Lewis v. American Express Company

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Sophia Lewis,
Plaintiff,
v.
American Express Company,
Defendant.
No. CV-24-03370-PHX-DWL
ORDER
In December 2019, Plaintiff Sophia Lewis (“Lewis”) filed an administrative
complaint with the United States Department of Labor, Occupational Safety and Health
Administration (“OSHA”) in which she accused her then-employer, Defendant American
Express Company (“Amex”), of engaging in whistleblower discrimination. In August
2020, after being terminated by Amex, Lewis filed another administrative complaint with
OSHA, again accusing Amex of whistleblower retaliation. These complaints were
consolidated and the resulting administrative proceedings stretched on for several years.
In November 2024, while the administrative proceedings were still ongoing, Lewis filed
this action in federal court against Amex pursuant to the so-called “kick-out” provision of
the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley” or “SOX”).
During the early stages of this case, Amex moved to dismiss Lewis’s claims as
untimely. (Doc. 9.) Amex argued that because SOX does not provide a limitations period
for filing a kick-out action, Lewis’s claims are governed by the four-year federal catch-all
statute of limitations in 28 U.S.C. § 1658(a). (Id.) Amex further argued that because
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Lewis’s claims accrued no later than August 2020 (when she was terminated), she needed
to file this lawsuit by August 2024 in order to comply with § 1658(a)—and, thus, her
November 2024 filing came too late. (Id.) In response, Lewis identified three reasons why
Amex’s motion should be denied: “(1) Plaintiff’s [SOX] whistleblower claim is governed
by a statute of limitations already contained in SOX, meaning a 4-year general catch-all
provision does not apply; (2) if the Court did determine a general statute of limitations were
to apply, said statute was properly tolled during the pendency of her administrative
proceedings; and (3) equitable tolling principles further support the timeliness of Plaintiff’s
action under the circumstances of this case.” (Doc. 15 at 2.)
In a July 11, 2025 order, the Court denied Amex’s motion to dismiss. (Doc. 23.)
The Court only reached Lewis’s first argument, agreeing with her that “SOX creates a
limitations period for kick-out actions. Although this limitations period may be a bit
unusual—whereas most federal statutes require an action to be initiated in federal court
within a discrete number of months or years, SOX only creates a discrete time limit for the
initial filing of the administrative complaint and makes the time limit for filing an ensuing
kick-out action contingent on the timing of the resulting administrative process—it is still
a limitations period. As a result, § 1658(a) is, by its own terms, inapplicable—it only exists
to fill gaps ‘except as otherwise provided by law.’” (Id. at 12-13.) Given this
determination, the Court declined to reach Lewis’s alternative grounds for opposing
dismissal. (Id. at 16 n.9 [“The conclusion that § 1658(a) is inapplicable makes it
unnecessary to address the parties’ arguments regarding equitable tolling.”].)
Now pending before the Court is Amex’s motion to certify the denial of its motion
to dismiss for interlocutory appeal under 28 U.S.C. § 1292(b). (Doc. 26.) After the motion
became fully briefed (Docs. 30, 31), the Court issued a tentative ruling (Doc. 38) and held
oral argument (Doc. 39).
For the reasons that follow, Amex’s certification request is granted. However,
Amex’s related request for a stay of discovery pending appeal is denied.
…
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DISCUSSION
I. Legal Standard
28 U.S.C. § 1292(b) provides in relevant part as follows:
When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order involves
a controlling question 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, he shall so state
in writing in such order.
Id. As the Ninth Circuit has explained, “Section 1292(b) provides a mechanism by which
litigants can bring an immediate appeal of a non-final order upon the consent of both the
district court and the court of appeals.” In re Cement Antitrust Litig., 673 F.2d 1020,
1025-26 (9th Cir. 1981). To grant a § 1292(b) motion, a district court must find “that the
certification requirements of the statute have been met. These certification requirements
are (1) that there be a controlling question of law, (2) that there be substantial grounds for
difference of opinion, and (3) that an immediate appeal may materially advance the
ultimate termination of the litigation.” Id. at 1026. However, “[e]ven when all three
statutory criteria are satisfied, district court judges have unfettered discretion to deny
certification.” Brizzee v. Fred Meyer Stores, Inc., 2008 WL 426510, *3 (D. Or. 2008)
(citation omitted). See also Exec. Software N. Am., Inc. v. U.S. Dist. Court for Cent. Dist.
of Cal., 424 F.3d 1545, 1550 (9th Cir. 1994) (“[T]he district court must agree to certify
[an] order (a decision that itself is unreviewable) . . . .”); Heaton v. Soc. Fin., Inc., 2016
WL 232433, *2 (N.D. Cal. 2016) (“The decision to certify an order for interlocutory appeal
is committed to the sound discretion of the district court.”) (internal quotation marks
omitted).
