BHATTACHARYA v. UNIVERSITY OF PITTSBURGH-OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHITRABHANU BHATTACHARYA, )
)
Plaintiff, )
)
v. )
)
THE UNIVERSITY OF PITTSBURGH )
OF THE COMMONWEALTH )
Civil Action No. 2:24-cv-0900
Judge Nora Barry Fischer
Docket No. 136
SYSTEM OF HIGHER EDUCATION, )
)
Defendant. )
MEMORANDUM OPINION ON DEFENDANT’S
MOTION TO CERTIFY ORDER FOR INTERLOCUTORY APPEAL
I. INTRODUCTION
Presently before the Court is Defendant’s Motion to Certify, for potential interlocutory
review pursuant to 28 U.S.C. § 1292(b), this Court’s August 14, 2026 Order denying Defendant’s
Motion for Summary Judgment as to Plaintiff’s due process claim (Count I of the First Amended
Complaint) and granting Plaintiff’s Motion for Partial Summary Judgment as to that claim.
(Docket Nos. 135, 98 and 94, respectively). Plaintiff has filed his Brief opposing Defendant’s
Motion to Certify (Docket No. 139), and the matter is ripe for decision. For the reasons that follow,
said Motion will be denied.
II. APPLICABLE STANDARD
As this Court has previously explained,
[S]ection 1292(b), entitled “Interlocutory decisions,” provides:
When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the opinion that
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such order involves a controlling question of law as to which there
is substantial ground for difference in 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.
28 U.S.C. § 1292(b). “Interlocutory appeals generally are disfavored, as piecemeal
litigation ‘undermines efficient judicial administration and encroaches upon the
prerogatives of district court judges, who play a special role in managing ongoing
litigation.’” Doe I v. UPMC, Civ. A. No. 2:20-CV-359, 2020 WL 5742685, at *2
(W.D. Pa. Sept. 25, 2020) (quoting Mohawk Indus. v. Carpenter, 558 U.S. 100, 106
. . . (2009) (internal quotations omitted)).1 “Certification pursuant to § 1292(b)
should be granted ‘sparingly’ and only when three conditions are met: (1) where
immediate appeal may avoid protracted and expensive litigation, (2) the request
involves a controlling question of law, and (3) where there is a substantial basis for
differing opinion.” J.L. v. Ambridge Area School District, Civ. A. No. 06–1652,
2008 WL 906534, at *2 (W.D. Pa. Apr. 1, 2008) (citing Milbert v. Bison
Laboratories, Inc., 260 F.2d 431, 433 (3d Cir. 1958); Orson, Inc., v. Miramax
Corp., 867 F. Supp. 319, 321 (E.D. Pa. 1994)).2 The party seeking the interlocutory
appeal has the burden to establish that all three conditions are met. In re
Norvergence, Inc., Civ. A. No. 08–1910, 2008 WL 5136706, at *2 (D. N.J. Dec. 5,
2008). However, this Court has discretion to deny an interlocutory appeal even if
the party meets its burden. See 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.”).
Elkin Valley Baptist Church v. PNC Bank, N.A., 2024 WL 4817131, at *1 (W.D. Pa. Nov. 18,
2024), quoting Nat'l Liab. & Fire Ins. Co. v. Brimar Transit, Inc., 2021 WL 6098288, at *2 (W.D.
Pa. Dec. 23, 2021). See also McFarlin v. Conseco Services, LLC, 381 F.3d 1251, 1259 (11th Cir.
1 As a unanimous Supreme Court explained long ago,
Congress from the very beginning has, by forbidding piecemeal disposition on appeal of what for
practical purposes is a single controversy, set itself against enfeebling judicial administration.
Thereby is avoided the obstruction to just claims that would come from permitting the harassment
and cost of a succession of separate appeals from the various rulings to which a litigation may give
rise, from its initiation to entry of judgment. To be effective, judicial administration must not be
leaden-footed. Its momentum would be arrested by permitting separate reviews of the component
elements in a unified cause.
Cobbledick v. United States, 309 U.S. 323, 325 (1940).
2 See also Howard v. Arconic Inc., No. 2:17-CV-01057, 2022 WL 3021549, at *1 (W.D. Pa. July 29, 2022) (“District
courts are not to lightly grant leave to seek such permission.”).
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2004) (“The proper division of labor between the district courts and the court of appeals and the
efficiency of judicial resolution of cases are protected by the final judgment rule, and are threatened
by too expansive use of the § 1292(b) exception to it. Because permitting piecemeal appeals is
bad policy, permitting liberal use of § 1292(b) interlocutory appeals is bad policy.”).
