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.