An often repeated question by litigants to their attorneys is whether an adverse ruling by the district court is subject to immediate appeal. The answer to that question is, of course, highly circumstantial. Depending on how their case is procedurally situated, in addition to the underlying substantive issues in some instances, litigants may or may not have a right to seek interlocutory appeal. But even assuming that such a right exists, the necessary — and inevitable — companion question is: will interlocutory appeal prove efficacious?
With this latter question particularly in mind, the Sixth Circuit Appellate Blog has reviewed available data from the Sixth Circuit, and the results are eye-opening. This study is based on examination of docket entries filed in 2008-11, and subdivided according to the basis for appeal: 1) Discretionary interlocutory appeals certified by the district court under 28 U.S.C. § 1292(b) (“1292(b) Appeals”); 2) Discretionary class action appeals under Federal Rule of Civil Procedure 23(f) (“23(f) Appeals”); 3) Discretionary appeals specific to the Class Action Fairness Act, 28 U.S.C. § 1453(c) (“CAFA Appeals”); 4) Direct bankruptcy appeals to the Court of Appeals under 28 U.S.C. § 158(d) (“Direct Bankruptcy Appeals”); and 5) Various other avenues for interlocutory appeal, a catch-all category that includes qualified immunity rulings, Rule 54(b) judgments, collateral orders, Rule 5 petitions, and pro se petitions to appeal (“Other Interlocutory Appeals”).
This Blog undertook a previous, more limited examination of discretionary appellate review under Section 1292(b), but the findings in the present, more sweeping study provide statistically significant differences between the various types of interlocutory appeals.
The number of interlocutory appeals filed at the Sixth Circuit proved remarkably constant over the four-year period of this Blog’s study: 37 in 2011, 2010 and 2008, and 35 in 2009. In addition, although the data for prior years is much more limited, the average number of interlocutory appeals filed annually from 2001 to 2007 was 33, with a high of 47 petitions filed in 2007 and a low of 24 filed in 2005. Such stability over the course of the last decade is particularly notable given the fact that CAFA was enacted in 2005, yet the number of overall interlocutory appeals has not significantly expanded in subsequent years.
Far and away the two most prevalent interlocutory appeals to the Sixth Circuit are 1292(b) Appeals and 23(f) Appeals. Taken together, such appeals amounted to 70% of all interlocutory appeals in 2011, 81% in 2010, 71% in 2009 and 62% in 2008. And while there was approximate numeric parity between these two types of appellate appeals in 2011 and 2008, Rule 23(f) Appeals were statistically more frequent in 2009-10 and, during the entire four-year study period, outpaced 1292(b) Appeals: 61 petitions compared to 43 petitions. The other types of appeals made up the remainder of interlocutory petitions filed, with Direct Bankruptcy Appeals being the least filed of all.
Just as the composition of interlocutory petitions brought to the Sixth Circuit therefore varies by type, the fate of such petitions is mixed. During the entire study period, a total of 146 petitions were filed, 65 of which were granted (45%), 63 were denied (43%), and 18 remained pending or were withdrawn (12%). If the 2011 data is excluded — since over 43% of the petitions remained pending at the time of the study — the data for 2008-10 reveals that 52% of interlocutory petitions were granted, 46% denied, and 2% were withdrawn. Considered in aggregate, then, around half of all interlocutory petitions have been ruled upon favorably by the Sixth Circuit — a more robust grant rate than this Blog had expected to discover.
Perhaps not surprisingly, though, a litigant’s success in having an interlocutory petition granted varies strongly by the category of appeal. Litigants who sought Direct Bankruptcy Appeals, though few in absolute numbers, enjoyed the greatest degree of success: over 70% of such petitions were granted. At the other end of the spectrum lay the assorted Other Interlocutory Appeals; litigants bringing such appeals had their petitions denied 85% of the time. Class action appeals — proceeding under both Rule 23(f) and Section 1453(c) — enjoyed a success rate corresponding with the average in the paragraph above: between 46-50%, with CAFA Appeals (50% granted) enjoying a slight advantage over Rule 23(f) Appeals (46% granted).
In some ways, the data for 1292(b) Appeals proved the most surprising. When the entire four-year period was considered, litigants bringing these basic, discretionary appeals saw their petitions granted 51% of the time. Yet, this data must be relied upon cautiously, for fully 19% of the 1292(b) petitions in 2011 remained pending at the time this study was conducted. When only the years 2008-10 are considered, the grant rate for 1292(b) Appeals jumps significantly to 72%. This Blog was very surprised by that figure, and it remains unclear whether such a high success rate is representative of 1292(b) Appeals or, instead, whether the 2008-10 period is an outlier.
Obviously, the likelihood of the Sixth Circuit granting any given interlocutory petition depends on a variety of factors that cannot be captured by the above statistics. Such factors certainly include the merits of the appeal, the quality of lawyering, and the quality, persuasiveness and standard of review governing the underlying district court ruling, perhaps along with the novelty or complexity of the issue at bar. Even so, the statistics provide bases for a generic litigant to be both hopeful and sober about his chances when considering whether to seek interlocutory appeal — for this data strongly suggests that the Sixth Circuit can be counted on to conduct an open-minded, yet searching, appraisal of interlocutory petitions brought before it.