The U.S. Court of Appeals for the Seventh Circuit is famous for jealously guarding its jurisdiction. In a recent case, the Seventh Circuit reaffirmed that the 10-day time limit in Section 1292(b) for petitioning a court of appeals to take an interlocutory appeal is jurisdictional, but held for the first time that parties could not “circumvent” the deadline by asking the district court to “recertify” the order for interlocutory review. In so doing, the court reversed existing circuit precedent and created a split with other circuits.
First, the basics. Section 1292(b) is one exception to the general rule that appellate courts may only review final judgments. Under Section 1292(b), a district court may find that an otherwise unappealable order “involves a controlling issue 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.” In those circumstances, the would-be appellant may ask the court of appeals to review the order immediately. The court of appeals may permit the appeal “if application is made to it within 10 days after the entry of the order.” Of course, the court of appeals may decline certification. See 28 U.S.C. Section 1292; Fed. R. App. P. 5.
