Certified Questions Declined When Predicate Federal Order Is on Appeal and the Answer Would Be Non‑Determinative

1. Introduction

In County Commission of Fayette County v. Pardee and Curtin Realty LLC (W. Va. May 22, 2026) (memorandum decision), the Supreme Court of Appeals of West Virginia confronted a certified question from the United States District Court for the Southern District of West Virginia. The underlying federal case involved a wide-ranging environmental remediation lawsuit regarding coal refuse (“gob”) piles in Fayette County.

The petitioner, the County Commission of Fayette County (“the County”), asserted claims including a citizen suit under the Resource Conservation and Recovery Act (“RCRA,” 42 U.S.C. § 6972) against respondent Pardee and Curtin Realty, LLC (“Pardee”). After the federal court granted summary judgment to Pardee, Pardee sought attorneys’ fees and costs as a prevailing defendant under RCRA. The County resisted, asserting immunity under the West Virginia Governmental Tort Claims and Insurance Reform Act (W. Va. Code § 29-12A-1 to -18), characterizing its conduct as protected “prosecutorial functions.”

The district court certified this question: “Is a West Virginia political subdivision that brings a citizen suit under the Resource Conservation and Recovery Act, 42 U.S.C. § 6972, entitled to prosecutorial immunity from being assessed a prevailing opponent's attorney fees and costs?”

The key issue before the West Virginia Supreme Court was not the merits of immunity, but whether it had statutory authority to answer the certified question at all under the Uniform Certification of Questions of Law Act (W. Va. Code § 51-1A-3), which requires that an answer “may be determinative of an issue” in the pending federal cause.

2. Summary of the Opinion

The Court declined to answer the certified question. Although it had accepted the question initially, the parties disclosed at oral argument that the federal summary judgment order underpinning Pardee’s “prevailing defendant” fee request was then on appeal to the United States Court of Appeals for the Fourth Circuit. Because that appeal rendered the premise for fee-shifting potentially unstable, the Court concluded it could not say its answer “may be determinative” of an issue in the federal case, as required by W. Va. Code § 51-1A-3.

The Court emphasized that the Act limits it to answering questions that “substantially control[] the case,” and it refused to issue what it characterized as an advisory opinion on a “tentative” question. The Court therefore issued a memorandum decision under Rule 21 of the West Virginia Rules of Appellate Procedure: “Certified question declined.”

A dissent (Judge Delligatti) would have answered the certified question and, on the merits, would have held that a political subdivision is not entitled to “prosecutorial immunity” from an award of fees and costs in a RCRA citizen suit.

3. Analysis

A. Precedents Cited

Bower v. Westinghouse Elec. Corp.

The majority invoked Bower v. Westinghouse Elec. Corp., Syl. Pt. 1, 206 W. Va. 133, 522 S.E.2d 424 (1999), for the proposition that certified questions receive plenary review. This citation framed the Court’s competence to decide legal issues embedded in certification—while also underscoring that the threshold problem here was not interpretive difficulty, but statutory power to answer in the first place.

City of Huntington v. AmerisourceBergen Drug Corp.

City of Huntington v. AmerisourceBergen Drug Corp., 251 W. Va. 637, 915 S.E.2d 828 (2025), is the opinion’s central doctrinal anchor. The Court relied on it to articulate the “limits on our power to answer certified questions” and to define “determinative” as “a question concerning a legal issue that substantially controls the case.”

By borrowing City of Huntington’s “substantially controls” gloss, the Court reinforced a gatekeeping approach: certification is improper where the state court’s answer may not materially govern the federal proceeding’s outcome because the factual or procedural predicate may change.

Abrams v. W. Va. Racing Comm'n (in dissent)

The dissent cited Syl. Pt. 1 of Abrams v. W. Va. Racing Comm'n, 164 W. Va. 315, 263 S.E.2d 103 (1980), for the principle that the certification statute “does not impose an absolute duty” to answer. The dissent accepted that discretion exists, but argued discretion should be exercised to answer here because the federal court requested guidance on unsettled state law.

The dissent further quoted then-Chief Justice Neely’s dissenting policy view in Abrams—that it is “only polite” to answer federal courts—to argue for comity and practical utility over formal concerns about potential appellate reversals.

Christiansburg Garment Co. v. EEOC (in dissent)

The dissent referenced Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), as the federal fee-shifting benchmark for prevailing defendants: fees may be awarded where the plaintiff’s action was “frivolous, unreasonable, or without foundation,” or where the plaintiff continued litigating after it became so. This contextualized why the immunity question mattered: if RCRA’s fee regime is triggered, the County’s asserted state-law immunity could block a substantial award.

