28 U.S.C. § 1254

Courts of appeals; certiorari; certified questions

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Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:(1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree;(2) By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.(June 25, 1948, ch. 646, 62 Stat. 928; Pub. L. 100–352, § 2(a), (b), June 27, 1988, 102 Stat. 662.)Historical and Revision Notes

Based on title 28, U.S.C., 1940 ed., §§ 346 and 347 (Mar. 3, 1911, ch. 231, §§ 239, 240, 36 Stat. 1157; Feb. 13, 1925, ch. 229, § 1, 43 Stat. 938; Jan. 31, 1928, ch. 14, § 1, 45 Stat. 54; June 7, 1934, ch. 426, 48 Stat. 926).

Section consolidates sections 346 and 347 of title 28, U.S.C., 1940 ed.

Words “or in the United States Court of Appeals for the District of Columbia” and “or of the United States Court of Appeals for the District of Columbia” in sections 346 and 347 of title 28, U.S.C., 1940 ed., were omitted. (See section 41 of this title.)

The prefatory words of this section preceding paragraph (1) were substituted for subsection (c) of said section 347.

The revised section omits the words of section 347 of title 28, U.S.C., 1940 ed., “and with like effect as if the case had been brought there with unrestricted appeal”, and the words of section 346 of such title “in the same manner as if it had been brought there by appeal”. The effect of subsections (1) and (3) of the revised section is to preserve existing law and retain the power of unrestricted review of cases certified or brought up on certiorari. Only in subsection (2) is review restricted.

Changes were made in phraseology and arrangement.

Editorial NotesAmendments

1988—Pub. L. 100–352, § 2(b), struck out “appeal;” after “certiorari;” in section catchline.

Pars. (2), (3). Pub. L. 100–352, § 2(a), redesignated par. (3) as (2) and struck out former par. (2) which read as follows: “By appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States, but such appeal shall preclude review by writ of certiorari at the instance of such appellant, and the review on appeal shall be restricted to the Federal questions presented;”.

Statutory Notes and Related SubsidiariesEffective Date of 1988 Amendment

Pub. L. 100–352, § 7, June 27, 1988, 102 Stat. 664, provided that: “The amendments made by this Act [amending sections 1254, 1257, 1258, 2101, 2104, and 2350 of this title, section 136w of Title 7, Agriculture, section 1631e of Title 22, Foreign Relations and Intercourse, section 652 of Title 25, Indians, section 988 of Title 33, Navigation and Navigable Waters, section 1652 of Title 43, Public Lands, sections 719, 743, and 1105 of Title 45, Railroads, and section 30110 of Title 52, Voting and Elections, and repealing sections 1252 and 2103 of this title] shall take effect ninety days after the date of the enactment of this Act [June 27, 1988], except that such amendments shall not apply to cases pending in the Supreme Court on the effective date of such amendments or affect the right to review or the manner of reviewing the judgment or decree of a court which was entered before such effective date.”

Notes of Decisions

Cited in 360 cases (36 in the last 5 years), 1949–2026 · leading case: Burger King Corp. v. Rudzewicz

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Burger King Corp. v. Rudzewicz (1985) scotus · cites it 6× “Burger King appealed the Eleventh Circuit's judgment to this Court pursuant to 28 U. S. C. § 1254 (2), and we postponed probable jurisdiction.”

Dart Cherokee Basin Operating Co. v. Owens (2014) scotus · cites it 7× “The case was “in” the Tenth Circuit because of Dart’s application for leave to appeal, and the Court has jurisdiction to review what the Court of Appeals did with that application.”

Hohn v. United States (1998) scotus · cites it 11× “Hohn petitioned this Court for a writ of certiorari to review the denial of the certificate, seeking to invoke our jurisdiction under 28 U. S. C. § 1254 (1). The Government now found itself in agreement with Hohn, saying his claim was, in fact, constitutional in nature.”

Miller-El v. Cockrell (2003) scotus · cites it 2× “The Court's decision in Hohn, supra, which holds that the COA determination constitutes a "case" in the court of appeals for purposes of this Court's jurisdiction under 28 U. S. C. § 1254 , is not to the contrary.”

City of Mesquite v. Aladdin's Castle, Inc. (1982) scotus · cites it 6× “Invoking our appellate jurisdiction under 28 U. S. C. § 1254 (2), the city now asks us to reverse the judgment of the Court of Appeals.”

Immigration & Naturalization Service v. Chadha (1983) scotus · cites it 4× “Congress is both a proper party to defend the constitutionality of § 244(c)(2) and a proper petitioner under 28 U. S. C. § 1254 (1). Second, prior to Congress' intervention, there was adequate Art.”

Felker v. Turpin (1996) scotus · cites it 4× “II) from this Court's statutory jurisdiction to review cases in the courts of appeals pursuant to 28 U. S. C. § 1254 (1). The Act does not purport to limit our jurisdiction under that section to review interlocutory orders in such cases, to limit our jurisdiction under §…”

Silkwood v. Kerr-McGee Corp. (1984) scotus · cites it 4× “" 28 U. S. C. § 1254 (2). Mr. Silkwood argues that because the Court of Appeals invalidated the punitive damages award on pre-emption grounds and because the basis for that award was a state statute, Okla.”

Diamond v. Charles (1986) scotus · cites it 4× “§ 1254 (2) and sought review of the Court of Appeals' decision, the "case" or "controversy" requirement would have been met, for a State has standing to defend the constitutionality of its statute. Diamond argues that Illinois' "letter of interest" demonstrates the State's…”

Harlow v. Fitzgerald (1982) scotus · cites it 2× “731, our jurisdiction has been challenged on the basis that the District Court's order denying petitioners' claim of absolute immunity was not an appealable final order and that the Court of Appeals' dismissal of petitioners' appeal establishes that this case was never "in" the…”

Douglas Oil Co. of Cal. v. Petrol Stops Northwest (1979) scotus · cites it 4× “At the same time, I am handicapped in formulating a view of my own on the subject, because of the absence of any assistance from the parties or any consideration of the question by the Court of Appeals or by this Court.”

United States v. Nixon (1974) scotus · cites it 5× “28 U. S. C. § 1254 . The Court of Appeals’ jurisdiction under 28 U.”

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— 28 U.S.C. § 1254(2) — 1 case

Franklin, Johnathan v. Richardson, Reed (2021) wiwd

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