IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-00042

LARRY I. LINTON

Plaintiff - Respondent

v.

SHELL OIL CO. ET AL.

Defendants - Petitioners

Petition for Leave to Appeal from Interlocutory Orders

Before JOLLY, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:

We issue a written opinion on this motion for leave to appeal pursuant

to 28 U.S.C. § 1292(b) in order to alert district judges to the need to provide in

their certification orders some demonstration that the governing standards

for an interlocutory appeal have been met. The instant motion is made in the

course of litigation between Plaintiff-Respondent Larry Linton (“Plaintiff”)

and Defendants-Petitioners Shell Oil Company et al.

Plaintiff was employed as a worker on the NaKika Floating Production

Facility (“NaKika”), which is located above the Outer Continental Shelf

adjacent to the State of Louisiana and is owned by Defendant Shell Oil Co.

(“Shell”). Plaintiff alleged that he was injured while working on the NaKika

and brought suit contending that because the NaKika is a vessel he is a

United States Court of Appeals

Fifth Circuit

F I L E D

March 26, 2009

Charles R. Fulbruge III

Clerk
No. 09-00004

2

seaman under the Jones Act, 46 U.S.C. § 30101 et seq. Shell moved for

summary judgment. In one order the district court denied Shell’s motion for

summary judgment and certified to us “the issues raised in the Motion for

Summary Judgment..., in the Memoranda in Support thereof, and an

Opposition to the Motion for Summary Judgment.” However, the district

court’s order does not contain findings of facts, conclusions of law, or any

application of law to facts, and the motion for summary judgment, opposition

and memorandum in support have not been filed with us.

The district court stated that the issues it had decided in denying

Shell’s motion for summary judgment “include: (1) whether Louisiana law

applies, as surrogate federal law, under the Outer Continental Shelf Lands

Act, 43 U.S.C. § 1331 et seq., to the claims brought by Plaintiff in these

proceedings, without regard to whether the Nakika is a vessel or an artificial

island and (2) whether the Nakika is a ‘vessel’ for purposes of the Jones Act,

46 U.S.C. § 30101, et seq.” 

Using the statutory language of section 1292(b), the district court

opined that these issues involve controlling questions 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. No further justification for the interlocutory appeal was given.

Preliminarily, it should be noted, that section 1292(b) authorizes

certification of orders for interlocutory appeal, not certification of questions. 

See Isra Fruit v. Agrexco, 804 F.2d 24, 25 (2d Cir. 1986); United States v.

Banco Cafetero Panama, 797 F.2d 1154, 1156-57 (2d Cir. 1986); Chemical

Bank v. Arthur Andersen & Co., 726 F.2d 930, 936 n.10 (2d Cir.), cert. denied,

469 U.S. 884 (1984). Of course, in certifying an order for interlocutory review

it is helpful if the district judge frames the controlling question(s) that the

judge believes is presented by the order being certified, as the district court
No. 09-00004

3

did in this case. See 16 Charles A. Wright, Arthur R. Miller, & Edward H.

Cooper, Federal Practice & Procedure § 3929 n.61 (2d ed. 2008) (citing Isra

Fruit, 804 F.2d at 25); see also Banco Cafetero Panama, 797 F.2d at 1157;

SCM Corp. v. Xerox Corp., 599 F.2d 32, 33 (2d Cir. 1979). In the instant case,

however, the defendants should have sought certification not only of these

bare questions of law but also of the district court’s order giving its reasoning

as to how these questions were resolved and why that resolution led to the

denial of Shell’ s motion for summary judgment. Indeed, it appears that the

district court may have concluded that there are genuine issues of material

facts concerning whether the Nikika is a vessel that must be resolved before

reaching these legal questions.

Further, we strongly suggest to district judges the advisability of

stating more than an abstract description of the legal questions involved or a 

bare finding that the statutory requirements of section 1292(b) have been

met. This circuit, as well as other circuits, have repeatedly made the same or

similar points with respect to certifications under Fed.R.Civ.P. 54(b). See, e.g.,

Rothenberg v. Security Management Co., Inc., 617 F.2d 1149, 1150 (5th Cir. 

1980); Huckeby v. Frozen Food Express, 555 F.2d 542, 550 (5th Cir. 1977); see

also Cullen v. Margiotta, 618 F.2d 226, 228 (2d Cir. 1980); Gumer v.

Shearson, Hammill & Co., Inc., 516 F.2d 283, 286 (2d Cir. 1974); Arlinghaus

v. Ritenour, 543 F.2d 461, 464 (2d Cir.1976). Though it will often be evident

why the question presented by the certified order is “controlling,” elaboration

by the district judge will normally be helpful in understanding why the judge

believes that there is a “substantial ground for difference of opinion” and that

“immediate appeal from the order may materially advance the ultimate

termination of the litigation.” See 16 Charles A. Wright, Arthur R. Miller, &

Edward H. Cooper, Federal Practice & Procedure § 3930 n.10 (2d ed. 2008).

For these reasons, the application for leave to appeal is DENIED.