Botelho v. Transportation Security Administration
Filing
36
ORDER DENYING PLAINTIFF MICHAEL BOTELHO'S MOTION FOR INTERLOCUTORY APPEAL AND STAY PENDING THAT APPEAL re: 33 - Signed by JUDGE ALAN C. KAY on 4/8/2019. (jo)
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAI`I
MICHAEL BOTELHO,
Plaintiff,
v.
KIRSTJEN M. NIELSEN, SECRETARY
OF THE UNITED STATES DEPARTMENT
OF HOMELAND SECURITY;
CIV. NO. 18-00032 ACK-RLP
Defendant.
ORDER DENYING PLAINTIFF MICHAEL BOTELHO’S MOTION FOR
INTERLOCUTORY APPEAL AND STAY PENDING THAT APPEAL
For the reasons set forth below, the Court DENIES
Plaintiff Michael Botelho’s Motion for Interlocutory Appeal and
Stay Pending that Appeal, ECF No. 33.
BACKGROUND
For 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 14, 2019.
On June 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.
- 1 -
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.
In its 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.
Dismissal Order at 12-17, 23.
Partial
The Court therefore held that the
preemptive effect of the ATSA divested the Court of subjectmatter 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.
Following 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
- 2 -
Court elects to decide Plaintiff Botelho’s Motion without a
hearing.
STANDARD
A “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).
DISCUSSION
Plaintiff 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
- 3 -
conditions for interlocutory review are met.
Motion at 5.
also asks for a stay pending the outcome of the appeal.
I.
He
Id.
Timeliness
28 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)).
“The 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
(E.D.Cal.2003) (dismissing certification requests as untimely
because they were not filed within 30 days after the initial
order was entered).
- 4 -
Plaintiff Botelho contends that the nearly three-month
delay in filing his Motion was due to the lapse in
appropriations funding the Department of Justice, which lasted
from December 21, 2018 until January 25, 2019.
Motion at 3
During that time, defense counsel was prohibited from working
except in an extremely limited capacity.
Id.
On February 20,
2019, the Magistrate Judge approved a stipulation staying all
deadlines in the case and allowing Plaintiff Botelho until March
15, 2019 to file the instant Motion.
See ECF No. 31.
Given the government shutdown and the fact that
Plaintiff Botelho filed his Motion prior to the March 15, 2019
deadline set by the Magistrate Judge, the Court finds that
Plaintiff Botelho’s delay in filing the instant Motion is
excusable.
Accordingly, the Court will address the statutory
requirements for granting a request for interlocutory appeal.
II.
Whether the Partial Dismissal Order Involves a Controlling
Question of Law
A question of law is controlling if the resolution of
the issue on appeal could “materially affect the outcome of the
litigation in the district court.”
In re Cement Antitrust
Litig., 673 F.2d 1020, 1026 (9th Cir. 1981), aff’d sub nom.
Ariz. v. Ash Grove Cement Co., 459 U.S. 1190 (1983) (citation
omitted).
- 5 -
Plaintiff Botelho characterizes the issue he wishes to
appeal as “whether the District Court does, in fact, lack
subject matter jurisdiction over Plaintiff’s Rehabilitation Act
claim.”
Motion at 4.
A more precise recitation of the issue is
whether the ATSA preempts the Rehabilitation Act and thus
divests federal courts of jurisdiction over Rehabilitation Act
claims brought by TSA security screeners against the TSA.
is a question of pure law.
This
See Field v. Napolitano, 663 F.3d
505, 508 and 510 (1st Cir. 2011) (the issue of whether the ATSA
precludes a TSA security screener from bringing suit under the
Rehabilitation Act is a question of pure law); see also Knee
Deep Cattle Co., Inc. v. Bindana Inv. Co. Ltd., 94 F.3d 514, 516
(9th Cir. 1996) (“[t]he existence of subject matter jurisdiction
is a question of law”).
Accordingly, the Court finds that Plaintiff Botelho
seeks to appeal a controlling question of law and that the first
requirement of § 1292(b) is met.
III.
Whether a Substantial Ground for Difference of Opinion
Exists
There is a “substantial ground for difference of
opinion” if there is a genuine dispute over the question of law
that is the subject of the appeal.
Litig., 673 F.2d at 1026.
In re Cement Antitrust
“To determine if a ‘substantial
ground for difference of opinion’ exists under § 1292(b), courts
- 6 -
must examine to what extent the controlling law is unclear.”
Couch v. Telescope, Inc., 611 F.3d 629, 633 (9th Cir. 2010).
