Judge Denies Motion for Early Appeal in FirstNet Lawsuit
Thursday, May 03, 2018 | Comments

A U.S. district judge denied a request for interlocutory appeal filed by two Vermont men in their lawsuit against the First Responder Network Authority (FirstNet).

Stephen Whitaker and David Gram sued the Department of Commerce, FirstNet and the National Telecommunications and Information Administration (NTIA) last October, arguing that the entities had unlawfully denied Freedom of Information Act (FOIA) requests related to FirstNet and raising privacy concerns over the FirstNet system.

In December, Vermont U.S. District Court Judge Geoffrey Crawford dismissed or found in favor of the government on the FOIA issues and asked the parties to provide briefings on the privacy issue, specifically the online portal FirstNet and partner AT&T used to distribute plans to states and territories.

Gram and Whitaker then asked the judge for permission to file an interlocutory appeal — an appeal of a judge’s decision that is made before the case is fully completed.

The two men argued that an early appeal of the FOIA issues before conclusion of the privacy issues would lead to efficient termination of the case and that such an appeal was justified because the case involves “a controlling question of law on which there is substantial ground for difference of opinion.”

Crawford denied the request for interlocutory appeal, concluding that the early appeal of the FOIA issues would not advance completion of the lawsuit.

“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,” Crawford wrote. “The piecemeal appellate review requested by the plaintiffs will only prolong this litigation.”

Crawford declined to address Gram’s and Whitaker’s other argument about a controlling question of law, concluding that the appeal not moving the case closer to completion was enough basis to deny the motion.

In the same order, Crawford also granted a request from the government for permission to file a reply to Gram’s and Whitaker’s briefing on the privacy issue.

While the government’s original briefing on the privacy issues focused specifically on the state plans portal and its impact on privacy, Gram and Whitaker used their briefing to raise new arguments of whether the FirstNet nationwide network is operational and how the network itself would impact privacy.

The government argued in a motion that it should be able to respond to the new arguments raised in Gram’s and Whitaker’s briefing, and Crawford agreed.

“The language of the court’s order did not unambiguously reflect its expectations as to the scope of the plaintiffs supplemental brief, and the plaintiffs’ interpretation of the court’s order was not unreasonable,” Crawford wrote. “Nevertheless, the plaintiff’s supplemental brief has effectively enlarged the summary judgment record and advanced new arguments. The plaintiffs’ objections to the protracted course that briefing this matter has taken are inconsistent with their use of their own supplemental brief to put new facts in issue. The court will not deny the defendant an opportunity to respond.”

The government filed its response to the briefing when it filed its motion for a response, and Crawford said that he will consider that filing when making his decision.

Crawford also granted Gram and Whitaker a surreply to the government’s response, but it can only address arguments raised in that filing and cannot raise new issues. No other briefings on the privacy issue will be allowed unless Crawford specifically grants them.

Gram and Whitaker have until May 10, two weeks from April 26 when Crawford’s order was released, to file a surreply.

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