The Case Of The Vanishing § 1292(b) Certification

Nothing about the Seventh Circuit’s recent per curiam decision in Kenosha Unified School District No. 1 Board of Education v. Whitaker, No. 16-8019 (7th Cir. Nov. 14, 2016), could be considered much of a mystery, but file the case away as something you don’t see often. It answers the question of what happens to the court of appeals’ jurisdiction if the district court makes and then withdraws certification of an interlocutory order under 28 U.S.C. § 1292(b).

The general rule in federal court is that only "final decisions" can be appealed. 28 U.S.C. § 1291. A limited departure from the general rule in § 1292(b) allows a court of appeals to hear an otherwise nonappealable order if the district court certifies that it “involves a controlling question of law as to which there is a substantial ground for difference of opinion” and where that appeal might “materially advance” the case’s termination. The final call whether to take the appeal lies with the court of appeals,