Most federal appeals wait for a final judgment. An appeal by permission is the exception: a party asks the court of appeals to review a district court order before the case ends. The route runs through Federal Rule of Appellate Procedure 5, and for the most common version — an interlocutory appeal under 28 U.S.C. 1292(b) — the deadline is ten days. Ten calendar days, counted from the entry of the certified order, and no court can extend it. That is the whole story in one sentence, and the rest of this guide is about not losing the appeal before it starts.
The 10-Day Rule in One Paragraph
Section 1292(b) says the court of appeals may, in its discretion, permit an appeal from an interlocutory order “if application is made to it within ten days after the entry of the order.” FRAP 5(a)(1) turns that application into a petition for permission to appeal, filed with the circuit clerk, with proof of service on every other party to the district court action. FRAP 5(a)(2) supplies the fallback: the petition must be filed within the time the authorizing statute or rule sets, or, if no time is set, within the time Rule 4(a) allows for a notice of appeal — 30 days in an ordinary civil case, 60 days when the United States or a federal officer or agency is a party. For a 1292(b) appeal the statute sets the time, so the fallback never applies: ten days, full stop. Our federal appeal deadline guide covers the ordinary 30-day clock and the 60-day government-party rule in detail.
The Three Things the District Judge Must Certify
Before the court of appeals can even consider the petition, the district judge must certify the order in writing. Section 1292(b) requires three findings, all three, in the order itself:
- A controlling question of law. The order must turn on a legal question, not a fact dispute or an exercise of discretion. If the answer to the question would change how the case is decided, it controls.
- Substantial ground for difference of opinion. Courts must genuinely disagree about the question — a split among circuits, conflicting decisions inside the same circuit, or a question no court has answered. A party’s belief that the judge got it wrong is not enough.
- Material advance of the litigation. An immediate appeal must be capable of shortening the case — ending it, narrowing it, or settling a point that shapes everything that follows. Saving one round of briefing does not count.
Certification is a request, not a ruling the court of appeals must honor. The court of appeals keeps full discretion to say no, even when the district judge certified the order and the petition is timely. And certification has no deadline of its own: a party can ask the district judge to certify at any point while the order is still live. The ten-day clock only starts when the certified order is entered.
How the Clock Works: Worked Examples
FRAP 26(a) supplies the counting method. Count every calendar day, weekends included, and exclude the day the order is entered. If the tenth day lands on a Saturday, Sunday, or legal holiday, the deadline moves to the next day that is not one of those. Run the dates through a deadline calculator before you trust your own arithmetic — a one-day miss here is fatal, not fixable.
| Situation | Clock starts | Deadline |
|---|---|---|
| 1292(b) certified order entered Fri, Nov 13, 2026 | Entry of the certified order | Mon, Nov 23, 2026 (10 days) |
| Petition served Fri, Nov 13, 2026 | Service of the petition | Mon, Nov 23, 2026 (answer or cross-petition, 10 days) |
| Permission granted Mon, Nov 30, 2026 | Entry of the grant order | Mon, Dec 14, 2026 (fees and cost bond, 14 days) |
| Order amended to add the certification Mon, Nov 30, 2026 | Entry of the amended order | Thu, Dec 10, 2026 (10 days from the amended order) |
| No statute time set; civil judgment Fri, Nov 13, 2026 | Rule 4(a) fallback under FRAP 5(a)(2) | Mon, Dec 14, 2026 (30 days; Sun, Dec 13 rolls forward) |
Three examples make the pattern concrete. First, the standard case: the district judge enters a certified order on Friday, November 13, 2026. Day one is Saturday, November 14. Day ten is Monday, November 23, 2026, so the petition is due that day. Second, the amended order: the judge enters an order on Friday, November 20, 2026, but leaves out the certification language. On Monday, November 30, the judge amends the order to add the required statement. FRAP 5(a)(3) says the time runs from the amended order, so the petition is due Thursday, December 10, 2026. Third, the fallback: a statute authorizes a discretionary appeal but sets no time limit, and judgment was entered Friday, November 13, 2026. FRAP 5(a)(2) borrows the Rule 4(a) period, so the petition is due 30 days later — Sunday, December 13 — which rolls forward to Monday, December 14, 2026.
One warning about that second example. Amending an order to add a certification the first time restarts the clock. Re-certifying an order that was already certified does not. The D.C. Circuit has held that a district court cannot hand a party a second ten-day window by re-entering the same certification, because the deadline is jurisdictional and courts have no power to manufacture a workaround.
What Goes in the Petition
FRAP 5(b)(1) lists what the petition must contain: the facts needed to understand the question, the question itself, the relief sought, the reasons the appeal should be allowed and is authorized by a statute or rule, and attached copies of the order and any related opinion plus the order containing the district court’s permission or certification. The petition goes to the circuit clerk, not the district court — filing it in the wrong court is the same as not filing it at all. Length is capped at 5,200 words if computer-prepared, or 20 pages if handwritten or typewritten, under FRAP 5(c) and Rule 32. The court of appeals decides the petition without oral argument unless it orders otherwise.
