I have a False Claims Act appeal – what are the chances that the Third Circuit will affirm?

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I’ve said before that the best estimates of your probability of success are those that are based on cases most similar to your own – it’s better to compare apples to apples than to compare apples to all fruit.  Up to this point, I have posted information on an eclectic assortment of civil appeals under the heading of “Other Statutes.”  (See, for example, the “Percent of Other Civil Appeals Affirmed or Dismissed” tables on the Third Circuit Statistics  page). Appeals falling into this category include cases arising under antitrust statutes, securities statutes, RICO, the tax code (other than appeals from Tax Court decisions), and environmental statutes, among others. False Claims Act cases are here too.

In any given year, there are too few appeals brought under any particular set of statutes to yield any reliable statistics. Because I have several years of data, however, I thought I’d pool the “Other Statutes” cases and see what the numbers showed.

The Third Circuit affirmed the district court’s judgment or dismissed the appeal in 74.76% of the 634 “Other Statutes” appeals it decided in the six years between FY2010 and FY2015. But it turns out that there’s quite a bit of variation across statutory “subgroups” (which were defined based on having at least 10 cases in the subgroup) so that figure may not be very accurate for a particular type of appeal.

Across 67 antitrust appeals, for example, the percentage affirmed or dismissed was 62.69%. This is the smallest percentage my data showed. The largest percentage is for FOIA cases – 91.67%.  Here’s the whole list, in increasing order:

Antitrust (67 appeals)                                         62.69%
Environment (23)                                                 65.22%
Intellectual Property (50)                                    74.00%
Consumer Credit (80)                                          75.00%
Constitutionality of State Statutes (43)            76.74%
Other Immigration (13)                                      76.90%
Federal Taxes (55)                                               78.18%
Civil RICO (52)                                                      80.77%
Federal Arbitration Act (11)                               81.82%
Securities (34)                                                      85.29%
False Claims Act (22)                                           86.36%
FOIA (12)                                                               91.67%

The percentage of the 172 appeals not falling within any of the above categories in which the district court’s decision was affirmed or in which the appeal was dismissed in was 72.09%.

False Claim Act appeals are at the “high” end – the Third Circuit affirmed or dismissed in just over 86% of those appeals between FY2010 and FY2015.

I’ve posted these figures, along with information on how long it took to decide the cases, on the Third Circuit Statistics page.

The Third Circuit’s oral argument rates-Part II: Attorney salaries to blame?

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In my last post, I showed that even with corrections to remove the effects of changes in how the Administrative Office defines cases terminated on the merits, the Third Circuit’s oral argument rates have been generally declining over the FY 1997 to FY 2015 period:

Graph 1:

Oral Arg Rates Over Time

Based on available literature, this decline is not a new phenomenon and it’s not limited to the Third Circuit.  See, e.g., David R. Cleveland & Steven Wisotsky, The Decline of Oral Argument in the Federal Courts of Appeals: A Modest Proposal for Reform, 13 J. App. Prac. & Process 119, 142 (2012) (commenting on declines since the 1980s).  But putting aside the effects of case processing procedures that serve to enhance efficiency and other such forces, what’s contributed to the continuing downward trend?

 First Posited Reason:  Judicial Vacancies

Some have speculated that judicial vacancies explain the decline in the Third Circuit’s oral argument rates – particularly in recent years.  I don’t doubt that multiple vacancies that remain unfilled for several years can affect a judge’s decision to request oral argument in cases that are borderline.  But I don’t see that judicial vacancies can fully explain the blue line above.

Graph 2:

JudicVacGraph

Graph 2 shows judicial vacancy months (red line) along with the corrected oral argument rates over time (blue line).  The Third Circuit has experienced multiple fiscal years with 24 or more vacant judicial months (the equivalent of at least two vacancies for the entire fiscal year).  Between FY 1999 and FY 2003 and again between FY 2006 and FY 2009, the number of vacant judicial months ranged from 24 to 31.  But oral argument rates have declined fairly steadily from about FY 1999 to about FY 2011, when they level off.  If judicial vacancies explained oral argument rates, those rates should both fall with increases in vacant judicial months and rise with decreases.  The graph above doesn’t reflect that – there’s no “uptick” in oral argument rates when the number of vacant judicial months drops.  Even if vacancies have had some effect, they are not the whole story.

 Second Posited Reason:  Pro Se Cases

Another possible reason for the declines in the oral argument rate (and the publication rate – another focus of recent attention) is the increase in the number of pro se cases now being litigated in the courts of appeal.  The Administrative Office’s statistics suggest that in FY 2015, just over 60% of all cases the Third Circuit terminated (both merit and procedural terminations) were pro se at the time of termination.  That’s a huge percentage, and much larger than it was in the late 1990s.  It would make sense that pro se cases are less likely to be argued.