III. ANALYSIS
In determining whether to certify its Order for interlocutory appeal, it is incumbent on the
Court to examine the specific purported “controlling questions of law” for which certification is
requested. Cf. McFarlin, 381 F.3d at 1264 (“When a district court certifies an order for appeal, it
should specify the controlling question of law it has in mind.”). Here, Defendant submits two
questions: (A) “Whether, and to what extent, a public employee has a constitutionally-protected
property interest . . . . under the circumstances presented” and (B) “precisely what process was due
under those circumstances”. (Docket No. 137 at 2-3). The Court will examine in turn whether
these questions satisfy the three conditions for certification under § 1292(b).
A. Infringement of Property Interest
1. Controlling Question of Law
Rather than settling on a single properly-framed controlling question, Defendant moves
among alternative formulations that are, by turns, over-broad, vague, or inconsistent with the
Court’s actual holdings. But at bottom, Defendant cannot avoid the problem that application of
the Due Process Clause to Plaintiff’s year-long suspension inherently presents a mixed question
of law and fact, rather than a pure question of law.
Defendant first contends that “[w]hether, and to what extent, a public employee has a
constitutionally-protected property interest is a question of law appropriate for certification.”
(Docket No. 137 at 2). Defendant relies upon two cases in support of its contention, both of which
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are readily distinguishable: First, in Larsen v. Senate of Com. of Pa., 152 F.3d 240, 245 (3d Cir.
1998), a motions panel of the Third Circuit granted interlocutory appeal of “whether Larsen had a
constitutionally protected property interest in the elected office of Justice of the Supreme Court of
Pennsylvania”.3 This grant indicated doubt as to whether an elected official has an individual
property interest in his position, which he holds in a representative capacity on behalf of the
electorate. In the present case, in contrast, there is no doubt that Plaintiff has a constitutionally
protected interest in his position as a tenured professor at a state university. See, e.g., Gilbert v.
Homar, 520 U.S. 924, 928–29 (1997) (“public employees who can be discharged only for cause
have a constitutionally protected property interest in their tenure”).
Second, in McKinney v. Univ. of Pittsburgh, 915 F.3d 956 (3d Cir. 2019), the Court of
Appeals granted interlocutory review of whether a tenured professor has “a property interest in the
continued receipt of his base salary”. McKinney, 915 F.3d at 958, 959 n.2. Although that
Defendant acknowledged that McKinney had a property interest in continued employment, he
declined to predicate his salary claim on his tenure status or on “the interest a tenured faculty
member at the University would have in continued employment”. Id. at 960 n.4. Instead,
McKinney relied solely on a contractual interpretation of Defendant’s applicable policy governing
faculty salaries. Id. at 958, 962.
In other words, both Larsen and McKinney allowed appeal of a narrow question as to the
existence of a property interest in a particular office or salary, while the present case involves a
question as to the attributes of an established property interest – viz., whether the property interest
in tenured employment precludes a lengthy suspension without cause, or equivalently, whether
3 Defendant’s parenthetical quotation of Larsen stops at “whether [Plaintiff] had a constitutionally protected
property interest”, and omits the crucial limitation to “elected office”. (Docket No. 137 at 2-3) (brackets in
original).
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such a suspension infringes on that property interest.4 See Gilbert, 520 U.S. at 929 (assuming,
without deciding, that one-month unpaid suspension “infringed a protected property interest”).
Questions as to the existence of a property interest may often constitute controlling questions of
law because they are binary (one either has or does not have such an interest), and if answered in
the negative they are dispositive of a due process claim. On the other hand, questions as to the
attributes of an acknowledged property interest generally involve fact-based line drawing, and thus
constitute mixed questions of law and fact rather than pure questions of law suitable for
interlocutory appeal. See generally, Johnson v. Nat'l Collegiate Athletic Ass’n, 108 F.4th 163, 183
n.1 (3d Cir. 2024) (Porter, J., concurring) (collecting cases from eight other circuits that limit 28
U.S.C. § 1292 to pure questions of law).
Presently, Defendant glosses over the line-drawing inherent in this case by posing its first
question in broad, open-ended terms that elide the particulars of Plaintiff’s claim: “[w]hether, and
to what extent, a public employee has a constitutionally-protected property interest”. Indeed, the
breadth and generality of Defendant’s first proposed question make it appear better suited to a
legal treatise than to an appellate opinion. While Defendant appears to narrow the question by
subsequently characterizing it as regarding “the existence of a protectable interest under the
circumstances presented” (Docket No. 137 at 3) (emphasis added), this merely supplants the over-
breadth problem with a vagueness problem: what particular circumstances define the question
Defendant wishes to present?5
4 Defendant acknowledges that “if you are suspended without pay indefinitely, at some point that might be viewed
as interrupting your continuous employment.” (Docket No. 132 at 73).