Walker v. Meadows; Monongalia Cnty. Comm'n v. Stewart; Edward S. v. Raleigh Cnty. Hous. Auth. (in dissent)

On the merits, the dissent relied on state tort-immunity cases to argue that the Governmental Tort Claims and Insurance Reform Act is confined to tort liability:

  • Walker v. Meadows, 206 W. Va. 78, 521 S.E.2d 801 (1999) (syllabus discussion that the Act provides immunity from “tort liability” for specified functions).
  • Monongalia Cnty. Comm'n v. Stewart, 251 W. Va. 442, 914 S.E.2d 677 (2024) (same framing of immunity as tort immunity).
  • Edward S. v. Raleigh Cnty. Hous. Auth., 248 W. Va. 458, 889 S.E.2d 31 (2023) (describing W. Va. Code § 29-12A-5(a)(1) to (17) as listing specific acts or omissions covered by “tort immunity”).

These citations were offered to show that even if certification were answered, the County’s reliance on “prosecutorial functions” immunity (W. Va. Code § 29-12A-5(a)(2)) does not naturally extend to a federal fee award.

B. Legal Reasoning

The majority’s reasoning is procedural and jurisdictional in character:

  1. Statutory constraint: Under W. Va. Code § 51-1A-3, the Court may answer only if its answer “may be determinative of an issue” in the federal cause.
  2. Determinative meaning: Borrowing from City of Huntington v. AmerisourceBergen Drug Corp., a determinative question “substantially controls the case.”
  3. Non-determinative posture due to appeal: Because Pardee’s fee motion rested on a summary judgment that was then on appeal, the Court treated the certified issue as “provisional” or “tentative.” If the Fourth Circuit reversed, the premise that Pardee was a prevailing party could change, and the state-law immunity issue might never matter—or might matter in a different posture.
  4. No advisory opinions: The Court viewed answering under these conditions as an impermissible advisory opinion on a question not assured to substantially control the pending federal case.

The dissent rejected the majority’s “tentative” characterization. It reasoned that the federal court certified the question because it believed the answer “may be determinative” of its ability to award fees, and that potential appellate reversal exists in many cases without undermining certification’s purpose. The dissent stressed efficiency and comity: certification is meant to prevent the federal court from guessing at unsettled state law.

C. Impact

The decision’s immediate doctrinal contribution is a reinforced, more restrictive understanding of “determinative” under W. Va. Code § 51-1A-3: when the certified issue is dependent on a predicate federal ruling that is actively on appeal, the Court may treat the question as insufficiently determinative and decline review.

Likely practical effects include:

  • Timing pressure on certification: Federal courts and litigants may delay certification until the relevant predicate order is final or no longer subject to appeal, especially where “prevailing party” status is the trigger.
  • Expanded gatekeeping arguments: Parties opposing certification may use pending appellate proceedings to argue that a question is “tentative” and therefore non-determinative.
  • Reduced state guidance on fee/immunity intersections: Because the Court did not reach the merits, uncertainty persists regarding whether (and how) the Tort Claims Act’s “prosecutorial functions” immunity interacts with federal fee-shifting in RCRA citizen suits brought by political subdivisions.

The dissent, though not controlling, provides a roadmap for future litigation: it signals arguments grounded in the Supremacy Clause, the Tort Claims Act’s tort-focused scope, and the characterization of RCRA citizen suits as non-prosecutorial.

4. Complex Concepts Simplified

Certified question
A federal court can ask a state supreme court to answer a state-law question that matters to a pending federal case, so the federal court does not have to guess what state law means.
“Determinative” under W. Va. Code § 51-1A-3
The West Virginia Supreme Court will answer only if its response may decide (or substantially control) an issue in the federal case. If the answer might not end up mattering, the Court may refuse.
Advisory opinion
A legal opinion issued in the abstract, not tied to a question that will actually affect the outcome of a live dispute. The majority treated the certified question as too contingent to avoid this problem.
Prevailing defendant fee-shifting (RCRA context)
RCRA allows fee awards in some circumstances. The dissent cited Christiansburg Garment Co. v. EEOC for the rule that a prevailing defendant may recover fees if the plaintiff’s case was frivolous or baseless.
Political subdivision immunity / “prosecutorial functions”
West Virginia’s Tort Claims Act shields political subdivisions from certain types of tort liability, including for specified governmental functions. The dissent argued that (i) this immunity is about tort claims, not attorneys’ fees, and (ii) filing a RCRA citizen suit is not a prosecutorial function because “any person” may bring it.

5. Conclusion

County Commission of Fayette County v. Pardee and Curtin Realty LLC establishes (and operationalizes) a restrictive threshold principle for certification: when the certified issue depends on a federal predicate order that is actively on appeal, the West Virginia Supreme Court may deem the question non-determinative under W. Va. Code § 51-1A-3 and decline to answer to avoid an advisory opinion.

The memorandum decision strengthens the Court’s gatekeeping role in certified-question practice (building on City of Huntington v. AmerisourceBergen Drug Corp.), while leaving unresolved the substantive question whether a West Virginia political subdivision can claim Tort Claims Act “prosecutorial functions” immunity to avoid federal fee-shifting under RCRA. The dissent’s merits analysis highlights how future litigants may frame that unresolved issue—particularly through Supremacy Clause, statutory-scope, and function-characterization arguments—once the procedural posture is sufficiently final to satisfy the “determinative” requirement.