28 USC 1292(b) provides a limited path to appeal certain nonfinal civil orders. The district judge must certify the required findings in writing, and the court of appeals must independently permit the appeal. Certification is not an automatic right to immediate review.
The three statutory findings
The order must involve a controlling question of law, substantial ground for difference of opinion, and a situation in which immediate appeal may materially advance the litigation’s ultimate termination. A disagreement with the result does not necessarily satisfy those requirements. [1]
For example, a discrete legal issue that could eliminate a lengthy trial may be a stronger candidate than a fact-intensive objection that would require the appellate court to reweigh a large evidentiary record. The controlling circuit’s approach matters.
Certification and permission are separate gates
The district judge must state the statutory opinion in the order. The party then applies to the court of appeals within the statute’s ten-day period after the relevant order. Appellate Rule 5 governs permission-to-appeal petitions and addresses related procedural issues. Do not substitute an ordinary notice of appeal for the required petition without checking the rule. [2]
Calculate timing from the actual certification and applicable procedural law. A request asking the district court to certify an earlier ruling can create questions different from an order that already contains the necessary statement.
The case does not automatically stop
Section 1292(b) expressly provides that the application does not stay district-court proceedings unless a stay is ordered by the district judge or appellate court. Continue meeting existing obligations unless an effective order changes them. [1]
- Identify the precise legal question.
- Explain genuine uncertainty in controlling law.
- Show how early resolution would materially shorten the case.
- Prepare the appellate petition and any stay request separately.
Other appeal routes may apply to injunctions, final judgments, or specialized orders. Choosing section 1292(b) does not erase the requirements of those alternatives.
Compare extraordinary writs under the All Writs Act and consolidation under Rule 42. Neither mechanism automatically makes a nonfinal ruling appealable. Obtain the entered order and docket date before relying on a deadline supplied in a general article.
Primary sources
Sources checked: October 31, 2026.