5 The Court should not have to discern a party’s questions by surmise, or to distill precise questions from imprecise
motions. Rather, the party seeking interlocutory appeal should specify the precise controlling questions upon which
review is sought – ideally in a form equivalent to the statement of the issues presented for review required under
Fed. R. App. P. 28(a)(5).
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Defendant may be attempting to specify those circumstances in asserting that “the Court’s
holding” – “[s]pecifically, . . . its holding that Plaintiff had a protectable property interest
notwithstanding the lack of any contract, statutory promise, or other written6 guarantee making
him immune from discipline (in the form of an unpaid suspension or removal as Zoffer Chair)” –
“is a controlling question of law in this case.” (Id.) Putting aside that a holding is not the same
thing as a question of law, this passage suggests that Defendant’s “controlling question” may be
something like “whether a public employee can have a protected property interest absent a
contractual or statutory grant of immunity from discipline”. However, any question along such
lines is not “involved” in the Court’s Order, and hence cannot be the subject of certification under
§ 1292(b).
More specifically, while Defendant is doubtless correct that Plaintiff is not “immune from
discipline”, what matters – as the Court noted in its Memorandum Opinion (e.g., Docket No. 134
at 6 n.12) – is whether Plaintiff is immune from such discipline without cause. See Richardson v.
Felix, 856 F.2d 505, 509 (3d Cir. 1988) (“The hallmark of a constitutionally protected property
interest is an individual entitlement that ‘cannot be removed except “for cause.’”) (quoting Logan
v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982)). And even if the question is refined to
incorporate this crucial exception for cause – i.e., “whether a public employee can have a protected
6 Although Defendant apparently seeks to limit property interests to those shown by a writing, such a limitation is
inconsistent with established law. As the Supreme Court has explained,
“[P]roperty” interests subject to procedural due process protection are not limited by a few rigid,
technical forms. Rather, “property” denotes a broad range of interests that are secured by “existing
rules or understandings.” . . . .
A written contract with an explicit tenure provision clearly is evidence of a formal understanding
that supports a teacher’s claim of entitlement to continued employment unless sufficient “cause” is
shown. Yet absence of such an explicit contractual provision may not always foreclose the
possibility that a teacher has a “property” interest in reemployment. For example, the law of
contracts in most, if not all, jurisdictions long has employed a process by which agreements,
though not formalized in writing, may be “implied.”
Perry v. Sindermann, 408 U.S. 593, 601-02 (1972) (citations omitted).
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property interest absent a contractual or statutory grant of immunity from discipline without cause”
– it nevertheless remains a question not “involved” in the Court’s Order, as the Court manifestly
did not hold that Plaintiff had a protectable property interest, despite the absence of a contractual
right to be free from discipline without cause. To the contrary, the Court held that “Plaintiff’s
property interest in continued employment7 encompasses a right to be free from a year-long unpaid
suspension without cause, and . . . the terms of his renewed appointment to the Zoffer Chair gave
him a contractual right to be removed only for cause”. (Docket No. 134 at 8).
Finally, even if, in the interest of giving Defendant’s motion every consideration, the Court
were to further refine Defendant’s first proposed controlling question to reflect the Court’s actual
holdings,8 the resultant two sub-questions would be materially equivalent to “whether a year-long
suspension without pay infringes a tenured professor’s protected property right in continued
employment”, and “whether Plaintiff had a property interest in continued occupancy of the Zoffer
Chair”. Both of these appear to be mixed questions of law and fact, with the latter involving
application of settled contract law to the facts of this case. Hence, neither is a “pure” question of
law suitable for interlocutory appeal.9 The Court therefore concludes that Defendant’s first
proposed question (and any reformulation thereof) is not a controlling question of law for purposes
of § 1292(b).
7 Plaintiff’s property interest in continued employment is assuredly contractual. See McKinney, 915 F.3d at 958
(terms of tenured professor’s employment were governed by “policies promulgated by [Defendant’s] Trustees”
which “provide that tenured faculty can be terminated only ‘for cause’”); id. at 960 (“[T]he [Supreme] Court has
recognized a property interest in “continued employment” where tenured faculty have been expressly informed that
they may be terminated only ‘for cause.’”).
8 Cf., e.g., In re 3M Combat Arms Earplug Products Liability Litigation, 2020 WL 4756326, at *3 (N.D. Fla. Aug.
17, 2020) (reformulating proposed controlling question that mischaracterized court’s ruling).
