ROGERS, Circuit Judge.
Defendant Louisville Gas & Electric brings this interlocutory appeal pursuant to 28 U.S.C. § 1292(b) challenging the district court's order refusing to dismiss state law nuisance, trespass, and negligence claims that defendant argued were preempted by the federal Clean Air Act. That order must be affirmed under today's holding in the companion interlocutory appeal of Merrick, et al. v. Diageo Americas Supply, Inc., 14-6198. Plaintiffs additionally challenge the district court's adverse interlocutory orders regarding distinct federal law claims, without having cross-petitioned for interlocutory appeal under 28 U.S.C. § 1292(b) with respect to those orders. We lack jurisdiction to review those distinct interlocutory orders, even though they were handed down in the same document as the order properly appealed from.
The district court summarized the facts underlying this appeal as follows:
Little v. Louisville Gas & Elec. Co., 33 F.Supp.3d 791, 796-97 (W.D. Ky. 2014) (citations and some abbreviations amended). In all, plaintiffs' complaint featured nine counts. Counts I and II alleged past and ongoing violations of RCRA. Count III alleged past and ongoing violations of the Clean Air Act. The remaining counts in the complaint sought damages under state common law doctrines including nuisance, trespass, and negligence.
In a "Memorandum and Order" issued on July 17, 2014, the district court dismissed all of plaintiffs' federal law claims except the claim that defendants were operating Cane Run without a valid Clean Air Act permit. Id. at 798-814. In the same "Memorandum and Order," the district court rejected defendants' argument that the Clean Air Act preempted plaintiffs' state common law claims. Id. at 814-17.
The district court certified for interlocutory appeal "the portion of its July 17, 2014 Memorandum Opinion and Order that denied Defendants' motion to dismiss Plaintiffs' state common law claims on preemption grounds under the Clean Air Act." A panel of this court granted the appeal pursuant to 28 U.S.C. § 1292(b), stating:
On appeal, defendants contest the district court's denial of their motion to dismiss, on preemption grounds, plaintiffs' state law claims, while plaintiffs contest the district court's dismissal of their federal law claims.
Defendants' Clean Air Act preemption arguments are disposed of by our decision in Merrick v. Diageo Americas Supply, No. 14-6198. Plaintiffs' state common law claims are not materially distinguishable from the state common law claims raised in Merrick. For the reasons set forth in that opinion, the Clean Air Act does not preempt plaintiffs' state common law claims.
We lack jurisdiction to consider plaintiffs' challenge to the district court's orders that dismissed most of plaintiffs' federal law claims. Under 28 U.S.C. § 1292(b), this court has jurisdiction to
It is true that the last paragraph of the motions panel's order granting defendants leave to appeal included a statement that the parties could brief "any issues fairly included within [the district court's July 17, 2014 Memorandum and Order]." While perhaps subject to a broader reading, the language can have referred only, for example, to threshold issues or different arguments regarding the order appealed from, and not to different orders regarding different claims under different statutes, even if the distinct orders were contained in a single document entitled "Order." Indeed, the district court made explicit that its certification extended only to "the portion of its July 17, 2014 Memordndum Opinion and Order that denied Defendants' motion to dismiss Plaintiffs' state common law claims on preemption grounds under the Clean Air Act."
We recognize of course that a district court's certification of an order as containing a controlling question of law permits appellate consideration of other legal questions that are presented by the certified order. See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 204, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996). But additional legal questions implicated in one order are different from additional orders that are included in one document that happens to be labeled "order." Yamaha involved the former, an "anterior issue" that was "pivotal" with respect to the certified order. Id. Plaintiffs' arguments in this case involve the latter.
Allowing interlocutory appeal of directions or commands in a district court opinion, for the formal reason that the district court labeled the opinion an "Order," would be inconsistent with the purpose of § 1292(b). That purpose—permitting appellate courts to timely resolve disputed, controlling legal questions when doing so might avoid the need for protracted and expensive litigation—serves the twin aims of judicial and party economy. See 16 Charles A. Wright et al., Federal Practice and Procedure § 3929 (3d ed. 2012). The purpose is plainly not furthered by interpreting § 1292(b) to require appellate review of every direction or command given in a district court opinion when only one of those directions or commands "involves a controlling question of law as to which there is substantial ground for difference of opinion," the resolution of which on appeal "may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). Plaintiffs could have cross-petitioned for interlocutory appeal of the orders they now challenge. See Fed. R.App. P. 5(b). That would have given the district court and this court the opportunity to evaluate whether interlocutory appeal of the district
Other circuits have similarly interpreted the word "order" in § 1292(b) to mean a district court's direction or command resolving a discrete motion or claim. In Homeland. Stores, Inc. v. Resolution Trust Corp., 17 F.3d 1269, 1271 (10th Cir.1994), for example, the defendant in a contract case sought dismissal on the grounds that a statute precluded jurisdiction over the damages claim, and in addition that injunctive relief was not available. The district court indicated that injunctive relief was not available, but that jurisdiction was not precluded. Id. The district court certified the jurisdiction issue for interlocutory appeal, but specifically declined to certify the question of whether injunctive relief was available, although the court had discussed the issue in the same document. Id. The court of appeals subsequently refused to reach the injunctive relief issue, reasoning as follows:
Id. at 1271-72 (internal citations omitted).
FDIC v. Dye, 642 F.2d 833 (5th Cir. Unit B Apr.1981), is similar. The district court in that case had denied the petitioner's motion for summary judgment on four counterclaims raised by the respondent. Id. at 835. Although the district court had certified just one of those rulings for interlocutory appeal, the petitioner sought review of the district court's rulings with respect to all four counterclaims. Id. at 836-37. The Fifth Circuit rejected the petitioner's attempt to appeal the uncertified rulings, noting that "we have not accepted [those rulings] for appeal pursuant to § 1292(b)." Id. at 837. The Fifth Circuit further explained that
Id. at 837 n. 6. The reasoning of the Tenth and Fifth Circuits in these cases supports the conclusion that we lack jurisdiction to consider the plaintiffs' challenges to the dismissal of federal law claims on this interlocutory appeal.
The district court's order denying defendants' motion to dismiss plaintiffs' state common law claims is affirmed. We lack jurisdiction to consider the other, unrelated orders challenged by the plaintiffs in their brief on this interlocutory appeal.