     Case: 15-20313      Document: 00513384320         Page: 1    Date Filed: 02/17/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit


                                      No. 15-20313                                 FILED
                                                                            February 17, 2016
                                                                              Lyle W. Cayce
KEITH DODDS,                                                                       Clerk

                                                 Plaintiff - Appellee
v.

TERRACON CONSULTANTS, INC.,

                                                 Defendant - Appellant




                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:14-CV-00297


Before KING, JOLLY, and PRADO, Circuit Judges.
PER CURIAM:*
       We granted an interlocutory appeal to address the legal question
whether Plaintiff–Appellee Keith Dodds has a cause of action against his
former employer, Defendant–Appellant Terracon Consultants, Inc., under
Texas’s common law tort for wrongful termination first announced in Sabine
Pilot Services, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985). After reviewing the
record and hearing oral arguments, however, we have concluded that this
interlocutory appeal was improvidently granted. When we have accepted for


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 15-20313
interlocutory appeal under 28 U.S.C. § 1292(b) a case that we conclude, on
further consideration, is not suitable for such appeal, we may vacate our order
accepting appellate jurisdiction, relinquish jurisdiction, and remand the case
to the district court. Parcel Tankers, Inc. v. Formosa Plastics Corp., 764 F.2d
1153, 1156 (5th Cir. 1985); see 16 Wright et al., Federal Practice & Procedure
§ 3929 (3d ed. 2015) (“Court of appeals discretion extends beyond the initial
decision to permit appeal. Discretion also is exercised by vacating an initial
grant of permission when further consideration of the case shows that the
grant was improvident.”). Vacatur and remand is appropriate here.
       Although Terracon argues that Dodds has no Sabine Pilot claim in light
of an alternative statutory remedy, there is an underlying factual question in
this case that may render this legal question non-dispositive. The district court
denied summary judgment on Terracon’s legal argument, but it also left to the
jury the factual question whether Dodds was actually fired by Terracon for
refusing to violate the law. As the district court recognized, this factual dispute
is material to determining Dodds’s Sabine Pilot claim. If the jury ultimately
concludes that Dodds was not fired for refusing to violate the law, then the
legal issue is rendered moot because Dodds would not have a Sabine Pilot
claim. Although we have permitted interlocutory appeals where there was an
underlying fact question, 1 we have the discretion not to do so, and we find it
prudent not to do so here. While the legal question here is important to the
resolution of this case (and could indeed be decided on interlocutory posture),
we might be deciding a legal question that has no impact on the ultimate
outcome of the case if the jury were to decide against Dodds on the factual
question.


       1See, e.g., Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393, 399 (5th Cir.
2010) (en banc); La. Patients’ Comp. Fund Oversight Bd. v. St. Paul Fire & Marine Ins. Co.,
411 F.3d 585, 588 (5th Cir. 2005).
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                                 No. 15-20313
      Vacatur is all the more advisable based on another fact. It appears to us
that no Texas state court has addressed the legal question Terracon now poses,
making it at least possible that this issue would benefit from certification to
the Supreme Court of Texas. However, we are not confident that the Supreme
Court of Texas would accept certification of a potentially non-determinative
issue as in this case. See Tex. R. App. P. 58.1 (“The Supreme Court of Texas
may answer questions of law certified to it by any federal appellate court if the
certifying court is presented with determinative questions of Texas law having
no controlling Supreme Court precedent.”) (emphasis added).
      We therefore VACATE our order originally granting interlocutory
appeal, DISMISS this appeal without prejudice, and REMAND this case to the
district court for further proceedings.




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