Howard J. Bashman's appellate columns, etc.

An archive of Howard J. Bashman's monthly columns about appellate litigation, with other of his writings thrown in for good measure

Monday, September 13, 2004


Interlocutory Appeals By Permission: A Primer

By Howard J. Bashman
Monday, September 13, 2004

The final judgment rule provides that when a federal district court has issued a judgment in a civil case that decides all claims as to all parties, a party aggrieved from that judgment has the right to appeal. Frequently, however, a party will wish to appeal from a ruling that issues before a case has been entirely resolved.

In federal court, there are at least six exceptions to the final judgment rule in a civil case. First, an immediate appeal can be taken from an order granting or denying a preliminary injunction. Second, an order granting or denying class certification can be immediately appealed so long as the federal appellate court to which the appeal is taken grants permission. Third, a federal district court may certify as final for purposes of appeal a decision that resolves fewer than all claims as to all parties.

Fourth, a particular trial court ruling may qualify for immediate appeal under the so-called "collateral order" doctrine. Fifth, a trial court may certify a legal question for interlocutory appeal by permission, thereby allowing a federal appellate court to decide whether to accept the question for immediate review. And sixth, a petition for writ of mandamus can be filed in a federal appellate court if a trial court issues a ruling that is subject to this sort of extraordinary review.

In an attempt at eliminating the mystery surrounding at least one of these six exceptions to the final judgment rule, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit on August 26, 2004 issued a lengthy decision explaining the sort of legal questions that are appropriate for an interlocutory appeal by permission under 28 U.S.C. sec. 1292(b). See McFarlin v. Conseco Services, LLC, No. 03–13958 (11th Cir. Aug. 26, 2004).

Section 1292(b), the statute authorizing interlocutory appeals by permission, provides in relevant part: "When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order."

Circuit Judge Ed Carnes, the author of the Eleventh Circuit's opinion in McFarlin, wrote that in order to determine when an interlocutory appeal by permission should be allowed, the court had to resolve three questions: "(1) What is a 'controlling question of law?'; (2) what is a 'substantial ground for difference of opinion?'; and (3) what does it mean for an appeal to 'materially advance the ultimate termination of the litigation?'"

Addressing the first of those questions, the opinion in McFarlin notes that the drafters of the statute envisioned appeals presenting "an abstract legal issue or what might be called one of 'pure' law, matters the court of appeals 'can decide quickly and cleanly without having to study the record.'" McFarlin does not devote much discussion to the requirement that the question of law be "controlling," but other decisions establish that the requirement entails that the legal question will determine the outcome of some or all of the claims in the case.

With respect to the requirement that there exist "substantial ground for difference of opinion," the Eleventh Circuit in McFarlin explains that questions as to which the trial court has clearly reached the right answer fail to qualify. Satisfaction of this requirement is more easily achieved where other courts have already reached differing outcomes with regard to the legal question presented. Yet even a question of first impression may qualify as a one over which substantial ground for difference of opinion exists if proper resolution of the question is quite seriously in doubt.

Finally, the question must be one whose resolution "may materially advance the ultimate termination of the litigation." This requirement, the Eleventh Circuit explained in McFarlin, mandates that resolution of the question could either resolve the case altogether or at least substantially shorten the litigation.

The procedural history of the McFarlin case is itself rather interesting. The federal district court before which the case was pending granted some defendants' summary judgment motions as to certain claims but denied those motions as to other claims. Some three weeks later, on its own motion, the district court certified its earlier order for interlocutory appeal by permission, but the certification order failed to specify which issues the district court viewed as appropriate for immediate appellate review.

Thereafter, the defendants filed petitions for permission to appeal in the Eleventh Circuit, and two different Eleventh Circuit motions panels granted the petitions. Next, the plaintiffs filed a motion asking the Eleventh Circuit to vacate its orders permitting the interlocutory appeal, and that motion was presented to the panel assigned to decide the merits of the appeal.

The merits panel, however, never reached the merits because it concluded that the motions panels had improperly granted permission for interlocutory appeal. According to the merits panel, most of the questions the parties had identified in their briefs and at oral argument failed to qualify as questions of law appropriate for interlocutory review. And certain issues failed to qualify as questions whose resolution may materially advance the ultimate termination of the litigation or questions as to which substantial ground for difference of opinion exists.

Before concluding, the Eleventh Circuit recommended that "[w]hen a district court certifies an order for appeal, it should specify the controlling question of law it had in mind." According to the appellate court, if the district court is unsure what questions of law, if any, qualify for immediate interlocutory review, it should refrain from certifying any issues for appeal.

The conclusion to the Eleventh Circuit's opinion includes a helpful summary of when an interlocutory appeal by permission should be allowed in a civil case: "we believe that as a rule an appellate court ought to grant permission for appeal under sec. 1292(b) only on (1) pure questions of law, (2) which are controlling of at least a substantial part of the case, (3) and which are specified by the district court in its order, (4) and about which there are substantial grounds for difference of opinion, (5) and whose resolution may well substantially reduce the amount of litigation necessary on remand."

As the Eleventh Circuit's decision in McFarlin vividly illustrates, convincing a trial court that an interlocutory appeal by permission is appropriate will not suffice to ensure a ruling on the merits from the appellate court. Convincing an appellate court's motions panel that an interlocutory appeal is appropriate is likewise necessary but not always sufficient to ensure review on the merits.

Rather, the only way to ensure review on the merits of an interlocutory appeal by permission is to convince the trial court, an appellate court's motions panel, and the appellate court's merits panel assigned to the appeal that the case qualifies for review under the rigorous standards applicable to this exception to the final judgment rule.

This article is reprinted with permission from the September 13, 2004, issue of The Legal Intelligencer © 2004 NLP IP Company.

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