Federal Rules of Civil Procedure. Appeals under, 28USC1292(b) states that an "application" must be made ... What does "application" mean in this rule?

  • From the context, it would seem "application for appeal". – Ron Beyer May 14 at 15:38
  • Thanks. I believe what I wsa asking is "application" to WHOM and how? Is the "application" filed with the district court or the circuit court? If the circuit court is a 2 day drive away and there is only 10 days to do the thing, is service/filing done by depsoting the application in the United States mail? – j. howdee May 19 at 11:56

The full text of 28 U.S.C. § 1292(b) is as follows (emphasis added):

(b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order 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, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

In the context of this statute, an "application" is a formal legal document filed in the Court of Appeals with jurisdiction over the relevant district court by one of the parties to the case. This formal legal document would ask the Court of Appeals to make an appellate ruling before the case is completed, in a case in which the trial court judge's order identifies as suitable for immediate review by the Court of Appeals using certain "magic words" set forth in the statute.

The application would probably be formally titled an "Application For Permission To Bring Interlocutory Appeal Pursuant To 28 U.S.C. 1292(b)"

It is similar in character of the "Notice of Appeal" or a "Petition for Writ of Certiorari", and is exactly analogous to its historical counterpart a "Petition for Writ of Mandamus" which has since shed its Latin name in the federal courts and in many state court systems.

  • Although arguably going from “mandamus” to “interlocutory appeal” doesn’t actually do much to make things clearer. – cpast May 15 at 1:56
  • thank you ohwilleke There seems to be quite a few rules, you have clarified that one. Where would one look for a rule covering this: What if an order dismissed one of two defendants completely "with prejudice" while leaving one claim on defendant number two and the reason for the claims that were dismissed on defendant two fall under the type appealable under 28USC1292; would a party in such a case do 2 separate and distinct appeals, one being an interlocutory appeal and the other an appeal of right for the dismissed "with prejudice" defendant? – j. howdee May 19 at 12:02
  • That is one or two entirely new questions. – ohwilleke May 19 at 15:38

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