UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NEIYERVER ADRIÁN RENGEL,
Plaintiff,
v. Civil Action No. 26-1008 (JEB) UNITED STATES,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Neiyerver Rengel has moved for the Court to certify an interlocutory appeal of
its August 3, 2026, Order transferring his case to the Southern District of Texas. See ECF No.
31 (Mot.); see also ECF Nos. 26 (Order), 27 (Mem. Op.). Although interlocutory appeal is
permitted only in unusual circumstances, Plaintiff has persuaded the Court of the case for
certification here. It will, accordingly, grant his Motion.
I. Background
On March 15, 2025, Plaintiff, a Venezuelan national, was summarily deported from
Texas to El Salvador, where he was held in the CECOT mega-prison. See Mem. Op. at 3–4.
Alleging that he suffered severe mistreatment there, Rengel brought claims against the United
States under the Federal Tort Claims Act for negligence, intentional infliction of emotional
distress, abuse of process, and false imprisonment. Id. at 5; see ECF No. 1 (Compl.), ¶¶ 116–23,
141–62. The basis for these claims was that “officials in D.C.” had “made the critical decisions
concerning [Plaintiff’s] deportation and treatment.” Mem. Op. at 8; see Compl., ¶¶ 5–18.
The Government moved to dismiss the action for improper venue under Federal Rule of
Civil Procedure 12(b)(3). See ECF No. 19 (MTD) at 1. In opposing dismissal, Plaintiff
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contended that, even if the Court determined that venue was not proper in D.C., it should transfer
the case to the Southern District of Texas instead of dismissing it outright. See ECF No. 21
(MTD Opp.) at 25–26 (invoking 28 U.S.C. § 1406(a)). The Court ended up taking that route.
See Order at 1.
Its Opinion applied the FTCA’s venue provision, which refers to the district in which the
“act or omission complained of occurred.” 28 U.S.C. § 1402(b). Circuit precedent, the Court
noted, indicates that an “act ‘occurs’ in the jurisdiction where its effects are directed.” Mem. Op.
at 7–8 (quoting Reuber v. United States, 750 F.2d 1039, 1047 (D.C. Cir. 1985)). Because “Texas
was . . . plainly the target of each of the major directives issued to implement the” policy under
which Plaintiff was removed to CECOT, the “Executive Branch officials’ conduct therefore
‘occurred’ [there] for FTCA venue purposes.” Id. at 9. That was so “[e]ven assuming Reuber’s
effects-based test” was “narrow” and applied “only in the limited circumstances where conduct
[was] ‘directed specifically’ at another district,” since the “conduct that was tortious specifically
as to” Plaintiff was so directed to the Southern District of Texas — where he was “detained and
ultimately removed.” Id. at 11 (quoting Reuber, 750 F.2d at 1047). The Court accordingly held
that the case should be transferred to that district, though it stayed its transfer Order pending
resolution of this Motion. See August 18, 2026, Minute Order.
Preferring that his case remain in this district, Rengel now seeks certification for
interlocutory appeal of the Court’s Order transferring the case to the Southern District of Texas.
II. Legal Standard
The final-judgment rule generally limits federal courts of appeals to reviewing “final
decisions” of district courts. See 28 U.S.C. § 1291. A final decision is one that “ends the
litigation on the merits and leaves nothing for the court to do but execute the judgment.”
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Cunningham v. Hamilton Cnty., 527 U.S. 198, 204 (1999) (quotation marks and citation
omitted). Orders transferring a case under the change-of-venue statute, unlike those dismissing a
case for improper venue under Rule 12(b)(3), generally “are not final appealable orders.” Hill v.
Henderson, 195 F.3d 671, 676 (D.C. Cir. 1999).
A district court may nonetheless certify a non-final order for appeal if it believes that
such an order “[(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). The party
seeking certification “has the burden of establishing all three elements under § 1292(b).” Air
Transp. Ass’n of Am., Inc. v. U.S. Dep’t of Agric., 317 F. Supp. 3d 385, 393 (D.D.C. 2018).
And that burden is substantial: “Because certification runs counter to the general policy against
piecemeal appeals, this process is to be used sparingly.” Sai v. Dep’t of Homeland Sec., 99 F.
Supp. 3d 50, 59 (D.D.C. 2015).
III. Analysis
The Court addresses each of the § 1292(b) elements in turn.
A. Controlling Question of Law
Plaintiff identifies two questions of law that, he says, are controlling: (1) whether, under
the FTCA, venue is proper in the district where federal officials allegedly “performed” tortious
acts or only in the district “to which the intended effects” of the acts “were directed”; and
(2) whether venue over an entire FTCA action, comprising various claims “arising from a
common course of conduct,” may be established based on venue being proper for a subset of the
claims. See Mot. at 1. Certification only requires, however, that the Court’s Order involve “a”
single “controlling question of law.” 28 U.S.C. § 1292(b); see Yamaha Motor Corp., U.S.A. v.
