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Wednesday, October 14, 2015

Federal Appeals: Discretionary Appeal under 28 U.S.C. §1292(b)

This is a quick article outlining the process for interlocutory appeals in the midst of a federal lawsuit. When the court has ruled on a summary judgment, or partial summary judgment, an appeal may be requested. It is not automatic, and the District Court must approve. Note that appeal work is tricky. There are subtle nuances. A final decision as to liability (i.e. summary judgment as to liability) but not to damages, is not a final decision within the purview of Rule 54(b) and therefore can not be taken under that rule. Mr. Jeremy Doernberger, an associate at Anukem Law in Maryland, did an excellent review of this recently. If you are considering a Rule 54(b) appeal, a good case at bar is Bell Microproducts, Inc. v. Global-Sync, Inc., 20 F. Supp. 2d 938, 942 (E.D. Va. 1998). However, what if you do not have a final judgment -- that is, you have judgment as to liability, but not as to damages? Rule 54(b) won't work, and you are left with....

28 U.S.C. §1292(b)

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: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

This code section is the great catch-all for any appeal taken as a to matter that really has no home...it's not a final disposition, but it impacts the case. As always, any appeal taken during the course of the litigation requires District Court approval, and it is not likely to be forthcoming. However, if you have a dispute at law (that means an argument about how certain legal principals were applied to the facts, or whether given legal principals should apply at all), it can be be a handy way of framing an issue before the District Court. The District Court is always free to "reconsider" it's prior decision and change holding on a summary judgment or interlocutory matter, and a 28 U.S.C §1292(b) motion may be just the ticket to get it done.

How to file:

To file a 1292(b) motion, you need two parts. First, you need to file a motion in district court for "leave" to appeal the matter in question. While not strictly required, it is a good idea to include in the motion a section detailing the cause and thrust of why the appeal is warranted. For maximum effect, don't attack the decision of the judge en face, instead show how there is a genuine question of law.

Concurrently, you must file with the Appeals Court within ten days of the underlying District Court decision that gave rise to the appeal. This can be confusing, and there is conflicting holdings on whether you must file for leave to appeal in the Appeals Court AFTER the District Court certifies the matter for appeal (10 days from that order), or 10 days after the entry of the District Court order against which the appeal is sought. Answer: 10 days from the order against which the appeal is sought. This process is called "lodging." No fee is paid, but the right to appeal is preserved in the event the District Court does certify the appeal. Only then will you be required to pay the appeals fee and the Appeals Court will then consider the matter. By the way, you enter your appeal through CM/ECF via the utility option. You won't receive any notice of acceptance until after the clerk manually reviews the filing -- this can be very confusing if you are filing at the last moment (ahem).

The filing with the Appeals Court must include a copy of the underlying order from which the appeal is drawn, or the appeals case will be rejected. Similarly, you must include a corporate statement and certification that you have conferred with opposing counsel when filing the appeal. DO NOT miss those two attachments, or your filing is toast.

Do you have a question regarding a federal appeal? Give us a ring! We have considerable experience in federal court and would be glad to discuss your case. 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

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