United States District Court, D. Hawaii
ORDER DENYING PLAINTIFF MICHAEL BOTELHO'S MOTION
FOR INTERLOCUTORY APPEAL AND STAY PENDING THAT
C. KAY SR. DISTRICT JUDGE
reasons set forth below, the Court DENIES Plaintiff Michael
Botelho's Motion for Interlocutory Appeal and Stay
Pending that Appeal, ECF No. 33.
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
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.
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.
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.
“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).
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.
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)).
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 ...