9 See McFarlin, 381 F.3d at 1259 (an appeal that turns on “whether the district court properly applied settled law to
the facts or evidence of a particular case” is “[t]he antithesis of a proper § 1292(b) appeal”); In re Kenvue Inc.
Securities Litigation, 2025 WL 3079279, at *4 (D.N.J. Nov. 4, 2025) (“questions about a district court's application
of facts of the case to established legal standards are not controlling questions of law for purposes of section
1292(b)”) (quoting In re Direct Purchaser Insulin Pricing Litig., 2023 WL 3431213, at *4 (D.N.J. May 12, 2023)).
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2. Substantial Ground for Difference in Opinion
“The ‘substantial grounds for difference of opinion’ condition is met where ‘the issue is
difficult and of first impression, a difference of opinion as to the issue exists within the controlling
circuit, or the circuits are split on the issue.’” 3M Combat Arms, 2020 WL 4756326, at *3 (quoting
United States ex rel. Powell v. Am. InterContinental Univ., Inc., 756 F. Supp. 2d 1374, 1378-79
(N.D. Ga. 2010)). Here, whether a suspension without pay infringes on a property interest is not
a question of first impression in the Third Circuit. Rather, in Homar v. Gilbert, 89 F.3d 1009,
1014, 1016-17 (3d Cir. 1996), reversed on other grounds sub nom Gilbert v. Homar, 520 U.S. 924
(1997), the Circuit recognized a government employee’s “property interest in employment and its
accompanying salary”, and held that although the employee was “not completely terminated”, his
property interest entitled him to some “degree of due process” in connection with his suspension
without pay. On appeal, the Supreme Court did not disturb the Third Circuit’s holding on the
issue, but instead assumed that “the suspension infringed a protected property interest”.
Accordingly, this Court concluded in its Memorandum Opinion herein that “the Third Circuit’s
ruling in Homar that suspension of a tenured public employee without pay requires some degree
of due process remains binding law in this Circuit.” (Docket No. 134 at 4 n.9).10
In its present motion, Defendant simply ignores Homar, and it fails to identify contrary
precedent in or out of the Circuit. Consequently, under the standard articulated in 3M Combat
Arms, supra, Defendant has failed to identify substantial grounds for difference of opinion as to
any version of its proposed first issue.
10 See also Vatner v. Bd. of Trs. of the Univ. of Med., 2015 WL 461901, at *10 (D.N.J. Feb. 4, 2015) (“[T]he Court
finds that Plaintiff has met his burden of demonstrating that his suspension without pay from his tenured
employment amounts to a property deprivation sufficient to implicate procedural due process rights.”).
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Defendant asserts that “the Court already recognized that the existence of a
constitutionally-protected property interest under the circumstances presented in this case is an
issue of substantial disagreement.” (Docket No. 137 at 4). In support of this assertion, Defendant
cites numerous cases already noted and distinguished by this Court; but none of those cases
involved the same “circumstances presented in this case”. In particular, Defendant remains unable
to identify a single case from any jurisdiction in which a tenured government employee was
suspended for a year (or any period approaching a year) without implicating a right to “some
degree of due process”.11 The Court adheres to its conclusion that Defendant has failed to establish
substantial grounds for difference in opinion as to Defendant’s first question.
3. Materially Advance Ultimate Termination
“Finally, the text of § 1292(b) requires that resolution of a ‘controlling question of law . . .
may materially advance the ultimate termination of the litigation.’ 28 U.S.C. § 1292(b). This is
not a difficult requirement to understand. It means that resolution of a controlling legal question
would serve to avoid a trial or otherwise substantially shorten the litigation.” McFarlin, 381 F.3d
at 1259 (ellipsis in original). See also, e.g., Milbert, supra, 260 F.2d at 433 (“Congress intended
that section 1292(b) should be sparingly applied. It is to be used only in exceptional cases where
an intermediate appeal may avoid protracted and expensive litigation . . .”).
In the present case, resolution of Defendant’s first question is unlikely to avoid or
substantially shorten trial. If the Court of Appeals were to hold that a year-long suspension does
not infringe a tenured professor’s property interest in continued employment, most of the same
issues and evidence would still have to be addressed in connection with termination of the Zoffer
11 Defendant presents no argument to the effect that there is substantial ground for difference in opinion as to
Plaintiff’s property interest in continued occupancy of the Zoffer Chair, and the Court can discern no such ground.
The failure to identify such a ground precludes certification of any question regarding that issue.
