Certification Revocation Kills Appellate Jurisdiction

by John M. Fitzgerald

The District Court giveth, and the District Court taketh away.  In Kenosha Unified School District No. 1 Board of Education v. Whitaker (per curiam) (slip op. Nov. 14, 2016), the U.S. Court of Appeals for the Seventh Circuit faced a somewhat unusual circumstance.  A transgender student sued his school district for denying him access to the boy’s bathroom.  The school district filed a motion to dismiss, lost, and then asked the District Court to certify the order denying its motion to dismiss for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). 

Section 1292(b) permits the District Court to certify that an otherwise non-appealable order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.”  If the District Court makes such a certification, the Court of Appeals “may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order.”  The school district contended that the issue of “whether ‘sex’ in Title IX encompasses gender identity” met the § 1292(b) standard.  The District Court agreed, at first, and granted the requested certification.  Before the Seventh Circuit could decide whether to grant the school district’s petition for leave to appeal, however, the District Court changed its mind and revoked the § 1292(b) certification on the basis that such an interlocutory appeal would not materially advance the ultimate termination of the litigation.  Meanwhile, the District Court granted the plaintiff’s request for a preliminary injunction, which provided a basis for a separate interlocutory appeal.

The District Court’s revocation of its certification had a clear consequence:  In the Seventh Circuit’s words, it “destroys our jurisdiction to consider the petition under § 1292(b).”  The Seventh Circuit pointed out that it “did not acquire jurisdiction to consider this issue in the case” because it never entered an order granting the school district’s petition.  Thus, the Seventh Circuit lacked appellate jurisdiction, and the school district’s § 1292(b) petition was denied.

The school district tried to argue that the Seventh Circuit had “authority to exercise pendent appellate jurisdiction” over its petition because of the separate appeal from the preliminary injunction order.  While the “doctrine of pendent appellate jurisdiction permits this court to review a non-final order when it is ‘inextricably intertwined’ with an appealable order,” that doctrine did not apply here, because the school district’s petition was “not properly taken from an appealable order.”  Thus, the “appropriate place for the [school district] to request pendent appellate jurisdiction is in the appeal from the preliminary injunction order.”