This case is before the Court on interlocutory appeal, pursuant to 28 U.S.C. Sec. 1292(b), of the district court's order denying the defendant's motion to dismiss for lack of jurisdiction, 569 F. Supp. 1459. Because we conclude that, in light of the current status of this litigation, permission to appeal the district court's order was improvidently granted, we vacate our order granting leave to appeal, relinquish jurisdiction of the appeal, and remand for further proceedings in the district court.

In May 1981, Parcel Tankers, Inc. (PTI) brought a claim in admiralty against Formosa Plastics Corporation (Formosa) alleging that Formosa had breached a contract to use PTI to transport cargo for Formosa. In conjunction with this complaint, PTI requested that a writ of attachment issue against a cargo owned by Formosa that was then located aboard a vessel docked at the port of Houston. The writ was issued pursuant to Rule B of the Supplemental Rules for Certain Admiralty and Maritime Claims and the cargo was attached. Formosa later obtained the release of the cargo by posting a $4.2 million bond.

Formosa filed a motion to dismiss the complaint and attachment for lack of jurisdiction on the theory that the district court had obtained jurisdiction only through the Rule B attachment and that the attachment was unconstitutional because Rule B does not provide the due process safeguards outlined in the Supreme Court's cases concerning state creditors' remedies--Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972); Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974); North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S. Ct. 719, 42 L. Ed. 2d 751 (1975). The district court denied the motion but granted Formosa leave to seek interlocutory appeal under 28 U.S.C. Sec. 1292(b), which permits the Court of Appeals, in its discretion, to accept an interlocutory appeal when the district judge is of the opinion that an order "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation...."The administrative panel that granted Formosa's petition for leave to appeal stated that "[t]he constitutionality of Rule B ... controls the outcome of this litigation and is of general importance to Admiralty litigants." We now harbor serious doubts as to whether the constitutionality of Rule B is controlling in this litigation and as to whether a decision on that question would materially advance the ultimate termination of the litigation.1 Moreover, because amendments to Rule B are due to take effect in August of this year,2 we no longer view the constitutionality of Rule B as it is now written as an issue of general importance to admiralty litigants.

The Supreme Court's decision in Coopers & Lybrand v. Livesay teaches that the appellant

"has the burden of persuading the court of appeals that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment." Fisons, Ltd. v. United States, 458 F.2d 1241, 1248 (CA7 1972). The appellate court may deny the appeal for any reason, including docket congestion.

437 U.S. 463, 475, 98 S. Ct. 2454, 2461, 57 L. Ed. 2d 351 (1978) (footnote omitted). As we noted in Gallimore v. Missouri Pacific Railroad Co., "[t]he discretion afforded the courts of appeal in reviewing petitions for leave to bring Sec. 1292(b) appeals has been likened to that of the Supreme Court in controlling its certiorari jurisdiction. 16 C. Wright & A. Miller, Federal Practice and Procedure Sec. 3929, at 141 (1977) (citing S.Rep. No. 2434, 85th Cong., 2d Sess. 1958))." 635 F.2d 1165, 1168-69 n. 4 (5th Cir.1981).

When the Court of Appeals determines that it has accepted for interlocutory appeal under 28 U.S.C. Sec. 1292(b) a case that is no longer suitable for such appeal, it may vacate its order accepting appellate jurisdiction, relinquish jurisdiction, and remand the case to the district court. See United States v. Bear Marine Services, 696 F.2d 1117 (5th Cir.1983); Paschall v. Kansas City Star Co., 605 F.2d 403 (8th Cir.1979); Moreau v. Tonry, 554 F.2d 163 (5th Cir.1977). Disquisition on the question of the constitutionality of Rule B as it is now written would burden the Court without providing a precedent useful to future litigants and probably without materially advancing the ultimate termination of this litigation. Accordingly, we VACATE the order granting leave to appeal and REMAND the case to the district court for further proceedings.