As we recently reported here and here, the Sixth Circuit has just granted discretionary interlocutory review in two separate cases under 28 U.S.C. §1292(b). To say that this is unusual would be an understatement. The Sixth Circuit very rarely grants discretionary review under §1292(b) which permits an appellate court to accept jurisdiction only if a district court certifies an order for interlocutory review and that that order meets a recognized three-part test: the order must involve a controlling question of law on which reasonable judges could disagree, and its resolution must advance the ultimate termination of the litigation. But both the district court and the circuit court have to grant certification before the order can be appealed. In practice, the Sixth Circuit’s reluctance to grant §1292(b) certification has been internalized by the district courts within the circuit, and the district courts accordingly are very reticent to grant certification.
Many commentators have argued for a more flexible application of the final judgment rule through a more liberal usage of certification under §1292(b). Although the Sixth Circuit seems unwilling to take that approach, it has shown a greater willingness to accept discretionary class certification appeals under Rule 23(f). As we reported here, the Sixth Circuit has been somewhat active (at least relatively speaking) with granting certification under Rule 23(f) to review class certification determinations.
So what are the secrets to convincing the Sixth Circuit to accept your case for discretionary interlocutory review? There’s probably not a magic formulation, but having a novel issue or an issue on which the circuits might be split provides a good foundation for a petition for interlocutory review. Then the court needs to be convinced that the issue is a fundamentally important one that may shape the outcome of the litigation. Here, it is best to avoid table-pounding about the importance of your issue, and instead use vivid detail to show the court the importance of the issue and the importance of this case to the parties. While it may not guarantee acceptance for interlocutory review, at least you will give yourself a fighting chance and hopefully get the court to take a more serious look at the petition.
