UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

Salaries and Expenses

SUMMARY STATEMENT OF ACCOUNT REQUIREMENTS

Mandatory Discretionary Total

Total Fiscal Year 2021 Enacted Appropriation $3,168,000 $33,500,000 $36,668,000

Total Fiscal Year 2022 Appropriation Request $3,216,000 $34,280,000 $37,496,000

Total Requested Increase from Fiscal Year 2021 Enacted Appropriation $48,000 $780,000 $828,000

APPROPRIATION LANGUAGE

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

SALARIES AND EXPENSES

 For salaries of officers and employees, and for necessary expenses of

the court, as authorized by law, [$33,500,000]$34,280,000.

 In addition, there are appropriated such sums as may be necessary under

current law for the salaries of the chief judge and judges of the court.

(P.L. 116-260 - Financial Services and General Government Appropriations Act, 2021)

2.1
Page Fiscal Year 2022 Resource Requirements:

No. FTE Amount FTE Amount FTE Amount

Fiscal Year 2021 Assumed Obligations........................................................................... 12 3,168 140 35,060 152 38,228 

- (1,560) (1,560) 

Fiscal Year 2021 Enacted Appropriation........................................................................ 12 3,168 140 33,500 152 36,668 

Adjustments to Base to Maintain Current Services:

A. Judges

Pay and benefits adjustments

2.9 1. Proposed 2022 pay adjustment (1.0% for nine months).................................................. - 30 - - - 30 

2.9 2. Annualization of 2021 pay adjustment (1.0% for three months)......................................... - 10 - - - 10 

2.9 3. Benefits increases

a. Health benefits.................................................................................... - 4 - - - 4 

b. FICA adjustment................................................................................. - 4 - - - 4 

B. Court Support Personnel

Pay and benefits adjustments

2.10 4. Proposed 2022 pay adjustment (1.0% for nine months).................................................. - - - 128 - 128 

2.10 5. Annualization of 2021 pay adjustment (1.0% for three months)......................................... - - - 43 - 43 

2.10 - - - 188 - 188 

2.11 7. Benefits increases

a. Health benefits......................................................................................... - - - 29 - 29 

b. FICA adjustment...................................................................................... - - - 16 - 16 

c. FERS adjustment...................................................................................... - - - 100 - 100 

SUMMARY OF REQUEST

FISCAL YEAR 2022

(Dollar amounts in thousands)

COURT OF APPEALS FOR THE FEDERAL CIRCUIT

SALARIES AND EXPENSES

6. Promotions and within-grade increases.......................................................................

Mandatory Discretionary Total

 Utilization of Judiciary Information Technology Fund (including EPA) Balances........................

2.2
Page

No. FTE Amount FTE Amount FTE Amount

C. Other Adjustments

General Inflationary Adjustments

2.11 - - - 131 - 131 

2.11

a. Inflationary increases in GSA space rental costs................................................... - - - 440 - 440 

b. GSA rent credit adjustment........................................................................... - - - (820) - (820) 

2.12 - - - 25 - 25 

Subtotal, Adjustments to Base to Maintain Current Services............................................. - 48 - 280 - 328 

Total Current Services Appropriation Required............................................................... 12 3,216 140 33,780 152 36,996 

D. Program Increase

2.12 - - - 500 - 500 

Total Program Increases...................................................................... - - - 500 - 500 

Total Fiscal Year 2022 Appropriation Required............................................................... 12 3,216 140 34,280 152 37,496 

- 48 - 780 - 828

Financing the Fiscal Year 2022 Request:

2.13 12. Utilization of Electronic Public Access Receipts and Judiciary Information 

 Technology Fund................................................................................................ - - - 602 - 602

12 3,216 140 34,882 152 38,098 

Mandatory Total

Total Estimated Obligations, Fiscal Year 2022...............................................................

11. Upgrade of courthouse security equipment .................................................................

9. GSA space rental increases and adjustments

 Total Appropriation Increase, Fiscal Year 2021 to Fiscal Year 2022..............................

