UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________
)
GILBERT M. GRAHAM, )
)
Plaintiff, )
)
v. ) Civil Action No. 03-1951 (RWR/DAR)
)
MICHAEL MUKASEY et al., )
)
Defendants. )
_________________________)
MEMORANDUM ORDER
Pro se plaintiff Gilbert Graham brought this employment
discrimination action against the Attorney General and others.
Graham seeks certification of three issues for interlocutory
appeal under 12 U.S.C. § 1292(b) following an April 3, 2009
memorandum opinion and order that overruled his objections to a
magistrate judge’s order denying his motion for additional
discovery under Fed. R. Civ. P. 56(f):
• Whether the constitutional requirements of due
process may be denied in the absence of complete
discovery in a discrimination case.
• Whether, in light of the constitutional issue
raised by plaintiff, the Court’s refusal to
afford plaintiff the right to obtain access to
all matters relevant to his claim is a “manifest
injustice,” giving the appearance of partiality.
• Whether plaintiff’s Rule 56(f) affidavit
sufficiently demonstrates an entitlement to
additional discovery.
(Pl.’s Mem. in Supp. of Mot. for Temporary Stay and Cert. (“Pl.’s
Mem.”) at 1-2.) Graham also moves for a stay of his obligation
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to file by May 4, 2009 an opposition to the defendants’ motion
for summary judgment.
A district court may certify an issue for interlocutory
appellate review when it involves “a controlling question of law
as to which there is substantial ground for difference of
opinion” and where “an immediate appeal from the order may
materially advance the ultimate termination of the litigation.”
28 U.S.C. § 1292(b). “A party seeking certification pursuant to
§ 1292(b) must meet a high standard to overcome the strong
congressional policy against piecemeal reviews, and against
obstructing or impeding an ongoing judicial proceeding by
interlocutory appeals.” American Soc’y for the Prevention of
Cruelty to Animals v. Ringling Bros. & Barnum & Bailey Circus,
246 F.R.D. 39, 43 (D.D.C. 2007) (quoting Judicial Watch, Inc. v.
Nat’l Energy Policy Dev. Group, 233 F. Supp. 2d 16, 20 (D.D.C.
2002) (internal citations omitted)). Interlocutory appeals are
infrequently allowed. The movant must show that exceptional
circumstances justify a departure from the traditional structure
of litigation where appellate review is postponed until after the
entry of final judgment. Id.; see also Nat’l Cmty. Reinvestment
Coalition v. Accredited Home Lenders Holding Co., 597 F. Supp. 2d
120, 122 (D.D.C. 2009) (denying motion for certification while
noting the “high standard required for interlocutory appeal”). A
movant must do more than show continued disagreement with the
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trial court’s decision. American Soc’y for the Prevention of
Cruelty to Animals, 246 F.R.D. at 43 (denying a motion for
certification of interlocutory appeal where a movant “simply
reiterated its position” in its request for certification). Even
“vehement” disagreement with a court’s ruling does not establish
the substantial ground for difference of opinion sufficient to
satisfy the statutory requirements for interlocutory appeal.
Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Group, 233 F.
Supp. 2d 16, 19-20 (D.D.C. 2002) (denying certification,
discovering only two cases where the standard for certification
was met - - one case where there was “an apparent inconsistency
between a position taken by one panel of the Court of Appeals
. . . and that set forth in a prior Circuit opinion,” and a case
where a prior opinion by the court of appeals was inconsistent
with the plain language of a statute); see also Nat’l Cmty.
Reinvestment Coalition, 597 F. Supp. 2d at 122 (denying a motion
for interlocutory appeal where the movant “simply reiterated its
position” and failed to point to a split within the district on
the underlying issue).
Graham has not shown the presence of a controlling issue of
law in this case for which there is a substantial ground for
difference of opinion. Graham does not show the existence of any
split in this district or this circuit regarding any controlling
issue of law in this case, nor does he demonstrate that the
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April 3, 2009 opinion is contrary to law. Graham argues that the
April opinion was inconsistent with Berkely v. Home Ins. Co., 68
F.3d 1409 (D.C. Cir. 1995). However, Berkely held that the
district court did not abuse its discretion by denying the
defendant’s Rule 56(f) motion because the defendant did not
adequately support its motion, and “bare assertions of need [for
additional discovery] will not suffice when the record reveals
none.” Berkely, 68 F.3d at 1415. Graham also argues that the
April opinion was inconsistent with the language in Texas Dep’t
of Community Affairs v. Burdine, 450 U.S. 248 (1981) that a Title
VII plaintiff must be afforded a full and fair opportunity to
demonstrate pretext. Burdine did not involve a motion for
additional discovery under Rule 56(f), and the full text of the
“full and fair” quote appeared in the discussion of the rationale
behind placing on the defendant the burden of coming forward with
a nondiscriminatory reason for its actions if a plaintiff alleges
a prima facie case under Title VII. Burdine, 450 U.S. at 255.
Further, Graham’s assertion that he has been denied a reasonable
opportunity to conduct discovery merely repeats an argument
previously advanced and rejected. See Graham v. Mukasey, Civil
Action No. 03-1951 (RWR), 2009 WL 902302, at *3 (D.D.C. April 3,
2009).
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Because Graham has not demonstrated the presence of a
controlling issue of law in this case for which there is a
substantial ground for difference of opinion, it is hereby
ORDERED that Graham’s motion [123] for certification and for
a temporary stay be, and hereby is, DENIED.
SIGNED this 22nd day of April, 2009.
/s/
RICHARD W. ROBERTS
United States District Judge