Interlocutory Appeals (28 U.S.C. § 1292)
Exceptions to the Final Judgment Rule (28 U.S.C. § 1291) allowing appellate review of non-final district court orders.
§ 1292(a) — Interlocutory Orders (As of Right)
Courts of appeals have jurisdiction over interlocutory orders:
- Granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions (§ 1292(a)(1))
- Appointing receivers or refusing to wind up receiverships (§ 1292(a)(2))
- Determining rights in admiralty cases (§ 1292(a)(3))
§ 1292(b) — Certification (Discretionary)
A district judge may certify an interlocutory order for appeal if the order:
- Involves a controlling question of law
- As to which there is substantial ground for difference of opinion
- And immediate appeal may materially advance the ultimate termination of the litigation
Both the district court and the court of appeals must agree to hear the appeal. Used sparingly.
Collateral Order Doctrine
Beyond § 1292, an interlocutory order is immediately appealable under Cohen v. Beneficial Industrial Loan Corp. (1949) if it:
- Conclusively resolves the disputed question
- Is completely separate from the merits
- Would be effectively unreviewable on appeal from a final judgment
Key examples: denial of qualified immunity (Mitchell v. Forsyth), denial of double jeopardy claims.