It is one thing to know the high standards that govern requests for discretionary interlocutory appeals. It is quite another to hear two federal judges describe first-hand their extreme reluctance to permit such appeals.

Circuit Judge Thomas Ambro of the United States Court of Appeals for the Third Circuit and District Judge Harvey Bartle of the District Court for the Eastern District of Pennsylvania offered that perspective at a meeting of the Philadelphia Bar Association’s Appellate Courts Committee on April 15. The most striking theme of their presentation was that it is—and, in their view, should be—very hard to obtain permission for a discretionary interlocutory appeal.

Judge Bartle recalled entering no more than two Rule 54(b) orders to permit an interlocutory appeal and certifying only one interlocutory appeal under 28 U.S.C. § 1292(b) in his 23-year judicial career. He noted that district judges are very reluctant to permit interlocutory appeals because they tend to cause delay in trial proceedings.

With respect to appeals under § 1292(b) specifically, Judge Bartle said that he rarely sees grounds for a substantial difference of opinion on the legal issue involved. In particular, he noted that district judges tend not to be moved by a split in authority between themselves and a court in another district. The circumstance in which a substantial difference of opinion is most likely to be found is where district judges within the same district are split on an issue.

Judge Ambro discussed interlocutory appeals under § 1292(b) as well. He said that while § 1292(b) is intended to be a flexible path for immediate appeal, it is an avenue that, in his experience, is not often used. The Third Circuit is most likely to take an appeal under § 1292(b) where it sees a controlling issue of law that could recur in other cases. Where the primary rationale for an interlocutory appeal under § 1292(b) is dispute resolution, Judge Ambro said that the court is much less likely to grant permission to appeal.

Judge Ambro also spoke about interlocutory appeals of class certification decisions under Federal Rule of Civil Procedure 23(f). He suggested that the Third Circuit is more likely to grant an appeal under Rule 23(f) if the district court has certified the class than it is where the district court has denied certification. Judge Ambro also reported that certifications under Rule 23(f) have declined significantly over the last three years as compared to the several previous years.

With regard to mandamus petitions, Judge Ambro said, “In my 15 years, I’ve seen mandamus work maybe once.” Mandamus is simply “not part of the culture” of the Third Circuit. Even compared to other types of interlocutory appeals, seeking mandamus stands out as particularly unlikely to be effective.

Litigators who do not often practice in appellate courts can easily underestimate the difficulty in obtaining permission for an interlocutory appeal. By underscoring these difficulties, Judge Ambro and Judge Bartle’s presentation offered an important strategic insight for lawyers practicing in the Third Circuit.