Concept
Federal Circuit Provisions
Availability of interlocutory review
Federal Circuit Provisions
Section 1292(c) of Title 28 answers a question the earlier routes leave open: which court of appeals hears the appeal? The Federal Circuit “shall have exclusive jurisdiction” over the matters its clauses list, and exclusive means that when a clause applies, the regional court of appeals has no authority to hear the appeal.1 A student who has just learned the injunction, receivership, and admiralty orders of subsection (a) and the certified appeals of subsection (b) naturally pictures the regional circuit that sits over the district court. Subsection (c) sends some of those appeals elsewhere.
Two clauses do the work. The first ties the destination to the case rather than the order: it reaches an appeal from an interlocutory order described in subsection (a) or (b) in any case over which the court would have jurisdiction of an appeal under 28 U.S.C. § 1295.2 Without a clause of this kind, one lawsuit could send its injunction appeal to a regional circuit and its final judgment to the Federal Circuit, and two appellate courts would pass on the same dispute at different stages. The second clause adjusts timing as well as destination. It gives the Federal Circuit exclusive jurisdiction of an appeal from a judgment in a civil action for patent infringement that would otherwise be appealable to it and is final except for an accounting.3
Subsection (d), taken up last, adds routes for two specialized trial courts and for district court rulings on transfer to the Court of Federal Claims. None of these provisions replaces the questions taught earlier. A sound analysis of an adverse order still asks first whether some route makes the order appealable now, and only then which court hears the appeal. The first Federal Circuit provision, which carries the routes of subsections (a) and (b) into that court’s docket, comes next.
Federal Circuit Interlocutory Appeals
Subsection (c)(1) gives the Federal Circuit jurisdiction of an appeal from an interlocutory order or decree described in subsection (a) or (b) in any case over which the court would have jurisdiction of an appeal under § 1295.4 The clause asks two questions, and the appeal must satisfy both. The first concerns the order: it must be one that subsection (a) or (b) already describes, such as an order granting or refusing an injunction or an order certified for permissive appeal. The second concerns the case: it must fall within the Federal Circuit’s ordinary appellate docket under § 1295, and a patent infringement suit is the standard example. Because the first question borrows the earlier routes as they are written, the requirements for the order stay where the earlier sections left them.
An injunction appeal in a covered case therefore remains an appeal, taken as of right, from an order granting, continuing, modifying, refusing, or dissolving an injunction.5 A certified appeal in a covered case proceeds by petition for permission to appeal under Federal Rule of Appellate Procedure 5, which supplies the procedure for appeals by permission in all such cases.6 The petition is due within the time the authorizing statute or rule specifies or, if none is specified, within the time Rule 4(a) allows for a notice of appeal. It must state the facts necessary to understand the question, the question itself, the relief sought, and the reasons the appeal should be allowed, and it must attach the decisions at issue, including any district court ruling that authorizes the interlocutory appeal.7 In a covered case, the only change is the court that receives the petition.
The statute ties the destination to the case, and not to the kind of order, because an interlocutory ruling often turns on questions the final appeal will decide. A ruling on a preliminary injunction asks the district court to assess the plaintiff’s likelihood of success, so in a patent suit it frequently rests on the court’s reading of the patent claims and the infringement theory. The Federal Circuit will decide those same questions when the case ends. If the injunction appeal went to a regional circuit, two appellate courts could rule on the same patent in one lawsuit and reach different answers. Sending both appeals to one court keeps a single tribunal in charge of the case.
The exam question is which court receives the appeal from a given order, and the answer turns on what the lawsuit is about, because the same order may arise in two different suits.
Students often assume the Federal Circuit keeps its own list of appealable orders. It does not. The list is the one in subsections (a) and (b), and the § 1295 question never adds an order to it or removes one. A party whose order fails the first step has no route through § 1292(c)(1), and a patent case does not rescue it.
Patent Accounting Judgments
Section 1292(c)(2) of Title 28 gives the Federal Circuit exclusive jurisdiction of an appeal from “a judgment in a civil action for patent infringement which would otherwise be appealable to the United States Court of Appeals for the Federal Circuit and is final except for an accounting.”9 An accounting is the proceeding in which the court calculates the money the infringer owes the patent owner, so the statute describes a case in which liability has been decided and only the amount remains. The provision makes three demands of the judgment: it must come from a civil action for patent infringement, the Federal Circuit must otherwise have jurisdiction of an appeal from it, and nothing may remain except the accounting. The text requires no certificate from the district judge and no permission from the court of appeals, which separates this route from the certified appeal taught earlier. It also differs from subsection (c)(1), which only redirects an appeal that subsection (a) or (b) already allows, because this clause allows an appeal at a moment when the general rule would call the case unfinished.10
The ordinary rule shows what the provision changes. Under the final judgment rule taught at the start of this chapter, a judgment that holds a defendant liable without ascertaining damages is not sufficiently final to be appealed.11 The Eleventh Circuit applied that rule in SEC v. Carrillo, a securities enforcement action in which the district court found liability but had not fixed the sum owed.12 Setting the amount is part of deciding the case, so the court still has work to do beyond carrying out a result. Until the sum is fixed, the judgment does not tell the parties what the defendant must pay, and a damages error can be raised in the same appeal as a liability error once everything is done. Absent a statute that supplies a route, the defendant in a case like Carrillo must see the damages phase through before the court of appeals looks at liability.
