Most appeals are filed only after a trial court enters a final judgment. However, in limited circumstances, a party may seek appellate review while the case is still pending. These are generally known as interlocutory appeals.
They are exceptions to the normal final-judgment rule and are available only when a statute, appellate rule, or recognized legal doctrine allows review before the case is fully resolved.
Whether an early appeal is available depends on the type of order, the court involved, and the source of appellate jurisdiction. This matters because some interlocutory appeals are subject to short deadlines, while an appeal filed without a valid jurisdictional basis may be dismissed as premature.
What Is an Interlocutory Appeal?
An interlocutory appeal is an appeal from certain trial-court orders before the underlying case has reached final judgment.
Under the usual federal rule, parties generally must wait until the district court has entered a final decision before appealing. 28 U.S.C. § 1291 gives the U.S. Courts of Appeals jurisdiction over final decisions of federal district courts.
An interlocutory appeal is an exception to that rule. It allows an appellate court to review a qualifying order even though other issues in the case remain unresolved and proceedings in the trial court may still be continuing.
Examples can include certain injunction orders, certified legal questions, and other narrowly defined rulings that fall within a recognized exception to the final-judgment requirement.
However, not every order entered before final judgment is immediately appealable. A party must be able to identify a specific legal basis that permits appellate review at that stage.
For a broader explanation of appellate review in federal court, see Brownstone Law’s federal appeals practice page.
What Is an Interlocutory Order?
An interlocutory order is a court order entered before the court has finally resolved the entire case.
For example, during ongoing litigation, a judge might:
- grant or deny a preliminary injunction;
- rule on the admissibility of certain evidence;
- decide a discovery dispute;
- reject a particular legal defense;
- rule on class certification; or
- decide another issue before trial or final judgment.
These may all occur before a case ends, but that does not mean every order is immediately appealable.
“Interlocutory” describes the procedural stage of the order. “Appealable” is a separate jurisdictional question.
When Can You Appeal Before a Final Judgment?
You can appeal before final judgment only when a statute, appellate rule, or recognized legal doctrine allows immediate review of the particular order.
The general rule in federal court is that parties must wait until the district court enters a final decision before appealing. This rule prevents a case from being interrupted by repeated appeals every time the trial judge makes a significant ruling.
However, some orders can affect important rights or shape the litigation so substantially that waiting until the end of the case may not provide meaningful review. Federal law therefore recognizes several limited paths for appealing before final judgment.
The most important include:
- Certain immediately appealable orders under 28 U.S.C. § 1292(a). This includes specified orders involving injunctions, along with certain receivership and admiralty matters.
- Certified interlocutory appeals under 28 U.S.C. § 1292(b). In qualifying federal civil cases, a district judge may certify an otherwise nonfinal order involving a controlling legal question. The Court of Appeals must then separately agree to hear the appeal.
- The collateral order doctrine. A narrow category of orders may be reviewed immediately when they conclusively resolve an important issue separate from the merits and would be effectively unreviewable after final judgment.
- Specialized appellate rules. Certain types of rulings have their own procedures for immediate review. For example, Federal Rule of Civil Procedure 23(f) allows a Court of Appeals, in its discretion, to permit an appeal from an order granting or denying class-action certification.
The availability of an interlocutory appeal therefore depends on what order was entered and which source of appellate jurisdiction applies. An order may be important, expensive, or even case-changing without being immediately appealable.
That distinction is critical because the procedure also changes depending on the appellate route. Some orders may be appealed as of right, while others require certification, permission from the appellate court, or satisfaction of a narrow judicial exception.
The following sections explain the principal circumstances in which federal courts may allow an appeal before final judgment.
Are Preliminary Injunctions Immediately Appealable?
Certain federal orders granting or denying injunctions can be appealed before final judgment.
Under 28 U.S.C. § 1292(a)(1), courts of appeals have jurisdiction over specified interlocutory orders granting, continuing, modifying, refusing, or dissolving injunctions, as well as orders refusing to dissolve or modify injunctions.
This is important because injunctions can immediately affect what the parties may or may not do while litigation continues. Waiting until the entire lawsuit is finished could make later review ineffective in some circumstances.
