A U.S. District judge in Vermont has denied a motion by plaintiffs in a Freedom of Information Act (FoIA) lawsuit seeking First Responder Network Authority (FirstNet) records to file an interlocutory appeal of the judge’s decision to dismiss or grant summary judgment in favor of the government on all but one of 18 counts.

The suit (“Stephen Whitaker and David Gram v. Department of Commerce,” case 5:17-cv-192) was filed last year by Stephen Whitaker, a Vermont resident and government accountability advocate, and David Gram, a reporter for “VTDigger,” a non-profit web-based publication (TR Daily, Oct. 6, 2017).

Last December, Judge Geoffrey W. Crawford ruled that FirstNet was exempt from FoIA under the Middle Class Tax Relief and Job Creation Act of 2012, which created FirstNet (TR Daily, Jan. 2). He rejected 17 of the 18 counts in the suit.

 On the last count, Judge Crawford reserved making a decision on summary judgment pending a supplemental briefing. The count “requests injunctive relief prohibiting FirstNet from collecting personally identifiable information until proper privacy impact assessments are complete,” the judge noted in his decision.

 In an April 26 decision denying the plaintiffs’ motion for certification of interlocutory appeal, Judge Crawford wrote, “Certification for interlocutory appeal is appropriate when a district court’s decision involves a controlling question of law on which there is substantial ground for difference of opinion and immediate appeal may materially advance the termination of the litigation. … The court is satisfied that immediate appeal of its decision on Counts 1-17 will not materially advance the termination of the litigation. The pending disposition of Count 18, which involves the application of a statutory provision that has never been interpreted by the Second Circuit, is practically certain to give rise to another appealable issue. The piecemeal appellate review requested by the Plaintiffs will only prolong this litigation. Because this is an independently sufficient basis for the court’s conclusion that interlocutory appeal is not appropriate, the court does not consider whether its prior decision involved controlling questions of law or whether there is substantial ground for difference of opinion on those questions.”

Judge Crawford also granted the defendant’s motion to file a reply brief, which it has already filed, to the plaintiffs’ supplemental brief regarding the remaining count, saying that the plaintiffs’ brief “attempted to raise a new issue as to whether the Nationwide Public Safety Broadband Network was operational, a matter of fact that had until then been undisputed.” He also said the plaintiffs could file a surreply within 14 days of his decision.- Paul Kirby, paul.kirby@wolterskluwer.com