SUMMARY OF REQUEST

COURT OF APPEALS FOR THE FEDERAL CIRCUIT

(Dollar amounts in thousands)

Discretionary

SALARIES AND EXPENSES

8. Inflationary increases in charges for contracts, services, supplies and equipment.....................

10. Lawbooks and computer-assisted legal research (CALR)...............................................

FISCAL YEAR 2022

2.3
FY 2020 FY 2021 FY 2022

Actual Assumed Request

Total Obligations 35,794 38,228 38,098

Unobligated Balance, Start of Year:

Judiciary Information Technology Fund (4,568) (3,817) (2,309)

Deposits and Other Adjustments:

Prior Year Recoveries Judiciary Information Technology Fund (131)

PACER Receipts (8) (52) (52)

Unobligated Balance, End of Year:

Judiciary Information Technology Fund 3,817 2,309 1,759

Subtotal, Other Obligations (890) (1,560) (602)

Direct Obligations 34,904 36,668 37,496

Transfer to Defenders Services 625

Unobligated Balance, End of Year 288

Appropriation Total 35,817 36,668 37,496

Appropriation - Mandatory 3,117 3,168 3,216

Appropriation - Discretionary 32,700 33,500 34,280

FY 2020 FY 2021 FY 2022

Actual Assumed Request

11 Personnel compensation 17,157 18,760 19,159

12 Personnel benefits 4,238 4,985 5,138

13 Benefits for former personnel 165 70 15

21 Travel 24 75 100

22 Transportation of things 21 93 37

23 Rent, communications and utilities

Rental payments to GSA 6,388 6,422 6,606

Communications utilities & misc. charges 192 222 230

24 Printing and reproduction 0 10 10

25 Other services 5,917 5,199 4,991

26 Supplies and materials 128 155 160

31 Equipment 674 677 1,050

Direct Obligations 34,904 36,668 37,496

Other Obligations (JITF and PACER Obligations) 890 1,560 602

Total Obligations 35,794 38,228 38,098

Description

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

SALARIES AND EXPENSES

Obligations by Activity ($000)

Activity

Obligations by Budget Object Class ($000)

2.4
FY 2020 FY 2021 FY 2022

Actual Assumed Request

Direct obligations incurred 34,904 36,668 37,496

Obligated balance, start of year 6,046 3,928 6,560

Adjustments of prior year activity 131 0 0

Obligated balance, end of year (3,928) (6,560) (5,678)

Total Outlays 37,153 34,036 38,378

Less Offsets (8) (52) (52)

Net Outlays 37,145 33,984 38,326

FY 2020 FY 2021 FY 2022

Actual Assumed Request

Total compensable workyears:

 Full-time equivalent employment 141 152 152

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

Salaries & Expenses

Relation of Direct Obligations to Outlays ($000)

Personnel Summary

2.5
No. of Judgeships Compensation and No. of Judgeships Compensation and

Benefits Benefits

($000) ($000)

Article III Judges 12 3,168 12 3,216

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

SALARIES AND EXPENSES

Summary of Mandatory Costs

Fiscal Year 2021 Fiscal Year 2022

2.6
2.7

GENERAL STATEMENT AND INFORMATION

The United States Court of Appeals for the Federal Circuit, located in Washington, DC, has nationwide jurisdiction over a large 

number of diverse subject areas, such as appeals in all patent cases, all government contract cases, all international trade cases, 

government personnel cases, cases involving monetary claims against the United States under the Tucker Acts, veterans benefits 

cases, and many others. 

Appeals to the court come from all 94 federal district courts, the United States Court of Federal Claims, the United States Court of 

International Trade, and the United States Court of Appeals for Veterans Claims. The court also takes appeals of certain 

administrative agencies’ decisions, including the United States Merit Systems Protection Board, the Boards of Contract Appeals, the 

Patent Trial and Appeal Board, and the Trademark Trial and Appeal Board. Decisions of the United States International Trade 

Commission, the Office of Compliance, an independent agency in the Legislative Branch, and the Government Accountability Office 

Personnel Appeals Board also are reviewed by the court. For additional information on the court’s jurisdiction, see the appendix 

beginning on page 2.15 

COVID-19 Ramifications on Court Operations 

Due to the COVID-19 pandemic, the Court of Appeals for the Federal Circuit closed to the public on March 16, 2020, and building 

access continues to be limited to essential staff. Since the Court has an extensive continuity of operations plan and employees are 

fully equipped to telework, the Court was able to switch quickly to a virtual posture and operate court remotely. Using the resources 

and technological solutions already in place, the Court successfully began conducting telephonic arguments within three weeks and 

without delay to the regularly scheduled court session in early April. 