Section 1292(a) also authorizes immediate appeals from certain orders concerning receiverships and admiralty matters.
An appeal permitted under § 1292(a) should not be confused with a § 1292(b) appeal, which generally requires certification and permission.
When Are Interlocutory Appeals Allowed Under 28 U.S.C. § 1292(b)?
Section 1292(b) provides another route for certain orders in federal civil cases that are not otherwise immediately appealable.
A district judge may certify an order when the judge concludes that it:
- involves a controlling question of law;
- presents a substantial ground for difference of opinion; and
- an immediate appeal may materially advance the ultimate termination of the litigation.
Certification from the district court is not the end of the process.
The appropriate U.S. Court of Appeals must also agree to hear the appeal. The appellate court has discretion to accept or reject the request.
In other words, a § 1292(b) appeal generally requires both district-court certification and permission from the court of appeals.
How To File an Interlocutory Appeal in Federal Court?
There is no single procedure for filing every interlocutory appeal because the procedure depends on the legal basis for appellate jurisdiction.
The first step is therefore not simply filing a notice of appeal. It is identifying why the order can be reviewed immediately.
For example:
If the order is appealable under § 1292(a):
The party generally follows the applicable Federal Rules of Appellate Procedure for an appeal from the qualifying order.
If review is sought under § 1292(b):
- The district court must provide the required certification.
- The party must petition the appropriate Court of Appeals for permission to appeal.
- The appellate court decides whether it will accept immediate review.
Federal Rule of Appellate Procedure 5 governs petitions for permission to appeal.
Under § 1292(b), the application to the Court of Appeals must generally be made within 10 days after entry of the certified order.
That is one reason parties should identify a potentially appealable interlocutory ruling immediately rather than assume the ordinary deadline for an appeal from final judgment applies.
Brownstone Law’s guide to appeal deadlines explains how filing periods differ depending on the judgment, order, jurisdiction, and type of appellate proceeding.
Does an Interlocutory Appeal Stay Proceedings?
Not automatically in every case.
For a § 1292(b) appeal, federal law specifically states that an application for interlocutory review does not automatically stay proceedings in the district court.
A stay must be ordered by the district judge, Court of Appeals, or an appellate judge.
This means the underlying lawsuit may continue even while a party asks the appellate court to review an interlocutory issue.
Other interlocutory appeals can affect the district court’s authority over matters involved in the appeal, so the effect depends on the type and scope of appellate jurisdiction.
A party that needs proceedings or enforcement of an order temporarily stopped may therefore need to seek separate stay relief. Brownstone Law explains that concept further in What Does a Supreme Court Stay Mean and How Does It Work?.
Can You Make Interlocutory Appeals in Criminal Cases?
Interlocutory appellate review can occur in federal criminal cases, but the rules are significantly more limited and differ from the § 1292(b) procedure used in civil cases.
Criminal defendants generally must wait until final judgment to appeal most trial-court rulings. Narrow exceptions may apply when an asserted right would effectively be lost if review were postponed until after trial.
The federal government has separate statutory appeal rights under 18 U.S.C. § 3731. Subject to statutory restrictions, prosecutors may appeal certain orders involving matters such as:
- dismissal of an indictment or information;
- suppression or exclusion of evidence;
- return of seized property; and
- certain release decisions.
The rights of the prosecution and the defendant are therefore not interchangeable.
For issues arising after conviction or sentencing, Brownstone Law also represents clients in criminal appeals.
What Happens if an Interlocutory Appeal Is Filed Too Early?
If no statute, rule, or recognized exception gives the appellate court jurisdiction, an attempted appeal may be dismissed as premature.
Importantly, dismissal of a premature appeal does not necessarily mean the appellate court agrees with the trial judge’s underlying ruling. It may simply mean that the appellate court cannot review the issue yet.
An example arose in federal social-media litigation involving Meta and TikTok.
The companies attempted to obtain immediate appellate review of pretrial rulings concerning their asserted Section 230 protections. In August 2026, the Ninth Circuit concluded that the asserted defense did not provide a basis for immediate appellate review at that stage and dismissed the appeals as premature. The court did not resolve the ultimate merits of the underlying claims.
