In Little v. Louisville Gas & Electric Co., decided with a companion case, the Sixth Circuit offered some pointers on discretionary interlocutory review under 28 U.S.C. 1292(b). The district court had declined to dismiss state claims as preempted but independently dismissed most of plaintiffs’ federal claims.  In certifying under 1292(b), the court certified “that portion” of its order denying the preemption of the state law claims. After the Sixth Circuit accepted the appeal, the plaintiffs sought to challenge the dismissal of the federal claims.

The Court rejected this effort, concluding that, within the context of 1292(b), the word “order” “refers to a specific direction or command from the district court, not to the document or opinion in which the court explains that direction or command.” Thus, even though the district court resolved both the state and federal claims in the same written opinion, the Court’s jurisdiction was limited by the certification decision made by the district court and accepted by the Sixth Circuit. Although the Sixth Circuit recognized that it could consider other questions presented by a certified order, that exception did not aid Plaintiffs here because there were multiple distinct “orders” in the same document. The Court expressed concern about allowing a multitude of issues to be injected into a 1292(b) appeal, which could defeat the purpose of the statute. In support of its conclusion, the Court pointed to guidance from the Tenth and Fifth Circuits.

The practice pointer here is that “order” does not mean what most lawyers might think it does. Therefore, you must be careful when seeking 1292(b) certification to ensure that you are adequately encompassing the questions on which you want review – and appropriately identifying the “order.” And if you are on the other side of a petition, consider whether to cross-petition – which the Sixth Circuit suggested plaintiffs should have done here to preserve their right to immediate appeal.  (See here and here for some other pointers on 1292(b) certification.)