Fitch v. State, Civil PJM 18-2817

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
PartiesKENNETH FITCH, et al., Plaintiffs, v. STATE OF MARYLAND, et al. Defendants.
Docket NumberCivil PJM 18-2817
Decision Date09 June 2022

KENNETH FITCH, et al., Plaintiffs,


Civil No. PJM 18-2817

United States District Court, D. Maryland

June 9, 2022



This case concerns the State of Maryland's subsidized prescription drug benefit program provided to certain retired and current State employees and the State's attempt to mandate transition of those retirees and employees to Part D of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Pub. L. No. 108-173, 117 Stat. 2066 (codified at 42 U.S.C. § 1395w-101 et seq. (“Part D”)). In the first of two complaints, a group of current retirees (the “Fitch Plaintiffs”) and in the second complaint, a number of active State employees represented by the American Federation of State, County, and Municipal Employees, AFL-CIO (“AFSCME”), have sued various state defendants, claiming contractual and constitutional rights to the state-subsidized program. See Third Amended Complaint, ECF No. 123 (“Fitch Compl.”); First Amended Complaint, ECF No. 131 (“AFSCME Compl.”).

In a previous Opinion, issued December 30, 2021, the Court held that the statutes governing the drug benefit program, Md. Code Ann., State Pers. & Pens. (“SPP”) §§ 2-508 and 2-509.1, confer upon certain State retirees a contractual right to prescription drug benefits-namely, those who were retired on or before June 30, 2011, with 16 years or at least 5 years of creditable service,


as well as employees who were retired between July 1, 2011 and December 31, 2018, with 16 years or at least 5 years of creditable service, or any employee on disability retirement of any duration during those time periods. See Memorandum Opinion, ECF No. 148; Order, ECF No. 149. However, the Court held that retirees who retired after December 31, 2018, and all active employees, did not have a contractual entitlement under the statutes, in consequence of which the Court dismissed the claims of those plaintiffs. The Court also dismissed all Plaintiffs' claims related to the trust funds established to fund the prescription benefit plan but held in abeyance constitutional claims related to the prescription benefit pending final resolution of the contract-related claims.

The State of Maryland has filed a Motion to Certify [an] Interlocutory Appeal, ECF No. 167, seeking appellate review of the Court's December 30, 2021 Opinion and Order, which the Fitch Plaintiffs oppose. AFSCME, which has already taken an appeal to the Fourth Circuit from the dismissal of its members' claims, does not oppose the Motion.

Having reviewed the parties' briefs, the Court finds that no hearing is necessary. See D. Md. L.R. 105.6. For the reasons that follow, the Motion is DENIED.


Pursuant to 28 U.S.C. § 1292(b), the State seeks interlocutory review of a purportedly controlling question of law decided by the Court in its prior Opinion that it believes is certifiable; viz., “whether a contractual obligation binds the state to continue providing retiree prescription drug benefits to Medicare-eligible retirees.” ECF No. 167 at 5. As indicated in its earlier Opinion, the Court found that a contractual obligation existed as to certain retirees based on its interpretation of SPP §§ 2-508 and 2-509.1.


The Fitch Plaintiffs, in opposition to the Motion to Certify, argue that the State, in reality,' at various points, has articulated the proposed question-to-be-certified in at least four different ways:

1) “Whether the Maryland General Assembly, by directing the Department of Budget & Management to ‘continue to include a prescription drug benefit plan in the health insurance benefit options... available to retirees under §§ 2-508 and 2-509 of this subtitle,' clearly and unequivocally expressed its intent to contractually bind the State to providing such a plan, in perpetuity, to those employees who retired prior to the . announced January 1 2019, date for termination of plan.” ECF 167 at 4
2) Whether a contractual obligation binds the state to continue providing retiree prescription drug benefits to Medicare-eligible retirees. ECF 167 at 5.
3) Whether the legislature's direction to the Department of Budget & Management to continue providing prescription drug benefits despite the Enactment of Medicare Part D constitutes a unilateral contractual commitment. ECF 167 at 6.
4) Whether government employee benefits programs create contractual commitments in the same way that pension programs do. ECF 167 at 9.

Nonetheless, the Court understands the State to seek certification of the ultimate legal question in its prior Opinion: Do the referenced statutes create a contract to provide prescription drug benefits for certain retired state employees and; if so, for which?