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Calhoun, 516 U.S. 199, 205 (1996); ECF No. 32 (Opp.) at 3 (similar). As the Court determines
that the first question qualifies as “controlling,” it need not address the second.
A controlling question of law is one that either “would require reversal if decided
incorrectly” or that “could materially affect the course of litigation with resulting savings of the
court’s or the parties’ resources.” Jud. Watch, Inc. v. Nat’l Energy Pol’y Dev. Grp., 233 F.
Supp. 2d 16, 19 (D.D.C. 2002) (citation omitted). The question of whether Plaintiff’s allegations
establish venue for his FTCA claims in D.C. qualifies as controlling in (at least) the second
sense. It involves a “procedural determination that may significantly impact the action” — i.e.,
that will determine where the litigation proceeds. APCC Servs., Inc. v. Sprint Commc’ns Co.,
L.P., 297 F. Supp. 2d 90, 96 (D.D.C. 2003) (collecting authorities). Further “supporting a
conclusion that the question is controlling,” its resolution may have a considerable “impact” on
“other cases” presenting the same venue theory that Plaintiff advances here. Id.; see also Mot. at
8–9 & n.1 (citing recurring cases); Opp. at 6 (same). That an issue is of such “special difficulty
and importance” generally “counsels in favor of immediate review.” Geo Grp., Inc. v. Menocal,
607 U.S. 438, 452 n.5 (2026); Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 111 (2009)
(district courts “should not hesitate” to “certify an interlocutory appeal” involving “new legal
question” or one of “special consequence”).
The Government responds that certification would not conserve litigation resources
because the suit would proceed along the same track to final judgment wherever it was venued.
See Opp. at 4. But that response ignores important efficiency considerations. Because the
FTCA directs application of the “whole law (including choice-of-law rules) of the place where
the negligence occurred,” rather than “of the place where the operative effect of the negligence
took place,” Plaintiff’s claims will be determined according to at least D.C. choice-of-law rules.
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Richards v. United States, 369 U.S. 1, 2–3, 11 (1962); see ECF No. 33 (Reply) at 8. Successful
appeal of the venue question, then, would likely result in this case remaining before a court with
greater familiarity with the applicable law. And this Court also has experience with the facts
underlying Plaintiff’s claims. See Mem. Op. at 1 (explaining that “[t]he facts underlying this
case cover much familiar ground for this Court”). Just as this Court’s experience with the
relevant law and facts would have counseled against a discretionary transfer, so too does it
counsel in favor of permitting an appeal that may render transfer unnecessary. Cf. Oceana v.
Bureau of Ocean Energy Mgmt., 962 F. Supp. 2d 70, 78 (D.D.C. 2013) (linking propriety of
transfer to courts’ relative “familiarity with the governing [state] laws”); Mandan, Hidatsa &
Arikara Nation v. U.S. Dep’t of the Interior, 358 F. Supp. 3d 1, 9 (D.D.C. 2019) (same for
“courts’ respective knowledge of the parties and facts”).
Nor is the Court convinced that interlocutory appeal would be futile. As explained
below, and contrary to the Government’s assertion, Plaintiff seeks to have the D.C. Circuit
clarify, not overrule, its precedent in Reuber. Compare Opp. at 5, with Reply at 7. And while
the ordinarily deferential abuse-of-discretion standard would apply on appeal, see Opp. at 4, the
Court’s exercise of its discretion to transfer this case rested upon its antecedent determination
that venue was improper here, and a “district court by definition abuses its discretion when it
makes an error of law.” Shatsky v. Pal. Liberation Org., 955 F.3d 1016, 1031 (D.C. Cir. 2020)
(citation omitted); see also Reply at 4–5.
B. Substantial Grounds for Difference of Opinion
“Mere disagreement” with a court’s order does not suffice for certification; a movant
must point to some meaningful ambiguity in controlling law — for instance, an “apparent
inconsistency” between Circuit opinions or between the caselaw and “plain statutory language.”
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Jud. Watch, 233 F. Supp. 2d at 19–20 (citation omitted); see, e.g., Carr Park, Inc. v. Tesfaye, 229
F.3d 1192, 1193–94 (D.C. Cir. 2000). The Court has already identified the venue question at
issue here as “nuanced” and “undoubtedly close” in light of the FTCA’s language and Circuit
precedents construing it. See Mem. Op. at 1, 8. The Government responds that the existence of
a close question does not always warrant certification. See Opp. at 2. That is true enough as a
general matter. Here, however, the uncertainty results from the shakiness of a load-bearing
precedent.
