Kenosha Unified School District No. 1 Board of Education, et al., Petitioners-Defendants,
ASHTON WHITAKER, Respondent-Plaintiff.
Submitted October 19, 2016
from the United States District Court for the Eastern
District of Wisconsin No. 16-cv-00943-PP - Pamela Pepper,
Ripple, Kanne, and Williams, Circuit Judges.
Ash Whitaker is a transgender boy whose high school will not
permit him to use the boys' bathroom. He sued the school
district for discriminating against him on the basis of sex,
in violation of Title IX of the Education Amendments of 1972,
20 U.S.C. § 1681, and the Equal Protection Clause of the
Fourteenth Amendment. After the district court denied the
defendants' motion to dismiss, the defendants filed this
petition for interlocutory appeal. The defendants asserted
that appellate jurisdiction is proper under 28 U.S.C. §
1292(b), but the district court has since vacated its
certification. Thus we lack appellate jurisdiction.
district court had issued an oral ruling denying the
defendants' motion to dismiss. The next day, at the
conclusion of a hearing on the plaintiff's motion for a
preliminary injunction, the defendants stated their intention
to appeal the ruling denying their motion to dismiss and
presented the court with a proposed order that memorialized
the denial and certified the order for immediate
interlocutory appeal under 28 U.S.C. § 1292(b). The
district court entered the proposed order, and the defendants
filed this petition. The plaintiff then moved the district
court to reconsider the interlocutory certification pursuant
to Federal Rule of Civil Procedure 60(b).
this court had issued an order on the defendants'
petition, the district court granted the plaintiff's
motion for reconsideration and revoked its certification. The
district court pointed out that the defendants had not made a
legal or factual argument in support of certification, nor
did the court ask either party to address certification. The
court admitted that it erred in failing to solicit argument
on this issue and erred in including the interlocutory
certification language in the order. The district court then
correctly enumerated the factors that it must consider to
certify an order for appeal under 28 U.S.C. § 1292(b),
including whether the order to be appealed 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. See
Ahrenholz v. Bd. of Tr. of the Univ. of III, 219 F.3d
674, 675 (7th Cir. 2000); In re Hamilton, 122 F.3d
13, 14 (7th Cir. 1997). Appellate resolution of the
contestable question whether "sex" in Title IX
encompasses gender identity would control one of the
plaintiff's claims, the court reasoned, but resolution
would not speed up litigation because the plaintiff had
pleaded sufficient facts to survive the motion to dismiss on
two alternate grounds.
light of the district court's revocation of its
certification, we asked the parties to file statements of
position. The parties agree-as do we-that our jurisdiction to
hear an interlocutory appeal under 28 U.S.C. § 1292(b)
derives from a district court's certification of an
order. See Caterpillar Inc. v. Lewis, 519 U.S. 61,
74 n.10 (1996); Swint v. Chambers Cnty. Comm'n,
514 U.S. 35, 46, 47 n.4 (1995); Coopers & Lybrand v.
Livesay, 437 U.S. 463, 475-76 (1978); 16 C. Wright, A.
Miller, & E. Cooper, Fed. Practice & Proc, §
3929, at 438-39 (2016). We did not enter an order granting
the petition, and thus we did not acquire jurisdiction to
consider this issue in the case. The district court's
decision to withdraw certification destroys our jurisdiction
to consider the petition under § 1292(b). See Weir
v. Propst, 915 F.2d 283, 286 (7th Cir. 1990); In re
Powerhouse Licensing, LLC, 441 F.3d 467, 471 n.2 (6th
Cir. 2006); City of L.A. v. Santa Monica Baykeeper,
254 F.3d 882, 885-86 (9th Cir. 2001).
defendants contend, however, that this court has authority to
exercise pendent appellate jurisdiction over this appeal in
conjunction with the appeal of the order partially granting
the motion for a preliminary injunction, which is separately
docketed and derives jurisdiction pursuant to 28 U.S.C.
§ 1292(a)(1). The doctrine of pendent appellate
jurisdiction permits this court to review a non-final order
when it is "inextricably intertwined" with an
appealable order. See Ne. Rural Elec. Membership Corp. v.
Wabash Valley Power Ass'n, Inc., 707 F.3d 883, 886
(7th Cir. 2013); Montano v. City of Chicago, 375
F.3d 593, 595 (7th Cir. 2004). But this petition is not
properly taken from an appealable order, so there is no
proper jurisdictional basis from which we may extend pendent
jurisdiction. The appropriate place for the defendants to
request pendent appellate jurisdiction is in the appeal from
the preliminary injunction order.
we lack appellate jurisdiction, the petition for permission
to appeal under ...