James R. Ahrenholz v. Board of Trustees of the University of Illinois

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-8010
James R. Ahrenholz,
Plaintiff-Appellee/Respondent,
v.
Board of Trustees of the University of Illinois,
Defendant-Appellant/Petitioner.
Appeal from the United States District Court
for the Central District of Illinois.
No. 98 C 2074--Michael P. McCuskey, Judge.
Submitted May 3, 2000--Decided July 18, 2000
Before Posner, Chief Judge, and Easterbrook and Diane
P. Wood, Circuit Judges.
Posner, Chief Judge. Since the beginning of 1999,
this court has received 31 petitions for
interlocutory appeal under 28 U.S.C. sec. 1292(b)
and has granted only six of them. The majority
have been denied or dismissed for jurisdictional
reasons but seven have been denied even though
the district judge had certified that the order
sought to be appealed "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," which is the statutory standard.
Although the standard is the same for the
district court and for us, some disagreement in
its application is to be expected. In several
cases, however, including this one, we have been
unsure whether the district court was using the
correct standard. Because on the one hand merely
the filing of a section 1292(b) petition tends to
delay the litigation in the district court even
though the filing does not cause the litigation
to be stayed, and on the other hand the denial of
the petition may cause the litigation to be
unnecessarily protracted, we think it may be
useful to remind the district judges of this
circuit of the importance of the careful
application of the statutory test.

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There are four statutory criteria for the grant
of a section 1292(b) petition to guide the
district court: there must be a question of law,
it must be controlling, it must be contestable,
and its resolution must promise to speed up the
litigation. There is also a nonstatutory
requirement: the petition must be filed in the
district court within a reasonable time after the
order sought to be appealed. Richardson
Electronics, Ltd. v. Panache Broadcasting of
Pennsylvania, Inc., 202 F.3d 957, 958 (7th Cir.
2000). (The statute requires the petition to be
filed in this court within 10 days of the
district court’s 1292(b) order, but there is no
statutory deadline for the filing of the petition
in the district court.) Unless all these criteria
are satisfied, the district court may not and
should not certify its order to us for an
immediate appeal under section 1292(b). To do so
in such circumstances is merely to waste our time
and delay the litigation in the district court,
since the proceeding in that court normally
grinds to a halt as soon as the judge certifies
an order in the case for an immediate appeal.
The criteria, unfortunately, are not as
crystalline as they might be, as shown by this
case, a suit against university officials by a
former employee of a public university,
contending that the defendants effected his
termination in retaliation for his exercise of
his First Amendment right of free speech. The
district judge denied summary judgment on the
ground that the plaintiff had established a prima
facie case of retaliation. He then certified this
denial for an immediate appeal under section
1292(b). He recited the statutory standard but
did not explain how its criteria were satisfied,
except the last--that if the defendants were
entitled to summary judgment, granting summary
judgment now would bring the suit to an immediate
end. The criteria are conjunctive, not
disjunctive. "The federal scheme does not provide
for an immediate appeal solely on the ground that
such an appeal may advance the proceedings in the
district court." Harriscom Svenska AB v. Harris
Corp., 947 F.2d 627, 631 (2d Cir. 1991). The
defendants’ petition to us for permission to take
an immediate appeal does not deign to discuss the
statutory criteria; it merely reargues the case
for summary judgment.
Formally, an appeal from the grant or denial of
summary judgment presents a question of law
(namely whether the opponent of the motion has
raised a genuine issue of material fact), which
if dispositive is controlling; and often there is
room for a difference of opinion. So it might
seem that the statutory criteria for an immediate
appeal would be satisfied in every case in which

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summary judgment was denied on a nonobvious
ground. But that cannot be right. Section 1292(b)
was not intended to make denials of summary
judgment routinely appealable, see Williamson v.
UNUM Life Ins. Co., 160 F.3d 1247, 1251 (9th Cir.
1998); Harriscom Svenska AB v. Harris Corp.,
supra, 947 F.2d at 631; Chappell & Co. v.
Frankel, 367 F.2d 197, 200 n. 4 (2d Cir. 1966),
which is the implication of the district court’s
certification and of the defendants’ petition in
this court. A denial of summary judgment is a
paradigmatic example of an interlocutory order
that normally is not appealable.
We think "question of law" as used in section
1292(b) has reference to a question of the
meaning of a statutory or constitutional
provision, regulation, or common law doctrine
rather than to the question whether the party
opposing summary judgment had raised a genuine
issue of material fact. See, besides the cases
cited in the previous paragraph, In re Hamilton,
122 F.3d 13 (7th Cir. 1997); S.B.L. by T.B. v.
Evans, 80 F.3d 307, 311 (8th Cir. 1996);
Palandjian v. Pahlavi, 782 F.2d 313 (1st Cir.
1986) (per curiam). We also think, here recurring
to our recent order denying permission to take a
section 1292(b) appeal in Downey v. State Farm
Fire & Casualty Co., No. 00-8009, May 18, 2000,
that the question of the meaning of a contract,
though technically a question of law when there
is no other evidence but the written contract
itself, is not what the framers of section
1292(b) had in mind either. Cf. Williamson v.
UNUM Life Ins. Co., supra, 160 F.3d at 1251;
Harriscom Svenska AB v. Harris Corp., supra, 947
F.2d at 631; United States Rubber Co. v. Wright,
359 F.2d 784 (9th Cir. 1966) (per curiam). We
think they used "question of law" in much the
same way a lay person might, as referring to a
"pure" question of law rather than merely to an
issue that might be free from a factual contest.
The idea was that if a case turned on a pure
question of law, something the court of appeals
could decide quickly and cleanly without having
to study the record, the court should be enabled
to do so without having to wait till the end of
the case. (Similar considerations have shaped the
scope of interlocutory appeal from orders denying
immunity defenses. See Johnson v. Jones, 515 U.S.
304, 317 (1995).) But to decide whether summary
judgment was properly granted requires hunting
through the record compiled in the summary
judgment proceeding to see whether there may be a
genuine issue of material fact lurking there; and
to decide a question of contract interpretation
may require immersion in what may be a long,
detailed, and obscure contract, as in Downey,
which involved a contract of flood insurance.

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It is equally important, however, to emphasize
the duty of the district court and of our court
as well to allow an immediate appeal to be taken
when the statutory criteria are met, as in our
recent case of United Airlines, Inc. v. Mesa
Airlines, Inc., No. 00-1110, 2000 WL 898694 (7th
Cir. July 5, 2000), where we took a section
1292(b) appeal to decide whether federal law
preempts state business-tort law in suits between
air carriers over routes and rates of service.
That was an abstract issue of law, timely sought
to be appealed under section 1292(b), resolution
of which could (because it was indeed a
controlling issue) head off protracted, costly
litigation; and because it was an abstract issue
of law, it was suitable for determination by an
appellate court without a trial record.
To summarize, district judges should use section
1292(b) when it should be used, avoid it when it
should be avoided, and remember that "question of
law" means an abstract legal issue rather than an
issue of whether summary judgment should be
granted. The present case, like Downey, is
unsuitable for appeal under section 1292(b)
because it does not present an abstract legal
issue, and the petition for permission to take
such an appeal is therefore
Denied.

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