J. L. Ex Rel. N.L. v. Downey Unified School District , 583 F. App'x 642 ( 2014 )

FILED
NOT FOR PUBLICATION JUL 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
J. L., by his Mother N.L., No. 12-57053
Plaintiff - Appellee, D.C. No. 2:12-cv-02285-GW-SS
v.
ORDER*
DOWNEY UNIFIED SCHOOL
DISTRICT,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted July 10, 2014**
Pasadena, California
Before: SILVERMAN, TALLMAN, and RAWLINSON, Circuit Judges.
Downey Unified School District (School District) appeals from a district
court order remanding to the California Office of Administrative Hearings for
further factual findings and legal conclusions. Because the School District appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
from a non-final order to which none of the exceptions to the final judgment rule
apply, we lack jurisdiction. Accordingly, we dismiss this appeal.
Ordinarily, a district court order remanding to a state agency for further
factual determinations is not a final decision for purposes of appellate jurisdiction.
See Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 152 F.3d 1159, 1161 (9th
Cir. 1998) (noting that a remand order is treated as a final order only in “unusual
circumstances”). The parties assert that appellate jurisdiction is proper under the
practical finality doctrine of Gillespie v. United States Steel Corp., 379 U.S. 148
(1964). Under that doctrine all of the following factors must be satisfied: (1) the
order being appealed is a “marginally final” order (2) that “disposed of an unsettled
issue of national significance”; (3) review will implement the same policy
Congress sought to promote in § 1292(b); (4) the finality issue was presented to the
appellate court before the court and parties analyzed the merits; and (5) the
exercise of jurisdiction does not extend Gillespie “beyond the unique facts of that
case.” C.I.R. v. JT USA, LP, 630 F.3d 1167, 1171 (9th Cir. 2011). The facts
presented in this case do not fall within the narrow purview of Gillespie.
APPEAL DISMISSED. The Panel retains this case for consideration of
any future appeals.
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