Nicholas Somberg ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0077p0.6
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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IN RE: NICHOLAS PAUL SOMBERG, │
> No. 22-0101
Petitioner. │
┘
On Petition for Permission to Appeal.
United States District Court for the Eastern District of Michigan at Detroit;
No. 2:20-cv-11917—Gershwin A. Drain, District Judge.
Decided and Filed: April 20, 2022
Before: SUTTON, Chief Judge; MOORE and COLE, Circuit Judges.
_________________
COUNSEL
ON PETITION FOR PERMISSION TO APPEAL: Philip L. Ellison, OUTSIDE LEGAL
COUNSEL PLC, Hemlock, Michigan, for Petitioner.
_________________
ORDER
_________________
Nicholas Somberg seeks permission to appeal the denial of his motion for summary
judgment under 28 U.S.C. § 1292(b). Because immediate review would not bring this lawsuit to
a close materially sooner than an appeal from a final judgment, we deny the petition.
Somberg is a Michigan attorney. In May 2020, while appearing by video in state court,
he took a screenshot of the hearing. He posted the picture on Facebook. The county
prosecutor’s office sought contempt charges, arguing his conduct violated court restrictions on
recording or broadcasting proceedings.
No. 22-0101 In re Somberg Page 2
The court later dismissed the contempt charges on procedural grounds. But Somberg
feared future charges and wanted to continue to record court proceedings. He brought a pre-
enforcement challenge in federal court against the prosecutor, arguing the recording and
broadcasting policy violates the First and Fourteenth Amendments.
Somberg moved for summary judgment. In response, the prosecutor asked the court to
deny the motion and dismiss the case. The prosecutor got half of what she asked for. The court
denied the motion, concluding that the First Amendment does not protect the right to record
publicly livestreamed proceedings. But the court declined to dismiss the case because the
prosecutor had not filed a cross-motion for summary judgment.
Somberg asked the district court to certify its summary judgment denial for interlocutory
appeal under 28 U.S.C. § 1292(b). The court agreed and stayed proceedings until we responded
to the request.
Our jurisdiction usually encompasses final judgments alone. Buccina v. Grimsby,
889 F.3d 256, 258 (6th Cir. 2018). But that rule contains “safety valves.” Page Plus of Atlanta
v. Owl Wireless, LLC, 733 F.3d 658, 659–60 (6th Cir. 2013). Among them is § 1292(b), which
authorizes interlocutory review under specific circumstances. To qualify, a district court must
find three things: (1) The appeal “involves a controlling question of law,” (2) there is a
“substantial ground for difference of opinion” about the answer, and (3) “an immediate appeal
from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C.
§ 1292(b). If the district court certifies an order, we may exercise our discretion to review it.
In re Trump, 874 F.3d 948, 951 (6th Cir. 2017). The three criteria listed in § 1292(b) along with
“other prudential factors” guide our discretion. Id.
An interlocutory appeal would not “materially advance” this litigation. Appeals fulfilling
that criterion typically are those where, absent review, potentially unnecessary “protracted and
expensive litigation” will ensue. Little v. Louisville Gas & Elec. Co., 805 F.3d 695, 699 (6th Cir.
2015). Consider some examples to illustrate the point. We permitted review when a bankruptcy
judge was set to allow a jury trial to proceed that it may have lacked authority to conduct. In re
Baker & Getty Fin. Servs., Inc., 954 F.2d 1169, 1172 (6th Cir. 1992). And we permitted review
No. 22-0101 In re Somberg Page 3
when a district court was poised to authorize invasive discovery on a complaint that could have
failed to state a claim against the President of the United States. In re Trump, 874 F.3d at 952.
So too when a court planned to oversee a trial between two parties that might have agreed to
arbitrate their disputes. Sheet Metal Emps. Indus. v. Absolut Balancing Co., 830 F.3d 358, 360–
61 (6th Cir. 2016). By contrast, where interlocutory review would not alter the litigation’s path,
In re City of Memphis, 293 F.3d 345, 351 (6th Cir. 2002), and where the district court could
swiftly proceed to a final judgment even without review, Kraus v. Bd. of Cnty. Road Comm’rs,
364 F.2d 919, 922 (6th Cir. 1966), we deferred consideration.
Interlocutory review would forestall little here. Somberg acknowledges that his case
does not turn on any disputes of fact, which means that there is no trial to avoid. The most likely
next step, as we see it, would be for the prosecutor’s office to move for summary judgment. The
district court’s conclusion that Somberg’s summary judgment motion failed as a matter of law
raises the possibility that it will be amenable to a motion cutting the other way. Right or wrong
about that possibility, there is plenty of reason to think that the case could proceed to final
judgment quickly.
The district court’s contrary reasoning does not move us. It noted that, if the litigation
continues without appeal, Somberg will likely have to amend his complaint to proceed. But that
reality cautions against immediate review, not in favor of it. If we deny permission to appeal
now, and Somberg adds new claims, the district court can address them, and we can review his
claims all at once at the end of the proceedings below. If we grant permission, regardless of
what we say about the existing claim in the interim, the district court would need to address the
hypothetical new claims afterward. The case could easily come back to this court after that. At
best, that seems like six of one and a half dozen of the other. Given the countervailing interest
against piecemeal appeals, we exercise our discretion to avoid it.
The district court also relied on our cases suggesting that when a lawsuit will proceed “in
substantially the same manner regardless” of what we say on appeal, it does not warrant
interlocutory review. In re City of Memphis, 293 F.3d at 351 (quotation omitted). The court
took that statement to mean that an appeal materially advances litigation if it affects how the
litigation proceeds. But that seems to be the flipside of Memphis, not a restatement of it. No
No. 22-0101 In re Somberg Page 4
doubt, an immediate appeal has the potential to alter this litigation’s path and outcome, just as an
appeal of almost any controlling question of law would. But immediate review will not
accelerate its end in this instance. Under these circumstances, the preference for final judgments
wins out.
That the prosecutor has failed to oppose interlocutory review does not change things.
Even though we have observed that the § 1292(b) factors are “guiding criteria” for our court, not
“jurisdictional prerequisites,” In re Trump, 874 F.3d at 951 (emphasis omitted), that does not
mean the parties can concede their way to appellate review without our input, In re Lindsey,
726 F.3d 857, 858 (6th Cir. 2013).
We deny the petition for leave to appeal.
ENTERED BY ORDER OF THE COURT
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Deborah S. Hunt, Clerk