ORDER
The matter is before the Court on defendant U.S. Airways, Inc.’s (“US Airways”) motion for certification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) and to stay proceedings. At issue is whether it is appropriate to certify for interlocutory appeal two aspects of the Court’s October 19, 2005 Memorandum Opinion (“Opinion”) issued in connection with the Order of the same date denying in part U.S. Airways’ summary judgment motion. The two aspects concern the application of ERISA §§ 404(a) and 404(c) to this case. US Airways contends that the Court’s holding in the Opinion that ERISA § 404(c) does not act as a bar to claims based on the breach of a fiduciary’s duty under ERISA § 404(a) in selecting investment options for a 401(k) plan, is a question of “overarching importance” about which there are “substantial grounds for difference of opinion.” US Airways also seeks review of the Court’s holding that ERISA fiduciaries are not entitled to a “presumption of prudence” in deciding to hold employer securities in a 401(k) plan. For the reasons that follow, neither ruling satisfies the § 1292(b) standard for interlocutory appeal.
The standard for granting an interlocutory appeal is well-settled. To grant an interlocutory appeal, a district court must certify that the order sought to be appealed: “[1] involves a controlling question of law [2] as to which there is substantial ground for difference of opinion and [3] that an immediate appeal from the order may materially advance the ultimate termination of the litigation....” 28 U.S.C. § 1292(b). This language has been construed as granting district courts “circumscribed authority to certify for immediate appeal interlocutory orders deemed pivotal and debatable.”
Swint v. Chambers County Comm’n,
Although both questions for which U.S. Airways seeks certification are pure questions of law, it is far from certain that the termination of this litigation would be expedited by an immediate appeal that led to a contrary result on either issue. An appellate decision that ERISA § 404(c) applies to a fiduciary’s selection and retention of plan investment choices would not end the litigation, as this Court did not reach, and the parties hotly dispute, whether U.S. Airways has met the requirements entitling it to the 404(c) defense. Thus, even if § 404(c) were held applicable after an appeal, it would still be necessary to litigate whether the U.S. Airways 401(k) plan satisfies the requirements set forth in the regulations.
See DiFelice v. U.S. Airways, Inc.,
Likewise, a determination by the Court of Appeals that U.S. Airways’ decision to retain its stock as a 401(k) plan investment option is entitled to a “presumption of prudence,” would also not end the litigation, as a determination based on this new standard would still be required.
See Moench v. Robertson,
Nor has U.S. Airways demonstrated that there is “substantial ground for disagreement” on the questions it seeks to have certified. In this regard, U.S. Airways relies heavily on the Third Circuit’s decision in
In re Unisys Savings Plan Litig.,
In addition to the
In re Unisys
decision, U.S. Airways also points to example 5 of the DOL Regulations
2
arguing that the example supports the conclusion that § 404(c) shields U.S. Airways from liability
*910
in this case. US Airways misreads this example; it does not support U.S. Airways’ position as it focuses on individual investor choices, whereas this case was brought on behalf of the plan to recover losses to the plan as a whole caused by U.S. Airways’ allegedly imprudent selection of investment options for plan participants.
See
29 U.S.C. § 1109(a). Moreover, it strains credulity to suggest that example 5 represents a contrary interpretation to that contained in the preamble of the same regulations or that the DOL has consistently misinterpreted its own regulations since then by repeatedly declaring that § 404(c) does not protect a fiduciary from liability for imprudent selection of investment choices.
See See Difelice v. U.S. Airways, Inc.,
US Airways also contends that there is a “substantial ground for disagreement” as to whether a “presumption of prudence” applies to a fiduciary’s decision to invest in employer securities. In this respect, U.S. Airways’ motion relies heavily on the Third Circuit’s decision in
Moench v. Robertson,
In any event, it is unlikely that certification of an interlocutory appeal will “materially advance the ultimate termination of the litigation.” As noted, no Court of Appeals decision is likely to resolve all remaining issues in the litigation; instead, an interlocutory appeal will simply add unnecessary delay and cost to the resolution of the remaining issues in this case. Finally, the final pretrial conference in this matter has been set for April 20, 2006, and the bench trial for May 15, 2006. Thus, it is likely that this case will be fully litigated in the district court before the conclusion of any interlocutory appeal. And importantly, the full factual record developed at trial will greatly enhance the ultimate review of all the issues in the Court of Appeals.
Accordingly, and for good cause,
It is hereby ORDERED that defendant U.S. Airways’ motion for certification for interlocutory appeal pursuant to 28 U.S.C. *911 § 1292(b) and to stay proceedings is DENIED.
The Clerk is directed to send a copy of this Order to all counsel of record.
Notes
.
See, e.g., In re Electronic Data Systems Corp. “ERISA” Litigation,
. This example states as follows:
(5) A participant, P, independently exercises control over assets in his individual account plan by directing a plan fiduciary, F, to invest 100% of his account balance in a single stock. P is not a fiduciary with respect to the plan by reason of his exercise of control and F will not be liable for any losses that necessarily result from P’s investment instruction.
29 C.F.R. § 2550.404c-l(f)(5).
.
See Difelice v. U.S. Airways, Inc.,
. See 29 U.S.C. § 1107.