 Pro Se Prisoner Petitions

Prisoner petitions are by far the most likely cases to be filed and prosecuted pro se.  Based on the Administrative Office’s statistics for the FY 1997 to FY 2015 period, the percentage of prisoner appeals that were prosecuted pro se was fairly constant: an average of 84% of U.S. prisoner petition appeals were pro se at termination, with a low of 76.4% (FY 2004) and a high of 90.1% (FY 2011).  An average of 88% of private prisoner petition appeals were pro se at termination, with a low of 83.6% (FY 2004) and a high of 93.5% (FY 2013).  If pro se prisoner petitions (1) are less likely to be orally argued and (2) made up an increasing percentage of the Third Circuit’s case load, then the combination could explain the declining oral argument rates over time.

But, over the FY 1999 to FY 2015 period, the percentage of all the Third Circuit’s cases terminated on the merits that were prisoner appeals was also fairly constant, averaging just under 19%.  In the midst of the period of declining oral argument rates, the percentage of prisoner petitions also declined, going from a high of 23.8% (in FY 2003) to a low of 13.7% (in FY 2010).  For that period, at least, prisoner petitions were making up a smaller – not larger – percentage of the cases that the Third Circuit terminated on the merits.

The relative steadiness of prisoner appeals as a percentage of all cases terminated on the merits and of pro se prisoner appeals may be why oral argument rates for prisoner petitions don’t show the same downward trend that all cases do:

Graph 3:

PPProSeGraph

Pro se prisoner appeals do not appear to be the explanation for declining oral argument rates over time.

 Other Private Civil Appeals

Where an increase in pro se cases may have a substantial effect on oral arguments rates is in the category of other private civil appeals (a category that includes every civil appeal that is not a prisoner petition or a bankruptcy appeal).  Oral argument rates for such appeals show the same downward trend as the overall rate does, although the decline is sharpest after around FY 2006:

Graph 4:

OPCAppGraph

Between FY 1997 and FY 2006, the Third Circuit heard argument in an average of just under 42% of cases falling into the “other private civil appeals” category.  The oral argument rate dropped dramatically after FY 2006: between FY 2007 and FY 2015, the average rate was 25.79%.  So what happened after FY 2006?

Graph 5:

OPCAppProSeGraph

Before FY 2006, the percent of other civil cases that were pro se at termination was, at its highest, just over 25%.   After FY 2006, the smallest percent pro se at termination was over 26% and averaged about 31%.  And, as Graph 5 shows – pretty dramatically – as the percent pro se goes up the oral argument rate generally goes down and as the percent pro se goes down the oral argument rate generally goes up.

Bottom line: the increase in the percentage of other private civil appeals that were prosecuted pro se may be a reason for the declining oral argument rates over time.

The other private civil appeals category is not the only one for which the percent pro se at termination has increased.  A much larger percentage of criminal appeals were pro se at termination starting in FY 2009.  The percentage of agency appeals that were pro se at termination jumped for a brief period between FY 2000 and FY 2002.  Another jump in the percent pro se began in FY 2012.  Why are more cases being prosecuted pro se?

This leads me to show one more graph:

Graph 6:

AttySalGraph

Attorney salaries were increasing over the 1998 to 2010 period, after which they leveled off.  As I mentioned above, oral argument rates in the Third Circuit have declined fairly steadily from about FY 1999 to about FY 2011, when they level off.

Coincidence?

 

What’s behind declining oral argument rates in the Third Circuit – Part I

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A paltry 10.4%.

The Administrative Office’s published oral argument rate for the Third Circuit for fiscal year 2015 will undoubted evoke commentary – much has been made of the Third Circuit’s relatively low rate for several years now. This is a bit of surprise: the Third Circuit has had relatively low oral argument rates for nearly 20 years. In fact, in 1997, it had the lowest rate of the 12 federal courts of appeal for which the Administrative Office publishes statistics – 29.6%. For many of the subsequent 19 years, only the Fourth Circuit’s, Eleventh Circuit’s or Fifth Circuit’s rates were lower than those of the Third Circuit. Bottom line: the Third Circuit’s FY 2015 oral argument rate is at the low end of the spectrum, but that is where the Third Circuit has historically been.

The Third Circuit’s rates have also been declining over time. But oral argument rates having been declining over time across all circuit courts. In FY 1997, for example, the highest oral argument rate was 64.9%. In FY 2012, the highest reported rate was 38.3%. Although it was back up to 56.4% for FY 2015, the last time any circuit court had a reported rate of over 60% was in FY 2003.

What’s going on? Are circuit courts simply more likely to decline to hear argument, or does something else explain the declines in reported rates over time?