Since April 2020, Court hearings continue to be held telephonically. The Court has also used additional technology to enhance and 

expand both the portability and capacity of its telephonic argument process, successfully leveraging it to conduct remotely an en banc

argument in October 2020. The Court continues to assess existing and emergent technologies to ensure that both court operations and 

oral arguments continue uninterrupted, despite the restrictions presented by the current pandemic environment. 
2.8

COVID-19 has caused an increase in the Federal Circuit’s operating expenses as the Court continues to implement measures in 

response to the pandemic, such as changes in HVAC operating schedules as well as enhanced and responsive sanitation efforts to 

ensure the safety of court personnel that require ongoing access to the building. 

Court Continues to Serve as a Model of Operational Excellence 

The Clerk’s Office of the United States Court of Appeals for the Federal Circuit strives to be a model organization for the judiciary as 

well as for federal agencies across the country. In the wake of the Court receiving the W. Edwards Deming Award in late 2019, 

judiciary colleagues across the third branch have sought out the Federal Circuit’s assistance in implementing programs created by the 

Court and in developing strategies to drive efficiencies and realize better utilization of available resources. 

To date, 35 federal courts have reached out for additional information on the Federal Circuit’s Clerk’s Office case management 

training program, which reduces training time and increases docketing accuracy. The Clerk’s Office continues to provide additional 

information and assistance to these courts, including sharing how the Court was able to leverage its existing technology to adapt its

program for an all-virtual format after the start of the pandemic. 

Clerk’s Office representatives recently conducted a virtual presentation about the training program at the annual conference of the 

National Association for Court Management and will soon participate in a program on federal workforce innovations hosted by 

Graduate School USA, an independent educational institution based in Washington, DC, offering professional development and 

training courses for the federal government and the private sector. Finally, the Federal Circuit will resume work with the Federal 

Judicial Center on the creation of a video based on the Court’s training initiative. Production of the video was paused as a result of the 

pandemic and will begin again once normal court operations resume. The video will be made available judiciary wide. 

FISCAL YEAR 2021 APPROPRIATION ASSUMPTION

The judiciary built the FY 2022 budget request for the Court of Appeals for the Federal Circuit on the enacted FY 2021 appropriation 

of $33,500,000. For bill language, the judiciary used the language from P.L. 116-260, Financial Services and General Government 

Appropriations Act, 2021. 
2.9

Justification of Changes 

The FY 2022 request for the Court of Appeals for the Federal 

Circuit totals $37,496,000. This request includes $3,216,000 

for mandatory expenses and $34,280,000 for discretionary 

expenses. The discretionary request includes $280,000 in 

adjustments to base necessary to maintain current services and 

one program increase of $500,000 for a total discretionary 

spending increase of $780,000. The discretionary request of 

$34,280,000 is a 2.3 percent increase from the FY 2021 

enacted appropriation amount of $33,500,000. 

Adjustments to base to maintain current services include funds 

for the following: increased salaries and benefits costs for 

judges and current staff as well as increased costs for required 

operating activities such as rent, postage, printing, office 

supplies, security, and computer-assisted legal research 

services. This request includes one program increase required 

for an essential upgrade of court security equipment. 

Justification for this program increase begins on page 2.12. 

ADJUSTMENTS TO BASE TO MAINTAIN CURRENT 

SERVICES

A. JUDGES

Pay and benefit adjustments

1. Proposed 2022 pay adjustment

Mandatory Increase: $30,000 

The judiciary is assuming federal pay rates will increase by 1.0 

percent in January 2022. The requested increase provides for 

the cost of nine months of the anticipated pay adjustment in FY

2022, from January 2022 to September 2022. (If the pay 

adjustment included in the President’s FY 2022 budget request 

is different from this 1.0 percent guidance, the judiciary will 

revise this line item in its FY 2022 budget re-estimate.)

2. Annualization of 2021 pay adjustment

Mandatory Increase: $10,000 

The requested increase provides for the annualized costs of a 

2021 Employment Cost Index pay adjustment. Based on the 

enacted FY 2021 appropriation, federal pay rates for judges 

increased by 1.0 percent, effective as of January 2021. The 

requested increase provides for the cost of three months (from 

October 2021 to December 2021) of the assumed 2021 pay 

increase in FY 2022. 