Section 1292(b) is “to be used only in exceptional situations in which allowing an
interlocutory appeal would avoid protracted and expensive litigation.” In re Cement
Antitrust Litig., 673 F.2d at 1026. District courts should certify non-final orders under
§ 1292(b) only in “rare circumstances,” and “[e]ven where the district court makes such a
certification, the court of appeals nevertheless has discretion to reject the interlocutory
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appeal, and does so quite frequently.” James v. Price Stern Sloan, Inc., 283 F.3d 1064,
1067 n.6 (9th Cir. 2002). See also ICTSI Oregon, Inc. v. Int’l Longshore & Warehouse
Union, 22 F.4th 1125, 1131 (9th Cir. 2022) (“The appellant has the burden of persuading
the court of appeals that exceptional circumstances justify a departure from the basic policy
of postponing appellate review until after the entry of a final judgment. Although there is
little guiding that discretion in the text of § 1292(b) or our caselaw, it has been compared
to the discretion the Supreme Court enjoys when reviewing petitions for certiorari. For
example, this court may decline to exercise jurisdiction for reasons having little to do with
the appeal itself, such as docket congestion. Indeed, it need not offer any reason at all.”)
(cleaned up).
II. Analysis
Amex seeks to certify the following issue for interlocutory review: “[W]hether the
default four-year statute of limitations of 28 U.S.C. § 1658(a) applies to de novo actions
for whistleblower discrimination in violation of the Sarbanes-Oxley Act of 2002, 18 U.S.C.
§ 1514A(a).” (Doc. 26 at 1.)
A. Controlling Question Of Law
1. The Parties’ Arguments
Amex contends the proposed issue presents a “controlling question of law” because
(1) it raises a purely legal question of statutory interpretation; and (2) if resolved in Amex’s
favor, it would result in the termination of this case. (Doc. 26 at 4-5.) Amex also cites
various authorities suggesting that statute-of-limitations issues qualify as “classic”
examples of controlling questions of law suitable for certification under § 1292(b). (Id.)
In response, Lewis does not dispute that the issue identified by Amex is a “question
of law” but argues this issue is not “controlling.” (Doc. 30 at 5-8.) According to Lewis,
even if Amex is correct about § 1658(a)’s applicability, this lawsuit would still be timely
because (1) due to SOX’s administrative exhaustion requirement, her claims did not accrue
until 180 days after she filed her last administrative complaint (i.e., until February 2021),
so her filing of this lawsuit in November 2024 would be timely even assuming that
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§ 1658(a)’s four-year limitations period applies; and alternatively (2) she is entitled to
equitable tolling for at least some portion of the time that her administrative proceedings
were ongoing, which would also render her November 2024 lawsuit timely even assuming
that § 1658(a)’s four-year limitations period applies. (Id.)
In reply, Amex argues that “a question is no less controlling just because the would-
be appellee throws multiple fallback arguments against the wall—especially not when
those fallback arguments are waived and meritless, as they are here.” (Doc. 31 at 1.) Amex
emphasizes that a question “need not necessarily be ‘dispositive’ to be controlling within
the meaning of § 1292(b)” and that even if Lewis’s first fallback argument is correct, it
would only rescue a subset of her claims. (Id. at 3-5.) Amex also contends that Lewis’s
alternative arguments fail on the merits and, at a minimum, that Lewis may simply request
to expand the scope of the certification order to include those arguments. (Id. at 5-8.)
2. Analysis
The Court agrees with Amex that the proffered issue qualifies as a “question of
law”—it presents a pure question of statutory interpretation. The dispute turns on whether
this issue also qualifies as “controlling” in light of Lewis’s identification of two alternative
reasons why her lawsuit may wholly or at least partially survive dismissal even if the
proffered issue is resolved in Amex’s favor on appeal.
