United States District Court, D. Hawaii
K.S-A, a minor, and J.S-A, a minor, by and through Joshua Douglas Franklin, as their Guardian Ad Litem Plaintiffs,
STATE OF HAWAII, DEPARTMENT OF EDUCATION Defendant.
ORDER DENYING PLAINTIFFS' MOTION FOR (1)
INTERLOCUTORY APPEAL AND (2) STAY PENDING THAT
C. KAY SR. UNITED STATES DISTRICT JUDGE
reasons discussed below, the Court DENIES Plaintiffs'
Motion for Interlocutory Appeal and for Stay Pending that
Appeal (“June 4, 2018 Motion”), ECF No. 124.
purposes of the current motion, the Court discusses only
those facts relevant to Plaintiffs' June 4, 2018 Motion.
March 1, 2018, Plaintiffs filed a motion for partial summary
judgment regarding their Title IX claims. ECF No. 109. On May
7, 2018, the Court held a hearing on that motion, ECF No.
119, and on May 9, 2018 issued an order denying that motion
(“Partial Summary Judgment Order”), ECF. No. 120.
In that order, the Court found there to be genuine dispute of
material fact regarding two of the Davis factors:
whether the Plaintiffs suffered “sexual harassment . .
. that is so severe, pervasive, and objectively offensive
that it [could] be said to deprive [them] of access to the
educational opportunities or benefits provided by the school,
” Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of
Educ., 526 U.S. 629, 650 (1999), and whether the
Defendant was deliberately indifferent, id. See ECF
No. 120 at 22-23, 45.
Plaintiffs' filing of the June 4, 2018 Motion, Defendant
filed a memorandum in opposition on June 15, 2018. ECF No.
131 (“Opp.”). On July 2, 2018, Plaintiffs filed a
reply memorandum in support of their June 4, 2018 Motion. ECF
No. 136 (“Reply”).
appears to the Court that a hearing in this matter is neither
necessary nor appropriate. See Local Rule 7.2(d).
After reviewing the briefing and relevant authorities, the
Court hereby denies Plaintiffs' motion.
contend that the Court should permit them to file an
interlocutory appeal under 28 U.S.C. § 1292(b); they ask
in their Motion that the Partial Summary Judgment Order be
amended to state that the necessary conditions for
interlocutory review have been met and that the remainder of
the case be stayed pending appeal. June 4, 2018 Mot. at 1.
have explained that a “movant seeking an interlocutory
appeal [under 28 U.S.C. § 1292(b)] has a heavy burden to
show that exceptional circumstances justify a departure from
the basic policy of postponing appellate review until after
the entry of a final judgment.” Coopers &
Lybrand v. Livesay, 437 U.S. 463, 475 (1978) (internal
quotation marks and citation omitted); see also James v.
Price Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th
Cir. 2002) (“Section 1292(b) is a departure from the
normal rule that only final judgments are appealable, and
therefore must be construed narrowly.”); Du Preez
v. Banis, No. CIV. 14-00171 LEK-RLP, 2015 WL 857324, at
*1 (D. Haw. Feb. 27, 2015) (collecting cases). Certification
for interlocutory appeal under § 1292(b) is only
appropriate where: (1) The order involves a controlling
question of law; (2) a substantial ground for difference of
opinion exists as to that question; and (3) an immediate
appeal from the order may materially advance the ultimate
termination of the litigation.
Whether the Partial Summary Judgment Order Involves a
Controlling Question of Law
outset, the Court notes that Plaintiffs' arguments in
support of the June 4, 2018 Motion seem to center around
Plaintiffs' disagreement with the substance of the
Court's decision to deny them partial summary judgment.
Given the adverseness of that decision to Plaintiffs'
interests, such disagreement is perhaps understandable-but
§ 1292(b) is not a vindicatory vehicle for mere
difference of opinion or an opportunity for a
“do-over” after an unfavorable
result.Rather, litigants seeking the certification
of an order for interlocutory appeal must at the outset
identify a controlling question of law involved in the
at-issue order. See § 1292(b). This Plaintiffs
have failed to do.
question of law is controlling if the resolution of the issue
on appeal could “materially affect the outcome of
litigation in the district court.” In re Cement
Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1981),
aff'd sub nom. Arizona v. Ash Grove Cement Co.,
459 U.S. 1190 (1983) (citation omitted). A “question of
law” under § 1292(b) means a “pure question
of law” rather than a mixed question of law and fact or
the application of law to a particular set of
facts. Chehalem Physical Therapy,
Inc. v. Coventry Health Care, Inc., No. 09-CV-320-HU,
2010 WL 952273, at *3 (D. Or. Mar. 10, 2010) (collecting
cases); see also McFarlin v. Conseco Servs., LLC,
381 F.3d 1251, 1259 (11th Cir. 2004) (Section “1292(b)
appeals were intended, and should be reserved, for situations
in which the court of appeals can rule on a pure, controlling
question of law without having to delve beyond the surface of
the record in order to determine the facts”);
Ahrenholz v. Bd. of Trs., 219 F.3d 674, 677 (7th
Cir. 2000) (stating that a question of law is one that
presents an abstract legal issue that can be decided
“quickly and cleanly without having to study the
contend that “there is a controlling question of law
whether the undisputed facts on their own require a favorable
finding on each element, without regard to the disputed
facts.” Reply at 2; see also June 4, 2018 Mot.
at 4 (“As a matter of law, there is a substantial
difference of opinion as to whether the other two elements of
the Title IX [sic] likewise should have been
found.”). As noted above, Plaintiffs'
overarching argument appears to come down to raw disagreement
with the Court's decision to deny them partial summary
judgment. See, e.g., Reply at 4 (“[N]o
reasonable fact-finder could have found that the harassment
was not severe, pervasive, and objectively
offensive.”). Far from posing any pure or abstract
questions of law, Plaintiffs would seek interlocutory appeal
regarding the application of law to a particular set of
facts, and specifically the manner in which this Court
applied Title IX and related case law to the facts before it
on summary judgment. But “Section 1292(b) was not
designed to secure appellate review of ‘factual
matters' or of the application of the acknowledged law to
the facts of a particular case, matters which are within the
sound discretion of ...