United States District Court, D. Hawaii
SPIRIT OF ALOHA TEMPLE AND FREDRICK R. HONIG, Plaintiffs,
COUNTY OF MAUI, Defendant, and STATE OF HAWAII, Intervenor-Defendant
ORDER DENYING PLAINTIFFS' MOTION TO CERTIFY ORDER
OF APRIL 23, 2019, FOR INTERLOCUTORY APPEAL UNDER 28 U.S.C.
OKI MOLLWAY UNITED STATES DISTRICT JUDGE.
April 23, 2019, this court granted Intervenor-Defendant State
of Hawaii's motion for partial summary judgment with
respect to the prior restraint claim asserted in Count V, as
well as Defendant County of Maui's joinder therein. The
order left for further adjudication the facial challenges
asserted in Counts I, II, IV, VI, VII, VIII, and IX against
the County of Maui. Plaintiffs Fredrick R. Honig and Spirit
of Aloha Temple seek certification under 28 U.S.C. §
1292(b) to allow them to file an interlocutory appeal of the
order. The court declines to grant Plaintiffs such
certification and denies the motion without a hearing
pursuant to Local Rule 7.2(d).
seek to immediately appeal this court's order of April
23, 2019. The Ninth Circuit has stated that piecemeal review
of cases, except when authorized by Rule 54(b) or 28 U.S.C.
§ 1292(b), is not favored. Hartford Fire Ins. Co. v.
Herrald, 434 F.2d 638, 639 (9th Cir. 1970).
Rule 54(b) and § 1292(b) provide alternative bases for
appeal. James v. Price Stern Sloan, Inc.,
283 F.3d 1064, 1068 n.6 (9th Cir. 2002).
54(b) of the Federal Rules of Civil Procedure allows a court
to enter final judgment on a claim before final judgment is
entered on all claims, stating:
When an action presents more than one claim for
relief--whether as a claim, counterclaim, crossclaim, or
third-party claim--or when multiple parties are involved, the
court may direct entry of a final judgment as to one or more,
but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for delay.
Otherwise, any order or other decision, however designated,
that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised
at any time before the entry of a judgment adjudicating all
the claims and all the parties' rights and liabilities.
Fed. R. Civ. P. 54(b). “Rule 54(b) applies where the
district court has entered a final judgment as to particular
claims or parties, yet that judgment is not immediately
appealable because other issues in the case remain
unresolved.” James, 283 F.3d at 1068 n.6.
Rule 54(b) allows this court to certify a final judgment for
appeal with respect to a portion of a case, 28 U.S.C. §
1292(b) allows an appeal of an interlocutory order that
raises an important and unsettled question of law that
advances the termination of proceedings:
When a district judge, in making in a civil action an order
not otherwise appealable under this section, shall be of the
opinion that such order involves a controlling question of
law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the
litigation, he shall so state in writing in such order. The
Court of Appeals which would have jurisdiction of an appeal
of such action may thereupon, in its discretion, permit an
appeal to be taken from such order, if application is made to
it within ten days after the entry of the order:
Provided, however, That application for an appeal
hereunder shall not stay proceedings in the district court
unless the district judge or the Court of Appeals or a judge
thereof shall so order.
28 U.S.C. § 1292(b). Normally, interlocutory orders are
not immediately appealable. James, 283 F.3d at 1068
n.6. But, “[i]n rare circumstances, the district court
may approve an immediate appeal of such an order by
certifying that the order “involves a controlling
question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the
seek to appeal this court's order of April 23, 2019,
under § 1292(b), rather than under Rule 54(b).
See ECF No. 242. As the parties seeking an
interlocutory appeal, Plaintiffs have the burden of
demonstrating “exceptional circumstances”
justifying a departure from the basic policy of postponing
appellate review until a final judgment has issued.”
See Coopers & Lybrand, 437 U.S. 463, 475 (1978).
Because § 1292(b) is a departure from the normal final
judgment rule, the Ninth Circuit has stated that §
1292(b) should be construed “narrowly.” See
James, 283 F.3d at 1068 n.6.
the Ninth Circuit exercises its discretion to permit an
interlocutory appeal under § 1292(b), this court must
first certify: “(1) that there be a controlling
question of law, (2) that there be substantial grounds for
difference of opinion, and (3) that an immediate appeal may
materially advance the ultimate termination of the
litigation.” In re Cement Antitrust Litig.,
673 F.2d 1020, 1026 (9th Cir. 1981).
1292(b) is primarily intended to expedite litigation by
permitting appellate consideration of legal questions that,
if decided in favor of appellant, would end the lawsuit.
United States v. Woodbury, 263 F.2d 784, 787
(9th Cir. 1959). Accordingly, controlling
questions of law include issues relating to jurisdiction or a
statute of limitations, as an appeal from the denial of
dismissal based on either, if decided differently on appeal,
would terminate a case. Id. However, an issue need
not be dispositive of the lawsuit to be considered
controlling. Id. Instead, a “question of
law” is controlling if a “resolution of the issue
on appeal could materially affect the outcome of litigation
in the district court.” In re CementAntitrust Litigation, 673 F.2d at 1026. The Ninth
Circuit has noted that such issues include ...