Kenosha Unified School District No. 1 Board of Education v. Whitaker, 841 F.3d 730

Background

Ash Whitaker, a transgender male high-school student, sued his school district alleging sex discrimination under Title IX and the Equal Protection Clause because the school would not let him use the boys’ bathroom.
Defendants moved to dismiss; the district court orally denied the motion and later entered a written order memorializing that denial and (improperly) certifying the order for interlocutory appeal under 28 U.S.C. § 1292(b).
Defendants filed a petition in this Court seeking permission to appeal under § 1292(b).
Whitaker moved the district court under Fed. R. Civ. P. 60(b) to reconsider and vacate the interlocutory certification; the district court granted reconsideration, revoked its § 1292(b) certification, and explained it had erred by not soliciting argument before certifying.
This Court held a briefing on jurisdiction; because the district court withdrew certification, the Court concluded it lacked appellate jurisdiction over the § 1292(b) petition and denied the petition.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether this Court has jurisdiction to hear a § 1292(b) interlocutory appeal after district court withdraws certification	Whitaker: district court’s withdrawal deprives the appellate court of § 1292(b) jurisdiction	Defendants: appellate court could still hear the petition despite withdrawal	Held: No jurisdiction once district court revoked certification; § 1292(b) jurisdiction depends on district court certification
Whether appellate court may exercise pendent appellate jurisdiction over a non-final order not certified under § 1292(b)	Whitaker: pendent jurisdiction inappropriate absent a properly appealable companion order	Defendants: Court can exercise pendent appellate jurisdiction linked to separate appeal of preliminary injunction under § 1292(a)(1)	Held: Pendent appellate jurisdiction cannot be invoked here because the petition is not taken from an appealable order; pendent jurisdiction should be sought in the appeal from the injunction order
Whether district court properly considered § 1292(b) certification factors before certifying	Whitaker: district court erred in failing to solicit argument and consider factors	Defendants: initial certification was acceptable without further briefing	Held: District court admitted error and properly reconsidered, identifying the § 1292(b) factors required
Whether resolving whether "sex" in Title IX includes gender identity would control the case and materially advance litigation	Whitaker: appellate resolution would not materially advance termination because alternative grounds remained	Defendants: resolution would control a key legal question and aid litigation	Held: District court reasonably concluded the question would control a claim but would not materially advance termination given other surviving pleadings

Key Cases Cited

Ahrenholz v. Bd. of Tr. of the Univ. of Ill., 219 F.3d 674 (7th Cir.) (factors for § 1292(b) certification)
In re Hamilton, 122 F.3d 13 (7th Cir.) (§ 1292(b) standards)
Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996) (appellate jurisdiction under § 1292(b) derives from district court certification)
Swint v. Chambers Cnty. Comm’n, 514 U.S. 35 (1995) (jurisdictional principles for interlocutory appeals)
Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) (interlocutory appeal jurisdiction depends on certification)
Weir v. Propst, 915 F.2d 283 (7th Cir.) (withdrawal of certification destroys appellate jurisdiction)
In re Powerhouse Licensing, LLC, 441 F.3d 467 (6th Cir.) (authority on effect of vacated certification)
City of L.A. v. Santa Monica Baykeeper, 254 F.3d 882 (9th Cir.) (vacation of certification defeats interlocutory appeal)
Ne. Rural Elec. Membership Corp. v. Wabash Valley Power Ass’n, Inc., 707 F.3d 883 (7th Cir.) (pendent appellate jurisdiction doctrine)
Montano v. City of Chicago, 375 F.3d 593 (7th Cir.) (limits on pendent appellate jurisdiction)