In Kenosha Unified School District No. 1 Board ofEducation, et al. v. Whitaker, No. 16-8019, the Seventh Circuit Court of Appeals determined that it lost jurisdiction over an interlocutory appeal when the District Court of the Eastern District of Wisconsin revoked its certification of the appeal.
The plaintiff, a transgender boy, sued his school district for sex discrimination after his high school prohibited him from using the boys' bathroom. The defendants filed a motion to dismiss, which the district court denied. Following a hearing on the plaintiff's motion for a preliminary injunction, the defendants submitted a proposed order certifying for appeal the order that denied their motion to dismiss under 28 U.S.C. § 1292(b). The district court entered the proposed order, and the defendants filed the instant petition for interlocutory appeal. Additionally, the defendants filed a separate appeal from the district court's order partially granting the preliminary injunction.
While the instant appeal was pending, the plaintiff moved the district court to reconsider certification pursuant to Federal Rule of Civil Procedure 60(b). The district court granted the plaintiff's motion and revoked certification, finding that the defendants "had not made a legal or factual argument in support of certification" and that the district court had erred by not soliciting argument on the issue. The district court also stated that it erred by omitting "interlocutory certification language" from the certification order.
The district court observed that 28 U.S.C. § 1292(b) sets forth several factors to be considered in certifying an interlocutory appeal, including whether the underlying order involves a "controlling question of law," "whether an immediate appeal would materially advance the ultimate termination of the litigation," and "whether there is a substantial ground for difference of opinion on the question of law." Although determination of whether sex "encompasses gender identity" for purposes of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, would control one of the plaintiff's claims, the district court found that it would not advance the litigation because the plaintiff had pleaded facts sufficient to survive the motion to dismiss on other grounds.
The Seventh Circuit asked the parties to file statements of position regarding the district court's revocation of certification. Both parties agreed, as did the Seventh Circuit, that its jurisdiction to hear an interlocutory appeal under U.S.C. § 1292(b) "derives from a district court's certification of an order." As the Seventh Circuit had not entered an order granting the petition at the time the district court withdrew certification, the Seventh Circuit lost jurisdiction to consider the instant appeal.
The defendants argued that the Seventh Circuit could exercise pendent appellate jurisdiction in connection to the separate appeal from the preliminary injunction order. The Seventh Circuit observed that the doctrine of pendent appellate jurisdiction allows a reviewing court to consider a non-final order that is "inextricably intertwined" with an appealable order. As the instant appeal was not properly taken from an appealable order, pendent appellate jurisdiction did not exist. Instead, the Seventh Circuit noted that "[t]he appropriate place for the defendants to request pendent appellate jurisdiction is in the appeal from the preliminary injunction order." Consequently, the Seventh Circuit denied the defendants' petition for interlocutory appeal.
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