Hamilton, Matter of
Decision Date | 02 September 1997 |
Docket Number | No. 97-8039,97-8039 |
Citation | 122 F.3d 13 |
Parties | 8 A.D. Cases 895, 23 A.D.D. 608, 10 NDLR P 306 In the Matter of Arthur J. HAMILTON, Petitioner. |
Court | U.S. Court of Appeals — Seventh Circuit |
Lee W. Barron (submitted on briefs), Gail Renshaw, Wood River, IL, for Petitioner.
Robert G. Raleigh, Hoagland, Fitzgerald, Smith & Pranaitis, Alton, IL, Steven R. Wall, Sarah E. Bouchard, Morgan, Lewis & Bockius, Philadelphia, PA, for Respondent.
Before POSNER, Chief Judge, and EASTERBROOK and MANION, Circuit Judges.
The plaintiff asks us to let him appeal from an order by the district court granting summary judgment for the defendant on one count (violation of the Americans with Disabilities Act) of the two-count complaint (the other count charges a violation of the common law of Illinois). The district court certified this interlocutory order for immediate appeal under 28 U.S.C. § 1292(b); the statute requires our concurrence. The court gave no explanation for why it thought its order meets the statutory criteria for an interlocutory appeal; plainly it does not.
The district court did not certify its order for immediate appeal in the order itself, the procedure contemplated by the statute, but did so instead in a separate order, entered one month later (though issued only three weeks later), granting a motion for certification. We have, however, authorized this procedure. Nuclear Engineering Co. v. Scott, 660 F.2d 241, 245-48 (7th Cir.1981); see Weir v. Propst, 915 F.2d 283, 286 (7th Cir.1990); Marisol by Forbes v. Giuliani, 104 F.3d 524, 527-29 (2d Cir.1996); In re Benny, 812 F.2d 1133, 1136-37 (9th Cir.1987). And the petition for certification was filed in this court within ten days of the entry of that order, which was timely. Weir v. Propst, supra, 915 F.2d at 287; see Fed. R.App. P. 5(a). In addition the district court both recited the statutory criteria ("a controlling question of law as to which there is substantial ground for difference of opinion") and identified the question, or rather questions, which the court thought met the criteria: "whether or not plaintiff who suffered two heart attacks was regarded as disabled by the defendant and whether plaintiff had a history of impairment as defined by the ADA."
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