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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

PAUL HUGHES and

JANET L. HUGHES

Plaintiffs,

v. Case No.: 5:03CV265/RV

HOLMES COUNTY BOARD OF 

COUNTY COMMISSIONERS and

the HOLMES COUNTY ROAD

DEPARTMENT,

Defendants.

___________________________

ORDER

The Plaintiffs’ motion for summary judgment was granted in part and denied in

part on September 2, 2005. The Defendants have now moved for a certification of

appealability, pursuant to Title 28, United States Code, Section 1292(b). (Doc. 78).

I. DISCUSSION

Ordinarily all claims and issues in a case must be resolved before a party can

appeal. Construction Aggregates v. Forest Commodities, 147 F.3d 1334 (11th Cir.

1998). However, a district court may allow the interlocutory appeal of a non-final

order if the conditions set forth in Title 28, United States Code, Section 1292(b) are

met. Section 1292(b) allows an interlocutory appeal on an issue, if: (1) the appealed

issue involves a controlling question of law; (2) the appealed issue is one on which

there is substantial ground for difference of opinion; and (3) an immediate appeal may

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materially advance the ultimate termination of the litigation. 42 U.S.C. § 1292(b).

Interlocutory appeal under Section 1292(b) should be used sparingly and only in

exceptional circumstances, where the proposed appeal presents one or more difficult

questions of law not settled by controlling authority. Caraballo-Seda v. Municipality

of Hormigueros, 395 F.3d 7 (1st Cir. 2005); In re Flor, 79 F.3d 281 (2nd Cir. 1996).

Here, the Defendants are seeking an interlocutory appeal of this court’s

conclusion in the September 2nd order that the Plaintiffs were not required to exhaust

all available state remedies before pursuing their public use claim under the

constitutional Fifth Amendment takings clause. While the issue the Defendants are

seeking to appeal is one on which there is substantial ground for difference of opinion,

certification of appeal does not appear to be warranted because the issue was only

tangentially related to the September 2nd order, and the issue was not raised by the

parties or adequately briefed by them. 

The law is clear that, in the case of a Fifth Amendment just compensation claim

under the takings clause, a plaintiff is required to exhaust any available state remedies

before proceeding to federal court. Williamson County Regional Planning Commission

v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S. Ct. 3108, 87 L. Ed. 2d 126

(1985); Bickerstaff Clay Products, Inc. V. Harris County, Ga., 89 F.3d 1481 (11th Cir.

1996). It is unclear, however, whether this requirement extends to public use

challenges under the takings clause. Williamson County and Bickerstaff use broad

language in describing the exhaustion requirement, but the rationale given in

Williamson County for the requirement that a state cannot be said to have denied a

landowner compensation unless the landowner has first resorted to available state

judicial procedures for obtaining compensation does not apply to public use challenges

to governmental takings. See Williamson County, supra, 473 U.S. at 182, 105 S. Ct.

At 3114, 87 L. Ed. 2d at 136. Other circuits addressing this issue have split on

whether the exhaustion requirement applies to public use challenges. Compare

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Motgomery v. Carter County, Tenn., 226 F.3d 758 (6th Cir. 2000) (no exhaustion

requirement for public use claims); Armendariz v. Penman, 75 F.3d 1311 (9th Cir.

1996) (same); Samaad v. City of Dallas, 940, F.2d 925 (5th Cir. 1991) (same) with

Daniels v. Area Plan. Commission of Allen County, 306 F.3d 445 (7th Cir. 2002)

(exhaustion of state remedies is a prerequisite to filing public use claim). Given the

seemingly ambiguous language in Bickerstaff, as well as the fact that there is a circuit

split on the issue, the issue is one on which there is substantial grounds for a

difference of opinion. 

Nevertheless, appeal under Section 1292(b) is not appropriate in this case. In

an appeal under Section 1292(b), it is the order appealed from, and not the issue

certified for appeal, that determines the scope of review. Aldridge v. Lily-Tulip, 40

F.3d 1202 (11th Cir. 1994). The Defendants are seeking appeal from the September

2nd order of this court which ruled on the Plaintiffs’ motion for summary judgment.

This order denied the Plaintiffs’ motion with respect to its public use claim. The

Defendants are thus in the procedurally awkward position of attempting to appeal an

order on a motion in which they prevailed. The Defendants did not file their own

motion for summary judgment, and in their response to the Plaintiffs’ motion for

summary judgment, they did not argue that Plaintiffs’ public use claim should be

dismissed for failing to exhaust state remedies. While I did raise the issue sua sponte

in the September 2nd order, the issue was not raised by the Defendants and did not

directly determine the outcome of the plaintiffs’ motion. 

Also, Section 1292(b) requires that “immediate appeal from the order may

materially advance the ultimate termination of the litigation.” 42 U.S.C. 1292(b). Even

if the Defendants’ appeal were to result in the dismissal of Plaintiffs’ public use claim,

the Plaintiffs in this case have alleged a claim against the Defendants for trespass. The

exhaustion issue is inapplicable to Plaintiffs’ trespass claim. This case has already

proceeded through the summary judgment stage. All discovery in the case is complete.

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I cannot say that an interlocutory appeal would (or may) materially advance the

termination of this litigation. 

III. CONCLUSION

For the above reasons, the Plaintiffs’ motion for certification of appealability

(Doc. 78) is DENIED.

DONE AND ORDERED this 30th day of September, 2005.

/s/ Roger Vinson 

ROGER VINSON

Senior United States District Judge

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