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Chair. Moreover, because the Court has entered partial summary judgment for Plaintiff on his due
process claim (Docket Nos. 134, 135), and granted summary judgment against Plaintiff on the rest
of his 13 asserted causes of action (Docket Nos. 140 and 141), all that is left for trial is an
assessment of damages for violation of Plaintiff’s due process right, a narrow matter which can
hardly be termed “protracted and expensive litigation”. Accordingly, the Court concludes that an
immediate appeal as to Defendant’s first question would not materially advance disposition of this
action.
B. What Process was Due
1. Controlling Question of Law
Defendant’s second proposed question is “precisely what process was due under those
circumstances”. Again, this question is too vague to serve as a framework for appeal, as Defendant
does not specify what material circumstances are comprehended in the question.
Moreover, under any circumstances the question of “what process was due” necessitates a
balancing of factors under applicable caselaw, and so presents a mixed question of law and fact
rather than a pure question of law. As the Supreme Court observed in Gilbert,
To determine what process is constitutionally due, we have generally balanced
three distinct factors:
“First, the private interest that will be affected by the official action; second, the
risk of an erroneous deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural safeguards; and
finally, the Government's interest.”
Gilbert, 520 U.S. at 931-32 (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). See also
Gilbert, 520 U.S. at 930 (“[D]ue process is flexible and calls for such procedural protections as
the particular situation demands.”) (brackets in original) (quoting Morrissey v. Brewer, 408 U.S.
471, 481 (1972)); Mathews, 424 U.S. at 334 (same). Cf. Anderson v. Jackson, 2007 WL 4414479,
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at *7 (E.D. La. 2007) (declining to certify question as to which applicable caselaw provides “a
standard with factors to balance in determining whether due process has been provided as opposed
to a steadfast rule of law”). The Court concludes that Defendant’s proposed second question
cannot appropriately function as a controlling question of law for purposes of § 1292(b).
2. Substantial Ground for Difference in Opinion
In Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532 (1985), the Supreme Court held that
prior to termination a public employee must receive “notice of the charges against him, an
explanation of the employer's evidence, and an opportunity to present his side of the story.”
Loudermill, 470 U.S. at 545. In its Memorandum Opinion, this Court applied the same standard
to Plaintiff’s lengthy unpaid suspension, reasoning that “Loudermill’s widely applied standard . .
. ‘sets the minimum’, i.e., the irreducible requisites of notice and an opportunity to be heard.”
(Docket No. 134 at 11). The Court ultimately found the issue of what process was due to be
“governed by Schmidt [v. Creedon, 639 F.3d 587, 597 (3d Cir. 2011)], in which the Third Circuit
stated that . . . an employee suspended without pay is entitled “only” to the Loudermill standard
for pre-deprivation process.” (Docket No. 134 at 11). In its present motion, Defendant simply
ignores this governing Circuit law. And although Defendant asserts that “[t]here is also substantial
disagreement with regard to the type and amount of process due” (Docket No. 137 at 5), it remains
unable to cite any case from any jurisdiction approving of a lesser process than the minimum set
forth in Loudermill for a sanction as severe as a one-year unpaid suspension.12 Indeed, Defendant
does not identify what lesser level of process it contends was due, or even identify any meaningful
12 Defendant emphasizes a Third Circuit case which stated that Loudermill “applies to terminations” and which
parenthetically characterized Gilbert as “suggesting that Loudermill does not apply where the employee faces ‘only
a temporary suspension without pay’”. Williams v. Sch. Dist. of Phila., 2024 WL 1088465, at *3 n.12 (3d Cir. Mar.
13, 2024). However, the quoted language comes from a footnote cursorily addressing what appears to be a “throw-
away” due process claim, appended at the very end of a non-precedential opinion; and notably, the Williams court
did not identify any lesser process that it found to be due in that case.
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process short of what this Court has characterized as Loudermill’s irreducible minimum.13 The
Court concludes that Defendant has not established the existence of a substantial ground for
difference in opinion with respect to its proposed second question.
3. Materially Advance Ultimate Termination
For the same reasons set forth in Part III(A)(3), the Court concludes that an immediate
appeal as to Defendant’s second question would not materially advance disposition of this action.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Certify Order for Interlocutory Appeal
will be denied. An appropriate Order follows.
Dated: October 15, 2026
/s/ Nora Barry Fischer
Nora Barry Fischer
Senior U.S. District Judge
cc/ecf: counsel of record
13 As with Defendant’s property interest question, Defendant presents no argument to the effect that there is
substantial ground for difference in opinion as to the degree of process required in connection with termination of
Plaintiff’s occupancy of the Zoffer Chair, and again the Court can discern no such ground. Again therefore, the
failure to identify such a ground precludes certification of any question regarding that issue.
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