Cite as: 514 U. S. 35 (1995)
Opinion of the Court
Congress thus chose to confer on district courts first line discretion to allow interlocutory appeals.4 If courts of appeals had discretion to append to a Cohen-authorized appeal from a collateral order further rulings of a kind neither independently appealable nor certified by the district court, then the two-tiered arrangement § 1292(b) mandates would be severely undermined.5
4 When it passed § 1292(b), Congress had before it a proposal, by Jerome Frank of the Court of Appeals for the Second Circuit, to give the courts of appeals sole discretion to allow interlocutory appeals. Judge Frank had opposed making interlocutory appeal contingent upon procurement of a certificate from the district judge; he advanced instead the following proposal:
" 'It shall be the duty of the district judge to state in writing whether in his opinion the appeal is warranted; this statement shall be appended to the petition for appeal or, as promptly as possible after the filing of such petition in the court of appeals, shall be forwarded to said court by the district judge. The court of appeals shall take into account, but shall not be bound by, such statement in exercising its discretion.' " Undated letter from study committee to the Tenth Circuit Judicial Conference, in S. Rep. No. 2434, 85th Cong., 2d Sess., 8-9 (1958).
5 This case indicates how the initial discretion Congress lodged in district courts under § 1292(b) could be circumvented by the "liberal" or "flexible" approach petitioners and respondent prefer. The District Court here ruled only tentatively on the county commission's motion and apparently contemplated receipt of further evidence from the parties before ruling definitively. See order denying motions to reconsider, App. to Pet. for Cert. 72a ("The parties will have an opportunity to convince this Court that Sheriff Morgan was or was not the final policy maker for the County, and the Court will make a ruling as a matter of law on that issue before the case goes to the jury."); cf. Swint v. Wadley, 5 F. 3d 1435, 1452 (CA11 1993) (to determine whether an official is a final policymaker, a district court "should examine not only the relevant positive law . . . but also the relevant customs and practices having the force of law") (emphasis in original). In view of the incomplete state of the District Court's adjudication, including some uncertainty whether plaintiffs meant to sue the county as discrete from the commission members, it is unlikely that a § 1292(b) certification would have been forthcoming from the District Judge.
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