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Kenosha Unified School v. Whitaker: Case of Vanishing § 1292(b) Certification

Nothing about the Seventh Circuit’s recent per curiam decision in Kenosha Unified School District No. 1 Board of Education v. Whitaker, No. 16-8019 (7th Cir. Nov. 14, 2016), could be considered much of a mystery, but file the case away as something you don’t see often. It answers the question of what happens to the court of appeals’ jurisdiction if the district court makes and then withdraws certification of an interlocutory order under 28 U.S.C. § 1292(b).

The general rule in federal court is that only “final decisions” can be appealed. 28 U.S.C. § 1291. A limited departure from the general rule in § 1292(b) allows a court of appeals to hear an otherwise nonappealable order if the district court certifies that it “involves a controlling question of law as to which there is a substantial ground for difference of opinion” and where that appeal might “materially advance” the case’s termination. The final call whether to take the appeal lies with the court of appeals, but the district court’s certification is essential.

In Whitaker, a transgender student at a Kenosha high school sued the school district for sexual discrimination when it refused to allow the student to use the boys’ bathroom. The school district filed a motion to dismiss for failure to state a claim, which the district court denied.

Here’s where things became confusing. The district court’s ruling on the motion to dismiss was oral, and the following day, after the court granted the plaintiff’s motion for a preliminary injunction, the school district told the court that it intended to appeal the previous day’s motion-to-dismiss decision and gave the court a proposed order that included a certification under § 1292(b). The court signed the order, and the school district promptly filed a petition for leave to appeal.

Apparently, the district court, through oversight, missed the fact that the order contained the certification language. When the plaintiff filed a motion for reconsideration, the district court confessed its mistake, noting that, in addition to having overlooked the certification language, it had failed to ask the parties for argument on certification. The court granted the motion for reconsideration and withdrew its certification because, it said, an appeal wouldn’t “materially advance” the litigation. The complaint, the court explained, would have survived the motion to dismiss regardless of the argument that it had rejected, based on alternative grounds.

So, what happens to the petition pending in the court of appeals? The Seventh Circuit asked the parties for position statements. Both parties concluded––and so did the court—that, because the certification was the linchpin of the court of appeals’ jurisdiction, withdrawal of it deprived the Seventh Circuit of jurisdiction over the school district’s appeal.

The school district argued that the court of appeals could still take pendent appellate jurisdiction over the denial order because of its undoubted jurisdiction over the district’s separate appeal from the partial grant of the preliminary injunction, an order independently appealable under § 1292(a)(1). But the Seventh Circuit disagreed, holding that the appeal from the denial order wasn’t the proper place to consider whether to exercise pendent jurisdiction. The school district might be able to persuade the Seventh Circuit to exercise pendent jurisdiction over the denial order, but only as part of the appeal of the preliminary injunction.

© 2020 Foley & Lardner LLP


About this Author

Eric G Pearson, Business Litigation Attorney, Appellate, malpractice, Foley
Senior Counsel

Eric G. Pearson is a business litigation lawyer with Foley & Lardner LLP, where his practice involves counseling and litigating in a variety of areas, including appellate litigation, professional-malpractice cases, and financial- and accounting-related controversies. In addition, he has represented clients in internal investigations and enforcement-defense actions in the financial, health care, and sports industries. Mr. Pearson is a member of the firm’s Appellate, Business Litigation & Dispute Resolution, and Government Enforcement, Compliance & White Collar...