As an initial matter, the Court rejects Amex’s contention that Lewis forfeited her
ability to raise these arguments as a basis for opposing certification because she “did not
make any of her now-asserted fallback arguments in her opposition to the motion to
dismiss, despite having every reason and opportunity to do so.” (Doc. 31 at 2.) In fact,
Lewis expressly raised alternative arguments in her opposition to the motion to dismiss:
“The Motion should be denied because: (1) Plaintiff’s [SOX] whistleblower claim is
governed by a statute of limitations already contained in SOX, meaning a 4-year general
catch-all provision does not apply; (2) if the Court did determine a general statute of
limitations were to apply, said statute was properly tolled during the pendency of her
administrative proceedings; and (3) equitable tolling principles further support the
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timeliness of Plaintiff’s action under the circumstances of this case.” (Doc. 15 at 2,
emphasis added.) Admittedly, Lewis did not develop these arguments in much (if any)
depth in the body of her opposition brief, but she still raised them.
Turning to the merits, “[a] controlling question of law must be one of law—not
fact—and its resolution must materially affect the outcome of litigation in the district
court.” ICTSI Oregon, Inc., 22 F.4th at 1130.1 The Court will confess that it finds the
Ninth Circuit’s existing caselaw on the meaning of this standard to be less than fully
illuminating. See generally Sierra Foothills Public Utility Dist. v. Clarendon Am. Ins. Co.,
2006 WL 2085244, *2 (E.D. Cal. 2006) (“The Ninth Circuit’s guidance as to what
constitutes a controlling question of law is minimal.”). On the one hand, the Ninth Circuit
“do[es] not hold that a question brought here on interlocutory appeal must be dispositive
of the lawsuit in order to be regarded as controlling.” United States v. Woodbury, 263 F.2d
784, 786 (9th Cir. 1959). See also Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681,
688 (9th Cir. 2011) (“[N]either § 1292(b)’s literal text nor controlling precedent requires
that the interlocutory appeal have a final, dispositive effect on the litigation, only that it
‘may materially advance’ the litigation.”). On the other hand, the Ninth Circuit has
emphasized that, at least in the context of jurisdictional and statute-of-limitations issues,
certification is “intended primarily” to be allowed only where the certified issue is
dispositive: “Section 1292(b) was intended primarily as a means of expediting litigation by
permitting appellate consideration during the early stages of litigation of legal questions
which, if decided in favor of the appellant, would end the lawsuit. Examples of such
questions are those relating to jurisdiction or a statute of limitations which the district court
has decided in a manner which keeps the litigation alive but which, if answered differently
on appeal, would terminate the case.” Woodbury, 263 F.3d at 787.
Adding to the conceptual difficulty is the overlay of the third required element under
1 Other Ninth Circuit decisions frame the inquiry as whether the resolution of the
certified issue “could” materially affect the outcome of the litigation. In re Cement
Antitrust Litig., 673 F.2d at 1026 (“[A]ll that must be shown in order for a question to be
‘controlling’ is that resolution of the issue on appeal could materially affect the outcome
of litigation in the district court.”).
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§ 1292(b) (i.e., that an immediate appeal may materially advance the ultimate termination
of the litigation). Because this element must operate independently from the “controlling
question of law” element, the Ninth Circuit has held that an issue does not qualify as
“controlling” simply because its immediate resolution may appreciably shorten the time,
effort, or expense of conducting a lawsuit:
Some courts have adopted the view that a question is controlling if it is one
the resolution of which may appreciably shorten the time, effort, or expense
of conducting a lawsuit, thus essentially reading the “controlling question of
law” requirement out of section 1292(b). We reject this approach. Congress
could easily have chosen only to require that a question materially advance
the litigation in order for it to be immediately reviewable. Since Congress
chose to add the additional requirement that the issue for which review is
sought must be a “controlling question of law,” it would be improper for us
to construe the statute as though these two requirements were
interchangeable.
In re Cement Antitrust Litig., 673 F.2d at 1027.