Turns out the Administrative Office’s published oral argument rates have declined over time for several different reasons, some of which have nothing to do with what’s going on in the circuit courts.

First Reason:
The Administrative Office has changed how the denominator is defined.

For FY 1997, oral argument rates were computed as:

 The number of cases for which oral argument was heard    x 100
    The total number of cases terminated on the merits

Compare Table B-1 to Table S-1 (under the new numbering system, Table S-1 is now Table B-10) in the set of tables associated with the Administrative Office’s Judicial Business report for FY 1997. The total number of cases terminated on the merits did not include cases disposed of by consolidation or procedural terminations. See Table B-1. Thus, the reported percent in Table S-1 was the percent of all cases terminated on merits for which oral argument was heard. Simple enough.

But in 1998, the Administrative Office added significantly to the types of cases included in its “original proceedings” category. (Check the footnotes at the end of Table B-1 for FY 1998). It again changed the types of cases included in the “original proceedings” category in 2014 (to include “miscellaneous applications”).

These changes increased the size of the “total number of cases terminated on the merits” — i.e., the denominator in the formula used to calculate oral argument rates. Original proceedings are generally not cases that require oral argument, and so changes to the cases included in the original proceedings category substantially increased the denominator without causing a commensurate increase in the numerator. As a result, the reported percentages dropped.

The same effect, but for a different reason, occurred in FY 2012. Before FY 2012, terminations via a denial of a certificate of appealability were counted as procedural terminations. See, for example, Table B-5A for FY 2011. But since FY 2012, the Administrative Office has counted cases terminated through denial of a certificate of appealability as cases terminated on the merits. See Table B-5 for FY 2012. For the Third Circuit, this change added 334 cases to the denominator in FY 2012, again without causing a commensurate change in the numerator. Oral argument rates could be expected to decline for all circuit courts that regularly see a sizeable number of requests for a COA. (This may partly explain why, after FY 2012, the D.C. Circuit has consistently had the highest oral argument rate).

Second Reason:
The Administrative Office’s published rate is simply wrong.

This is does not explain much, but does show up in one year’s published rates in Table S-1: those for FY 2012. In that year, for whatever reason, the Administrative Office “forgot” to remove consolidated cases from the figure used as the denominator. As a result, for courts that had a sizeable number of consolidated cases in that year, the denominator was too high, making the published rate artificially low.

The effects of the Administrative Office’s errors and changes.

Removing all original proceedings cases (both those argued and not argued), all certificate of appealability cases after FY 2011, and all consolidated cases for FY 2012 allows figures for all years between FY 1997 and FY 2015 to be directly compared. The graph below shows the effect of these changes on rates for the Third Circuit:

Oral Arg Rates Over Time

As expected, the corrected rates are in all instances greater than the uncorrected rates (the blue line is above the red line throughout the period). Notably, the corrected rate for FY 2015 is 16.14% – still comparatively low, but not 10.4%.

The blue line still shows a general decline over time, suggesting that other forces are also work to reduce the oral argument rate. Possible reasons will be the focus of a future post.

Are some judges consistently less likely to err than others? Yes.

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Some believe that who the judge was in the trial court should have no influence on whether to appeal or how to prosecute an appeal. Others believe it makes all the difference in the world.  The numbers suggest it is a piece of information that should be considered, but not to the point of dictating filing, or not filing, a notice of appeal.

I’ve been looking at judges’ affirmance rates for several years now – some statistics and rankings are posted here, here, and here. Those tables show the percent of appeals over a three-year period in which the Third Circuit left the judgment or order intact, by judge. Appeals are defined by unique Court of Appeals case numbers; two consolidated appeals counts as two appeals, for example, even if they are disposed of in the same way in the same opinion.  If the Third Circuit for any reason vacated in any part or reversed in any part, the disposition counts as a “reversal”; if the Third Circuit affirmed or dismissed the appeal (leaving the judgment intact) the disposition counts as an “affirmance.” Using three-year periods helps deal with the fact that judges don’t hear the same number of cases every year and the fact that any judge can have a “bad” year in any given year. To be listed on any table, a judge had to have at least 10 appeals during the three-year period.

I now have enough data to look at how judges compare across four three-year periods: FY 2010-FY 2012, FY 2011 to FY 2013, FY 2012 to FY 2014, and FY 2013 to FY 2015.  If FY 2012 was a particularly good or bad year for a judge, the last period removes that fiscal year entirely.

