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Ahrenholz v. Board of Trustees of the University of Illinois

Court of appeals will grant petition for interlocutory appeal under 28 U.S.C. sec. 1292(b)if question of law presents abstract legal issue rather than issue of whether summary judgment should be granted; question of law must be controlling, contestable, and resolution must promise to speed litigation.

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The full case caption appears at the end of this opinion.

Posner, Chief Judge. Since the beginning of 1999,this court has received 31 petitions forinterlocutory appeal under 28 U.S.C. sec. 1292(b)and has granted only six of them. The majorityhave been denied or dismissed for jurisdictionalreasons but seven have been denied even thoughthe district judge had certified that the ordersought to be appealed “involves a controllingquestion of law as to which there is substantialground for difference of opinion and that animmediate appeal from the order may materiallyadvance the ultimate termination of thelitigation,” which is the statutory standard.Although the standard is the same for thedistrict court and for us, some disagreement inits application is to be expected. In severalcases, however, including this one, we have beenunsure whether the district court was using thecorrect standard. Because on the one hand merelythe filing of a section 1292(b) petition tends todelay the litigation in the district court eventhough the filing does not cause the litigationto be stayed, and on the other hand the denial ofthe petition may cause the litigation to beunnecessarily protracted, we think it may beuseful to remind the district judges of thiscircuit of the importance of the carefulapplication of the statutory test.

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