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