A recent report from The Federal Judicial Center, the research and education agency of the federal judicial system, presented data on the incidence and resolution of permissive interlocutory appeals, initiated in the U.S. Circuit Courts of Appeal pursuant to 28 U.S.C. § 1292(b), that were terminated between October 1, 2013, and June 30, 2019.  EMERY G. LEE, JASON A. CANTONE & KRISTIN A. GARRI, FED. JUDICIAL CTR., PERMISSIVE INTERLOCUTORY APPEALS, 2013-2019 (2020), Click on this link to read the full report..

Litigants in federal court have an opportunity to seek a permissive interlocutory appeal of limited types of non-dispositive district court orders under 28 U.S.C. § 1292(b).  The authors of the report found that 636 such appeals were terminated in the courts of appeal during the course of the almost-three-year study.  Of those applications for appeal, 535 were granted or denied while the rest were procedurally terminated.  Although there was “substantial variation among circuits in terms of the frequency with which interlocutory appeals are sought and the rate at which they are granted,” overall the courts of appeals granted 280 applications to appeal (52%) and denied 255 (48%).

The Eleventh Circuit had the third lowest rate of granting such applications for appeal, having granted only 38% of the 37 total applications that were resolved by that court during the pendency of the study—only the First and Eighth Circuits had lower rates of granting, at 20% of 10 applications and 24% of 21 applications, respectively.

Nationwide, of the granted applications to appeal, 172 (61%) were decided on the merits, while 73 (26%) remained pending at the conclusion of the study, and 35 (13%) had been dismissed or procedurally terminated.  The courts awarded at least some relief to the initiating party about half of the time they reached the merits of the case (48%, or 82 out of 172 merits appeals decided during the study).

Additionally, interlocutory appeals in which the courts issued a decision on the merits remained pending for a significant amount of time.  The median time from filing the application until an appellate judgement in the cases studied was 475 days (mean, 508 days), and until issuance of the appellate mandate was 542 days (mean, 578 days).  Notably, such appeals in which the initiating party received relief did not take longer to resolve than those not resulting in relief: the median time from filing of the application to appellate mandate for no-relief appeals was 542 days (mean, 597), whereas it was 539 days (mean, 557 days) for appeals in which relief was granted.  This is significant given that the Federal Case Management Statistics reports that the median time in all appeals from filing a notice of appeal to disposition is about 7.4 to 9.0 months, including those resulting in procedural terminations.

As with any appeal, an interlocutory appeal of a non-dispositive order in federal court requires significant planning and patience.  At Boyd & Jenerette, P.A., we have the experience to assist you with your civil defense needs, whether that includes an interlocutory appeal in federal court or otherwise.  It is important to take into account the small percentage of cases the Eleventh Circuit accepts on these discretionary appeals and chose a counsel who knows how to effectively navigate the procedural framework.

About Ian Waldick

Ian Waldick is an associate who practices remotely from Tallahassee. He also serves on several municipal public advisory committees for the City of Tallahassee and Leon County, including serving as Vice-Chair of the Tallahassee-Leon County Planning Commission.

Before joining the firm, Ian served as a Senior Central Staff Attorney for the Florida Supreme Court and briefly practiced administrative law in Tallahassee.