June 03, 2019 Articles

Pushing Pause: Interlocutory Appeals under 28 U.S.C. § 1292(b)

Appeals during a case are rare but important when a single issue can change the whole outlook.

By Katayoun Donnelly and Blain Myhre

Most trial attorneys at some point find themselves facing a potentially outcome-determinative legal question that, because of the potential of multiple appeals and trials, has substantial financial or other consequences for their clients. The question becomes, “Can we pause, resolve the issue now, and then continue the proceedings to avoid the substantial costs of possibly unnecessary proceedings?”

The default answer is no—due mainly to the strong presumption against piecemeal appeals. However, in rare cases, the possibility for an interlocutory appeal does exist. This note focuses on one avenue: 28 U.S.C. § 1292(b).

Interlocutory Appeals: Overview

Interlocutory appeals generally are not permitted because of the “basic tenet of federal law to delay appellate review until a final judgment has been entered.” Koehler v. Bank of Bermuda, 101 F.3d 863, 865 (2d Cir. 1996) (citation omitted). In enacting 28 U.S.C. § 1292(b), however, Congress created one narrow exception to the final judgment rule. Section 1292(b) applies to orders not otherwise appealable under section 1292 that involve (1) a controlling question of law (2) about which there is substantial ground for difference of opinion and (3) for which an immediate appeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). 

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