The Other Side Gets 10 Days Too
Once the petition is served, the opposing party has ten days to file an answer in opposition or a cross-petition (FRAP 5(b)(2)). The same counting rules apply. Example: the petition is served Friday, November 13, 2026, so the answer is due Monday, November 23, 2026. A cross-petition matters when the other side wants review of a different part of the same order — it rides on the same ten-day window, not on a fresh one.
If Permission Is Granted: 14 Days for Fees and the Cost Bond
Winning permission starts a second, shorter clock. Under FRAP 5(d)(1), within 14 days after entry of the order granting permission, the appellant must pay the district clerk all required fees and file a cost bond if one is required under Rule 7. Example: permission is granted Monday, November 30, 2026, so fees and any bond are due Monday, December 14, 2026. FRAP 5(d)(2) then removes a step many appellants expect: no notice of appeal need be filed at all. The date the order granting permission is entered serves as the date of the notice of appeal for every later time calculation — including the deadline for the docketing statement and the record on appeal.
Five Mistakes That Kill a 1292(b) Appeal
- Assuming the case pauses. Filing a petition does not stay the district court proceedings. Section 1292(b) says so in terms: no stay unless the district judge or the court of appeals orders one. Discovery, motion practice, and trial preparation keep running while the petition is pending. Ask for a stay in the same motion that seeks certification.
- Treating the ten days as extendable. It is not. The period is jurisdictional, and FRAP 26(b) bars the court of appeals from extending the time to file a petition for permission to appeal. The federal appeal extension deadline guide explains FRAP 4(a)(5) extensions for ordinary notices of appeal — none of that machinery applies here. A late petition is dismissed, however strong the legal question.
- Confusing tolling with permission. A timely post-judgment motion tolls the ordinary appeal clock under FRAP 4(a)(4) — our federal appeal deadline tolling guide walks through the six motions that do it — but tolling changes when the appeal clock runs, and a 1292(b) petition has its own ten-day clock that starts at entry of the certified order regardless.
- Waiting for the perfect petition. Ten days is not enough time to write the petition from scratch. Draft the certification motion and a petition outline together, the day the order issues, so the only work left after certification is tailoring the question to the judge’s language.
- Forgetting the fees clock. Permission granted is not the end of the deadlines. The 14-day fee and cost-bond period under FRAP 5(d)(1) runs from the grant order, and missing it can cost the appeal after it was won.
And one more, from the civil rules side: FRCP 6(b) lets a district court extend most deadlines for good cause or excusable neglect, but it cannot touch an appeal deadline. Our federal extension of time deadline guide lists the seven deadlines Rule 6(b)(2) puts beyond the court’s reach.
Appeals by Permission Beyond 1292(b)
Section 1292(b) is the most-used route, but FRAP 5 governs every discretionary appeal from a district court. The other common one is a class-action certification order under FRCP 23(f): either side may petition within 14 days after the order is entered — 45 days if the United States or a federal agency or officer is a party. The Supreme Court held in Nutraceutical Corp. v. Lambert, 586 U.S. 414 (2019), that the 14-day period is a mandatory claim-processing rule, not a jurisdictional bar, but it is still not subject to equitable tolling: a motion for reconsideration does not pause it, and a petition filed on day 15 is too late. Section 1292(c) and (d) set the same ten-day period for discretionary appeals from the Court of International Trade and the Court of Federal Claims, heard by the Federal Circuit. Wherever the authorizing statute or rule sets no time at all, FRAP 5(a)(2) falls back to the Rule 4(a) notice-of-appeal period.
Frequently Asked Questions
How many days do I have to file a 1292(b) petition?
Ten days after entry of the order containing the district court’s certification, under 28 U.S.C. 1292(b) and FRAP 5(a)(2). Count calendar days, exclude the entry day, and roll forward if day ten is a weekend or legal holiday.
Can the court of appeals extend the 10-day deadline?
No. The ten-day period is jurisdictional, and FRAP 26(b) forbids extending the time to file a petition for permission to appeal. A late petition is dismissed even if the legal question is important and the delay was a day.
Does filing a 1292(b) petition stop the case in the district court?
No. The statute provides that the application does not stay district court proceedings unless the district judge or the court of appeals orders a stay. Ask for one expressly.
What if the district judge refuses to certify the order?
Then there is no 1292(b) appeal. Certification is a precondition, and the court of appeals cannot review an uncertified interlocutory order under this route. The order can still be challenged on appeal from the final judgment.
Do I file a notice of appeal if permission is granted?
No. Under FRAP 5(d)(2), no notice of appeal is filed. The entry date of the order granting permission serves as the notice-of-appeal date for later deadlines. You must still pay the district clerk’s fees and file any required Rule 7 cost bond within 14 days under FRAP 5(d)(1).
How is a Rule 23(f) class-certification petition different?
The petition is due within 14 days after the certification order is entered (45 days if the United States is a party), and it goes to the circuit clerk under the same FRAP 5 procedure. Unlike the 1292(b) ten days, the 23(f) period is a claim-processing rule rather than a jurisdictional bar, but the Supreme Court has held it cannot be equitably tolled — Nutraceutical Corp. v. Lambert, 586 U.S. 414 (2019).
This article is general information only and is not legal advice. Appellate deadlines are jurisdictional and unforgiving; confirm every date against the current rule text and the order in your case, and consult a licensed attorney before relying on any deadline stated here.