RESPONSE OF MEREDITH T. RANEY, JR.

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
RESPONSE OF MEREDITH T. RANEY, JR.

UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
CASE NO.: 99-2064
DC DKT NO.: 97-01197 CV-ORL-19B

MEREDITH T. RANEY, JR.,
Plaintiff/Appellee,
v.
AWARE WOMAN CENTER FOR
CHOICE, INC., a Florida
corporation, EDWARD W.
WINDLE, JR., and
PATRICIA B. WINDLE,
Defendants/Appellants.

RESPONSE OF MEREDITH T. RANEY, JR.,
PLAINTIFF/APPELLEE, TO JURISDICTIONAL QUESTION

Christopher F. Sapp, Esquire
Florida Bar Number: 0097823
Post Office Box 1012
Lehigh Acres, Florida 33970
Telephone: (941) 368-3922
Attorney for Plaintiff/Appellee

JURISDICTIONAL QUESTION

Whether the District Court's December 16, 1998, order is immediately appealable?

ANSWER OF PLAINTIFF/APPELLEE

No. Defendants/Appellants do not have the right to an immediate appeal of the District Court's denial of their Motion for Summary Judgment because the District Court's ruling is not a final order upon which an appeal may be taken without first obtaining certification from the District Court.

ANALYSIS AND ARGUMENT

United States District Judge Patticia C. Fawsett has twice considered and twice denied Defendants'/Appellants' Motion for Summary Judgment on December 16, 1998 and February 1, 1999, respectively. Judge Fawsett's latest Order is attached to this memorandum for reference. In addition, Defendants/Appellants have a Counterclaim pending against Plaintiff/Appellee. (Document number 17)

Section 1291 governs appeals from final orders. Clearly, Judge Fawsett's denial of .summary judgment does not constitute a final order. Any appeal based on this provision at this point in the litigation clearly is improper.

While Section 1292 provides for interlocutory appeals, this statute requires that Defendants/Appellants first obtain certification from the District Court before filing their notice of appeal with the Eleventh Circuit; they did not do this.

The Notice of Appeal does not stay the proceedings in the District Court. Judge Fawsett's denial of certification of interlocutory appeal removes any doubt: the District Court retains jurisdiction over this matter.

When the jurisdictional question stated herein was first asked, the order described in the Notice of Appeal was in effect in its entirety. That order, entered on December 16, 1998, (Document number 100) contains, among other things, a denial of the Defendants'/Appellants' Motion For Summary Judgment (Document number 46). The order is interlocutory in nature; however, no permission to appeal was obtained as required by Rule 5(a) of the Federal Rules of Appellate Procedure and 28 U.S.C. §1292 (b). Also, there was certainly no certification as required by Fed. R.Civ. P. 54(b) and the case of Pitney Bowes, Inc. v. Mestre, 701F.2d 1365, 1368, (11th Cir.), cert. denied, 464 U.S. 893 (1983), even if the order had been deemed final as to a particular claim.

Here, Defendants/Appellants instead filed a Notice of Appeal contending that the order falls into the narrow exception provided by the Cohen decision, the first of the collateral order cases, which allows review of certain interlocutory orders by Appellate Courts as a matter of right. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

The Cohen progeny include several cases in this Appellate Circuit such as Mastroianni v. Bowers, 160 F.3d 671 (11th Cir. 1998) where the appellants/defendants were public officials claiming immunity from civil liability.

There is no such defense of public official immunity in this case for a simple reason: none of the Appellants/Defendants in this Raney case are public officials. Thus, a Cohen - based public official immunity defense did not open the door to immediate appellate review of the December order.

