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Botelho v. Nielsen

United States District Court, D. Hawaii

April 8, 2019

MICHAEL BOTELHO, Plaintiff,
v.
KIRSTJEN M. NIELSEN, SECRETARY OF THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY; Defendant.

          ORDER DENYING PLAINTIFF MICHAEL BOTELHO'S MOTION FOR INTERLOCUTORY APPEAL AND STAY PENDING THAT APPEAL

          ALAN C. KAY SR. DISTRICT JUDGE

         For the reasons set forth below, the Court DENIES Plaintiff Michael Botelho's Motion for Interlocutory Appeal and Stay Pending that Appeal, ECF No. 33.

         BACKGROUND

         For purposes of this Order, the Court discusses only those facts relevant to Plaintiff Michael Botelho's (“Plaintiff Botelho”) Motion for Interlocutory Appeal and Stay Pending that Appeal (“Motion”) (styled a “Petition for Permission to File Interlocutory Appeal”). Plaintiff Botelho filed his Motion on March 14, 2019.

         On June 1, 2018, Defendant Kirstjen M. Nielsen (“Defendant Nielsen”), Secretary of the United States Department of Homeland Security, filed a Motion for Dismissal or, in the Alternative, for Summary Judgment. ECF No. 15. On November 13, 2018, the Court approved a stipulation withdrawing without prejudice the summary judgment portions of Defendant Nielsen's motion. ECF No. 24. On December 17, 2018, the Court held a hearing on Defendant Nielsen's motion, ECF No. 28, and on December 26, 2018, the Court issued an order granting in part and denying in part that motion (“Partial Dismissal Order”). ECF No. 29.

         In its Partial Dismissal Order, the Court found that § 111(d) of the Aviation and Transportation Security Act (“ATSA”) preempts the Rehabilitation Act and precludes Transportation Security Administration (“TSA”) security screeners from filing suit against the TSA for Rehabilitation Act violations. Partial Dismissal Order at 12-17, 23. The Court therefore held that the preemptive effect of the ATSA divested the Court of subject-matter jurisdiction over Plaintiff Botelho's Rehabilitation Act claims and dismissed them with prejudice. Id. at 20-21, 23. The Court also found that the ATSA did not preempt Title VII and therefore allowed Plaintiff Botelho's Title VII claims under retaliation and hostile work environment theories to proceed. Id. at 21-23.

         Following Plaintiff Botelho's filing the instant Motion, Defendant Nielsen filed a Memorandum in Opposition on April 4, 2019. ECF No. 35. Pursuant to Local Rule 7.2(d), the Court elects to decide Plaintiff Botelho's Motion without a hearing.

         STANDARD

         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. 28 U.S.C. § 1292(b).

         DISCUSSION

         Plaintiff Botelho asks the Court to permit him to file an interlocutory appeal under 28 U.S.C. § 1292(b) and to amend its Partial Dismissal Order to state that the necessary conditions for interlocutory review are met. Motion at 5. He also asks for a stay pending the outcome of the appeal. Id.

         I. Timeliness

         28 U.S.C. § 1292(b) states that an application for appeal must be filed with the appellate court within ten days of the district court's certification of the order for interlocutory appeal. “Though there is no specified time limit for seeking certification, § 1292(b) provides for an ‘immediate appeal,' and ‘a district judge should not grant an inexcusably dilatory request.'” Spears v. Wash. Mut. Bank FA, No. C-08-868 RMW, 2010 WL 54755, at *1 (N.D. Cal. Jan 8, 2010) (quoting Richardson Elecs., Ltd. v. Panache Broad. of Pa., Inc., 202 F.3d 957, 958 (9th Cir. 2000)).

         “The ten-day limitation in section 1292(b) is not to be nullified by promiscuous grants of motions to amend. An amendment that will have the effect of extending the limitation is proper only if there is a reason for the delay.” Weir v. Propst, 915 F.2d 283, 287 (7th Cir.1990); see also Spears, 2010 WL 54755, at *2 (denying § 1292(b) certification where no reason was provided for a two and a half month delay); A.H.D.C. v. City of Fresno, No. CIV F 97-5498 OWW, 2003 WL 25948686, at *5 ...


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