Patent cases receive different treatment because of what an accounting involves. Determining the amount owed can be a long and costly proceeding, and if the appellate court later reverses the finding of infringement, all of that effort has been wasted. An appeal at the point where liability is decided lets the parties test the foundation of the judgment before anyone pays to build the damages calculation on it. The admiralty liability decree taught earlier rests on the same economy, since a liability decree may be appealed before a master computes damages. In both settings the early appeal comes just before the expensive remedial work begins. The en banc Federal Circuit’s decision in Robert Bosch, LLC v. Pylon Manufacturing Corp. is an example of an immediate appeal from a judgment of this kind.13
The provision does not widen as the cases grow more alike, because Congress named one kind of action.
The words “final except for an accounting” also limit the provision from the inside. The accounting must be the only matter left, so a patent judgment that leaves another claim or issue undecided does not fit the description and must find a route elsewhere in this chapter.
An exam stem that reports liability with damages still pending invites two opposite mistakes. One treats every liability judgment as appealable because the hard question has been decided. The other treats every judgment with damages pending as unappealable and forgets the patent clause. The sound analysis asks first whether the action is for patent infringement and then whether the accounting is all that remains. Two yeses open an immediate appeal to the Federal Circuit, and a no returns the party to the final judgment rule or to another route.
Trade and Claims Courts
Subsection (d) of 28 U.S.C. § 1292 extends the Federal Circuit’s interlocutory jurisdiction in two directions that subsection (c) does not reach.15 First, it creates a certified-appeal route from interlocutory orders of the Court of International Trade and the Court of Federal Claims. Second, it gives the Federal Circuit exclusive jurisdiction over appeals from district court rulings on motions to transfer an action to the Court of Federal Claims. This chapter treats the subsection at survey level: each provision echoes a route taught earlier, and the task is to recognize which pattern an order fits.
The certified-appeal clauses track the two-gate design of § 1292(b) closely. Under subsection (d)(1), when any judge of the Court of International Trade, in issuing an interlocutory order, includes a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion, and that an immediate appeal may materially advance the ultimate termination of the litigation, the Federal Circuit may, in its discretion, permit an appeal if application is made to it within ten days after entry of the order.16 Subsection (d)(2) says the same of a judge of the Court of Federal Claims.17 Each clause also treats an order issued by the court’s chief judge under a separate provision of Title 28 as a trigger, a refinement this survey does not pursue. The trial judge’s statement is therefore the first gate and the Federal Circuit’s discretionary permission the second, and the reasons taught for § 1292(b) carry over. The trial judge knows the case and can tell which ruling presents a question whose early answer could shorten it, while the appellate court controls its own docket and can refuse an appeal that does not justify the interruption. Because the statement starts the route, an ordinary interlocutory order issued without it gives a party nothing to apply on, chief-judge orders aside.
Subsection (d)(3) supplies the third familiar feature. Neither the application for an appeal nor the granting of one stays proceedings in the Court of International Trade or the Court of Federal Claims, unless a judge of that court, the Federal Circuit, or a judge of the Federal Circuit orders a stay.18 The reason matches the one under § 1292(b). An automatic pause would let a party halt a case merely by asking for permission, even where the appellate court would refuse, so a party that needs the trial court held back must request a stay separately.
Subsection (d)(4) works differently, because it concerns the district courts and one kind of motion. Subparagraph (A) gives the Federal Circuit exclusive jurisdiction of an appeal from an interlocutory order of a district court, including the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands, that grants or denies, in whole or in part, a motion to transfer an action to the Court of Federal Claims under 28 U.S.C. § 1631.19 Three features of the text matter. The clause covers a grant and a denial, so whichever side loses the transfer dispute may appeal. It contains no certification step and no ten-day application period, because it assigns the appeal to the Federal Circuit directly. And it attaches to the kind of motion decided without asking whether the underlying case falls within § 1295, which is the question subsection (c)(1) asks about appeals under subsections (a) and (b).20 The usual error is to assume that an order from a district court goes to the regional court of appeals, when the regional circuit has no jurisdiction over this appeal. An order in the same suit on some other motion, such as one to dismiss, lies outside (d)(4) and must find its route elsewhere in this chapter.
Subparagraph (B) pairs the appeal with a stay. Once a motion to transfer is filed, no further proceedings may be taken in the district court until 60 days after the court has ruled on the motion, and if an appeal is taken from the grant or denial, proceedings stay further until the Federal Circuit has decided it.21 Two safeguards qualify the stay. It does not bar preliminary or injunctive relief where appropriate and where expedition is reasonably necessary, and while it lasts no transfer pursuant to the motion may be carried out.22 The reason for this stay is the reverse of the reason behind (d)(3). In a certified appeal the trial court remains the forum whatever the appellate court decides, so its continuing work keeps its value. In a transfer dispute the forum itself is in question, so discovery and rulings made in the district court while the motion is pending could be wasted if the case belongs elsewhere. The 60-day period leaves room for a party to take an appeal before the case moves, and the bar on carrying out the transfer keeps the case where the Federal Circuit can still decide where it belongs. The injunctive-relief exception ensures that a litigant facing urgent harm is not left without a court while the forum question is resolved.