Legal Memorandum: Requirements for an Interlocutory Appeal

Issue: What are the requirements for an interlocutory appeal pursuant to 28 U.S.C. 1292(b)?

Area of Law: Litigation & Procedure
Keywords: Interlocutory appeal; Controlling question of law
Jurisdiction: Federal
Cited Cases: 141 F.3d 1154
Cited Statutes: 28 U.S.C. § 1292(b); § 1292(b)
Date: 06/01/2008

Interlocutory appeals are permitted under 28 U.S.C. § 1292(b) where the order at issue (1) involves a controlling question of law, (2) there is a substantial ground for difference of opinion as to its correctness, and (3) if appealed immediately, it will materially advance the termination of the litigation.  Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974); see Hulmes v. Honda Motor Co., 936 F. Supp. 195, 208 (D.N.J. 1996), aff’d, 141 F.3d 1154 (3d Cir. 1998). 

The key consideration is not whether the order involves the exercise of discretion, but whether it truly implicates the policies favoring interlocutory appeal.  The determination of what orders are properly reviewable under § 1292(b) must be made by practical application of those policies, not by mechanical application of labels such as “discretionary” or “nondiscretionary.”

Katz, 496 F.2d at 756.

What makes an issue “controlling” in this context is not whether the order involved is discretionary or even whether it is determinative of any of plaintiff’s claims on the merits.  Id. at 755.  And although a controlling question of law certainly encompasses every order which, if erroneous, would be reversible error on final appeal, it is not necessarily limited to such orders.  Id.   Instead, as the court recognized in Katz, the legislative history of § 1292(b) “suggests that ‘controlling’ means serious to the conduct of the litigation, either practically or legally.”  Id.

The law is clear that “mere delay is not by itself […]

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