Just can’t wait?
MECHANISMS FOR INTERLOCUTORY REVIEW IN FEDERAL COURT

By S. Shawn Stephens

As a general rule, to be appealable, an order must be final.1 Finality of judgment is a concept that is fundamental to an appellate court’s jurisdiction. Of course, the purpose of the finality rule is to avoid piecemeal appeals.2 The United States Supreme Court defines a final order as one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.”3 The Fifth Circuit adds that a final judgment is “one which disposes of the whole subject, gives all relief that was contemplated . . . and leaves nothing to be done in the cause.”4 But, on occasion, the need arises for review of an order that is not final in the traditional sense.
In federal court, one can seek review of interlocutory rulings through four established exceptions to the finality rule: the Cohen doctrine, Rule 54(b), 28 U.S.C. §1292(b), and extraordinary writs. Additionally, there are a variety of mechanisms for interlocutory review that address very specific circumstances, such as class certification decisions, admiralty cases and receiverships.5

1. The Cohen Doctrine
Some collateral orders may be reviewable via the Cohen doctrine.6 The appeal of a collateral order7 via the Cohen doctrine must be filed within 30 days of the judgment.8 Reviewable collateral orders are those that: 1) conclusively decide a disputed question; 2) resolve an important issue that is completely separate from the merits of an action; and, 3) are effectively unreviewable on appeal from a final judgment.9
The Fifth Circuit expands those requirements into four elements for interlocutory review under the Cohen doctrine: 1) the order must finally dispose of a matter so that the district court’s decision may not be characterized as tentative, informal, or incomplete; 2) the question presented must be serious and unsettled; 3) the order must be separable from and collateral to, rights asserted in the principal suit; and 4) there should generally be a risk of important and probably irreparable loss if an immediate appeal is not heard.10 Unfortunately, however, in most cases the question for review is central, not collateral, to the dispute. For example, in an insurance coverage case, an order declaring that coverage exists is central to the dispute, not collateral to it; therefore, the decision is not capable of review via the Cohen doctrine.
By contrast, matters that are reviewable under the Cohen doctrine include orders denying a public official’s motion to dismiss a civil action or grant summary judgment in a civil action based on the official’s qualified immunity from suit11 and sovereign immunity challenges.12
Procedurally, a litigant who wishes to employ the Cohen doctrine as a basis for jurisdiction will typically perfect an appeal in the traditional way and argue the Cohen doctrine as his or her basis for jurisdiction in the Rule 28(a)(4) section of the brief.

2. Partial Judgments Pursuant to Rule 54(b)
The second mechanism for obtaining expedited review of an order that fails to dispose of all parties and issues in a case is the partial judgment rule under Federal Rule of Civil Procedure 54(b). This is technically not an interlocutory review mechanism because it actually “accelerates” finality on a claim that is severable from the main case. To appeal this type of claim, the trial court must expressly determine that there is no just reason for delaying the appeal until the rest of the case is resolved and must order a final judgment as to a discrete portion of the case. See Ackerman v. F.D.I.C., 793 F.2d 1221 (5th Cir. 1992). This becomes a final, and therefore appealable, judgment as to the claims or parties indicated in the order.
