## Facts

- The United States sued multiple parties to recover costs of cleaning an oil spill in the Mississippi River.
- A tug towed an oil-carrying barge and placed the tow alongside a dolphin (mooring structure) owned by International Matex Tank Terminals, Inc. (IMTT).
- The barge struck the dolphin, and an attached metal beam or object punctured a tank, releasing oil.
- The United States alleged IMTT negligently maintained an unauthorized obstruction to navigation in violation of 33 U.S.C. § 403.
- IMTT moved to dismiss under Rule 12(b)(6), arguing the Federal Water Pollution Control Act (FWPCA) provides the exclusive federal remedy for recovering cleanup costs, precluding a maritime tort claim against a nondischarging third party.
- The district court denied the motion and certified an interlocutory appeal under 28 U.S.C. § 1292(b).
- While the appeal was pending, the Fifth Circuit decided United States v. M/V Big Sam, addressing whether the FWPCA is an exclusive remedy for federal cleanup-cost recovery.

## Issues

1. Whether it remained proper under 28 U.S.C. § 1292(b) to entertain an interlocutory appeal from the denial of IMTT’s motion to dismiss, given intervening circuit precedent resolving the core legal question.

## Decision

- The Fifth Circuit vacated its earlier order granting leave to take the interlocutory appeal.
- The court dismissed the interlocutory appeal and remanded to the district court for further proceedings.

## Legal Principles

- Interlocutory review under 28 U.S.C. § 1292(b) is discretionary and limited to a narrow class of orders.
- § 1292(b) requires, among other things, a controlling question of law and that immediate appeal materially advance the ultimate termination of the litigation.
- A court of appeals may withdraw previously granted § 1292(b) permission when changed circumstances show the statutory criteria are no longer met, including when intervening precedent resolves the principal legal question.

## Conclusion

Because intervening Fifth Circuit precedent resolved the principal legal issue that had supported certification, the appeal no longer presented a controlling question of law whose immediate resolution would materially advance the litigation, so the court vacated permission to appeal, dismissed the interlocutory appeal, and remanded.


United States v. Bear Marine Servs., 696 F.2d 1117 (5th Cir. 1983)