28 U.S.C. 1292(b) Interlocutory Appeal: Certification and Process

An interlocutory appeal under 28 U.S.C. 1292(b) lets a party in a federal civil case ask a court of appeals to review a district court ruling before final judgment, but only if the district judge first certifies the order in writing and the court of appeals then agrees to take it. The process runs on a strict ten-day clock that federal courts have no power to extend.¹

What Orders Qualify

Section 1292(b) is narrow by design. An order qualifies only if three conditions are met at the same time.

The order turns on a controlling question of law. Fact-heavy rulings don’t qualify. Credibility calls and sufficiency-of-the-evidence findings are out. The question has to be the kind of pure legal issue an appellate court can resolve without working through the factual record.
There is substantial ground for difference of opinion. A circuit split on the same question is the clearest showing, and conflicting district court decisions within a circuit can also count. In Ahrenholz v. Board of Trustees of the University of Illinois, the Seventh Circuit warned that a bare absence of precedent is not enough; there has to be genuine uncertainty about what the law requires, not just a gap in the case law.
An immediate appeal would materially advance the ultimate termination of the litigation. If reversal could eliminate the need for trial, knock out major claims, or spare the parties months of discovery that may prove pointless, the element is satisfied.

All three must be present. A fascinating legal question that wouldn’t change the case’s trajectory fails the third prong. A case-altering issue on which every court agrees fails the second.

One boundary worth stating plainly: the statute reaches only civil actions. A criminal defendant cannot use 1292(b) to seek early review of a pretrial ruling.¹

Step One: Getting the District Court to Certify

The certification has to appear in writing in the order itself, with the judge stating that the three statutory criteria are met.¹ Without it, the court of appeals has no authority to hear the appeal.

There is no statutory deadline for asking the district court to certify, and the ten-day appellate clock does not begin until the certified order is entered. Waiting months to request certification is still a poor move. Courts view belated requests skeptically, and delay itself undercuts the argument that immediate review would advance the case.

Certification is discretionary. Even when the three requirements are clearly satisfied, the district judge can refuse, often out of concern about fragmenting the case into piecemeal appeals or a prediction that the court of appeals would decline anyway. If the judge says no, that decision is essentially unreviewable. There is no mechanism to compel certification, and motions for reconsideration rarely succeed. That makes the initial certification motion the most important filing in the process. A strong motion typically shows why the legal question matters beyond the individual case.

A district court also cannot recertify the same order to hand a party a second run at the ten-day filing window. The D.C. Circuit addressed this directly, holding that recertification does not restart the clock because the deadline is jurisdictional.

Step Two: Petitioning the Court of Appeals

Once certification is entered, you have exactly ten days from entry of the certified order to file a petition for permission to appeal with the court of appeals.¹ This deadline is jurisdictional. Federal courts cannot extend it, waive it, or carve out equitable exceptions. Miss it by a day and the petition is dismissed.

Every calendar day counts, weekends and holidays included. If the tenth day falls on a Saturday, Sunday, or legal holiday, the deadline rolls to the end of the next business day.² Treat day ten as a hard stop and file earlier.

Federal Rule of Appellate Procedure 5 governs form and content. The petition must lay out the controlling legal question, explain why substantial disagreement exists, and show how immediate review would meaningfully advance the case. A computer-produced petition cannot exceed 5,200 words. The opposing party then has ten days after service to file a response.³

Filing the initial petition costs nothing. No docketing fee is charged unless the court of appeals grants permission to appeal, at which point the standard appellate docketing fee of $605 becomes due.⁴

Clearing the district court is only half the battle. The court of appeals has complete, unreviewable discretion to accept or reject the petition, and it can deny review without any explanation.¹ A Federal Judicial Center study covering 2013 through mid-2019 found that courts of appeals granted roughly 52% of 1292(b) petitions overall, with significant variation by circuit. Petitions that frame the question as having value beyond the parties tend to do better.

When the court of appeals does take the case, its jurisdiction is limited to the specific legal question identified in the certification. In McFarlin v. Conseco Services, LLC, the Eleventh Circuit stressed that appellate courts should resist reaching broader issues beyond those the district court expressly certified.⁵ The petition is not an invitation to review the whole case.