At any rate, the Court concludes that Amex’s proffered issue qualifies as
“controlling.” Although Lewis identifies two alternative reasons why her claims may not
be subject to dismissal even if the proffered issue is resolved in Amex’s favor on appeal,
this at most shows that the proffered issue is not necessarily dispositive. But as noted, the
Ninth Circuit does not require an issue to be “dispositive” in order to qualify as
“controlling”—instead, the issue must simply “materially affect the outcome of the
litigation” in the district court. That standard is satisfied here—a statute-of-limitations
ruling that has the potential to end the litigation, and at a minimum may significantly curtail
the scope of the litigation, is properly characterized as a ruling that “materially affect[s] the
outcome.” See, e.g., Fed. Energy Reg. Comm’n v. Vitol Inc., 2022 WL 583998, *2 (E.D.
Cal. 2022) (“The controlling question requirement does not require that reversal of the
district court’s order terminate the litigation. . . . In light of this standard, the limitations
period is a ‘controlling’ question. If the Ninth Circuit agrees with defendants, FERC’s
claim would be time barred. FERC contends otherwise, noting it advanced two other
arguments for timeliness, which the court did not address in its previous order. Ninth
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Circuit precedent is clear, however, that a controlling question of law need not be
dispositive of the lawsuit.”) (cleaned up); Allstate Ins. Co. v. Nassiri, 2012 WL 3879887,
*2-3 (D. Nev. 2012) (concluding that “[c]learly, the effect a statute of limitations has on a
case is a controlling question of law, as any claims falling outside of the four-year statute
would be precluded from litigation,” even though not all of the claims in the case were
subject to the statute-of-limitations defense). See also Doe 1 v. Github, Inc., 2024 WL
4336532, *1 (N.D. Cal. 2024) (concluding that statutory interpretation issue qualified as a
“controlling” issue of law even though the case would go forward regardless of its
resolution). Furthermore, although Woodbury seems to suggest that statute-of-limitations
issues should ordinarily be dispositive to qualify as “controlling,” it does not hold that they
always must be dispositive to so qualify.
Finally, as Amex notes, the Ninth Circuit may have discretion to reach (or not reach)
the merits of Lewis’s alternative arguments regarding delayed accrual and equitable tolling
if it agrees to accept jurisdiction over the certified question. Deutsche Bank Nat. Trust Co.
v. F.D.I.C., 744 F.3d 1124, 1134 (9th Cir. 2014) (“An appellate court’s interlocutory
jurisdiction under 28 U.S.C. § 1292(b) permits it to address any issue fairly included within
the certified order because it is the order that is appealable, and not the controlling question
identified by the district court.”) (cleaned up); Angle v. United States, 709 F.2d 570, 573
(9th Cir. 1983) (“[W]e can affirm a ruling on any ground supported by the record . . . .
Thus we conclude that we can consider the breach of trust theory as a ground for upholding
jurisdiction under the Tucker Act, even though the appeal here is interlocutory . . . . We
can think of no good reason why the rule should not apply when we consider a question
that is properly before us under 28 U.S.C. § 1292(b). Myers was a § 1292(b) appeal in
which the winning party on the issue below had not ‘focused’ on appeal on the alternate
ground favored by the court of appeals.”) (citations omitted). See also Reese, 643 F.3d at
689 (“An appellee is well-advised, in seeking interlocutory review of issues not certified,
to file a Rule 5(b)(2) cross-petition.”). The potential for such review underscores why the
“controlling” element is satisfied here.
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B. Substantial Grounds For Difference Of Opinion
1. The Parties’ Arguments
Amex contends there are substantial grounds for difference of opinion regarding its
proffered issue because “the Ninth Circuit has not determined what limitations period
governs kick-out actions under the Sarbanes-Oxley Act” and because “jurists can
reasonably disagree—and indeed, have disagreed—about whether the four-year default
limitations period applies.” (Doc. 26 at 5.) As it did in its motion to dismiss, Amex
contends that a decision from the Fourth Circuit, a decision by a district court in the Central
District of California, and a brief from the Department of Labor support its interpretation.
(Id. at 5-7.) Amex concludes that even if these authorities “are read to not squarely address
the question here, they at least highlight the possibility that fair-minded jurists may
disagree with the Court’s conclusion on these similar issues, and that is good enough.” (Id.
at 7, cleaned up.)
