United States District Court, M.D. Florida, Tampa Division
S. MOODY, JR. UNITED STATES DISTRICT JUDGE
CAUSE comes before the Court upon Defendant Navient
Solutions, LLC's Motion for Certification of
Interlocutory Appeal (Dkt. 27) and Plaintiff's Response
in Opposition (Dkt. 31). The Court, upon review of the
motion, response, and being otherwise advised in the
premises, concludes that the motion should be denied.
December 12, 2016, Plaintiff filed this action against
Defendant Navient Solutions, LLC, alleging violations of the
Telephone Consumer Protection Act, 47 U.S.C. §§
227, et seq. (“TCPA”) and the Florida
Consumer Collection Practices Act (“FCCPA”).
Defendant is a servicer of student loans, including federal
student loans that are owned or guaranteed by the United
States Department of Education (“ED”). As part of
its servicing function, Defendant makes calls and sends
letters to borrowers to collect on delinquent loan amounts
and advise them of available repayment options.
alleges Defendant began calling her cellular phone in 2015,
up to four times per day with respect to her delinquent
Federal Consolidation student loan. In January 2016,
Plaintiff verbally revoked her consent to be contacted by
cellular phone. Plaintiff contends that Defendant called her
approximately one hundred times after
Plaintiff's first January 2016 revocation.
moved for partial summary judgment on the TCPA claim, arguing
that calls made to collect governmentally insured debts were
no longer governed by the TCPA. The Court denied
Defendant's motion based, in relevant part, on the
Federal Communications Commission's (“FCC”)
August 11, 2016 Report and Order in CG Docket No. 02-278, FCC
16-99, which made clear that federal government callers and
contractors making these calls on behalf of the federal
government could not continue to call the debtor after the
debtor requested that the calls cease. See In the Matter
of Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, 31 FCC Rcd. 9074, 9088-92 (Aug.
11, 2016). The Court noted that “FCC final orders are
binding on this Court if they directly speak to a particular
issue.” (Dkt. 24) (citing Mais v. Gulf Coast
Collection Bureau, Inc., 768 F.3d 1110, 1119 (11th Cir.
2014) (holding that, under the Hobbs Act, the federal courts
of appeals are the exclusive venue for challenging FCC
now seeks permission to file an interlocutory appeal of the
Court's order denying its motion for partial summary
judgment. Under 28 U.S.C. § 1292(b):
[w]hen 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. The
Court of Appeals which would have jurisdiction of an appeal
of such action may thereupon, in its discretion, permit an
appeal to be taken from such order, if application is made to
it within ten days after the entry of the order:
Provided, however, That application for an appeal
hereunder shall not stay proceedings in the district court
unless the district judge or the Court of Appeals or a judge
thereof shall so order.
U.S.C. § 1292(b)(emphasis in original).
Court must consider the following factors set forth in
Section 1292(b) when analyzing whether to certify a question
for interlocutory appeal: (1) Whether the order involves a
controlling question of law, (2) as to which there is
substantial ground for difference of opinion, and (3) whether
an immediate appeal from the order may materially advance the
ultimate termination of the litigation. McFarlin v.
Conseco Servs., LLC, 381 F.3d 1251, 1257 (11th Cir.
2004). The Eleventh Circuit instructs that an appeal from an
interlocutory order should be permitted in “exceptional
cases where a decision of the appeal may avoid protracted and
expensive litigation, as in antitrust and similar protracted
cases . . .” Id. Further: “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.” Id. at 1259.
does not establish section 1292(b)'s high burden for two
main reasons. First, this garden-variety consumer law case is
certainly not “exceptional.” Second, Defendant
has not articulated a substantial ground for disagreement on
the issue of the effect of the FCC's August 11, 2016
Order. Simply put, the FCC had express authority under the
Bipartisan Budget Act of 2015 to prescribe regulations to
interpret the Budget Act's amendments. And, pursuant to
that authority, the FCC instructed that federal government
callers cannot continue to place calls to debtors after the
debtors request that the calls cease. The Court sees no
compelling reason to certify this issue to the Eleventh
therefore ORDERED AND ADJUDGED that Defendant Navient
Solutions, LLC's Motion for Certification of