3. Benefits increase

a. Health benefits

Mandatory Increase: $4,000 
2.10

Based on information from the Office of Personnel 

Management, agency health benefit premium contributions are 

projected to increase by an average of 3.0 percent both in 

January 2021 and January 2022. The requested increase 

annualizes the 2021 premium increase and includes a ninemonth provision for an estimated 3.0 percent increase 

anticipated for FY 2022. 

b. FICA adjustment

Mandatory Increase: $4,000 

Based on information from the Social Security Administration, 

employer contributions to the Old Age, Survivor, and 

Disability Insurance (OASDI) portion of the FICA tax will 

increase in 2021. The salary cap for OASDI increased from 

$137,700 to $142,800 in January 2021. The requested amount 

is needed to pay the agency’s contribution in FY 2022. 

B. PERSONNEL

Pay and Benefit Adjustments

4. Proposed 2022 pay adjustment

Requested Increase: $128,000 

The judiciary is assuming federal pay rates will increase by 1.0

percent in January 2022. The requested increase provides for 

the cost of nine months of the anticipated pay adjustment in FY 

2022, from January 2022 to September 2022. (If the pay 

adjustment included in the President’s FY 2022 budget request 

is different from this 1.0 percent guidance, the judiciary will 

revise this line item in its FY 2022 budget re-estimate.)

5. Annualization of 2021 pay adjustment

Requested Increase: $43,000

The requested increase provides for the annualized costs of a 

2021 Employment Cost Index pay adjustment for federal 

civilian workers. Based on the FY 2021 enacted appropriation, 

federal pay rates increased by 1.0 percent, effective as of 

January 2021. The requested increase provides for the cost of 

three months (from October 2021 to December 2021) of the 

2021 pay increase in FY 2022. 

6. Promotions and within-grade increases

Requested Increase: $188,000 

The requested increase provides for promotions and withingrade increases for personnel. The salary plan for judicial 

support personnel provides for periodic within-grade increases 

for staff who receive at least a satisfactory performance rating.
2.11

7. Benefits increases

a. Health benefits

Requested Increase: $29,000 

Based on information from the Office of Personnel 

Management, agency health benefit premium contributions are 

projected to increase by an average of 3.0 percent both in 

January 2021 and January 2022. The requested increase 

annualizes the 2021 premium increase and includes a ninemonth provision for an estimated 3.0 percent increase 

anticipated for FY 2022. 

b. FICA adjustment

Requested Increase: $16,000 

Based on information from the Social Security Administration, 

employer contributions to the Old Age, Survivor, and 

Disability Insurance (OASDI) portion of the FICA tax will 

increase in 2021. The salary cap for OASDI increased from 

$137,700 to $142,800 in January 2021. The requested amount 

is needed to pay the agency contribution in FY 2022. 

c. FERS adjustment

Requested Increase: $100,000 

Consistent with guidance from the Office of Management and 

Budget, funds are requested for an increase in the agency 

contribution rate to Federal Employees Retirement System 

(FERS) plans for FY 2022. For most employees, the agency 

contribution rate will increase from 17.3 percent to 18.4 

percent. Any FERS increase is in accordance with revised 

estimates of the cost of providing benefits by the Board of 

Actuaries of the Civil Service Retirement and Disability 

System. 

C. OTHER ADJUSTMENTS

General Inflationary Adjustments

8. Inflationary increases in charges for contracts, services,

supplies, and equipment

Requested Increase: $131,000

Consistent with guidance from the Office of Management and 

Budget, the requested increase is required to fund inflationary 

adjustments of 2.0 percent for operating expenses such as 

travel, communications, printing, contractual services, supplies 

and materials, and furniture and equipment. 

