Time for Interlocutory Appeals

Pursuant to the Federal Rules of Appellate Procedure, where an interlocutory order is appealable as of right and the government is not a party to the action, the appeal to a federal court of appeals must be filed within 30 days of the entry of the order.  As of right under federal statute, the mandatory deadlines do not apply to interlocutory orders immediately appealable, or to interlocutory yet immediately appealable orders under the collateral order doctrine.[i]

Pursuant to 28 U.S.C.A. § 1292(b), provided that application for an appeal will not stay proceedings in the district court unless the district judge or the court of appeals or a judge thereof so orders, the court of appeals permit an appeal to be taken from an order, if application is made to it within 10 days after the entry of the order.  The 10-day window specified by statute governing applications for immediate appeal from interlocutory orders is mandatory.  By filing a successive motion and appealing the denial of that motion, a party seeking review of an interlocutory order cannot enlarge the time for noticing the appeal.[ii]

Fed. R. App. P. 5(d)(1) provides that the appellant must pay the district court clerk all required fees and file a cost bond if required by rule within 10 days after the entry of the order granting permission to appeal.  Under the Rules of Appellate Procedure, Fed. R. App. P. 5(d)(2), the date when the order granting permission to appeal is entered, serves as the date of the notice of appeal for calculating time.

28 U.S.C.A. § 1292(d)(1) provides that the United States Court of Appeals for the Federal Circuit may, in its discretion, permit an appeal to be taken from an order, if application is made to that court within 10 days after the entry of such order, when any judge of the Court of International Trade, in issuing any other interlocutory order, includes in the order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation.

Pursuant to 28 U.S.C.A. § 798(b), the United States Court of Appeals for the Federal Circuit may, in its discretion, permit an appeal to be taken from such order, if application is made to that Court within 10 days after the entry of such order, when the chief judge of the United States Court of Federal Claims issues an order under the statute allowing a judge of the court to conduct proceedings, including evidentiary hearings and trials, in a foreign country whose laws do not prohibit such proceedings of, when any judge of the United States Court of Federal Claims, in issuing an interlocutory order, includes in the order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate peal from that order may materially advance the ultimate termination of the litigation as provided under 28 U.S.C.A. § 1292(d)(2).

28 U.S.C.A. § 1292(d)(4)(B) provides that when a motion to transfer the action to the Court of Federal Claims is filed in a district court, no further proceedings may be taken in the district court until 60 days after the court has ruled upon the motion.  An order disposing of an action as to fewer than all of the parties to a suit, or finally disposing of fewer than all the issues in the suit, may be appealed within the time for an appeal from the order, judgment, or decree finally disposing of the action as to remaining parties or issues.[iii]  Moreover, rulings deciding collateral and independent claims do not act to extend the time limits to appeal earlier decisions on the merits, and are separately appealable as final judgments.[iv]

[i]Hunter v. Department of Air Force Agency, 846 F.2d 1314, 11 Fed. R. Serv. 3d 484 (11th Cir. 1988)

[ii]Erb v. Alliance Capital Management, L.P., 423 F.3d 647, 62 Fed. R. Serv. 3d 939 (7th Cir. 2005).

[iii] Davis v. Ottumwa YMCA, 438 N.W.2d 10 (Iowa 1989)

[iv] Board of Water Works Trustees v. City of Des Moines, 469 N.W.2d 700 (Iowa 1991).


Inside Time for Interlocutory Appeals