Interlocutory Appeal

What this is

An interlocutory appeal is an appeal filed in the middle of a case — before final judgment. Normally, you can’t appeal until the case is over (the “final judgment rule,” 28 U.S.C. § 1291). But qualified immunity denials are one of the narrow exceptions.

When a district court denies a defendant’s qualified immunity defense, the defendant can immediately appeal to the circuit court of appeals under the collateral order doctrine (Mitchell v. Forsyth, 1985). The theory: qualified immunity isn’t just a defense to liability — it’s a right not to stand trial at all. If you have to wait until after trial to appeal, the right is destroyed.

In practice, this means defendants get two bites at the QI apple — one at Rule 12, one at summary judgment — and each bite freezes your case for 6-18 months.

How it works

1. Defendant’s QI motion is denied by the district court
2. Defendant files a notice of appeal in the circuit court (typically within 30 days)
3. The district court case is automatically stayed in most circuits — everything stops
4. Briefing in the circuit court: defendant’s brief → your brief → defendant’s reply
5. The circuit court decides (sometimes with oral argument, often on the briefs)
6. If QI is granted: case dismissed (or claim dismissed). If affirmed: case resumes in district court.

How it’s abused

Interlocutory QI appeals are the single most effective delay weapon in § 1983 litigation. Here’s how:

Double-dip delay

Defendants can raise QI at Rule 12 and again at summary judgment. If denied both times, they appeal both times. That’s potentially two interlocutory appeals in a single case — 12-36 months of delay before you ever get to trial.

The briefing in each appeal essentially rehashes the same legal arguments. You’re forced to write the same brief twice in two different courts. They have a team of government lawyers. You have yourself.

Disguised fact disputes

Under Johnson v. Jones (1995), the circuit court lacks jurisdiction over interlocutory appeals that turn on disputes of fact rather than questions of law. The distinction matters:

• Legal question (appealable): “Even accepting plaintiff’s version of events, was the right clearly established?” ✓
• Factual question (not appealable): “Did the officer actually use force, as plaintiff claims?” ✗

But defendants routinely file interlocutory appeals that are really factual disputes dressed up as legal questions. They know the circuit court should dismiss for lack of jurisdiction — but the filing itself causes delay. Even a jurisdictional dismissal takes months.

Strategic timing

Defendants often time their QI motions to maximize disruption. A QI interlocutory appeal filed right before trial — after you’ve spent years and thousands of dollars preparing — freezes everything. Some defendants file QI motions at summary judgment that they know are weak, specifically to trigger the interlocutory appeal mechanism and delay trial.

Resource drain

Each interlocutory appeal requires a full appellate brief — different format, different rules, different court. Federal appellate briefing is the most demanding legal writing there is. For a pro se litigant, writing one circuit court brief is a massive undertaking. Writing two is designed to break you.

What the circuit court decides

The circuit court reviews the district court’s QI denial de novo (fresh, with no deference). But it can only review legal questions, not factual disputes. If the appeal depends on whose version of events is true, the circuit court should dismiss for lack of jurisdiction.

Possible outcomes:

• Affirmed — QI denied, case resumes in district court
• Reversed — QI granted, claim dismissed
• Dismissed for lack of jurisdiction — appeal was really a fact dispute, not a legal question (sent back)
• Remanded — sent back to district court for further proceedings

What you can do

1. Move to dismiss for lack of jurisdiction

If the appeal raises factual disputes, file a motion in the circuit court arguing it lacks jurisdiction under Johnson v. Jones. Be specific: identify exactly which facts are disputed and explain why the appeal can’t be resolved without resolving those disputes.

This is your most powerful tool. If granted, the appeal is dismissed quickly and your case resumes.

2. Request expedited briefing

File a motion in the circuit court requesting an expedited briefing schedule. Argue that the delay prejudices you — witnesses’ memories fade, evidence degrades, justice delayed is justice denied. Not always granted, but worth requesting.

3. Check whether the stay is automatic

In most circuits, an interlocutory QI appeal automatically stays the district court proceedings. But not all circuits treat this the same way, and the stay may be limited to the claims and defendants covered by the appeal. If you have claims that aren’t affected (e.g., Monell claims against the city — QI doesn’t apply to municipalities), you may be able to continue discovery and proceedings on those claims.

4. Continue preparation

Even if the case is stayed, you can continue preparing. Organize your evidence, research case law, draft future briefs. The stay prevents formal proceedings, not your own work.

5. Document the delay for fees

If you ultimately prevail, the delay caused by interlocutory appeals is relevant to your fee petition under § 1988. Courts can consider the defendant’s litigation conduct — including serial QI appeals — when determining reasonable attorney’s fees (or, for pro se litigants, litigation costs where recoverable).

6. Argue frivolousness

If the interlocutory appeal is clearly frivolous (e.g., it blatantly raises fact disputes or re-argues issues the circuit court already decided), you can ask the court to impose penalties under Federal Rule of Appellate Procedure 38 (including requiring the other side to pay your costs). This is a high bar — courts rarely penalize government defendants for frivolous appeals — but it signals to the court that you recognize the delay tactic.

The honest truth

Interlocutory appeals exist for a legitimate reason: officers shouldn’t have to endure a full trial if they’re legally entitled to immunity. But the mechanism has been weaponized into a delay strategy that disproportionately harms pro se litigants who can’t afford the time or resources to fight the same battle twice in two different courts.

The system knows this. It hasn’t fixed it. Behrens v. Pelletier (1996) explicitly confirmed that defendants can file a second interlocutory appeal at summary judgment even if they already appealed at Rule 12. The Court acknowledged the burden but said the right to immunity outweighed it.

Budget for it. Plan for 6-18 months of delay per appeal. Don’t let it surprise you, and don’t let it break you.

Timeline

• Notice of appeal: typically within 30 days of QI denial
• Briefing: 2-4 months (varies by circuit)
• Decision: 2-12 months after briefing complete
• Total delay: 6-18 months per interlocutory appeal
• If two appeals (Rule 12 + summary judgment): 12-36 months total