The denial of the Defendants'/Appellants' Motion for Summary Judgment in the December order rejected their abstention defense. On the appellate level, specifically in the Third Circuit, it has been ruled that abstention defense denials are not Cohen decisions which permit immediate interlocutory appellate review as a matter of right. The Third Circuit Court of Appeals, in determining Coleman by Lee v. Stanziani, 735 F. 2d 118 (3d Cir. 1984), held that none of the elements needed to pass the Cohen test are present when an abstention defense is denied interlocutorily. The Appellate Court stated at page 120:

In order to qualify as collaterally final, however "(t)he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 375, 101 S. Ct. 669, 674, 66 L.Ed.2d 571 (1981) quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978). The order appealed from satisfies none of these criteria. It does not conclusively determine anything, since the district court is free to reconsider it at any time. It is not separate from the merits, because a Younger v. Harris ruling requires a determination of the appropriateness of the requested relief in light of the pleadings and proof. It is not unreviewable on appeal from a final judgment, for scores of Younger v. Harris issues have been heard and decided in such appeals.

Coleman by Lee (supra) was later revisited in Bryant v. Sylvester, 57 F.3d 308 (3rd Cir. 1995). (Case remanded by the United States Supreme Court to consider mootness. 116 S.Ct. 899, 1996) Once again, the Third Circuit was called on to determine the legitimacy of an interlocutory appeal based on the Cohen doctrine. In this later case, the interlocutory denial was that of a Rooker-Feldman defense. And, once again, the Appellate Court maintained a restrictive view of the collateral order doctrine, saying at page 316:

By concluding that the denial of a Rooker-Feldman defense does not give rise to an immediately appealable collateral order, we do not gainsay the importance of the interests in federalism and comity that the Rooker-Feldman doctrine seeks to protect. We simply believe that these interests are not irreparably harmed through rigorous application of the final judgment rule. We note that in other contexts these same interests have been understood to be adequately vindicable on appeal following the entry of final judgment.

Thus, it is clear that the December order was not appealable immediately: there was no certification from the District Court at the time the Notice of Appeal was filed; more recently, certification has been denied; the order was interlocutory and not governed by the Cohen doctrine as a collateral order; if somehow construed as final, this order lacked Fed. R.Civ. P 54 (b) certification required in Pitney Bowes (supra); finally, there was no petition for permission to the Appellate Court under Federal Rule of Appellate Procedure 5(a), much less a grant of permission.

The latest order from the District Court, moreover, has vacated the December 16, 1998 decision as to the motion in question. Among other things, the February 1, 1999 order denies the Defendants/Appellants certification for an appeal of either of these orders. And, after reconsideration of the Motion For Summary Judgment filed by the Defendants/Appellants, District Judge Fawsett has ruled that Defendants/Appellants do not have a Rooker-Feldman defense.

Thus, when the jurisdictional question is revisited in light of the February order, the answer is once again "No". There is no certification from the District Court. In fact, certification has been denied to the Defendants/Appellants for an immediate appeal. Also, the Bryant decision (supra) specifically exempts interlocutory denial of Rooker-Feldman defenses from immediate Cohen or collateral order appellate review; there has been no Pitney Bowes (supra) certification from the District Court allowing piece-meal review of a portion of this case. And permission for an appeal has been neither sought nor obtained under Federal Rule of Appellate Procedure 5(a) from the Appellate Court.

CONCLUSION

There can only be one answer to the jurisdictional question asked of the parties in this case. That response must be that the order specified was not immediately appealable. And for that matter, neither is the order dated February 1, 1999 immediately appealable for the reasons set forth above.

Respectfully submitted,
Christopher F. Sapp <signed>
Post Office Box 1012
Lehigh Acres, Florida 33970
(941) 368-3922
Florida Bar Number 0097823
Attorney for Plaintiff/Appellee

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Roy Lucas, Esquire, Post Office Box 1433, Melbourne, Florida 32902, Susan England, Esquire, 2805 Lakeview Drive, Fern Park, Florida 32730 and to Lawrence M. Siff, Esquire, O'Connor & Meyers, PA, 2801 Ponce de Leon Boulevard, 9th Floor, (Coral Gables) Miami, Florida 33134 this 6th day of February, 1999.

Christopher F Sapp <signed>