As noted, Reuber held that the plaintiff had “not alleged an act in the District” that made
“venue over his FTCA claim proper” there. See 750 F.2d at 1048. That holding did not address,
and the opinion’s language leaves unclear, whether venue would have been proper in D.C. had
the plaintiff alleged conduct that occurred there, the effects of which were targeted elsewhere —
i.e., the scenario presented by this case. Id. at 1046–48. A subsequent case, Beattie v. United
States, 756 F.2d 91 (D.C. Cir. 1984), accepted a “headquarters” theory of venue under the FTCA
that was seemingly in some tension with Reuber. See id. at 100; see also id. at 103 n.82 (citing
Reuber for a distinct proposition). That is hardly clarifying, especially since the Supreme Court
has rejected such a theory in a related context. See Sosa v. Alvarez-Machain, 542 U.S. 692, 700,
711–12 (2004) (rejecting “headquarters” theory for exception to FTCA’s sovereign-immunity
waiver for “[a]ny claim arising in a foreign country,” 28 U.S.C. § 2680(k)); see also, e.g., Gill v.
United States, 415 F. Supp. 3d 127, 142 (D.D.C. 2019) (joining other courts in this district in
rejecting FTCA venue theory predicated upon “mere involvement” of officials in D.C.). In any
event, Plaintiff disclaims a “headquarters theory,” insisting instead that he satisfies a standard
under which “named officials have performed discrete acts in D.C. that are themselves elements
of the tort.” Reply at 8. As to the viability of that particular standard, the Court finds a distinct
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“dearth of precedent” in or beyond this Circuit — precisely what can “establish” a “substantial
ground for difference of opinion.” Air Transp. Ass’n, 317 F. Supp. 3d at 393 (citations omitted);
see Johnson v. Washington Metro. Area Transit Auth., 790 F. Supp. 1174, 1180 (D.D.C. 1991)
(granting certification where there was “a possible intracircuit split on the issue” and “[e]ven
absent this split the case law [was] confused”).
C. Material Advancement of Litigation
Finally, the Court agrees that certification has the potential to “hasten or at least simplify
the litigation in some material way.” Molock v. Whole Foods Mkt. Grp., Inc., 317 F. Supp. 3d 1,
6 (D.D.C. 2018). As already noted, if the litigation can proceed in this district, that may serve
efficiency goals given this Court’s experience with the relevant facts and law. See supra at pp.
4–5; see also Edward H. Cooper, 16 Wright & Miller Fed. Prac. & Proc. Juris. § 3930 (3d ed.
Apr. 2026 Update) (noting material-advancement element is “closely tied” to controllingquestion element). Plaintiff also points out that the case is likely to present threshold legal
questions that are settled in this Circuit but remain open in the Fifth Circuit, potentially
prolonging the litigation if it proceeds in Texas. See Mot. at 10; see also Reply at 7 (noting that
Government does not dispute this point).
The Government counters that certification would “neither hasten nor simplify this
litigation” because it increases the likelihood of multiple appeals — now for the venue question,
and later for whatever questions arise on the merits. See Opp. at 8; see also Mahoney v. United
States Capitol Police Bd., 566 F. Supp. 3d 22, 33 (D.D.C. 2022) (denying certification to avoid
piecemeal appeals). In this instance, however, that argument proves too much. It would make
transfer orders categorically ineligible for interlocutory appeal, which is belied by the caselaw.
See, e.g., Lewis v. Hogwood, 300 F.2d 697, 697 (D.C. Cir. 1962) (interlocutory review of
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transfer order); Wyndham Assocs. v. Bintliff, 398 F.2d 614, 616 (2d Cir. 1968) (same); Fed.
Firefighters Ass’n, Loc. 1 v. Metro. Wash. Airports Auth., 1988 WL 21412, at *2 (D.D.C. Sep.
23, 1988) (certifying appeal of denial of motions to dismiss or transfer). Additionally, the Court
must account for the fact that, if it denies certification, Plaintiff can still challenge its transfer
order via a writ of mandamus in this Circuit. See Microsoft Corp. v. Baker, 582 U.S. 23, 30
(2017). Indeed, Rengel has indicated that he will take that step if the Court denies certification.
See Mot. at 18–19. For practical purposes, then, the options before the Court are to certify its
transfer order for interlocutory appeal, to stay its transfer order while mandamus proceedings
progress, or to let transfer proceed and potentially require the parties to litigate a mandamus
action in this Circuit while the underlying litigation moves forward in Texas. Of those options,
the Court has little trouble concluding that the first is most apt to “simplify the litigation.”
Molock, 317 F. Supp. 3d at 6.
IV. Conclusion
The Court accordingly ORDERS that:
1. Plaintiff’s [31] Motion for Certification for Interlocutory Appeal is GRANTED;
2. The Court’s [26] Order transferring this case to the Southern District of Texas
remains STAYED; and
3. Upon disposition of the appeal, or upon an order from the D.C. Circuit declining to
hear it, the parties shall file a Joint Status Report within 7 days.
/s/ James E. Boasberg
JAMES E. BOASBERG
Chief Judge
Date: October 1, 2026
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