In response, Lewis argues there is no substantial ground for difference of opinion
because “[a] single out-of-circuit case doesn’t suffice, especially if intra-circuit precedent
aligns.” (Doc. 30 at 8-9.) Lewis concludes: “Here, the Fourth Circuit stands alone, not
warranting certification.” (Id. at 9.)
In reply, Amex argues that “Lewis is wrong . . . that ‘the Fourth Circuit stands
alone’—though that would be enough. Lewis forgets that a district court in this Circuit has
also held that § 1658(a) applies to kick-out actions under the Sarbanes-Oxley Act.” (Doc.
31 at 8.) Amex also reiterates its arguments as to why the Fourth Circuit decision is enough
to satisfy the second certification element. (Id. at 8-9.)
2. Analysis
“To determine if a ‘substantial ground for difference of opinion’ exists under
§ 1292(b), courts must examine to what extent the controlling law is unclear.” Couch v.
Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010). “Courts traditionally will find that a
substantial ground for difference of opinion exists where the circuits are in dispute on the
question and the court of appeals of the circuit has not spoken on the point, if complicated
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questions arise under foreign law, or if novel and difficult questions of first impression are
presented.” Id. (internal quotation marks omitted). “A substantial ground for difference
of opinion exists where reasonable jurists might disagree on an issue’s resolution, not
merely where they have already disagreed. Stated another way, when novel legal issues
are presented, on which fair-minded jurists might reach contradictory conclusions, a novel
issue may be certified for interlocutory appeal without first awaiting development of
contradictory precedent.” Reese, 643 F.3d at 688. However, “just because a court is the
first to rule on a particular question . . . does not mean there is such a substantial difference
of opinion as will support an interlocutory appeal.” Couch, 611 F.3d at 633 (citation
omitted).
The Court agrees with Amex that substantial grounds for difference of opinion exist
with respect to the proffered issue. The July 11, 2025 order speaks for itself on this topic:
“The Ninth Circuit has not directly addressed this issue and each side cites non-binding
cases that reach contradictory conclusions.” (Doc. 23 at 10.) The July 11, 2025 order also
acknowledged that “Amex understandably views . . . Jones . . . as supporting its position
here” before proceeding to explain why that reliance was misplaced. (Id. at 14.) Where,
as here, a pure issue of law has not been addressed by the Ninth Circuit and has generated
a split in authority among other courts, the second requirement under § 1292(b) is satisfied.
C. Materially Advance The Ultimate Termination Of The Litigation
1. The Parties’ Arguments
The parties’ arguments regarding the third element largely track their arguments
regarding the first element. Amex argues that the third element is satisfied “[f]or
substantially the same reasons that the issue here constitutes a controlling issue of law” and
contends that “a holding from the Ninth Circuit that Lewis’s claims are time-barred would
avoid protracted and expensive litigation and end the lawsuit.” (Doc. 26 at 7-8, cleaned
up.)
In response, Lewis once again argues that “[r]eversal would not terminate the action,
given the alternative timeliness and equitable tolling arguments.” (Doc. 30 at 9.)
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In reply, Amex reiterates that “a ruling that § 1658(a)’s four-year limitations period
applies will not only materially advance the litigation, it will also guarantee its termination,
for all of Lewis’s claims were filed after four years, and Lewis has waived any argument
that her claims are nevertheless timely” and “[a]t minimum, such a ruling could bar the
whole suit and will bar at least some of Lewis’s claims.” (Doc. 31 at 9.)
2. Analysis
“The ‘materially advance’ prong is satisfied when the resolution of the question may
appreciably shorten the time, effort, or expense of conducting the district court
proceedings.” ICTSI Oregon, Inc., 22 F.4th at 1131 (cleaned up). As many courts have
noted, this inquiry “is closely related to the question of whether an issue of law is
‘controlling’ in that the district court should consider the effect of a reversal on the
management of the case.” Lakeland Village Homeowners Ass’n v. Great American Ins.
Grp., 727 F. Supp. 2d 887, 896 (E.D. Cal. 2010) (cleaned up). See also Biederman v. FCA
US LLC, 2025 WL 1266907, *5 (N.D. Cal. 2025) (“Some district courts analyze this prong
in conjunction with the first prong. And this makes sense, considering both prongs look to
the materiality of the interlocutory appeal’s impact on the case.”).