Federal Rule of Civil Procedure 54(b) provides in part:
“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct entry of (1) final judgment as to one or more but fewer than all of the claims of parties; (2) only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.“
A party considering this mechanism should be aware that the procedures of Rule 54 and §1292(b) (discussed below) are, in theory, mutually exclusive, since rule 54(b) applies only to orders that are final13 and §1292(b) applies to truly interlocutory decisions.14 Due to the nature of this procedure, Rule 54(b) appeals are available only in multi-claim or multi-party cases. Rule 54(b) appeals can only be triggered by the district judge’s entry of judgment on one or more claims/parties and the judge’s certification that there is no just reason to delay appeal from that judgment. In making that certification, the district judge must be satisfied that the order to be appealed will not need to be reconsidered in light of later developments involving the remaining claims and parties.15
A litigant employing this procedure should be aware that the district court’s entry of judgment and issuance of the certificate of appealability is not a guarantee that the court of appeals will actually hear the appeal.16 The Liberty Mut. Ins. Co. v. Wetzel case is instructive on this finality issue. There, a district judge certified for appeal its decision on liability, but still reserved the question of damages for determination. However, that ruling did not give the court of appeals jurisdiction over the appeal on the liability issue because the order did not satisfy the finality requirement since the determination of damages still remained at issue. The Supreme Court wrote: “[T]he only possible authorization for an appeal from the district court’s order will be pursuant to the provisions of 28 U.S.C. §1292 [allowing for permissive appeals of interlocutory orders.]”17 Thus, in a case where the trial court grants the summary judgment on a declaratory action, but the damages still remain to be assessed, the decision is not reviewable under 54(b) because it is not a final order.18
The second rule 54(b) requirement, the “no just reason for delay” requirement, was construed by the Supreme Court in Curtiss-Wright Corp. v. General Elec. Co., 44 U.S. 1 (1980). There, Curtiss-Wright sued GE over a series of contracts. Curtiss-Wright asserted several claims relating to these contracts and GE asserted several counterclaims in response. One of Curtiss-Wright’s claims was for $19 million for work performed. This claim hinged upon the construction of a release clause in the contracts. The district judge construed the relief provision and granted Curtiss-Wright summary judgment for $19 million plus interest. Curtiss-Wright asked for and was granted a rule 54(b) certification of this judgment.
In resisting appellate review, GE argued in the court of appeals that the district court abused its discretion by certifying the order for review because the district court might, later in the litigation, order a set-off against the $19 million judgment as a result of GE’s counterclaims. The court of appeals agreed, reasoning that it was unfair to certify Curtiss-Wright’s $19 million judgment as final because the judgment would, if affirmed, become final and collectible in its entirety before GE had a chance to air its claims for set-off. Thus, the court of appeals held that the rule 54(b) certification was improper.
The Supreme Court reversed the court of appeals. The Supreme Court rejected the court of appeals’ narrow construction of rule 54(b) and recommended greater deference be shown to district court decisions under the rule. Thus, district courts’ orders of certification must be tested against “the interest of sound judicial administration” and should be affirmed unless the district court abuses its discretion. The Court then suggested some guidelines for exercising discretion to certify rule 54(b) orders for appeal and gave meaning to the “no just cause for delay” standard:
“Not all final judgments on individual claims should be immediately appealable, even if they are in some sense separable from the remaining unresolved claims. . . . It is left to the sound judicial discretion of the district court to determine ‘the appropriate time’ when each final decision in a multiple claims action is ready for appeal. . . . [A] district court must take in account judicial administration interests as well as the equities involved. . . . It was therefore proper for the District Judge here to consider such factors as whether the claims under review were separable from the others remaining to be adjudicated and whether the nature of the claims already determined was such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals.”

Curtiss-Wright, 446 U.S. at 8.
