Facts

A former employee of a public university filed a lawsuit against university officials, alleging that they terminated his employment in retaliation for his exercise of free speech rights protected by the First Amendment. The plaintiff contended that the defendants' actions violated his constitutional rights, resulting in his job loss and associated damages.

In the district court, the defendants moved for summary judgment, arguing that the plaintiff had not established a valid claim. The district judge denied the motion, determining that the plaintiff had presented a prima facie case of retaliation. Following this denial, the district judge certified the order for an immediate interlocutory appeal under 28 U.S.C. § 1292(b). The defendants then petitioned the Seventh Circuit Court of Appeals for permission to pursue this appeal, seeking reversal of the summary judgment denial to end the litigation promptly.

Analysis

Issue #1

Issue

Does the denial of summary judgment in this case satisfy the criteria for an interlocutory appeal under 28 U.S.C. § 1292(b)?

Legal Rule

Under 28 U.S.C. § 1292(b), certification for interlocutory appeal requires: (1) a question of law; (2) that is controlling; (3) as to which there is substantial ground for difference of opinion (contestable); and (4) whose immediate resolution may materially advance the ultimate termination of the litigation. Additionally, there is a nonstatutory requirement that the petition be filed within a reasonable time after the order.

Rule Analysis

The district judge certified the denial of summary judgment for interlocutory appeal, reciting the statutory standard but focusing primarily on how reversal could end the suit quickly, without fully addressing the other criteria. The defendants' petition similarly failed to discuss the criteria and merely reargued the merits of summary judgment.

Although a denial of summary judgment formally presents a question of law—whether a genuine issue of material fact exists—and could be controlling and contestable, such denials are not routinely appealable under § 1292(b). The term 'question of law' in the statute refers to abstract issues, such as the meaning of a statute, constitutional provision, regulation, or common law doctrine, rather than fact-intensive inquiries like whether summary judgment was properly denied or issues of contract interpretation that require immersion in the record.

In this case, resolving the appeal would necessitate reviewing the summary judgment record to determine if a genuine issue of material fact existed regarding the retaliation claim, which is not an abstract legal question suitable for quick appellate resolution without a full trial record. The statute was intended for pure questions of law that can be decided cleanly and expeditiously, not for paradigmatic interlocutory orders like summary judgment denials that would effectively make them routinely appealable. Certification in unsuitable cases wastes appellate time, delays district court proceedings unnecessarily, and halts litigation in the district court.

Conclusion

No, the denial of summary judgment does not present a qualifying 'question of law' under § 1292(b), and the petition for permission to appeal is therefore denied.