Moore v. Kansas, State of, Secretary
2:18-cv-02329
D. Kan.Sep 5, 2019Background
- Plaintiffs Scott Moore, James Long, and Nancy Perry sued Kansas Secretary of State Scott Schwab (official capacity) and Kris Kobach (individual capacity), alleging Schwab violated their Fourteenth Amendment right to informational privacy and that Kobach violated the Kansas Public Records Act.
- Plaintiffs allege Schwab failed to adopt adequate safeguards for Crosscheck and disclosed portions of plaintiffs’ Social Security numbers and other personally identifiable information.
- Defendants moved to dismiss; the court denied the motion in a February 1, 2019 Memorandum and Order, recognizing a Tenth Circuit–recognized right to informational privacy.
- Schwab moved to alter the Order to add certification for interlocutory appeal under 28 U.S.C. § 1292(b); plaintiffs opposed.
- § 1292(b) permits interlocutory appeal where (1) a controlling question of law is involved, (2) there is substantial ground for difference of opinion, and (3) an immediate appeal may materially advance termination of the litigation; certification is discretionary and granted only in extraordinary cases.
- The court denied Schwab’s motion, finding no substantial ground for difference of opinion because Tenth Circuit precedent (Leiser) still recognizes the right to informational privacy for now and thus guides resolution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court should certify its denial of defendants’ motion to dismiss for interlocutory appeal under 28 U.S.C. § 1292(b). | Certification not warranted because there is no substantial ground for difference of opinion on the existence of an informational privacy right. | Certification warranted because the Supreme Court hasn’t addressed the right to informational privacy, so substantial difference of opinion exists. | Denied: court found the substantial-difference requirement unmet because Tenth Circuit precedent (Leiser) still controls and the issue is substantially guided by prior decisions; first and third §1292(b) factors were undisputed. |
Key Cases Cited
- Leiser v. Moore, 903 F.3d 1137 (10th Cir. 2018) (discussed developments raising questions about informational-privacy precedent but did not overrule prior Tenth Circuit holdings)
- Utah By & Through Dep’t of Health v. Kennecott Corp., 14 F.3d 1489 (10th Cir. 1994) (§1292(b) certification limited to extraordinary cases where interlocutory appeal can avoid extended, expensive proceedings)
- Rural Water Dist. No. 4 v. City of Eudora, Kan., 875 F. Supp. 2d 1260 (D. Kan. 2012) (movant must present a colorable argument; first-impression questions alone do not satisfy substantial-difference requirement)
- Etienne v. Wolverine Tube, Inc., 15 F. Supp. 2d 1060 (D. Kan. 1998) (Tenth Circuit is reluctant to accept interlocutory appeals except in the rarest circumstances)