What Happens in the District Court While the Appeal Is Pending

An accepted interlocutory appeal does not automatically freeze proceedings below. The statute is explicit: the district court case continues unless a judge orders a stay.¹

To pause the lower court, you generally have to ask the district court first. Under Rule 8 of the Federal Rules of Appellate Procedure, a stay motion in the court of appeals is proper only if moving in the district court would be impracticable, or if the district court has already denied the request.⁶ District courts often grant stays when the certified issue could fundamentally reshape the trial, since there is little reason to conduct discovery or motion practice that a reversal would render pointless.

How the Appeal Can End

An affirmance lets the case proceed as it was going. A reversal can change the landscape considerably. The appellate court may vacate the ruling and provide guidance on the correct legal framework, which can lead to dismissal of claims, changes to what discovery is required, or a shift in the trial’s focus. Sometimes the court reverses and remands for the district court to reconsider under the correct standard, which means more proceedings below. In some cases, the court remands without a definitive answer, directing the lower court to conduct a more thorough analysis.

Whatever the outcome, the appellate decision becomes binding precedent within that circuit, and the district court must conform its later rulings to it.

When 1292(b) Isn’t the Right Tool

Section 1292(b) is the best-known route to early appellate review, but it isn’t the only one. When certification is denied or the statutory tests can’t be met, other paths may be available.

Appeals As of Right Under Section 1292(a)

Certain interlocutory orders can be appealed immediately with no certification or petition. Under 28 U.S.C. 1292(a), courts of appeals have automatic jurisdiction over orders granting, denying, or modifying injunctions; orders involving the appointment of receivers or the winding up of receiverships; and certain admiralty decrees determining the rights and liabilities of the parties.⁷ If your order fits one of these categories, you skip the certification process and appeal directly.

The Collateral Order Doctrine

Established in Cohen v. Beneficial Industrial Loan Corp., this judge-made doctrine allows immediate appeal of orders that don’t end the case but effectively resolve an important issue that can’t wait. The order must conclusively determine the disputed question, address a right entirely separate from the merits, and involve an issue that would be effectively unreviewable after final judgment.⁸ Courts apply the doctrine narrowly. Classic examples include orders denying qualified immunity to government officials and orders denying a claim of double jeopardy, where the right at stake is the right not to be subjected to the proceeding at all.

Writs of Mandamus

The most extraordinary option is a writ of mandamus under the All Writs Act, 28 U.S.C. 1651, which authorizes federal courts to issue writs “necessary or appropriate in aid of their respective jurisdictions.”⁹ The Supreme Court has called mandamus a “drastic and extraordinary” remedy reserved for exceptional circumstances. To obtain one, you must show you have no other adequate means of obtaining relief, that your right to the writ is “clear and indisputable,” and that the court, in its discretion, considers the writ appropriate.¹⁰ Procedure is set out in Rule 21 of the Federal Rules of Appellate Procedure, and petitions cannot exceed 7,800 words.¹¹ Courts grant mandamus rarely, and filing one when a less drastic path was available is a reliable way to lose credibility with the panel.

1
Office of the Law Revision Counsel. 28 USC 1292 – Interlocutory Decisions
2
Legal Information Institute. Federal Rules of Appellate Procedure Rule 26 – Computing and Extending Time
3
Cornell Law School. Federal Rules of Appellate Procedure Rule 5 – Appeal by Permission
4
United States Courts. Court of Appeals Miscellaneous Fee Schedule
5
Justia Law. McFarlin v. Conseco Services LLC, 381 F.3d 1251 (11th Cir. 2004)
6
Legal Information Institute. Federal Rules of Appellate Procedure Rule 8 – Stay or Injunction Pending Appeal
7
Office of the Law Revision Counsel. 28 USC 1292 – Interlocutory Decisions
8
Justia Law. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949)
9
Office of the Law Revision Counsel. 28 USC 1651 – Writs
10
Cornell Law School. Cheney v. United States District Court for the District of Columbia, 542 U.S. 367 (2004)
11
Cornell Law School. Federal Rules of Appellate Procedure Rule 21 – Writs of Mandamus and Prohibition, and Other Extraordinary Writs