considering the disputed legal issue.” (emphasis added)).
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`As to the Section 1981-causation question, PG Publishing likewise takes issue
`with the Court’s reading of the complaint. That is, PG Publishing argues that the
`complaint insufficiently alleges but-for causation because it includes allegations of
`white reporters being treated similarly to Ms. Johnson. E.g., ECF 42, pp. 2, 6-8. Yet
`for the same reasons just discussed, the Court’s August 17, 2021, order did not include
`a requisite controlling question of law regarding this issue. That order, drawing all
`reasonable inferences in Ms. Johnson’s favor, as required, concluded that Ms.
`Johnson sufficiently pled but-for causation—as she alleged, for example, that PG
`Publishing retaliated and discriminated against her “because she had opposed and
`spoke out about racism and the murder of black people at the hands of police” and
`because PG Publishing’s managing editor “target[ed]” “black people.” ECF 37, p. 1
`(citing ECF 17, inter alia, ¶¶ 21, 26). Certainly, as PG Publishing emphasizes, the
`complaint alleges that PG Publishing later took white reporters off certain stories
`after removing Ms. Johnson; but development of the factual record is needed to
`determine the circumstances surrounding this post-hoc action. For similar reasons
`as the First Amendment issue, then, the Section 1981-causation issue did not include
`a controlling question of law. See, e.g., Glover, 2013 WL 3072377, at *2.
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`Substantial ground for difference of opinion, & Materially advance the
`termination of the litigation. Because PG Publishing has not satisfied its burden
`as to the first element, the Court need not address the other two elements for
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`certification. The Court notes, however, that these other requirements also weigh
`against certification.
`Regarding the second element—substantial ground for difference of opinion—
`PG Publishing essentially argues that (1) the Third Circuit has not yet addressed the
`precise First Amendment issue and Section 1981-causation issue relevant here, and
`(2) various courts have sometimes ruled in the defendant’s favor based on the facts
`at issue in those cases. See ECF 42, pp. 8-11. Yet much of PG Publishing’s arguments
`have been based on Supreme Court jurisprudence, which, by its definition, is settled
`law. And indeed, as already explained, this Court’s prior order was based on its
`determination that factual development of the record was needed, thus weighing
`against certification. See, e.g., Premick, 2007 WL 588992, at *2 (“Although Plaintiff
`cites to authority that he claims conflicts with the Court’s decision, the Court is not
`persuaded that a substantial ground for difference of opinion exists to justify
`interlocutory review. Rather, Plaintiff has merely expressed disagreement with the
`Court’s ruling, which does not warrant an interlocutory appeal. A party stating its
`difference of opinion with respect to the Court’s discretionary findings does not
`constitute a substantial ground for difference of opinion.” (cleaned up)); Karlo v.
`Pittsburgh Glass Works, LLC, No. 10-1283, 2014 WL 12539666, at *1 (W.D. Pa. July
`3, 2014) (McVerry, J.) (“A party’s strong disagreement with the Court’s ruling does
`not constitute a substantial ground for difference of opinion. Nor does a dispute over
`the application of settled law to a particular set of facts.” (cleaned up)).
`The third element—material advancement of the ultimate termination of the
`litigation—likewise weighs against certification, for similar reasons discussed above.
`Certifying the case for appeal only to have it remanded by the Third Circuit for
`further factual development will not materially advance this litigation. PG
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`Publishing is better served raising its arguments at the summary-judgment stage, on
`a developed factual record.
`Ultimately, the Court concludes that PG Publishing has not met its burden of
`showing that all three elements for interlocutory appeal under Section 1292(b) are
`met.
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`Accordingly, for all of these reasons, it is hereby ORDERED that Defendant’s
`Motion to Certify for Interlocutory Appeal (ECF 41) is DENIED. IT IS FURTHER
`ORDERED that the Court’s Case Management Order (ECF 38) shall remain in
`effect.
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`DATE: September 14, 2021
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`BY THE COURT:
`/s/ J. Nicholas Ranjan
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`United States District Judge
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