4.11 Discretionary Interlocutory Appeals—28 U.s.c. § 1292(b)

• Library: Appellate Practice - Virginia and Federal Courts (Virginia CLE) (2016 Ed.)

4.11 DISCRETIONARY INTERLOCUTORY APPEALS—28 U.S.C. § 1292(B)

4.1101 When Available. This statute gives district judges broad discretion to permit parties to ask the appellate courts to grant interlocutory appellate review of orders that resolve controlling questions of law. Appellate courts likewise have broad discretion in deciding whether to accept these appeals.

Subsection (b) of 28 U.S.C. § 1292 provides:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

4.1102 Procedure. Under FRAP 3(a)(4), permissive interlocutory appeals are governed by FRAP 5, "Appeal by Permission." Rule 5 covers the following matters:

1.	Petition for Permission to Appeal. A discretionary interlocutory appeal is initiated by "a petition for permission to appeal," not by a notice of appeal. The petition is filed with the circuit court clerk, with proof of service on all other parties. FRAP 5(a)(1).
2.	Timing. The petition must be filed within the time specified by the authorizing statute or rule. FRAP

...