Thus, the Supreme Court held that Rule 54(b) certification was proper. The Court held that the likelihood of Curtiss-Wright becoming insolvent and unable to pay a judgment arising from GE’s counterclaim was remote and that the district judge had given appropriate weight to the parties’ contentions.19
Closer to home, in discussing a court of appeal’s role in evaluating a rule 54(b) certification, the Fifth Circuit has stated that a Rule 54(b) review involves two potential inquiries.20 The first is a legal question which is reviewed de novo and may be raised by the court of appeals on its own motion (i.e., whether there is more than one claim for relief). The second inquiry is a question that is committed to the district court’s discretion (whether there is any just reason for delay).21 The deference given to the district court’s order may evaporate, however, when the court fails to enunciate in its order the reasons for its certification.22
Certification under Rule 54(b) can come by either a party’s request or by the district court’s sua sponte order.23 Either way, the court’s Rule 54(b) order must contain clear language demonstrating the court’s intent to enter a judgment under Rule 54(b) for it to qualify as an appealable final order. In fact, it is insufficient for the court to simply indicate in the order that a particular issue is “appealable” where that order does not also mention Rule 54(b) as the source of the court’s statement about appealability.24 The order should also describe why the appealed matter is separable from the remaining issues and why the court believes there is no just reason for delay. As a result, a prudent practitioner will remind the court of these requirements and perhaps even submit to the court a proposed order that meets these requirements

3. Permissive Interlocutory Appeals Under 28 U.S.C. §1292(b)
With the permission of the district judge and approval of the court of appeals, some interlocutory orders can be appealed under §1292(b). This exception to the finality rule is also jealously guarded by trial and appellate courts.25
Under 28 U.S.C. §1292(b), parties may appeal from an interlocutory order (that would not otherwise be appealable) where a district court includes a statement in its written order that “the case involved 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.”26
As the Supreme Court explained in the Coopers & Lybrand case, 1292(b) reviews of non-final orders are sparingly rationed by both the trial and appellate courts.27 The screening procedures found in 1292(b) serve the dual purpose of insuring that the review will be confined to appropriate cases and avoiding time-consuming jurisdictional determination in the court of appeals.28 Furthermore, even if the district judge certifies the order under 1292(b), an appellant still has the burden of also persuading the court of appeals that the circumstances justify departure from the basic policy of postponing appellate review until after entry of a final judgment on the entire case.29 Thus, the appellate court, even after certification from the trial court, may deny the appeal for any reason, including docket congestion.30
To seek a permissive interlocutory appeal under 28 U.S.C. §1292(c), a party must obtain a certificate of appealability from the trial court containing the items required by §1292(b)31 and must file a petition for permission/leave to appeal with the clerk of the circuit court within ten days of the entry of the district court’s order. Once certification is granted, the 10-day period prescribed in Federal Rule of Appellate Procedure 5(a) is jurisdictional and cannot be extended. The items that must be contained in the petition for permission to appeal are delineated in Fed.R.App.P. 5.32 A responding party has seven days to file an answer in opposition to the petition or a cross-petition.33 The application for permission to appeal under this section does not stay the proceedings in the district court unless the district court or the court of appeals also orders a stay.34 A panel of the court of appeals screens the application and grants the appeal unless it finds the order has been improperly certified.
In support of both a request to the district court to certify the appeal and a Rule 5 petition, the appealing party must separately establish through legal authority and references to the evidence in the record the bases for appeal under this section.35 Under the first §1292(b) criterion, a “controlling question of law” must be presented. Controlling questions of law are usually ones that deeply affect the on-going process of litigation and would result in some savings of resources to either the court or the litigants.36
Under the second prong of the test, the district judge must look to the law of the court of appeals with jurisdiction over the matter to determine if the question is a novel or difficult one in that jurisdiction.37 That is, of course, a fact-specific inquiry that an advocate must address on a case-by-case basis, after thorough analysis of the law in the particular area. However, Milbert,38 the earliest case to discuss the requirement that, to be permissible, an interlocutory appeal must materially advance the termination of the litigation, quoted extensively from the House report dealing with §1292(b) and concluded that the Act was to be used “only in exceptional cases where an intermediate appeal may avoid protracted and expensive litigation. . . .”39 As a result, a line of cases developed outside the Fifth Circuit citing the “exceptional case” language as requiring an additional showing before an appeal under section 1292(b) is warranted.40 This has resulted in a nonuniform application of the Act, since there is nothing in the legislative history or the logic behind the policy of the Act from which a manageable standard separating “ordinary” from “exceptional” litigation can be derived. Adding to the confusion is the fact that the cases adopting this “exceptional case” requirement made no attempt to formulate a standard of exceptionality. However, one approach (that is supported by the history of the Act) is to convince the court that interlocutory review will conserve judicial resources, because avoidance of unnecessary trials was one of the purposes of the Act.41
However, the Act is also premised on a notion that there should be a case-by-case evaluation of efficiency; thus, a universal standard restricting certification may be inappropriate. Interestingly, the “exceptional case” doctrine does not appear to be necessary to depress the number of interlocutory appeals filed by litigants because, even though the doctrine seems to have been abandoned in the Fifth Circuit, the annual number of section 1292(b) appeals has been approximately the same in the Fifth Circuit as in other circuits where the doctrine is followed.42 Out of an abundance of caution, a wise advocate should attempt to make his or her appeal look exceptional to enhance his or her client’s chances of obtaining interlocutory review.
