Under ordinary circumstances, New York appellate practice is divided between two non-overlapping court systems. Federal appeals are heard by the U.S. Court of Appeals for the Second Circuit, whose decisions are reviewable only by the U.S. Supreme Court; state appeals are heard by the four departments of the appellate division, whose decisions are reviewable by the New York Court of Appeals. But in a large number of cases—more here than in other part of the country—the two systems talk to each other, through the use of the certification process.

Certification is a procedure by which a federal court can ask that a state court rule on an issue of state law.1 Federal courts are asked to interpret state law all the time—either because they are sitting in diversity, exercising supplemental jurisdiction, or hearing cases removed to federal court pursuant to statutes like the Class Action Fairness Act. In the vast majority of those cases, the state laws at issue are clear, and federal courts are well equipped to apply them. But in cases where state law is ambiguous, or the issue is novel and important, many federal courts have the option to ask for help: They can issue an order "certifying a question" to a state's high court, asking that the state court consider and decide the question in the first instance.

The Second Circuit certifies more questions to state high courts than any other federal court in the country,2 and the overwhelming majority of its certification orders are to the New York Court of Appeals. In the past five years alone, the Second Circuit has issued 39 certification orders, 31 of which were directed at Albany. That's an average of about six New York certifications per year—the highest number of certifications to any state high court from any U.S. Circuit court in the entire country. Frequent use of the certification process has been the norm in the Second Circuit since the mid-1990s, when Judge Calabresi joined the court and became a vocal and persuasive advocate for use of the procedure.3 In total, the Second Circuit issued 133 certification orders to New York between 1986 (when the Court of Appeals first began accepting certified questions) and the end of 2015.4

Given the frequency of such cases, counsel in a Second Circuit appeal presenting state-law issues should be familiar with certification and prepared to consider the various strategic questions that can arise. Below, we provide a primer to guide New York lawyers through the certification process.

How Cases Are Certified

The Second Circuit can choose to certify a question sua sponte, or it can do so at the request of a party.5 Litigants have several opportunities to seek certification during the progress of an appeal: they can request certification in a separate motion (either before or after briefing, or even after oral argument), in the merits briefing, or at oral argument.6

If the Second Circuit decides to certify, it issues an opinion containing the certified question, and it sends the opinion to the Clerk of the Court of Appeals, along with the entire appellate record.7 The Court of Appeals then determines whether to accept the request,8 typically relying only on the materials it has received from the Second Circuit—although on occasion, it has considered letters from the parties if received in advance of its conference date.9 The Court of Appeals technically has the discretion to deny a certification request, but it rarely does so: In the 30 years it has been accepting certified questions, the court declined only seven of 133 such requests.10

Once the Court of Appeals accept a certified question, the matter will generally proceed in the same manner as a normal appeal. The court will issue a briefing schedule and will hold oral argument, after which it will issue an opinion.11 The Second Circuit, which retains jurisdiction of the case throughout the process, then disposes of the appeal accordingly.

Strategic Considerations

Usually, based on the specific issue and facts in a case, it will be apparent to counsel whether the Second Circuit or the Court of Appeals offers a more favorable forum for her position. Accordingly, we focus on the factors that are helpful to emphasize in either supporting or opposing a certification request, as counsel deems appropriate.

First, counsel should be aware that there are two necessary preconditions for certification to the Court of Appeals: (1) there must be no controlling Court of Appeals decision on the issue; and (2) the issue must be determinative of the outcome of the case.12 Thus, lawyers should be prepared to address the presence or absence of these conditions.

However, even if the threshold requirements for certification are met, the Second Circuit has discretion not to certify a question. After all, federal courts are vested with the jurisdiction to hear state law claims, certification means adding to the already heavy docket of the Court of Appeals, and it often results in substantial delays in the ultimate resolution of a case. Therefore, in addition to addressing the preconditions for certification, counsel should consider highlighting the presence or absence of the following factors, which tend to influence the Second Circuit's decision on whether to certify a question.

Ambiguity: Even if there is no controlling Court of Appeals decision on point, in many cases, the Second Circuit will nevertheless be able to predict how the Court of Appeals would rule, and will therefore decline certification. This may be the case where the issue is straightforward (for instance, where the court is being asked to interpret unambiguous statutory language), where there are unanimous Appellate Division decisions on point, or where decisions from analogous cases provide sufficient guidance. Accordingly, it can be beneficial to marshal decisions from the New York Appellate Division departments and trial courts, as well as decisions from other jurisdictions to demonstrate that there either is or is not ambiguity in how the Court of Appeals would rule.

