Spirit of Aloha Temple et al v. County of Maui et al

Filing 243

ORDER Denying Plaintiffs' Motion To Certify Order of April 23, 2019, For Interlocutory Appeal Under 28 U.S.C. § 1292(b) re 241 . Signed by JUDGE SUSAN OKI MOLLWAY on 5/16/2019. (cib)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SPIRIT OF ALOHA TEMPLE AND
FREDRICK R. HONIG,

)
)
)
Plaintiffs,
)
)
vs.
)
)
COUNTY OF MAUI,
)
)
Defendant,
)
)
and
)
)
STATE OF HAWAII,
)
)
Intervenor-Defendant )
______________________________ )

CIVIL NO. 14-00535 SOM/WRP
ORDER DENYING PLAINTIFFS’
MOTION TO CERTIFY ORDER OF
APRIL 23, 2019, FOR
INTERLOCUTORY APPEAL UNDER 28
U.S.C. § 1292(b)

ORDER DENYING PLAINTIFFS’ MOTION TO CERTIFY ORDER OF APRIL 23,
2019, FOR INTERLOCUTORY APPEAL UNDER 28 U.S.C. § 1292(b)
I.

INTRODUCTION.
On 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).

II.

ANALYSIS.
Plaintiffs 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).
§ 1292(b) provide alternative bases for appeal.

Rule 54(b) and
James v. Price

Stern Sloan, Inc., 283 F.3d 1064, 1068 n.6 (9th Cir. 2002).
Rule 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

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other issues in the case remain unresolved.”

James, 283 F.3d at

1068 n.6.
While 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

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from the order may materially advance the ultimate termination of
the litigation.”

Id.

Plaintiffs seek to appeal this court’s order of April
23, 2019, under § 1292(b), rather than under Rule 54(b).
No. 242.

See ECF

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.

Before 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).
Section 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
United States v. Woodbury, 263 F.2d 784, 787 (9th Cir.

lawsuit.
1959).

Accordingly, controlling questions of law include issues
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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.”
Antitrust Litigation, 673 F.2d at 1026.

In re Cement

The Ninth Circuit has

noted that such issues include questions of “who are necessary
and proper parties, whether a court to which a cause has been
transferred has jurisdiction, or whether state or federal law
shall be applied.”

Woodbury, 263 F.2d at 787.

The Ninth Circuit has stated:
To determine if a “substantial ground for
difference of opinion” exists under
§ 1292(b), courts must examine to what extent
the controlling law is unclear. Courts
traditionally will find that a substantial
ground for difference of opinion exists where
“the circuits are in dispute on the question
and the court of appeals of the circuit has
not spoken on the point, if complicated
questions arise under foreign law, or if
novel and difficult questions of first
impression are presented.” 3 Federal
Procedure, Lawyers Edition § 3:212 (2010)
(footnotes omitted). However, “just because
a court is the first to rule on a particular
question or just because counsel contends
that one precedent rather than another is
controlling does not mean there is such a
substantial difference of opinion as will
support an interlocutory appeal.” Id.
(footnotes omitted).

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Crouch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010).

Put

another way,
A substantial ground for difference of
opinion exists where reasonable jurists might
disagree on an issue’s resolution, not merely
where they have already disagreed. Stated
another way, when novel legal issues are
presented, on which fair-minded jurists might
reach contradictory conclusions, a novel
issue may be certified for interlocutory
appeal without first awaiting development of
contradictory precedent.
Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 688 (9th
Cir. 2011).
“Section 1292(b) was intended primarily as a means of
expediting litigation by permitting appellate consideration
during the early stages of litigation of legal questions which,
if decided in favor of the appellant, would end the lawsuit.”
United States v. Woodbury, 263 F.2d 784, 787 (9th Cir. 1959).
Accordingly, “[o]ne of the principal reasons a Court of Appeals
will exercise its discretion not to grant applications under
section 1292(b) is the likelihood or probability of the appellate
court’s having to issue multiple opinions on the same or closely
related issues of law or fact in the case.”

Morrison-Knudsen Co.

v. Archer, 655 F.2d 962, 966 (9th Cir. 1981).
In its order of April 23, 2019, this court granted
summary judgment in favor of Defendants with respect to the prior
restraint claim asserted in Count V.

The order left the

following claims for further adjudication: Count I (Violation of
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Religious Land Use and Institutionalized Persons Act of 2000-Substantial Burdens, 42 U.S.C. §2000cc(a)); Count II (Violation
of Religious Land Use and Institutionalized Persons Act of 2000-nondiscrimination, 42 U.S.C. §2000cc(b)(2)); Count IV (Violation
of Religious Land Use and Institutionalized Persons Act of 2000-Equal Terms, 42 U.S.C. §2000cc(b)(1)); Count VI (42 U.S.C.
§ 1983: First Amendment--Free Exercise of Religion); Count VII
(42 U.S.C. § 1983: Fourteenth Amendment--Equal Protection); Count
VIII (Hawaii Constitution Article I § 4--Free Exercise of
Religion); and Count IX (Hawaii Constitution Article I § 5--Equal
Protection of the Law).

Given the number and nature of claims

remaining in this case, Plaintiffs are not persuasive in arguing
that an appellate determination with respect to Count V will end
the lawsuit, even assuming there is a controlling question of law
with substantial grounds for differences of opinion.
If for example, the Ninth Circuit affirms this court,
then all of the other counts will still have to be adjudicated,
leading to the possibility of a second appeal to the Ninth
Circuit.

If the Ninth Circuit reverses this court and determines

that summary judgment should have been granted in favor of
Plaintiffs with respect to Count V, Plaintiffs will still have to
address the remaining counts, again raising the possibility of
piecemeal appeals.

Although Plaintiffs indicate that a ruling in

their favor with respect to Count V would “resolve the entire

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case, as Plaintiffs would be able to use the Property for
religious purposes,” see ECF No. 242, PageID #s 5201-02, they do
not actually say that they are dismissing the remaining claims or
that they will dismiss the remaining claims if they are
successful on appeal.
While this court recognizes that § 1292(b) does not
require a “dispositive effect on the litigation,” and instead
only requires that it “may materially advance the litigation,”
see Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 688 (9th
Cir. 2011) (quotation marks and citation omitted), this court
determines that an appellate ruling with respect to Count V would
not so advance the litigation that the possibility of piecemeal
appeals is outweighed.

However the Ninth Circuit might rule with

respect to Count V, litigation appears likely with respect to the
remaining counts.

Accordingly, an interlocutory appeal with

respect to Count V would not materially advance this case for
purposes of § 1292(b).

See White v. Nix, 43 F.3d 374, 378–79

(8th Cir. 1994) (“When litigation will be conducted in
substantially the same manner regardless of our decision, the
appeal cannot be said to materially advance the ultimate
termination of the litigation.”).
This court declines to certify its order of April 23,
2019, under § 1292(b).

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III.

CONCLUSION.
The court denies Plaintiffs’ motion to certify its

order of April 23, 2019, as an interlocutory order appealable
under § 1292(b).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 16, 2019.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Spirit of Aloha Temple, et al. v. County of Maui, Civ. No. 14-00535
SOM/WRP;ORDER DENYING PLAINTIFFS’ MOTION TO CERTIFY ORDER OF APRIL 23, 2019,
FOR INTERLOCUTORY APPEAL UNDER 28 U.S.C. § 1292(b)

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