The final prong of the test, speeding litigation, is usually the easiest factor to meet, but a smart advocate will work to quantify this for the court as precisely as he or she can by detailing the ways in which litigation will be advanced by the interlocutory appeal.
The court of appeals, when it is reviewing the petition for permission to appeal, will apply the same standards as the district judge did to the request. Generally, the same types of considerations that would lead a court of appeals to hear an application for extraordinary writ are relevant.43 When seeking certification, the advocate should persuade the district judge to make very detailed findings as to why he or she believes the statutory standards are met, including an analysis of how the litigation will be helped by early review of the order.44 The Second Circuit has cautioned district judges from issuing 1292(b) certificates which employ the bare statutory words and encourages trial courts to make meaningful conclusions to support the application.45

4. Extraordinary Writs, Including Mandamus
The final option for seeking an interim interlocutory review of an order in federal court is through an extraordinary writ. The All Writs Act, the source of this authority, provides: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions agreeable to usages and principles of law.”46 The All Writs Act provides the courts of appeal with the power to review and control federal districts without the necessity of a final judgment.47 As with the other procedures discussed above, this review power is sparingly exercised by the courts of appeal.48 To obtain a writ, one must file a petition pursuant to Federal Rule of Appellate Procedure 21(a). The court of appeals may deny the petition or call for a response before ruling upon the petition for writ.49 Under the All Writs Act, the most commonly used writ is a writ of mandamus, which was designed at common law to compel an inferior tribunal or officer to perform its duty.50 Other writs include writs of prohibition (designed to restrain an unjustified exercise of power) and certiorari (designed to bring up the record to the appellate court for purposes of review).51 As a result, a mandamus is an independent action brought against a federal district court by a litigant who asks the court of appeals to order the trial judge to act or refrain from acting in a particular way. Nevertheless, in most cases, the trial judge is only a nominal party to the mandamus action while the real dispute exists between the litigants who are on opposing sides of the underlying case.52
To be entitled to a mandamus or other extraordinary writ, the issuing court must be satisfied that it has jurisdiction to review the lower court’s actions and that it also has the power to issue such a writ.53 In addition, the appellate court must consider, even if it has jurisdiction and the power to issue such a writ, whether it is prudent to do so.54 The following considerations guide courts in issuing writs of mandamus: (1) whether there is an adequate remedy by appeal; (2) whether the petitioner will be damaged in a way that cannot be corrected by a direct appeal; (3) whether the trial court’s order is erroneous as a matter of law; (4) whether the issue is likely to recur, either because the particular district judge has a practice of making these types of rulings, or because the problem presented in the petition for writ is capable of repetition and may repeatedly evade the appellate review process; and, (5) whether the challenged order raises issues that are new and important or are of first impression.55 These considerations are merely guidelines that may not, in all cases, point to the same conclusion. Furthermore, it is not likely that all of the considerations will be met in a single case.56 Because a litigant is not always able to predict how a court will apply these principles, a savvy practitioner will file an appeal and, when the question of appealability is doubtful, will also file a petition for writ.57
The fourth guideline articulated above is usually less important than the others.58 It is certainly considered less important than the last guideline (whether the challenged order raises issues that are new and important or are of first impression).59 In fact, the Fifth Circuit states that a writ can be used as a “one time only device to settle new and important problems that might have otherwise evaded expeditious review”.60 As the Fifth Circuit’s language in the In re EEOC case indicates, the courts of appeals and the United States Supreme Court have often stated in their opinions issuing extraordinary writs that they intend to settle new and important questions of law via this mechanism but, the next time the issue is presented via a petition for a writ, it will not receive favorable attention in those courts.61 Thus, a wise advocate will emphasize in his or her petition that the case provides the court with an opportunity to resolve a novel problem that will, by resolution now, avoid future litigation.
