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Federal Judicial Center Report on § 1292(b) Appeals

A new Federal Judicial Center report provides some data on how the courts of appeals have decided petitions to appeal under 28 U.S.C. § 1292(b).

February 21, 2020

By Bryan Lammon

The Federal Judicial Center released a new report on petitions to appeal under 28 U.S.C. § 1292(b). The report—Emery G. Lee III, Jason A. Cantone & Kristin A. Garri, Permissive Interlocutory Appeals, 2013–2019—presents data on the incidence and resolution of § 1292(b) petitions terminated between October 1, 2013, and June 30, 2019. Parties filed 636 petitions to appeal in that period, and the courts of appeals granted or denied 535 (the rest were terminated procedurally). Of those 535, the courts of appeals granted 280 (52%). And when courts granted a § 1292(b) petition to appeal, the petitioning party obtained some relief (reversal in whole or in part or a vacatur) about half of the time.

The report’s executive summary is below. Thanks to Michael Solimine for sending this my way.

This brief report summarizes the findings of Federal Judicial Center (FJC) researchers regarding the incidence and resolution of permissive interlocutory appeals pursuant to 28 U.S.C. § 1292(b) terminated in the U.S. courts of appeals from October 1, 2013, through June 30, 2019. Key findings include:

  • 636 § 1292(b) applications to appeal were terminated in the courts of appeals during the study period.
  • Of those decided by the courts of appeals, 52% of applications were granted.
  • For granted applications, the median time from the filing of the application to appeal to the appellate mandate on the merits appeal was 542 days (17.8 months).
  • A preliminary analysis found that the party initiating the appeal obtained some relief from the court of appeals about half of the time that the court of appeals reached the merits of the appeal.
  • Interlocutory appeals resulting in some form of relief for the initiating party did not take any longer than interlocutory appeals resulting in no relief for the initiating party.

Emery G. Lee III, Jason A. Cantone, & Kristin A. Garri, Permissive Interlocutory Appeals, 2013–2019 (2020), available at the Federal Judicial Center.

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