Law School Case Brief
Ahrenholz v. Bd. of Trs. - 219 F.3d 674 (7th Cir. 2000)
There are four statutory criteria for the grant of a 28 U.S.C.S. § 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 non-statutory requirement: the petition must be filed in the district court within a reasonable time after the order sought to be appealed. The statute requires the petition to be filed in the appellate 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 the court for an immediate appeal under § 1292(b).
Plaintiff James R. Ahrenholz, a former employee of the University of Illinois, filed suit in a federal district court against defendants, the Board of Trustees of the University of Illinois, contending that defendants effected his termination in retaliation for his exercise of his U.S. Const. amend. I right of free speech. The district court denied defendants' motion for summary judgment on the ground that plaintiff had established a prima facie case of retaliation. The district court then certified the denial for an immediate appeal under 28 U.S.C.S. § 1292(b), reciting the statutory standard, but failing to explain how its criteria were satisfied. Thereafter, defendants sought a review of the judgment.
Did the district court err in granting defendants an immediate appeal from the judgment denying their motion for summary judgment?
In deciding the case, the appellate court defined the meaning of the phrase "question of law" as used in 28 U.S.C.S. § 1292(b). According to the Court, the phrase 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. In the case at bar, the court concluded that the case was unsuitable for appeal under § 1292(b) because it did not present an abstract legal issue. Accordingly, the petition for permission to take such an appeal was denied.
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