Perez et al v. Perry et al

Filing 1385

ORDER DENYING 1358 Motion to Certify Order for Interlocutory Appeal. Signed by Judge Jerry E. Smith, Chief Judge Orlando L. Garcia and Judge Xavier Rodriguez. (aej)

In the United States District Court
for the
Western District of Texas
SHANNON PEREZ, ET AL.
v.
GREG ABBOTT, ET AL.

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SA-11-CV-360

ORDER ON DEFENDANTS’ MOTION
TO CERTIFY ORDER FOR INTERLOCUTORY APPEAL
On this date, the Court considered Defendants’ Motion to Certify Order
for Interlocutory Appeal (docket no. 1358) and the various responses thereto.
Defendants have requested that the Court certify to the Fifth Circuit the
question of subject-matter jurisdiction over the plaintiffs’ claims against the
2011 congressional redistricting plan—specifically, the question of mootness.
After due consideration, the Court denies the motion.
28 U.S.C. § 1292(b) permits a district court to certify “an order not
otherwise appealable” for interlocutory appeal when “such order involves a
controlling question of law as to which there is substantial ground for
difference of opinion and . . . an immediate appeal from the order may
materially advance the ultimate termination of the litigation.”

The

Defendants argue that the question of subject-matter jurisdiction is a
controlling question of law, and that the Court’s difference of opinion on

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mootness (for which see Docket No. 1339, Memorandum Opinion and Order
on Plan C185 Claims) provide the substantial difference of opinion the
statute requires.

Additionally, they argue that dismissing the 2011

congressional claims on mootness grounds would materially advance this
litigation because it would obviate the need for further consideration of the
2011 congressional redistricting plan at the remedial stage.

For these

propositions, the Defendants cite Beare v. Briscoe, 498 F.2d 244 (5th Cir.
1974) (per curiam), where the Fifth Circuit permitted an interlocutory appeal
under similar circumstances.
However, Section 1292(b) also limits certification to “[t]he Court of
Appeals which would have jurisdiction of an appeal of such action”—
meaning, here, the Court of Appeals that would have ultimate jurisdiction of
an appeal of the redistricting action. No such Court of Appeals exists. 28
U.S.C. § 1253 mandates that appeals from this court be directly reviewed by
the Supreme Court, not a Court of Appeals. Indeed, 28 U.S.C. § 1291 divests
the Court of Appeals of jurisdiction to hear appeals “where direct review may
be had in the Supreme Court.” And direct review by the Supreme Court—
including an appeal of the question of mootness as to the 2011 claims—will
be available when this Court makes a final remedial decision.

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Defendants advance two reasons for ignoring this clear statutory
language; neither are availing. First, Defendants suggest that Beare controls
this Court. But this is incorrect; Beare was decided before amendments to
Section 1292(b) limited interlocutory appeals to “[t]he Court of Appeals which
would have jurisdiction of an appeal of such action.”

See Trademark

Clarification Act of 1983, Pub. L. No. 98-620, 98 Stat. 3335 (codified as
amended at 28 U.S.C. § 1292(b)). Beare does not control in the face of a
contrary statutory change.

Second, Defendants argue that the legislative

history of Section 1292(b) does not evince an intent to limit interlocutory
appeals in this specific way. That may be so, but this lack of specific intent
does not countermand the clear import of the statute’s plain language.
Defendants’ Motion to Certify Order for Interlocutory Appeal (docket
no. 1358) is DENIED.
It is so ORDERED.
SIGNED this 1st day of May, 2017.

________________/s_______________
JERRY E. SMITH
UNITED STATES CIRCUIT JUDGE
ON BEHALF OF THE PANEL

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