                                                                        [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT           FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                           NOV 12, 2008
                                     No. 07-15856
                                                                         THOMAS K. KAHN
                               ________________________
                                                                             CLERK

                      D. C. Docket No. 06-01703 CV-ORL-19-KRS

ALAN HOROWITCH,

                                                                            Plaintiff-Appellee,

                                             versus

DIAMOND AIRCRAFT INDUSTRIES, INC.,

                                                                         Defendant-Appellant.

                               ________________________

                       Appeal from the United States District Court
                           for the Middle District of Florida
                            _________________________

                                    (November 12, 2008)

Before EDMONDSON, Chief Judge, ANDERSON, Circuit Judge, and COHILL,*
District Judge.

PER CURIAM:

_______________________
*Honorable Maurice B. Cohill, Jr., United States District Judge for the Western District of
Pennsylvania, sitting by designation.
      Pursuant to 28 U.S.C. §1292(b), the district court certified for interlocutory

appeal the following as a controlling issue of law: “Whether Florida law would

enforce a contractual provision that limits a buyer’s remedy to a return of his

deposit upon the seller’s breach.” After full discussion at oral argument, and after

careful consideration, we conclude that the administrative panel improvidently

granted leave to pursue this interlocutory appeal.

      In the Eleventh Circuit an administrative panel makes the initial decision to

permit an interlocutory appeal under §1292(b). However, the administrative

panel’s ruling is subject to revocation by the merits panel designated to decide the

case. McFarlin v. Conseco Servs., 381 F.3d 1251, 1253 (11th Cir. 2004.

Accordingly, the previous order of the administrative panel granting permission to

appeal this case is VACATED, and the petition for permission to appeal is

DENIED, and this appeal is DISMISSED without prejudice and REMANDED to

the district court for further proceedings.




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