## Facts

- The City of Memphis adopted a Minority & Women Business Enterprise (MWBE) procurement program in 1996 to remedy and prevent discrimination in awarding construction contracts.
- At enactment, the City relied on a disparity study covering 1988–1992 to support the program.
- On January 4, 1999, contractors and a trade association sued, alleging the MWBE program’s race-conscious preferences violated the Fourteenth Amendment.
- The City sought to commission and use a new “postenactment” disparity study (covering 1993–1998) to support a compelling governmental interest for the program.
- On June 9, 1999, the district court ruled the City could not use postenactment evidence to prove a compelling interest.
- On December 20, 2000, the district court certified that evidentiary ruling for interlocutory appeal under 28 U.S.C. § 1292(b), but the parties received notice only after the ten-day application period expired.
- On January 9, 2001, the district court sua sponte granted the City an additional 30 days to seek interlocutory review.
- The Sixth Circuit previously denied the City’s application as untimely because the district court lacked authority to extend § 1292(b)’s ten-day deadline.
- The City filed a renewed application seeking permission to appeal the postenactment-evidence ruling; the plaintiffs opposed on timeliness and § 1292(b) grounds.

## Issues

1. Whether the City’s application satisfied § 1292(b)’s requirements for interlocutory review, including the non-extendable ten-day filing deadline.
2. Whether the challenged order presented a controlling question of law with substantial ground for difference of opinion.
3. Whether immediate appeal would materially advance the ultimate termination of the litigation and reflect exceptional circumstances warranting departure from the final-judgment rule.

## Decision

- The Sixth Circuit denied permission to take an interlocutory appeal under 28 U.S.C. § 1292(b).
- The court treated § 1292(b) as a narrow exception to finality, to be used sparingly and only in exceptional cases.
- The court rejected reliance on the district court’s attempted extension of the statutory ten-day application period.
- The court concluded the City did not meet the statutory criteria and did not show exceptional circumstances justifying interlocutory review of the evidentiary ruling.

## Legal Principles

- Interlocutory appeals under 28 U.S.C. § 1292(b) are a limited exception to the final-judgment rule and are granted only in exceptional circumstances.
- The movant bears the burden of showing exceptional circumstances justifying interlocutory review.
- Section 1292(b) requires: (1) a controlling question of law, (2) substantial ground for difference of opinion, and (3) that immediate appeal may materially advance the litigation’s termination.
- The statutory ten-day period to apply for § 1292(b) permission runs from entry of the certified order and may not be extended by the district court.
- Lack of notice of entry does not, by itself, authorize enlargement of § 1292(b)’s statutory deadline.

## Conclusion

The Sixth Circuit declined interlocutory review of a district court order excluding postenactment disparity evidence in litigation challenging Memphis’s MWBE program, holding that § 1292(b) relief is reserved for exceptional cases, the ten-day application deadline is not extendable, and the City failed to satisfy the statute’s criteria for immediate appellate intervention.


In re City of Memphis, 293 F.3d 345 (6th Cir. 2002)