The Court agrees with Amex that resolution of the proffered question may
materially advance the ultimate termination of the litigation. As discussed in Part II.A
above, the requested ruling has the potential to end the litigation and at a minimum may
significantly curtail the scope of the litigation.
To be clear, certification will not always be appropriate in a case involving a
controlling question of law regarding a statute-of-limitations issue. In Nassiri, although
the district court found that the first element under § 1292(b) was satisfied because
“[c]learly, the effect a statute of limitations has on a case is a controlling question of law,
as any claims falling outside of the four-year statute would be precluded from litigation,”
the court found that the third element under § 1292(b) was not satisfied because even if
“the Ninth Circuit accepted the appeal, and the Ninth Circuit reversed the court’s order
denying the motion for summary judgment, there would still be three claims that would be
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left to be litigated. Therefore, reversal of the court’s order would not end the litigation
. . . . Further, this matter has been litigated, as the parties are well aware, for four years
and the parties have recently submitted a joint pretrial order pursuant to court order. Thus,
based on the current stage of litigation, an appeal on this matter will not appreciably shorten
the time, effort or expense of conducting the lawsuit.” Nassiri, 2012 WL 3879887 at *2-3
(cleaned up). But those considerations are not present here—all of Lewis’s claims are
potentially subject to the statute-of-limitations issue that Amex seeks to certify and Amex
raised that issue, and then sought certification, at the very beginning of the case, before
discovery even began. Courts have concluded that certification is appropriate under
analogous circumstances. Mosteiro v. Simmons, 2022 WL 4483987, *6 (E.D. Cal. 2022)
(“[T]he Court’s ruling on the statute of limitations issue involves a controlling question of
law . . . [and] resolution of an interlocutory appeal will wholly advance this case, which is
still in its early stages with no imminent trial date, because whether Plaintiff is entitled to
tolling . . . will be dispositive as to whether Plaintiff's case will move forward or be
dismissed. As a result, Defendant's request for an order for interlocutory appeal is
GRANTED.”).
D. Discretion
1. The Parties’ Arguments
Amex identifies three reasons why the Court should exercise its discretion to allow
certification: (1) “[s]tatute of limitations questions like this one are especially deserving of
interlocutory consideration,” both because such review will “serve[] judicial economy” and
because statute of limitations questions often “evade appellate review,” which “may
explain why there are not more circuit-level decisions on the question”; (2) a ruling in
Amex’s favor could “spare countess defendants expensive, time-consuming litigation—
and the pressure to settle that comes with it”; and (3) “[t]he limitations period here is
‘unusual’” and “presents just the kind of clean, novel legal issue the Ninth Circuit should
have a chance to address.” (Doc. 26 at 8-9.)
In response, Lewis does not specifically address the discretionary nature of
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certification. However, Lewis does raise the concern that “[t]o adopt Amex’s position
would result in an inundation of interlocutory aspirations in multitudes of statute of
limitations rulings by district judges.” (Doc. 30 at 5.)
In reply, Amex contends: “Lewis does not deny the importance of the question
presented for certification. Nor could she. [SOX] is landmark federal legislation, and
discrimination claims are common. Nor does Lewis deny that the answer to the limitations
question may long elude resolution by the Ninth Circuit absent an interlocutory appeal. . . .
Lewis warns of ‘an inundation of interlocutory aspirations in multitudes of statute of
limitations rulings by district judges.’ But only the rarest limitations rulings will raise
unresolved questions of the meaning of federal law that have divided courts across the
country, as [the July 11, 2025] Order does.” (Doc. 31 at 9-10.)
