While the landscape of interlocutory appeals in Virginia state courts has recently changed, the procedure for interlocutory appeals in the federal Fourth Circuit Court of Appeals have generally remained steady. Still, the various processes, routes, and requirements can be confusing to federal district court litigators. Here’s a guide to that interlocutory process for those who don’t want to wait until the case is fully over before appealing.
Waiting for the Final Judgment
As in Virginia state court, the general rule is that a party must wait for a final judgment in federal court before appealing. 28 U.S.C. § 1291. A final judgment means the case is over—all claims and relief have finished. All other orders and decisions are interlocutory. These include orders denying a motion to dismiss, denying summary judgment, or resolving a discovery dispute.
Those interlocutory decisions, however, can greatly change the scope of discovery in a federal district court case. Not only that, the scope of what claims are still on the table—say, in the wake of a 12(b)(6) decision—affect settlement and preparing for trial.
Fortunately, there are two methods to change that dynamic and appeal a ruling—and potentially stay the district court proceedings—before waiting for a final judgment.
Path One: Permissive or Discretionary Appeals Under 28 U.S.C. § 1292(b)
Pursuant to 28 U.S.C. § 1292(b), a party can seek appellate review of any interlocutory order on any topic—but the substantive and procedural hurdles are steep. A party must seek permission to prosecute this appeal from both the district court and the Fourth Circuit.
First, a party must file a motion for certification at the district court. The motion must demonstrate that the district order subject to appeal involves:
(1) a controlling question of law,
(2) as to which there is substantial ground for difference of opinion, and
(3) that an immediate appeal may materially advance the ultimate termination of the litigation.
Second, if the district court agrees, the party then has just 10 days to file a petition for permission to appeal with the Fourth Circuit under Fed. R. App. P. 5(a)(2). That petition must lay out the facts, the question presented, the relief sought, a copy of the district court order to be appealed and its certification for appeal, and why the appeal should proceed. The opposing party gets 10 days to file an opposition or note a cross-petition.
Third, if granted, a party can seek a stay of the district court proceedings pending appeal. A party must first ask the district court for that stay, and, if unsuccessful, it can then request the Fourth Circuit to grant a stay.
Fourth, once fully granted, the Fourth Circuit dockets the case for full briefing and oral argument.
On its face, this path looks difficult—a party must convince at least two courts that the issue for appeal is a juicy one (and eventually, that the district court got it wrong). And yet the numbers may surprise you: a Federal Judicial Center report covering permissive appeals from 2013–19 found the Fourth Circuit granted § 1292(b) petitions at a rate of 39%. Of course, this study included appeals that the district court had already certified, but it shows there are appellate opportunities for the right case.
Path Two: Interlocutory Appeals of Right
For certain district court decisions, however, a party can skip all of the above rigmarole. These decisions include:
- Orders granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions. 28 U.S.C. § 1292(a)(1).
- Orders appointing receivers or refusing to wind up receiverships. 28 U.S.C. § 1292(a)(2).
- Interlocutory decrees in admiralty cases determining the rights and liabilities of the parties. 28 U.S.C. § 1292(a)(3).
- “Collateral orders” under the judge-made doctrine from Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).
That fourth category does a lot of the work. The collateral order doctrine treats a narrow set of orders as “final” for purposes of § 1291 when the decision:
(1) conclusively determines the disputed question,
(2) the disputed question is important and entirely separate from the merits, and
(3) the decision would be effectively unreviewable after final judgment.
Courts have applied the doctrine to orders denying Eleventh Amendment, qualified, or other forms of immunity. See Mitchell v. Forsyth, 472 U.S. 511, 526, 530 (1985); United States v. Johnson, 13 F.4th 348, 350 (4th Cir. 2021); United States v. Tucker, 60 F.4th 879, 884 (4th Cir. 2023).
If the applicable order fits one of these categories, the process is simple—just file a notice of appeal with the district court, and the Fourth Circuit will docket the appeal like any other.
Not only that, but this path also gives a stronger likelihood of a district court stay. Interlocutory appeals of immunity appeals automatically stay proceedings. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). Although, for injunctions, a party must still ask the district court, and then the Fourth Circuit. See Fed. R. App. P. 8(a)(1); Fed. R. Civ. P. 62(c).
The Bottom Line
While a district court’s interlocutory decision can greatly change a case, a party can use the above interlocutory processes to get appellate review of that decision. For immunity decisions and injunction appeals, a party need only notice the appeal and proceed directly to the Fourth Circuit. For all other decisions, a litigant has to get permission to appeal, but the Fourth Circuit has proven somewhat generous in granting those appeals.