9. GSA Space Rental Increases and Adjustments

a. Inflationary increases and adjustments in the

cost of GSA space rental

Requested Increase: $440,000 
2.12

This request represents an inflationary increase and 

adjustments in the cost of GSA space rental charges for space 

occupied by the court for FY 2022 based on a rent estimate 

provided by GSA.

b. GSA Rent Credit Adjustment

Requested Decrease: ($820,000) 

In February 2021, the Federal Circuit Court entered into a new 

occupancy agreement on off-site space leased from a 

commercial lessor and occupied by senior judges of the Federal 

Circuit. GSA negotiates with commercial lessors on behalf of 

the judiciary for rental terms in lease agreements. GSA works 

directly with leasing offerors and makes awards based on terms 

that are most financially beneficial to the government. Some 

solicitations also consider trade-offs between price and other 

factors such as free rent credits. Specific to this lease, GSA 

negotiated with the lessor that a free rent credit in the total 

amount of $2,906,170 would be an upfront savings to the 

government rather than prorated over the full term of the lease. 

The terms of the new lease offer the government 30 full 

months and one partial month of free rent until the total rent 

credit is exhausted in the 31st month of the new occupancy 

agreement, September 2023. The occupancy agreement 

establishes that GSA will resume full annual rent collection on 

the space at an increased annualized amount of $1,255,964 

with the start of FY 2024. The requested decrease represents 

the amount of rent that will not have to be paid on the rental 

space in FY 2022. 

10. Law books and computer-assisted legal research

(CALR)

Requested Increase: $25,000 

An adjustment of $15,000 is requested to fund an estimated 5.0 

percent increase in the cost of library services, including law 

book accessions and continuations, and an adjustment of 

$10,000 is requested to fund an estimated 4.0 percent increase 

in the cost of computer-assisted legal research resources.

D. PROGRAM INCREASE

11. Upgrade of courthouse security equipment

Requested Increase: $500,000 

The judiciary depends on court security officers and reliable 

security equipment to keep judicial officers, staff, and the 

public safe and secure. As part of the nationwide initiative for 

the U.S. Marshals Service (USMS) to update physical access 

control systems (PACS) in courthouses (see Court Security 

chapter, page 7.12 for additional information), the USMS reevaluated security equipment within the PACS in the Howard 

T. Markey National Courts Building (NCB), which houses both

the United States Court of Appeals for the Federal Circuit and

the United States Court of Federal Claims. The last time such

an assessment and overhaul of security equipment occurred in
2.13

the NCB was more than 20 years ago. The USMS 

recommends now a crucial cyclical replacement and 

installation of improved security equipment in the NCB. 

Vast improvements in technology make an upgrade at NCB 

long overdue. There have been piecemeal upgrades to courtoccupied space over the past few years, but a comprehensive, 

centralized critical infrastructure is needed. This holistic 

approach to a facility-wide upgrade is essential to the success 

of the project in the near term and system maintenance in the 

longer term. 

The USMS, through the judiciary’s Court Security 

appropriation, will address the security equipment upgrade for 

the areas of the NCB occupied by the United States Court of 

Federal Claims. 

Security upgrades in the spaces within the NCB occupied 

solely by the Federal Circuit must be paid for by the Federal 

Circuit. Security upgrades that will be funded by this request 

include: an upgrade to and integration of PACS; installation 

and integration of new cameras for improved closed-circuit 

video system surveillance; installation and integration of an 

improved duress alarm system; improvements to the intrusion 

detection system within the building complex; and enhanced 

entry control devices for chambers and other controlled spaces. 

The funds requested by the Federal Circuit will pay to have all 

the new security elements it purchases integrated into the 

renovated USMS Command Center equipment. Requested 

funds will ensure that the Federal Circuit’s new security 

elements function and are maintained within the same unified 

structure overseen by the USMS. This integration is vital to 

the security of the entire NCB complex. 

In addition, the USMS will make recommendations about how 

perimeter security at the NCB complex can be improved 

(including the replacement of wedge barriers at the loading 

access point and garage entry). These perimeter security 

measures will also integrate with upgraded systems in the 

PACS upgrade project. 

FINANCING THE FISCAL YEAR 2022 REQUEST

12. Utilization of Electronic Public Access Receipts and

Judiciary Information Technology Fund

Estimated obligation of available balance from Judiciary 

Information Technology Fund and Electronic Public 

Access Receipts: $602,000 

The court anticipates obligating $52,000 of Electronic Public 

Access receipts in FY 2022. These funds will be used for 

various expenditures to improve electronic access to court 

information and services for the public. 