2. Analysis
As noted, “district court judges have unfettered discretion to deny certification,”
“[e]ven when all three statutory criteria are satisfied.” Brizzee, 2008 WL 426510 at *3
(citation omitted). Even so, the Court concludes that certification is appropriate here. As
discussed in earlier portions of this order, the proffered issue raises a somewhat novel
question of law that has generated conflicting results both within and outside the Ninth
Circuit. If resolved in Amex’s favor, the issue has the potential to end, or at least
significantly limit, this case. Although certification under § 1292(b) must, of course, be
rare and reserved for exceptional cases, it is hard to think of an issue more suited for
interlocutory review than a pure question of law related to a potentially dispositive statute-
of-limitations defense raised at the very outset of the case. See, e.g., SEC v. Rind, 991 F.2d
1486, 1488 (9th Cir. 1993) (“The district court held that the Commission was not bound
by a statute of limitations . . . . We have jurisdiction over this timely appeal pursuant to 28
U.S.C. § 1292(b).”); Vitol Inc., 2022 WL 583998 at *1, *4 (choosing to “exercise its
discretion to certify an interlocutory appeal under 28 U.S.C. § 1292(b)” where the disputed
issue was “whether FERC’s complaint was filed after the statutory limitations period had
expired”); Mosteiro, 2022 WL 4483987 at *6 (same). See also Woodbury, 263 F.2d at 787
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(“Section 1292(b) was intended primarily as a means of expediting litigation by permitting
appellate consideration during the early stages of litigation of legal questions which, if
decided in favor of the appellant, would end the lawsuit. Examples of such questions are
those relating to . . . a statute of limitations which the district court has decided in a manner
which keeps the litigation alive but which, if answered differently on appeal, would
terminate the case.”).
E. Stay Pending Appeal
1. The Parties’ Arguments
In the final portion of its motion, Amex argues that “[i]f the Court certifies its Order
for interlocutory appeal, it should also suspend all existing deadlines and proceedings in
this Court pending disposition of any further appellate proceedings.” (Doc. 26 at 9.)
“Without a stay pending resolution of an interlocutory appeal, the parties and the court will
expend substantial resources, potentially all for naught.” (Id.) Amex contends a stay is
particularly warranted because Lewis previously engaged in “extremely wasteful” conduct,
by litigating in the administrative forum for many years before filing this kick-out action
just as the administrative proceedings were about to be resolved in Amex’s favor, and thus
a stay “would stop Lewis from further wasting time and resources.” (Id.)
In her response to the certification motion, Lewis does not specifically address the
stay request. (Doc. 30.) However, in her response to a subsequent request for a temporary
stay of discovery filed by Amex, Lewis argues that discovery should proceed even if
certification is granted. (Doc. 35 at 4-9.) According to Lewis, this is because the applicable
test under Nken v. Holder, 557 U.S. 418 (2009), requires the party seeking a stay pending
appeal to establish both a likelihood of success on the merits (which Amex cannot establish
and has not even attempted to establish) and that the movant will suffer irreparable injury
absent a stay (which Amex has not even attempted to establish). (Id.) Lewis further
contends that she will suffer harm from a stay, as “[i]n a whistleblower retaliation case
such as this, discovery delays are particularly prejudicial to the Plaintiff who carries the
burden of proof,” and that the scope of discovery will, in any event, “be more targeted
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given prior productions in the agency proceeding.” (Id.)
In its reply in support of its certification motion, Amex contends: “[S]tays are
commonly granted pursuant to ‘the power inherent in every court to control the disposition
of the causes on its docket with economy of time and effort for itself, for counsel, and for
litigants.’” (Doc. 31 at 10, quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936).)
2. Analysis
As noted, Lewis argues that the Nken standard governs Amex’s request for a stay of
discovery pending appeal while Amex argues that the Landis standard should apply in this
context. Although the tentative ruling issued accepted Lewis’s position on this point, the
Court now concludes, upon reflection and with the benefit of oral argument, that Amex is
correct. See generally Kuang v. U.S. Dep’t of Defense, 2019 WL 1597495, *2-3 (N.D. Cal.
2019) (noting that “district courts in this circuit have catalogued a divide regarding the
appropriate standard by which a district court is to exercise its discretion in whether to
grant a stay pending an interlocutory appeal” and that “the Ninth Circuit has not addressed
which test applies here” before concluding that “the relevant considerations here are more
akin to those the Landis test is designed to address”) (cleaned up); Finder v. Leprino Foods
Co., 2017 WL 1355104, *2-3 (E.D. Cal. 2017) (noting the “split in authority” on this issue
before concluding that the court would “apply the Landis factors in determining whether
to impose a stay”).