Brownstone Law covers that development in Ninth Circuit Finds Meta and TikTok Appeals Premature.
The case illustrates an essential principle of appellate practice:
An important legal issue is not automatically an immediately appealable issue.
Depending on the ruling and governing law, a party may instead have to preserve the issue and raise it after final judgment.
When Should You Contact an Appellate Lawyer About an Interlocutory Order?
A potentially appealable order should be reviewed as soon as it is entered.
Before attempting an appeal, appellate counsel may need to determine:
- whether the order is actually appealable;
- which statute, rule, or doctrine creates appellate jurisdiction;
- whether certification or permission is required;
- when the appellate deadline expires;
- whether the issue was properly preserved;
- whether proceedings will continue in the trial court; and
- whether a separate stay should be requested.
Brownstone Law represents clients in state and federal appeals nationwide. When an order may be immediately appealable, a federal appeal lawyer can assess whether appellate review is available, determine the applicable deadline, and identify the proper procedure.
If the case later advances beyond the federal appellate court and presents a question suitable for further review, Brownstone Law can also assist with matters before the U.S. Supreme Court.
Frequently Asked Questions (FAQs)
Q1. Do Interlocutory Appeal Rules Differ by State?
Yes. States have their own statutes and appellate rules governing review of nonfinal orders. A federal rule such as § 1292(b) should not automatically be applied to litigation in state court.
For example, Florida uses its own appellate rules to determine which nonfinal orders may be reviewed before a case is completed.
Someone considering an interlocutory or nonfinal appeal should therefore determine:
- whether the case is in state or federal court;
- what type of order was entered;
- whether immediate review is authorized;
- which appellate court has jurisdiction; and
- what deadline and filing procedure apply.
Q2. How Long Does an Interlocutory Appeal Take?
A federal interlocutory appeal under 28 U.S.C. § 1292(b) can take about 15 to 18 months to reach a final appellate disposition, based on Federal Judicial Center data.
In a Federal Judicial Center study of § 1292(b) appeals, granted interlocutory appeals that reached a decision took a median of 475 days, or about 15.6 months, from the application for permission to appeal to appellate judgment. The median time from the application to issuance of the appellate mandate was 542 days, or about 17.8 months.
Those figures provide a useful benchmark, but they do not mean every interlocutory appeal takes 15 to 18 months. The study specifically examined permissive federal appeals under § 1292(b). Other forms of interlocutory review can move on different schedules.
For example:
- § 1292(b) appeal: A granted appeal that proceeds through full merits review may take roughly 15–18 months, based on the Federal Judicial Center’s historical median.
- Preliminary-injunction appeal: These cases may move faster when the dispute is urgent and the Court of Appeals orders expedited briefing or consideration.
- Petition stage: In a § 1292(b) case, the appellate court must first decide whether it will permit the appeal before merits briefing begins.
- Filing deadline: A § 1292(b) petition for permission to appeal must generally be filed within 10 days after entry of the district court’s certified order, even though resolving the appeal itself can take more than a year.
The distinction between filing time and decision time is important. A party may have only days to preserve the opportunity for interlocutory review even though the appellate proceeding ultimately lasts many months.
Q3. Who Can File an Interlocutory Appeal?
A party affected by an interlocutory order may seek an interlocutory appeal if the governing law allows immediate appellate review of that particular order. In federal civil cases, either a plaintiff or defendant may potentially seek review, but the procedure depends on the basis for appellate jurisdiction. Some orders are appealable as of right, while a § 1292(b) appeal requires district-court certification and permission from the Court of Appeals. In federal criminal cases, defendants and prosecutors have different and more limited rights to appeal before final judgment.
Q4. What Is the Collateral Order Doctrine?
The collateral order doctrine is a narrow exception to the federal final-judgment rule.
Under the doctrine, certain orders can be immediately reviewed when they:
- conclusively determine the disputed question;
- resolve an important issue separate from the merits of the underlying case; and
- would be effectively unreviewable after final judgment.
The doctrine is deliberately limited. It does not create a general right to appeal difficult, expensive, or significant pretrial rulings.
The key question is whether delaying appellate review until after final judgment would effectively destroy the right the party is trying to protect.
