28 U.S.C. § 1292 is the federal statute that lets parties appeal certain non-final orders before a case ends. It carves out three types of orders you can appeal immediately as of right, and it creates a permission-based path for other important legal questions when the trial judge signs off. Everything else has to wait for final judgment.
The statute exists because some mid-case rulings cause damage that a later appeal cannot undo. An order freezing assets, appointing a receiver, or ordering a business to stop operating can wreck a party long before trial ends. Section 1292 targets those situations.1Office of the Law Revision Counsel. 28 USC 1292 – Interlocutory Decisions
Orders You Can Appeal Immediately Under Section 1292(a)
Subsection (a) identifies three categories of interlocutory orders that go up as of right. No permission needed. You file a notice of appeal the same way you would after final judgment.
- Injunction orders. Any order granting, continuing, modifying, refusing, or dissolving an injunction is immediately appealable. This is the most commonly used route.
- Receivership orders. Orders appointing a receiver or refusing to wind up a receivership can be appealed right away.
- Admiralty decrees. In maritime cases, a decree settling the parties’ rights and liabilities can be appealed even if damages have not yet been calculated.
All three come from the text of the statute itself.1Office of the Law Revision Counsel. 28 USC 1292 – Interlocutory Decisions
Temporary Restraining Orders Usually Do Not Qualify
A TRO is generally not treated as an appealable injunction under Section 1292(a)(1). TROs are short-lived and meant to hold the status quo until the court can hear a preliminary injunction motion. Courts have recognized an exception when a TRO effectively operates as a preliminary injunction, such as when it stays in place for an extended period or was entered after a full adversarial hearing. Absent that, a TRO alone will not open the door to an interlocutory appeal.
Permissive Appeals Under Section 1292(b)
For orders outside those three categories, Section 1292(b) offers a second track. It requires convincing two courts. The district judge who issued the order has to certify in writing that the order meets all three of the following:1Office of the Law Revision Counsel. 28 USC 1292 – Interlocutory Decisions
- The order involves a controlling question of law. A factual dispute for the jury does not qualify.
- There is substantial ground for difference of opinion on that question. The issue is unsettled, splits authority, or presents a genuinely novel problem.
- An immediate appeal would materially advance the ultimate termination of the litigation. Resolving it now could shorten the case, narrow the issues, or eliminate the need for trial.
District judges are often reluctant to certify their own orders. Certification quietly concedes the ruling might be wrong, and it invites delay. Many certification requests are denied, which keeps 1292(b) appeals uncommon compared with appeals from final judgments.
Filing the Petition with the Court of Appeals
Certification is only step one. Step two is petitioning the court of appeals for permission to hear the appeal, and the statute gives you 10 days from the entry of the certification order to file it.1Office of the Law Revision Counsel. 28 USC 1292 – Interlocutory Decisions That window is short and courts enforce it. Miss it and you can lose the appeal entirely.
Federal Rule of Appellate Procedure 5 governs the petition itself. It must include:
- The facts necessary to understand the legal question
- The question presented
- The relief sought
- The reasons the appeal should be allowed
- Copies of the district court’s order, any related opinion, and the certification order
A computer-prepared petition cannot exceed 5,200 words. A handwritten or typewritten one cannot exceed 20 pages. An original plus three copies must be filed unless local rules say otherwise.2Legal Information Institute. Rule 5 – Appeal by Permission Once the petition is served, the opposing party has 10 days to file an answer in opposition.3Congress.gov. Federal Rules of Appellate Procedure
The court of appeals has full discretion to grant or deny the petition, regardless of the district court’s certification. It makes its own independent judgment about whether the issue warrants interrupting the trial. Certification does not entitle you to review.
The Trial Court Does Not Pause Automatically
Filing a 1292(b) petition does not stop the case below. The statute is explicit that pursuing the appeal does not stay district court proceedings unless either the district judge or the court of appeals orders a stay.1Office of the Law Revision Counsel. 28 USC 1292 – Interlocutory Decisions Discovery deadlines keep running, motions keep getting decided, and trial preparation keeps moving while your petition sits with the appellate court.
If you need the trial paused, file a separate motion for a stay. Courts evaluate stay requests under the four-factor test from Nken v. Holder:4Justia U.S. Supreme Court Center. Nken v. Holder
- Whether the movant has made a strong showing of likely success on the merits
- Whether the movant will suffer irreparable harm without a stay
- Whether a stay will substantially injure the other parties
- Where the public interest lies
Stays are hard to get. Without a strong showing of likely success and genuine irreparable harm, expect the trial to keep moving.
Federal Circuit Appeals Under Sections 1292(c) and (d)
Subsections (c) and (d) send certain interlocutory appeals to the United States Court of Appeals for the Federal Circuit rather than the regional circuits. The Federal Circuit has exclusive jurisdiction over interlocutory appeals in cases that would go to it on final appeal, which primarily means patent disputes, certain government contract claims, and international trade matters.1Office of the Law Revision Counsel. 28 USC 1292 – Interlocutory Decisions
Section 1292(c)(2) covers a specific patent situation. When the trial court has entered a final judgment on infringement but has not yet calculated damages, that partial judgment can go up to the Federal Circuit immediately rather than waiting on the accounting.
Section 1292(d) sets up a permissive process for orders from the Court of International Trade and the United States Court of Federal Claims. The framework tracks 1292(b): the judge certifies the controlling-question, substantial-disagreement, and case-advancement factors, and the Federal Circuit decides whether to accept the appeal. The same 10-day filing window applies.1Office of the Law Revision Counsel. 28 USC 1292 – Interlocutory Decisions
What Section 1292 Does Not Cover
Section 1292 is not the only way to reach an appellate court before final judgment. The Supreme Court’s collateral order doctrine, from Cohen v. Beneficial Industrial Loan Corp., treats a narrow set of interlocutory orders as “final” for purposes of 28 U.S.C. § 1291 itself. An order qualifies if it conclusively resolves a disputed question, is completely separate from the merits, and would be effectively unreviewable after final judgment.5Library of Congress. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 The classic example is a denial of immunity from suit, where waiting to appeal after trial would defeat the immunity itself. The Supreme Court in Mohawk Industries v. Carpenter stressed that the doctrine should stay “narrow and selective” and that new categories of appealable orders should come through rulemaking.6Library of Congress. Mohawk Industries Inc. v. Carpenter, 558 U.S. 100 Section 1292(e) authorizes that rulemaking route. If your order fits the collateral order doctrine, you appeal under § 1291, not § 1292.