Landis recognizes that “the power to stay proceedings is incidental to the power
inherent in every court to control the disposition of the causes on its docket with economy
of time and effort for itself, for counsel, and for litigants.” Landis, 299 U.S. at 254. When
deciding whether to issue a Landis stay, courts must weigh “competing interests,” which
include “the possible damage which may result from the granting of a stay, the hardship or
inequity which a party may suffer in being required to go forward, and the orderly course
of justice measured in terms of the simplifying or complicating of issues, proof, and
questions of law which could be expected to result from a stay.” Lockyer v. Mirant Corp.,
398 F.3d 1098, 1110 (9th Cir. 2005) (quoting CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th
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Cir. 1962)). “The proponent of a stay bears the burden of establishing its need.” Clinton
v. Jones, 520 U.S. 681, 708 (1997). “If there is even a fair possibility that the stay will
work damage to someone else, the party seeking the stay must make out a clear case of
hardship or inequity.” Percy v. United States, 2016 WL 7187129, *2 (D. Ariz. 2016)
(cleaned up).
The stay analysis presents a close call. On one side of the ledger, the absence of a
stay could cause Amex to suffer hardship or inequity in the form of unnecessary discovery
costs. If Amex is correct about all of the disputed statute-of-limitations issues, there would
be no need for any discovery in this case. On the other side of the ledger, forcing Lewis to
forgo discovery for months or years while the interlocutory appeal is pending could cause
her to sustain harm. During that period, memories may fade and documents may
disappear—developments that would not be cured by reopening discovery following a
ruling in her favor by the Ninth Circuit. And because Lewis is the party with the burden
of proof, she may be disproportionately damaged by those developments. Furthermore,
Lewis has identified reasons why even if the Ninth Circuit rules in Amex’s favor on the
proposed certified issue, such a ruling may not be fully dispositive.
The stay calculus here must also account for a unique consideration—the fact this
action was preceded by years of related proceedings between the parties in an
administrative forum. During oral argument, Amex suggested these earlier proceedings
bolster the case for a stay, because they show that Lewis already had ample opportunity to
examine witnesses under oath and obtain relevant documents (and, thus, she would not be
harmed by pausing further discovery pending the Ninth Circuit’s ruling). In response,
Lewis identified several important witnesses who were not examined during the
administrative proceedings. Lewis also stated (although this point appears to be disputed
by Amex) that certain documents were not produced by Amex during the administrative
proceedings. Finally, Lewis avowed (although this point was also disputed by Amex) that
despite her need to follow up as to certain witnesses and documents, the overall scope of
discovery in this action will be less expansive than in a typical case because she has no
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intention of issuing duplicative demands for materials that were previously produced.
In light of all of these considerations, and again acknowledging that the issue
presents a close call, the Court concludes a stay of discovery is not warranted. Most
important, Lewis has established a “fair possibility” that she will be damaged by a stay.
Percy, 2016 WL 7187129 at *2. This possibility of harm arises from her desire to depose,
without further delay, certain key witnesses who were not examined during the
administrative proceedings (and who will be asked to testify about events that happened
many years ago). Amex thus bears the burden of “‘mak[ing] out a clear case of hardship
or inequity.’” Id. (citation omitted). Amex has not done so, particularly given that the
scope of discovery is likely to be less expansive than in a typical lawsuit. This outcome
may not achieve all of the efficiencies that the certification process offers, but it represents,
in the Court’s view, the best way to balance the competing interests at stake here.
Accordingly,
IT IS ORDERED that:
1. Amex’s motion for an order permitting interlocutory appeal (Doc. 26) is
granted in part and denied in part. More specifically, the Court grants Amex permission
to appeal from the July 11, 2025 order denying Amex’s motion to dismiss but denies
Amex’s request to suspend all deadlines and stay proceedings in this Court pending
Amex’s pursuit of the interlocutory appeal.
2. The parties are directed to meet, confer, and develop a Rule 26(f) Joint Case
Management Report, which must be filed within 14 days of the date of this order. It is
Lewis’s responsibility to initiate the Rule 26(f) meeting and preparation of the Joint Case
Management Report. Amex shall promptly and cooperatively participate in the Rule 26(f)
meeting and assist in preparation of the Joint Case Management Report.
Dated this 5th day of November, 2025.
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