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Posted: November 10, 2017

Second Circuit Grants Late Petition for Interlocutory Appeal

On October 23, 2017, the Second Circuit issued a decision in Yu v. Hasaki Restaurant, Inc., Docket No. 17-1067, granting permission to file a late petition for an interlocutory appeal from a decision of the EDNY, explaining:

The relevant court of appeals may, in its discretion, permit an appeal from the order if application is made within ten days after entry of the order. Rule 5 of the Federal Rules of Appellate Procedure requires a request for permission to file a discretionary appeal to be filed within the time specified by the statute authorizing the appeal.

We acknowledge at the outset that time requirements for invoking appellate jurisdiction are strictly enforced. In Bowles v. Russell, 551 U.S. 205 (2007), for example, the Supreme Court ruled that a court of appeals lacked jurisdiction where a district court had mistakenly told an appellant that his notice of appeal could be filed within seventeen days, instead of the fourteen days specified in the relevant rule, FRAP 4(a)(6).

In the pending matter, Hasaki’s petition to appeal the District Court’s April 10 Order was filed beyond the ten days specified in section 1292(b). However, a notice of appeal was filed within that ten day period. The issue presented is whether the notice of appeal may be deemed the 7 functional equivalent of a section 1292(b) petition for purposes of invoking this Court’s jurisdiction over Hasaki’s petition.

In Casey v. Long Island R.R. Co., 406 F.3d 142, 146 (2d Cir. 2005), we ruled that a brief, filed within ten days of a District Court’s order, was the functional equivalent of a section 1292(b) petition. A brief is, of course, a far more informative document that a bare notice of appeal. But Casey permits us to determine whether, under the circumstances of this case, we should deem Hasaki’s notice of appeal, filed in the District Court, sufficient to invoke our appellate jurisdiction over the petition for an interlocutory appeal. That notice identified the Order for which review was sought. It also triggered the automatic electronic transmission to this Court of the notice of appeal and the District Court’s Order and Opinion. That Opinion fully informed us of the considerations relevant to whether the District Court’s Order was appropriate for a section 1292(b) appeal.

We thus knew, within ten days of the District Court’s Order, everything we needed to know in order to exercise our discretion whether to permit the interlocutory appeal. We note that the District Court’s Order required the parties to explain the justification for their settlement “[a]bsent a notice of appeal being filed within ten days, see 28 U.S.C. § 1292(b).” The citation was helpful, but the reference to a notice of appeal was not.

There is a reason why this Court should be somewhat indulgent in determining whether the notice of appeal should be considered the functional equivalent of a section 1292(b) petition. We are not asked to uphold appellate jurisdiction solely for the benefit of a litigant who has not prevailed after plenary proceedings in a district court. Here, the acceptance of appellate jurisdiction would achieve the objective of a conscientious district court judge who has determined, after a comprehensive analysis, that an interlocutory appeal will serve the interests of efficient judicial administration.

Under all the circumstances, we deem the timely filed notice of appeal sufficient to invoke our appellate jurisdiction over the section 1292(b) petition. Having accepted jurisdiction over the petition by virtue of the timely notice of appeal and timely receipt of related information, we grant Hasaki’s request to file his later filed formal section 1292(b) petition.

(Internal quotations and citations omitted). Having accepted the petition, the Second Circuit went on to grant leave to file an interlocutory appeal of the question of “whether Rule 68 settlements in FLSA cases require District Court review and approval.”

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