178 F.3d 1363 | 10th Cir. | 1999
ORDER
Appellee Kansas Municipal Gas Agency (KMGA), joined by its co-appellee City of Winfield, Kansas, has petitioned for rehearing. Its petition seeks withdrawal of the panel’s decision and certification of the sole issue to the Oklahoma Supreme Court.
This dispute’s long and tortuous path is pertinent to the pending petition. In Boyd Rosene & Assoc, v. Kansas Municipal Gas Agency, 113 F.3d 1245 (10th Cir.1997) (un
The issue which KMGA now seeks to be certified to the Oklahoma Supreme Court has been the subject of three opinions in this court and addressed twice by the district court. Until now, however, no party has even hinted at the prospect of certification nor suggested that they were anything but content to have the federal courts decide the question of whether Oklahoma’s attorney’s fee statute is applicable. Now, however, faced with what otherwise would likely be a final, adverse decision, KMGA proposes to eradicate Ro-sene III and all the accompanying time, energy, and resources to seek a second opinion in a different forum.
Never before has a party first requested certification after this court has issued an opinion. With the exception of instances in the Fifth Circuit,
When used properly, certification “saves time, energy, and resources, and helps build a cooperative judicial federalism.” Lehman Bros. v. Schein, 416 U.S. 386, 390-91, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974). A court must consider whether certification will conserve the time, energy, and resources of the parties as well as of the court itself. Whether these values are served by certifying an issue to a state supreme court is within the “sound discretion of the federal court.” Id. Certification is never compelled, even when there is no state law governing an issue. See Lehman Bros., 416 U.S. at 390-91, 94 S.Ct. 1741.
Certification may well have been an appropriate option at some time earlier in this litigation. Now, however, neither this court nor the parties would reap any conservation of time, energy, or resources were this court to grant certification. Indeed, certifying this issue to the Oklahoma Supreme Court at this late hour would be inefficient and wasteful of the parties’ and the federal courts’ previously expended time, energy, and resources.
For these reasons, we decline the request for rehearing and certification to the Oklahoma Supreme Court. The petition for rehearing is DENIED.
Judge Marten would grant the petition for rehearing and certify to the Oklahoma Supreme Court.
. The Fifth Circuit has, on a number of occasions, certified an issue to a state supreme court after it had already issued a decision. See, e.g., Grubbs v. Gulflnt’l Marine, Inc., 985 F.2d 762, 762 (5th Cir.1993); Frey v. Amoco Prod. Co., 951 F.2d 67, 67 (5th Cir. 1992); Meloy v. Conoco, Inc., 794 F.2d 992, 992 (5th Cir. 1986); Halphen v. Johns-Manville Sales Corp., 752 F.2d 124, 124 (5th Cir.1985) (certification was denied by the Supreme Court of Louisiana); Cowan v. Ford Motor Co., 713 F.2d 100, 100 (1983). The Fifth Circuit, however, appears to be alone in its willingness to certify questions after it has issued a decision. Perkins v. Clark Equip. Co., 823 F.2d 207, 209-210 (8th Cir. 1987) ("Once a question is submitted for decision in the district court, the parties should be bound by the outcome unless other grounds for reversal are present. Only in limited circumstances should certification be granted after a case has been decided.”); In the Matter of McLinn, 744 F.2d 677, 681 (9th Cir.1984) ("We believe that particularly compelling reasons must be shown when certification is requested for the first time on appeal by a movant who lost on the issue below.”); 17A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure, § 4248 (1999) ("[T]he failure of a party to suggest certification until a late stage in the proceeding considerably weakens his insistence on certification.”). Even the Supreme Court has commented on the Fifth Circuit's willingness to certify issues. See Lehman Bros. v. Schein, 416 U.S. 386, 390 n. 6, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974) ("The Fifth Circuit's willingness to certify is in part a product of frequent state court repudiation of its interpretations of state law.”).