“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 has not spoken on the
point.”
Id. (citation and quotation marks omitted).
Perhaps tellingly, Plaintiff Botelho does not address
this requirement of § 1292(b) in his Motion—he has not cited any
cases that conflict with the Court’s holding regarding the
ATSA’s preemptive effect on the Rehabilitation Act.
As the
Court discussed in its Partial Dismissal Order, every court of
appeals to address the question has held that the ATSA precludes
TSA security screeners from bringing suit under the
Rehabilitation Act.
See Partial Dismissal Order at 12-13
(citing appellate cases from the First, Third, Seventh, and
Eleventh Circuits).
The Court was unable to find any district
court cases adopting a different position.
(collecting cases).
See id. at 14
Finally, the Court noted cases from the
Second and Federal Circuits holding that the ATSA precludes TSA
security screeners from bringing claims against the TSA under
other federal laws.
See id. at 13.
“A party’s strong disagreement with the [c]ourt’s
ruling is not sufficient for there to be a substantial ground
for difference.”
Couch, 611 F.3d at 633.
- 7 -
“While identification
of a sufficient number of conflicting and contradictory opinions
would provide substantial ground for disagreement,” id. at 63334 (citing Union Cty. v. Piper Jaffray & Co., 525 F.3d 643, 64546 (8th Cir. 2008)(per curiam)), here, Plaintiff Botelho has not
identified a single authority in conflict with the Court’s
ruling.
The Court notes, as it did in its Partial Dismissal
Order, that courts have dismissed Rehabilitation Act claims
brought by TSA security screeners pursuant to either Federal
Rule of Civil Procedure 12(b)(1) or Rule 12(b)(6) depending on
the type of motion filed by the defendant.
Order at 20-21.
Partial Dismissal
Regardless of whether the defendant filed a
Rule 12(b)(1) motion or a Rule 12(b)(6) motion, however, the
jurisprudence is unanimous as to the preemptive effect of the
ATSA on Rehabilitation Act claims brought by TSA security
screeners.
Accordingly, the Court finds that its ruling does not
present a legal question on which there is a substantial ground
for difference of opinion.
See Couch, 611 F.3d at 634 (finding
that the district court, having concluded that its ruling did
not present a legal question on which there is a substantial
ground for difference of opinion, erred in certifying its order
for interlocutory review).
- 8 -
IV.
Whether the Proposed Interlocutory Appeal Will Materially
Advance the Ultimate Termination of the Litigation
A district court generally should not permit an
interlocutory appeal where doing so would prolong litigation
rather than advance its resolution.
Fenters v. Yosemite
Chevron, 761 F. Supp. 2d 957, 1005 (E.D. Cal. 2010).
District
courts within the Ninth Circuit have held that the resolution of
a question materially advances the termination of litigation if
it “facilitate[s] disposition of the action by getting a final
decision on the controlling legal issue sooner, rather than
later [in order to] save the courts and the litigants
unnecessary trouble and expense.”
See United States v. Adam
Bros. Farming, Inc., 369 F. Supp. 2d 1180, 1182 (C.D. Cal.
2004); see also In re Cement Antitrust Litig., 673 F.2d at 1026
(stating that § 1292(b) is used “only in exceptional situations
in which allowing an interlocutory appeal would avoid protracted
and expensive litigation”).
Plaintiff Botelho argues that granting his Motion
would serve the interests of judicial economy because if he
prevails on his Title VII claims, only to have the Ninth Circuit
reverse the Court’s ruling on the Rehabilitation Act claims, the
parties and the Court would have to relitigate the same facts
under a different statutory framework.
Regardless of Plaintiff
Botelho’s argument, the requirements of § 1292(b) are
- 9 -
conjunctive and the Court has determined that its ruling does
not present a legal question on which there is a substantial
ground for difference of opinion.
Accordingly, the absence of
this statutory requirement moots the question of whether
interlocutory appeal would materially advance the ultimate
termination of the litigation.
CONCLUSION
For the foregoing reasons, Plaintiff Botelho’s Motion
is hereby DENIED.
IT IS SO ORDERED.
DATED:
Honolulu, Hawai`i, April 8, 2019.
________________________________
Alan C. Kay
Sr. United States District Judge
Botelho v. Kirstjen M. Nielsen, Civ. No. 18-00032 ACK-RLP, Order Denying
Plaintiff Botelho’s Motion for Interlocutory Appeal and Stay Pending that
Appeal
- 10 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?