This week the federal Fifth Circuit Court of Appeals issued an opinion in connection with a Petition for Leave to Appeal solely to remind district judges (and presumably practitioners) to demonstrate that the standards governing interlocutory appeals under 28 U.S.C. Section 1292(b) have been met.
Section 1292(b) requires that a district court should state when it believes there is a question of controlling law in a case upon which there is a substantial ground for difference of opinion and upon which an immediate appeal would materially advance the resolution of the litigation. In Linton v. Shell Oil Co., the district court denied Shell’s motion for summary judgment and certified "the issues raised in the Motion for Summary Judgment" to the Fifth Circuit. The Fifth Circuit noted that orders are certified, not issues; however, the court noted that it is helpful if the district court frames the controlling question. The district court should also elaborate on why the question presented in the order is a controlling question and why there is a substantial ground for difference of opinion.
Of course, practitioners should be mindful of these requirements as well so that they can assist district courts in rendering orders in conformity with these instructions. The Fifth Circuit’s opinion may be found at this link.