As a result, discovery disputes are generally not reviewable via mandamus in federal court.62 By contrast, courts of appeals are more willing to entertain writ applications when the issue deals with a party’s request to disqualify a judge or counsel.63 Thus, it is not surprising that when a district court’s action impacts a constitutional right, the courts will more readily entertain mandamus requests than they would otherwise.64
As has been mentioned above, it is often wise to seek mandamus in conjunction with a request for appeal. Petitions for mandamus can be drafted in much less time than a regular appeal, thus, the cost to also file a petition for mandamus does not add additional expense and provides the opportunity for review that might not otherwise exist. This is because a petition for review is merely a summary of your client’s position. If a court orders a response and sets a briefing schedule, obviously then there is more extensive briefing by the parties. This is because the party seeking an extraordinary writ simply files a petition, in accordance with Federal Rule of Appellate Procedure 21(a) (and any other applicable local rules). Rule 21(b) provides that no response need be filed by an opponent of the party seeking the writ unless the court directs it to do so. A petition should be served on the opponent and on the district judge who is the nominal respondent in the case. Additionally, Federal Rule of Appellate Procedure 44, the clerk should be notified if constitutionality of a federal statute is at issue. The clerk will then notify the attorney general’s office.
Typically, petitions for extraordinary writs are screened by the clerk’s offices of the various courts of appeal. These petitions are then referred to a panel of judges for review and comment. Unless the panel of the court orders a response to the petition, the petition goes no further. Oral argument is rarely ever granted at this stage of the proceeding. Thus, for optimal effect, a petition must be concise, persuasive and complete. Further, the petition should not distort the facts or law so that the advocate loses credibility with the court should the court wish to take the matter further.65

Conclusion
Generally speaking, interlocutory review is disfavored in federal courts. However, strict adherence to the standards outlined above may provide an advocate with a method of reviewing a partial decision in a case prior to the conclusion of the entire litigation. A party contemplating an interlocutory review should remember that it is possible to use any of the methods for interlocutory appeal discussed in this article in combination with one another and should consider filing some of these pleadings simultaneously for optimal results.

Endnotes
1. See, e.g., 28 U.S.C. §§1291, 1292. 2. Sherri A. D. v. Kirby, 975 F.2d 193 (5th Cir. 1992). 3. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981); Hammack v. Baroid Corp., 142 F.2d 266 (5th Cir. 1999). 4. Lucas v. Bolivar Co. Mississippi, 756 F.2d 130, 134 (5th Cir. 1985). 5. Congress allows for review of interlocutory decisions of the Court of International Trade, the Court of Federal Claims and decisions relating to receivers and admiralty matters in certain circumstances. 28 U.S.C. §1292(a) and (c). Additionally, pursuant to Rule 23(f) of the Federal Rules of Civil Procedure and 28 U.S.C.A. §1292(a)(1), the appellate court has discretion to review class certification order as long as an application is made within 10 days of the entry of the order. 6. 28 U.S.C. §1292; Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). 