A. Legal Standard

28 U.S.C. § 1292(b) provides that a district judge may certify an order for interlocutory, appeal where the order: “[1] involves a controlling question of law [2] as to which there is substantial ground for difference of opinion [3] and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, ” “[p]rovided, however, that application... shall not stay proceedings” unless ordered by the district judge or appellate court. “Unless all of the statutory criteria are satisfied, . . . ‘the district court may not and should not


certify its order ... for an immediate appeal under section 1292(b).'” Butler v. DirectSAT USA, LLC, 307 F.R.D. 445, 452 (D. Md. 2015) (quoting Ahrenholz v. Bd. of Trustees of Univ, of Illinois, 219 F.3d 674, 676 (7th Cir. 2000)). “Failing to meet even one of the statutory requirements will defeat a litigant's request for an interlocutory appeal.” Cooke-Bates v. Bayer Corp., No. 3:10BCVB261, 2010 WL 4789838, at *2 (E.D. Va. Nov. 16, 2010); Butler, 307 F.R.D. at 452 (“Unless all of the statutory criteria are satisfied... ‘the district court may not and should not certify its order... under section 1292(b).'”) (internal citations omitted).

The Fourth Circuit has cautioned that § 1292(b) review should be used sparingly. Indeed, certification under § 1292(b) is improper if it is simply “to provide early review of difficult rulings in hard cases.” Butler, 307 F.R.D. at 452. “A district court's decision not to certify an interlocutory appeal is final and unreviewable.” D.C. v. Trump, 344 F.Supp.3d 828, 833 (D. Md. 2018), vacated on other grounds, 838 Fed.Appx. 789 (4th Cir. 2021).

B. Controlling Question of Law

In order to certify appeal, this Court must first find that there is a controlling question of law, meaning that the proposed question must present “an abstract legal issue that the court of appeals can decide quickly and cleanly” without “delv[ing] beyond the surface of the record in order to determine the facts.” United States ex rel. Michaels v. Agape Senior Cmty., Inc., 848 F.3d 330, 340-41 (4th Cir. 2017) (quoting McFarlin v. Conseco Servs., LLC, 381 F.3dl251, 1259 (11th Cir. 2004)). This includes questions “of the meaning of a statutory or constitutional provision, regulation, or common law doctrine, ” Clark Const. Grp,, Inc. v. Allglass Sys., Inc, No. CIV.A. DKC 2002-1590, 2005 WL 736606, at *2 (D. Md. Mar. 30, 2005)). Excluded, however, are questions that do not determine whether litigation will continue and questions of “whether the district court properly applied settled law.” United States ex rel. Michaels, 848 F.3d at 341. “A


controlling question-of law [includes] every order [that], if erroneous, would be reversible error on final appeal.” Lynn v. Monarch Recovery Mgmt., Inc., 953 F., Supp. 2d 612, 623 (D. Md. 2013) (quoting Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir.), cert, denied, 419 U.S. 885 (1974)). A ruling can also be controlling it if “control[s] many aspects of the proceedings in substantial respects, particularly the scope of the discovery. ..." In re Microsoft Corp. Antitrust Litig, 274 F.Supp.2d 741, 742 (D. Md. 2003).

The State argues that whether the referenced statutes in any respect constitute a contractual commitment is a “controlling question of law” because they involve “the meaning of a statutory or constitutional provision, regulation or common law doctrine.” Price v. Atl. Ro-Ro Carriers, Inc., No. CIV. CCB-11-1735, 2014 WL 7358729, at *1 (D. Md. Dec. 22, 2014) (citations omitted). It is a controlling question of law, says the State, because resolution of the question in favor of the . State would end the litigation. See, e.g., Kennedy v. St. Joseph's Ministries, Inc., 657 F.3d 189, 195 (4th Cir. 2011) (issue is a controlling question where the appellate court's “resolution of it terminates the case”). Even a decision against the State, it suggests, would streamline the litigation by focusing the dispute on whether Medicare Part D and the additional State benefits created by legislation in 2019 constitute a “reasonable modification” of the retiree prescription drug benefit program. That more limited resolution, says the State, combined with the Fourth Circuit's resolution of AFSCME's currently pending appeal also would satisfy § 1292, because it would “significantly impact the action, ” APCC Servs., Inc. v. Sprint Commc'ns Co., L.P., 297 F.Supp.2d 90, 96 (D.D.C. 2003), by determining “the future course of the litigation, ” Johnson v. Burken, 930 F.2d 1202, 1206 (7th Cir. 1991).

The Fitch Plaintiffs, as mentioned, insist the issue here is not a quick and clean question of law, but, rather, involves multiple formulations, incorporating questions of fact as to the details of . 5


the prescription benefit plans, past, present, and future that Plaintiffs believe they have a contractual right to. These factual issues, they argue, are ill suited to interlocutory appellate review. The Court engages with these arguments.


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