Broader Significance: Because of the added costs and burdens associated with certification, the Second Circuit is unlikely to certify an issue unless it has a significant impact beyond the specific dispute between the parties, even if there is ambiguity in the law. Thus, counsel can reduce the possibility of having a question be certified by casting it as intensely fact-bound.13

Conversely, the Second Circuit will be more hesitant to rule, and therefore more likely to certify, if the unresolved issue before it appears to be particularly important and likely to have effects beyond the particular case at hand—such as a challenge to a state statute under the state constitution, a state-law preemption question, or a question about the applicable rules of construction or standards of review. If possible, counsel should consider quantifying the impact of a ruling in such a case—for example through the number of individuals who would be affected or the amount of money at stake.

Additionally, issues that are likely to recur present a compelling case for certification. The Second Circuit's interpretation of New York law is not precedent, and if an issue will arise again, it is often more desirable to have a binding articulation of the governing principles from the Court of Appeals than to perpetuate a situation in which federal courts and lower state courts are left to guess about what the Court of Appeals would do.

Value Judgments and Public Policy Choices at Stake: Legal issues sometimes require courts to make value judgments and choose among competing policy goals—for example, determining whether an interpretation of a statute furthers the policies desired by the legislature or whether the costs imposed by a rule are justifiable in light of other benefits. The Second Circuit will generally eschew resolving state law issues that require such judgments because the role of a federal court in interpreting state law is limited to predicting what a state court would do.14 By contrast, such questions are well suited for the Court of Appeals, which, as the highest state court in New York, is charged with determining what the law of New York is, taking into account all relevant considerations.

Time Is of the Essence: Finally, in rare cases, there may be a pressing need for resolution of a case, which might weigh against certification.15 Once a case is certified to the Court of Appeals, if the Court of Appeals accepts the request, the average time from acceptance until a decision is seven months, although parties can request a calendar preference.16

These are, of course, not all of the considerations that may factor into the Second Circuit's decision of whether to certify a question to the Court of Appeals. But in the majority of certification decisions, they will play a large role in the Second Circuit's decision, and counsel ignore them at their own peril.


1. Federal courts are authorized to certify questions of state law to the highest court of almost every state and the District of Columbia and Puerto Rico. Advisory Group to the N.Y. State and Fed. Judicial Council, Practice Handbook on Certification of State Law Questions by the United States Court of Appeal for the Second Circuit to the New York State Court of Appeals (3d ed. 2016) (Handbook), at 1 n.2, available at http://www.ca2.uscourts.gov/docs/Third Edition of Certification Handbook.pdf.
2. A Westlaw search of certification orders from each circuit court of appeals for the period March 1, 2012 to March 1, 2017 reveals that the other circuits certified questions to state courts in the following number of cases: First Circuit: 15; Third Circuit: 10; Fourth Circuit: 9; Fifth Circuit: 19; Sixth Circuit: 4; Seventh Circuit: 4; Eighth Circuit: 1; Ninth Circuit: 36; Tenth Circuit: 15; Eleventh Circuit: 24; D.C. Circuit: 0.
3. See, e.g., McCarthy v. Olin Corp. , 119 F.3d 148, 157-61 (2d Cir. 1997) (Calabresi, J., dissenting)
4. Handbook, supra note 1, App'x A.
5. Handbook, supra note 1, at 7.
6. See Local Rule 27.2(b); Handbook, supra note 1, at 4-5.
7. N.Y. Ct. App. R. 500.27(b)-(c).
8. Id. 500.27(d).
9. Handbook, supra note 1, at 10.
10. Handbook, supra note 1, App'x A. In addition to the seven certification requests that were declined by the New York Court of Appeals, eleven certification requests were withdrawn. Id.
11. Handbook, supra note 1, at 12; N.Y. Ct. App. R. 500.27(e).
12. N.Y. Ct. App. R. 500.27(a).
13. See Gutierrez v. Smith , 702 F.3d 103, 117 (2d Cir. 2012).
14. See Colavito v. N.Y. Organ Donor Network , 438 F.3d 214, 229 (2d Cir. 2006).
15. See Gutierrez, 702 F.3d at 117.
16. See Handbook, supra note 1, at 10.


Reprinted with permission from the April 10, 2017 edition of New York Law Journal © 2017 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

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