7. The following types of orders are appealable as collateral orders under this doctrine: an order requiring a bond in a shareholder’s derivative suit (Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 -47 (1949)); an order requiring the defendant to pay the expense of compiling a list of class members (Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 347 n.8 (1978)); an order denying summary judgment on grounds of absolute immunity (Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)); an order denying summary judgment on the grounds of qualified immunity (Wells v. Bonner, 45 F.3d 90, 93 (5th Cir. 1995)); an order denying summary judgment based on the release, where the essence of the release was to create a right not to go to trial at all (Grillet v. Sears, Roebuck & Co., 927 F.2d 217, 220 (5th Cir. 1991); a stay pending the disposition of a parallel state court litigation (Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 (1983)); an order threatening irreparable harm to or violating a privilege (In re Ray Int’l Sys. & Controls Corp. Securities Litigation, 693 F.2d 1235, 1238 n.1 (5th Cir. 1983)); an order denying Eleventh Amendment immunity to a state or a state entity claiming to be an arm of the state (Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 113 S.Ct. 684 (1993)); a discovery order in a qualified immunity case which is avoidable or overly broad (Gaines v. Davis, 928 F.2d 705, 706 (5th Cir. 1991)); and, an order of the benefits review board staying an award of accrued compensation benefits (Gulf Stream Aerospace Corp. v. Mayacmas Corp., 45 U.S. 271 (1988)). 8. F.R.A.P. 4(a)(1). 9. Flanagan v. U.S., 465 U.S. 259, 266 (1984). 10. Chaves v. The M/V Medina Star, 47 F.3d 153, 155 (5th Cir. 1995). 11. Mitchell v. Forsyth, 472 U.S. 511 (1985). 12. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 113 S.Ct. 684 (1993); 506 U.S. 139 (U.S. Puerto Rico 1993). 13. The final/interlocutory distinction is not clear-cut even though all orders entered without the certification required by rule 54(b) are, by force of that rule, interlocutory. Certain orders, such as partial summary judgment orders that hold a defendant liable, cannot be final for the purposes of rule 54(b), since a damage determination must be made before judgment can be entered; so these orders could be appealed, if at all, only under § 1292(b). However, a summary judgment order finding no liability as to one of a number of defendants could be either interlocutory (and therefore appealable under §1292(b)) or final (and therefore appealable under §1291), depending entirely upon whether the trial judge certified the order under rule 54(b) as a final judgment. 14. A number of courts have granted both a §1292(b) and a rule 54(b) certificate for the same order. See, e.g., Control Data Corp. v. Int'l. Bus. Machs. Corp., 421 F.2d 323 (8th Cir. 1970). This overlap was envisioned by the Rules Advisory Committee which revised Rule 54 in 1961. The Committee recommended using Rule 54 when both it and §1292 apply. Wright, Miller & Kane, Federal Practice and Procedure Civil 3d §2658.2 (1998). However, there would not seem to be any purpose served by a court of appeals rejecting a petition to appeal from an order properly certified under §1292(b) on the ground that it could also have been certified under rule 54(b). See Sass v. District of Columbia, 316 F.2d 366 (D.C. Cir. 1963) (third party dismissal reviewed under § 1292(b), but court noted that review under rule 54 would have been preferable). Note, Interlocutory Appeals in the Federal System Courts Under 28 U.S.C. §1292(b), 88 Harvard L. Rev. 607,619 (1975). 15. See, e.g., Michael E. Tigar, Federal Appeals, Jurisdiction and Practice 79-81 (2d ed. 1993). 16. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437 (1956); Tigar, at 80. In the Sears, Roebuck case, Mackey sued Sears on six separate claims, four of which were still at issue by the time the case reached the Supreme Court. The first claim was a Sherman Act allegation. The second claim (based on diversity) was a willful destruction of business claim that arose from the same events as the federal Sherman Act allegation. The third and fourth claims alleged common law claims (inducing a breach of contract and unfair competition). The district judge entered a judgment dismissing the first and second claims and made the required certificate under rule 54(b). The Supreme Court held that the judgment met the requirements of rule 54(b) and was appealable. 17. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744 (1976). 18. Wetzel, 424 U.S. 744. 19. 446 U.S. at 11-13. 20. Samaad v. City of Dallas, 940 F.2d 925 (5th Cir. 1991). 21. Samaad, 940 F.2d 925. 22. See, e.g., Nat’l Bank v. Dolgov, 853 F.2d 57, 58 (2d Cir. 1998) (per curiam) (district court’s correct usage of rule 54(b) language, absent an explanation of its decision to grant partial final judgment to less than all defendants was not final and not appealable within the meaning of 28 U.S.C. § 1291). 23. Fed.R.Civ.P. 54(b); Pettinelli v. Danzig, 644 F.2d 1160, 1162 (5th Cir. 1981). 24. Asknase v. LivingWell , Inc., 981 F.2d 807 (5th Cir. 1993). 25. Tigar, at 73. 26. 28 U.S.C. §1292(b); see In re Ingram Towing v. Adnac, Inc., 59 F.3d 513, 515 (5th Cir. 1995). 27. The grant or denial of a 28 U.S.C. 1404(a) transfer may not be certified under 28 U.S.C. 1292(b). Louisiana Ice Cream Distributors, Inc. v. Carvel Corp., 821 F.2d 1031, 1033 (5th Cir. 1987). However, under extraordinary circumstances review via a writ of mandamus may be available. Ex parte Charles Pfizer & Co., 225 F.2d 720, 723 (5th Cir. 1955). 28. Coopers & Lybrand v. Livesay, 437 U.S. 463, 474-75 (1978). 29. Id. 30. Id. 31. §1292(b) states: 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. 32. Fed.R.App.P. 5(b). 33. Fed.R.App. 5(b)(2); see 28 U.S.C. §1292(b) and Fed.R.App. 5. 34. See Brown v. Texas & Pac. RR. Co., 392 F.Supp. 1120, 1126 (W.D. La. 1975). 35. Tigar, at 75. 36. Tigar, at 75. 37. Tigar, at 75. 38. Milbert v. Bison Laboratories, Inc, 260 F.2d 431 (3d Cir. 1958). 39. Id. at 433. 40. See, e.g. Kraus v. Board of County Comm’rs, 364 F.2d 919, 922 (6th Cir. 1966) (tort litigation not an exceptional case); Seligson v. Plum Tree, Inc., 61 F.R.D. 343, 347 (E.D. Pa. 1973) (§1292(b) to be used sparingly). But see Hadjipateras v. Pacifica, S.A., 290 F.2d 697, 703 & n.13 (5th Cir. 1961) (exceptional case doctrine is a “Shibboleth”). 41. 88 Harvard L. Rev. at 625. 42. See Ex parte Tokio Marine & Fire Ins. Co., 322 F.2d 113, 115 (5th Cir. 1963); Hadjipateras v. Pacifica, S.A., 290 F.2d 697, 703 & n.13 (5th Cir. 1961). But cf. Garner v. Wolfinbarger, 433 F.2d 117, 199-20 (5th Cir. 1970) (§1292(b) is to be construed strictly to avoid “piecemeal appeals”). 43. Tigar, at 77. 44. Tigar, at 77. 45. Isra Fruit Ltd. v. Agrexco Agr. Export Co. Ltd., 804 F.2d 24, 25 (2d Cir. 1986). 46. 28 U.S.C. §1651(a). 47. 28 U.S.C. §1651(a). 48. Tigar, at 136. 49. Fed.R.App.P. 21(b). 50. See 52 Am. Jur. 2d Mandamus 1-11 (1970 & Supp. Apr. 1993); Tigar at 136. 51. Tigar, at 136. 52. Tigar, at 137. 53. Tigar, at 144. 54. Tigar, at 145. 55. Bauman v. United States Dist. Court, 557 F.2d 650, 654-55 (9th Cir. 1977). 56. Tigar, at 146. 57. See, e.g., United States v. Helstoski, 442 U.S. 477 (1979). 58. Tigar, at 149-150. 59. Tigar, at 150. 60. In re EEOC, 709 F.2d 392, 394 (5th Cir. 1983). 61. See, e.g, Wilk v. American Med. Assoc’n, 635 F.2d 1295, 1296 n.6 (7th Cir. 1980). 62. Tigar, at 156. 63. Tigar, at 163. 64. See, e.g., In re Halkin, 598 F.2d 176 (D.C. Cir. 1979). 65. See, e.g., Tigar, at 177.

S. Shawn Stephens is a partner with and deputy chair of the appellate group at Locke Liddell & Sapp LLP, Houston. She is board certified in Civil Appellate Law by the Texas Board of Legal Specialization. Stephens earned a B.S. from Baylor University, her J.D. from South Texas College of Law in 1988, and her LL.M. in International Economic Law from the University of Houston Law Center in 1995. She is a frequent CLE lecturer and an adjunct professor in the appellate advocacy program at South Texas College of Law. Stephens is an associate editor of The Houston Lawyer.

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