Certified interlocutory appeals under 28 U.S.C. § 1292(b) are a civil device by their own terms, which leaves criminal practice with two narrower doors.
A litigant who wants a court of appeals to look at a pretrial criminal order has fewer options than a civil litigant, and one of the options civil practitioners reach for first is not available at all. Knowing which door exists, and which is closed, determines whether a filing gets read on the merits or dismissed for want of jurisdiction.
The two live routes are the collateral order doctrine, which treats a small class of orders as final decisions under 28 U.S.C. § 1291, and mandamus under the All Writs Act. They have different standards, different consequences on denial, and different relationships to the eventual appeal.
The default rule and the government's separate statute
Section 1291 gives courts of appeals jurisdiction over final decisions of the district courts. Flanagan v. United States, 465 U.S. 259 (1984), explains that the policies against interlocutory review apply with special force in criminal cases, where delay imposes costs on the defendant, on witnesses, and on the public interest in prompt resolution.
The government has its own statute. 18 U.S.C. § 3731 authorizes appeals from a decision dismissing an indictment or information, from a decision suppressing or excluding evidence, and from certain other specified orders. What is not on that list is not appealable by the government, which is the structural fact behind most government petitions for mandamus. Sentence appeals run separately under 18 U.S.C. § 3742.
Why § 1292(b) is not on the menu
Section 1292(b) permits a district judge to certify an order for immediate appeal where it involves a controlling question of law as to which there is substantial ground for difference of opinion, and where an immediate appeal may materially advance the ultimate termination of the litigation. By its own terms the provision applies to an order made in a civil action. Section 1292(a), covering injunctions and a few other categories, is likewise a civil provision.
The consequence catches practitioners moving between dockets. In a civil case, a difficult and important pretrial legal question has a certification route. In a criminal case, the same question has no route unless it fits the collateral order doctrine or supports a writ.
The collateral order doctrine in criminal cases
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), created the category, and Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), restated it as three requirements: the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits, and be effectively unreviewable on appeal from a final judgment. Will v. Hallock, 546 U.S. 345 (2006), describes the conditions as stringent and the category as modest, and Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863 (1994), refused to expand it for a contractual right not to stand trial.
| Pretrial criminal order | Immediately appealable? | Authority |
|---|---|---|
| Denial of a double jeopardy motion to dismiss | Yes | Abney v. United States, 431 U.S. 651 (1977) |
| Order authorizing forced medication to render a defendant competent | Yes | Sell v. United States, 539 U.S. 166 (2003) |
| Release or detention order | Yes, by statute | 18 U.S.C. § 3145(c); Fed. R. App. P. 9 |
| Disqualification of retained defense counsel | No | Flanagan v. United States, 465 U.S. 259 (1984) |
| Denial of a speedy trial motion to dismiss | No | United States v. MacDonald, 435 U.S. 850 (1978) |
| Denial of dismissal for an alleged grand jury violation | No | Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989) |
| Order compelling disclosure over an attorney-client privilege claim | No | Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009) |
What Mohawk left behind
Mohawk closed the collateral order route for privilege rulings and pointed to the mechanisms that remain, including certification under § 1292(b), defiance of the order followed by a contempt appeal, and mandamus. In a criminal case the first of those is unavailable, which concentrates the load on the other two.
The result is a practical asymmetry worth noticing. The same privilege order that a civil litigant might get certified can only be tested by a criminal litigant through contempt or through a writ, and contempt is an unattractive option for a defendant already facing charges.
The mandamus alternative and what it demands
Cheney v. United States District Court, 542 U.S. 367 (2004), sets out the three conditions: no other adequate means to attain the relief, a clear and indisputable right to issuance, and a determination that the writ is appropriate in the circumstances. Kerr v. United States District Court, 426 U.S. 394 (1976), states the first two in the form most petitions quote. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33 (1980), adds that the burden is on the party seeking the writ and that issuance is largely discretionary even when the burden is met.
Two older decisions define the outer boundary. Will v. United States, 389 U.S. 90 (1967), requires circumstances amounting to a judicial usurpation of power. Bankers Life & Casualty Co. v. Holland, 346 U.S. 379 (1953), holds that hardship from having to try a case does not itself justify the writ. Neither leaves room for using mandamus as a general error-correcting device.
Choosing between them
| Collateral order appeal | Mandamus petition | |
|---|---|---|
| Jurisdictional basis | 28 U.S.C. § 1291, as construed in Cohen | 28 U.S.C. § 1651; Fed. R. App. P. 21 |
| What must be shown | The three Coopers & Lybrand requirements | The three Cheney conditions |
| Deadline | Fed. R. App. P. 4(b): 14 days for a defendant, 30 days for the government | No fixed deadline, but delay counts against the petitioner |
| Who responds | The opposing party, on the ordinary briefing schedule | Nobody unless the court orders an answer; under Fed. R. App. P. 21(b)(1) relief may not be granted before an answer is ordered |
| Standard applied | Ordinary appellate review of the question presented | Clear and indisputable right, plus discretion to deny |
| Effect of a loss | A decision on the merits that binds later in the case | Often an unexplained denial that decides nothing and leaves the issue for appeal |
Filing both, and how courts respond
Where jurisdiction is genuinely uncertain, parties sometimes file a protective notice of appeal and a petition addressed to the same order. Courts of appeals have treated a misdirected filing as the other where the interests of justice support it, and the practice is common enough that circuit clerks are used to seeing paired filings.
Two cautions apply. Recharacterization is a matter of the court's discretion rather than a right, so the safer course is to file each vehicle in proper form rather than to rely on conversion. And filing both does not lower either standard: the appeal still needs a collateral order, and the petition still needs a clear and indisputable right.
The limit both routes share
Neither vehicle produces a decision about guilt, and neither is a general license to review pretrial rulings. The collateral order doctrine will not expand merely because review after conviction is imperfect; Will v. Hallock makes the avoidance of trial insufficient unless a substantial public interest is at stake. And mandamus will not reach an error committed within jurisdiction, however consequential, because Roche v. Evaporated Milk Association, 319 U.S. 21 (1943), confines the writ to keeping a court within its authority or compelling it to exercise authority it must exercise.
The residual answer in criminal practice is the one Congress designed: one appeal, after judgment, on a complete record.
Key points
- 28 U.S.C. § 1292(b) applies by its terms to orders made in a civil action, so certified interlocutory appeals are unavailable in criminal cases.
- 18 U.S.C. § 3731 lists the government's criminal appeals, and an order outside that list leaves the government with mandamus or nothing.
- Abney, Sell, and the bail statute mark the appealable criminal orders; Flanagan, MacDonald, Midland Asphalt, and Mohawk mark the closed doors.
- Mohawk pointed privilege disputes toward § 1292(b), contempt, and mandamus, and the first of those does not exist on a criminal docket.
- A collateral order appeal has a filing deadline and produces a merits decision, while a petition has no deadline and often ends in an unexplained denial that resolves nothing.