Interlocutory Appeal
An appeal before the case is over — the rare exception to the final judgment rule, and how QI denials go up immediately.
What It Is
An interlocutory appeal is an appeal taken before the trial court enters a final judgment. Normally, you can’t appeal until the case is completely over (the “final judgment rule” under 28 U.S.C. § 1291). Interlocutory appeals are the exception.
The Collateral Order Doctrine
Under the collateral order doctrine from Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), an order is immediately appealable if it:
- Conclusively determines the disputed question
- Resolves an important issue completely separate from the merits
- Is effectively unreviewable on appeal from a final judgment
Why It Matters for § 1983
The most common interlocutory appeal in § 1983 cases: denial of qualified immunity. When a court denies QI at summary judgment, the defendant can immediately appeal that denial to the circuit court. Mitchell v. Forsyth, 472 U.S. 511 (1985).
This means the case stops while the appeal is pending. Discovery halts. Trial dates get pushed. Your case can sit on ice for a year or more while the circuit court decides whether QI should have been granted.
For defendants, this is a feature, not a bug. Even if they lose the interlocutory appeal, they’ve bought themselves a year of delay.
The Johnson Stay
Under Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989) and its progeny, trial courts generally must stay all proceedings during a QI interlocutory appeal — not just as to the appealing defendant, but sometimes as to all defendants if the issues overlap.
For Pro Se Plaintiffs
You can also take an interlocutory appeal in narrow circumstances — for example, if the court grants a defendant’s motion to dismiss on qualified immunity. But be careful:
- Strict time limits: You typically have 30 days to file a notice of appeal
- The appeal must present a legal question: You can’t use an interlocutory appeal to challenge factual findings
- It’s expensive and slow: Appellate briefing takes months
Key Cases
- Mitchell v. Forsyth, 472 U.S. 511 (1985) — QI denial is immediately appealable
- Johnson v. Jones, 515 U.S. 304 (1995) — Interlocutory appeal limited to legal questions, not factual sufficiency
- Plumhoff v. Rickard, 572 U.S. 765 (2014) — Court can resolve both QI prongs on interlocutory appeal