The court also anticipates obligating $550,000 from the 

Judiciary Information Technology Fund in FY 2022. This 

amount reflects all required cyclical replacements (including 
2.14

the cyclical replacement of the court’s network printers used by 

chambers and staff, and telecommunications devices for staff 

use); Virtual Desktop Infrastructure (VDI) hardware and 

software, as a continuation of the VDI project; and contract 

services related to supporting Microsoft O365 and Customer 

Relationship Management (CRM) software for use within the 

Clerk’s Office and other departments. It also includes renewal 

of software licenses such as Office 365 and IT equipment 

maintenance expenses.
2.15

APPENDIX

The following is a more complete listing of the Federal 

Circuit’s jurisdiction. It hears appeals from: 

(A) final decisions of all Federal District Courts in cases

arising under 28 U.S.C. § 1338(a) relating to patent laws

generally; 35 U.S.C. §§ 145-146 and 154(b) relating to review

of decisions of the Patent and Trademark Office, Patent Trial

and Appeal Board; 28 U.S.C. § 1346(a)(2) relating to Little

Tucker Act claims against the United States; and section 211 of

the Economic Stabilization Act of 1970, section 5 of the

Emergency Petroleum Allocation Act of 1973, section 506 (c)

of the Natural Gas Policy Act of 1978, and section 523 of the

Energy Policy and Conservation Act relating to all statutes

formerly under the jurisdiction of the Temporary Emergency

Court of Appeals;

(B) final decisions of the United States Court of International

Trade, 28 U.S.C. § 2645(c);

(C) final decisions of the United States Court of Appeals for

Veterans Claims, 38 U.S.C. § 7292;

(D) final decisions of the United States Court of Federal

Claims, 28 U.S.C. § 2522 and 42 U.S.C. §§ 300aa - 12(f);

(E) certain final decisions of the High Court of the Trust

Territory of the Pacific Islands, 48 U.S.C. § 1901, note and

§ 1931, note (1988) (Compact of Free Association; Federated

States of Micronesia, Republic of Marshall Islands, TITLE II,

Title One, Article VII, § 174(c));

(F) final determinations of the United States International

Trade Commission relating to unfair practices in import trade

made under 19 U.S.C. § 1337;

(G) findings of the Secretary of Commerce under U.S. note 6

to subchapter X of chapter 98 of the Harmonized Tariff

Schedule of the United States relating to importation of

educational or scientific instruments and apparatus;

(H) final orders or decisions of the Merit Systems Protection

Board and certain arbitrators, 5 U.S.C. § 7703;

(I) final decisions of the General Accounting Office Personnel

Appeals Board, 31 U.S.C. § 755;

(J) final decisions of Boards of Contract Appeals, 41 U.S.C.

§ 7107(a)(1);

(K) final decisions of the Patent and Trademark Office

tribunals on, among other things, patent applications,

trademark applications and interferences, cancellations,

concurrent use proceedings, and oppositions, 35 U.S.C. § 141

and 15 U.S.C. § 1071;

(L) appeals under section 71 of the Plant Variety Protection

Act of 1970, 7 U.S.C. § 2461;

(M) certain actions of the Secretary of Veterans Affairs, 38

U.S.C. § 502;

(N) decisions of the Bureau of Justice Assistance, 42 U.S.C.

§ 3796c-2;

(O) certain actions of the Board of Directors of the Office of

Compliance of the U.S. Congress under 2 U.S.C. § 1407(a);

and
2.16

(P) final decisions of certain agencies pursuant to 28 U.S.C.

§ 1296. Pursuant to 28 U.S.C. § 1292(c), the Federal Circuit also has 

exclusive jurisdiction regarding: 

a. appealable interlocutory orders or decrees in cases

where the court would otherwise have jurisdiction over

an appeal; and

b. appeals from judgments in civil actions for patent

infringement otherwise appealable to the court and final

except for accounting.

Under the provisions of 28 U.S.C. § 1292(d), the court: 

a. has exclusive jurisdiction of appeals from interlocutory

orders granting or denying, in whole or in part, a

motion to transfer an action to the Court of Federal

Claims; and

b. may, in its discretion, permit an appeal from an

interlocutory order of a judge who certifies that there is

a controlling question of law and a substantial ground

for difference of opinion thereon, and that an immediate

appeal may materially advance the ultimate termination

of the litigation.