In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐8019
KENOSHA UNIFIED SCHOOL
DISTRICT NO. 1 BOARD OF
EDUCATION, et al.,
Petitioners‐Defendants,
v.
ASHTON WHITAKER,
Respondent‐Plaintiff.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin
No. 16‐cv‐00943‐PP — Pamela Pepper, Judge.
____________________
SUBMITTED OCTOBER 19, 2016 — DECIDED NOVEMBER 14, 2016
____________________
Before RIPPLE, KANNE, and WILLIAMS, Circuit Judges.
PER CURIAM. Plaintiff Ash Whitaker is a transgender boy
whose high school will not permit him to use the boys’ bath‐
room. He sued the school district for discriminating against
him on the basis of sex, in violation of Title IX of the Educa‐
tion Amendments of 1972, 20 U.S.C. § 1681, and the Equal
Protection Clause of the Fourteenth Amendment. After the
2 No. 16‐8019
district court denied the defendants’ motion to dismiss, the
defendants filed this petition for interlocutory appeal. The
defendants asserted that appellate jurisdiction is proper un‐
der 28 U.S.C. § 1292(b), but the district court has since vacat‐
ed its certification. Thus we lack appellate jurisdiction.
The district court had issued an oral ruling denying the
defendants’ motion to dismiss. The next day, at the conclu‐
sion of a hearing on the plaintiff’s motion for a preliminary
injunction, the defendants stated their intention to appeal
the ruling denying their motion to dismiss and presented the
court with a proposed order that memorialized the denial
and certified the order for immediate interlocutory appeal
under 28 U.S.C. § 1292(b). The district court entered the pro‐
posed order, and the defendants filed this petition. The
plaintiff then moved the district court to reconsider the inter‐
locutory certification pursuant to Federal Rule of Civil Pro‐
cedure 60(b).
Before this court had issued an order on the defendants’
petition, the district court granted the plaintiff’s motion for
reconsideration and revoked its certification. The district
court pointed out that the defendants had not made a legal
or factual argument in support of certification, nor did the
court ask either party to address certification. The court ad‐
mitted that it erred in failing to solicit argument on this issue
and erred in including the interlocutory certification lan‐
guage in the order. The district court then correctly enumer‐
ated the factors that it must consider to certify an order for
appeal under 28 U.S.C. § 1292(b), including whether the or‐
der to be appealed involves a controlling question of law,
whether an immediate appeal would materially advance the
ultimate termination of the litigation, and whether there is a
No. 16‐8019 3
substantial ground for difference of opinion on the question
of law. See Ahrenholz v. Bd. of Tr. of the Univ. of Ill., 219 F.3d
674, 675 (7th Cir. 2000); In re Hamilton, 122 F.3d 13, 14 (7th
Cir. 1997). Appellate resolution of the contestable question
whether “sex” in Title IX encompasses gender identity
would control one of the plaintiff’s claims, the court rea‐
soned, but resolution would not speed up litigation because
the plaintiff had pleaded sufficient facts to survive the mo‐
tion to dismiss on two alternate grounds.
In light of the district court’s revocation of its certifica‐
tion, we asked the parties to file statements of position. The
parties agree—as do we—that our jurisdiction to hear an in‐
terlocutory appeal under 28 U.S.C. § 1292(b) derives from a
district court’s certification of an order. See Caterpillar Inc. v.
Lewis, 519 U.S. 61, 74 n.10 (1996); Swint v. Chambers Cnty.
Comm’n, 514 U.S. 35, 46, 47 n.4 (1995); Coopers & Lybrand v.
Livesay, 437 U.S. 463, 475–76 (1978); 16 C. Wright, A. Miller, &
E. Cooper, Fed. Practice & Proc., § 3929, at 438–39 (2016). We
did not enter an order granting the petition, and thus we did
not acquire jurisdiction to consider this issue in the case. The
district court’s decision to withdraw certification destroys
our jurisdiction to consider the petition under § 1292(b).
See Weir v. Propst, 915 F.2d 283, 286 (7th Cir. 1990); In re Pow‐
erhouse Licensing, LLC, 441 F.3d 467, 471 n.2 (6th Cir. 2006);
City of L.A. v. Santa Monica Baykeeper, 254 F.3d 882, 885–86
(9th Cir. 2001).
The defendants contend, however, that this court has au‐
thority to exercise pendent appellate jurisdiction over this
appeal in conjunction with the appeal of the order partially
granting the motion for a preliminary injunction, which is
separately docketed and derives jurisdiction pursuant to 28
4 No. 16‐8019
U.S.C. § 1292(a)(1). The doctrine of pendent appellate juris‐
diction permits this court to review a non‐final order when it
is “inextricably intertwined” with an appealable order.
See Ne. Rural Elec. Membership Corp. v. Wabash Valley Power
Ass’n, Inc., 707 F.3d 883, 886 (7th Cir. 2013); Montano v. City of
Chicago, 375 F.3d 593, 595 (7th Cir. 2004). But this petition is
not properly taken from an appealable order, so there is no
proper jurisdictional basis from which we may extend pen‐
dent jurisdiction. The appropriate place for the defendants to
request pendent appellate jurisdiction is in the appeal from
the preliminary injunction order.
Because we lack appellate jurisdiction, the petition for
permission to appeal under 28 U.S.C. § 1292(b) is DENIED.