Because to err is human, no one is likely to be able to sustain a 100% affirmance rate across a diverse set of cases over many years. (No district judge reflected in my data has been able to accomplish this; though one magistrate judge may be coming close). A judge’s affirmance rate is also likely to bounce around from year to year due to such things as caseload and the mix of cases on the judge’s docket.  For these reasons, I decided not to use some notion of an ideal (e.g., 100% affirmance, which would equate to a number 1 ranking) as the best way to compare judges’ experiences over time. Instead, I decided to use the percent affirmed across all judges (not just those having at least 10 appeals) for each three-year period.  The “global” percent affirmed for each of the four periods are:

FY 2010-FY 2012       86.05% (across 4,753 appeals)
FY 2011-FY 2013        85.92% (across 4,524 appeals)
FY 2012-FY 2014       86.73% (across 4,023 appeals)
FY 2013-FY 2015       85.71% (across 3,705 appeals).

With this information, I could see whether any judge had a greater-than-average affirmance rate across all four periods (as well as whether any judge had a lower-than-average affirmance rate across all periods). Looking at all four periods meant that judges who, for any reason, did not have at least 10 appeals in each period would not considered. Thus, for example, judges who assumed office after FY 2010 and judges who were elevated during FY 2010 were generally not considered. But judges who had numerous cases in the appeal pipeline when they resigned or retired could still be. Of the 105 judges who had more than 10 appeals in at least one period, only 78 had 10 or more appeals in each of the four periods.

There were 24 judges whose affirmance rates were consistently above average between FY 2010 and FY 2015:

  • District of Delaware:
    • Chief Judge Leonard P. Stark
  • District of New Jersey:
    • Chief Judge Jerome B. Simandle
    • Judge Robert B. Kugler
    • Judge Peter G. Sheridan
    • Senior Judge Mary L. Cooper
    • Senior Judge William H. Walls
  • Eastern District of Pennsylvania:
    • Judge Legrome D. Davis
    • Judge Paul S. Diamond
    • Judge Cynthia M. Rufe
    • Senior Judge Harvey Bartle, III
    • Senior Judge Mary A. McLaughlin
    • Senior Judge Thomas N. O’Neill, Jr.
    • Senior Judge John R. Padova
    • Senior Judge Eduardo C. Robreno
  • Middle District of Pennsylvania:
    • Chief Judge Christopher C. Conner
    • Judge Yvette Kane
    • Senior Judge William W. Caldwell
    • Senior Judge Richard P. Conaboy
    • Senior Judge Edwin M. Kosik
  • Western District of Pennsylvania:
    • Judge Nora Barry Fischer
    • Senior Judge Donetta W. Ambrose
    • Senior Judge Gustave Diamond
    • (Former) Judge Sean J. McLaughlin
  • District of Virgin Islands:
    • Senior Judge Raymond L. Finch

Here’s the information I used for all 105 judges – including the 11 judges with consistently lower-than-average affirmance rates: Judges’ Affirmance Rates Across Four Periods.

Results do not appear to be dictated by the number of appeals – though 100% affirmance rates were generally associated with fewer than 25 appeals, the affirmance rates of some judges listed above were based on over 80 appeals in a three-year period (e.g., Chief Judge Conner). Correlation coefficients in fact suggest a weak negative relationship between number of appeals and affirmance rates, with coefficients ranging from -.035 for FY 2010-FY 2012 to -.171 for FY 2013-2015.  I have yet to look into whether results depend on the nature of the cases appealed, but this may be more likely to explain the affirmance rates of magistrate judges.

Bottom line: No judge is infallible. But if you were before a judge with a track record of having greater-than-average affirmance rates, this may be something you’ll want to consider in reviewing the strength of your potential appeal and in fashioning your arguments on appeal.  You may have a particularly difficult road ahead.

The importance of following the Rules

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Once upon a time in a land far far away . . .

No Kardashians. No Barack Obama. An entire town’s population was not being sued. No pro se litigants. “This one could be interesting,” Alexis said to herself. Turns out she was right.

Alexis had spent the first month of her clerkship drafting per curiam opinions for appeals that involved issues no tougher than whether a district court properly dismissed a §1983 action against the Kardashians for the emotional and psychological strain that their reality television shows had allegedly caused the plaintiff. She couldn’t see how drafting such opinions was going to impress Judge Chamberlain Haller, the federal circuit judge for whom she worked.

The appeal that landed on her desk a few days ago was different. It involved a contract dispute between two corporations, and the defendant/appellant was challenging the district court’s grant of the plaintiff’s summary judgment motion. One of the appellant’s arguments had Alexis stumped.

“What the hell am I to do with this?” The question came out a bit louder than she expected.

“What’s the problem?”

Alexis looked up to see Peirce, one of her co-clerks, who had popped his head in her doorway. Peirce had spent the prior year clerking for a district court judge, and Judge Haller’s other clerks saw him as the go-to person when they had questions.

“I hope I’m missing something, because I don’t like how things are looking with this appeal. Do you have a minute?”

“Sure.”

“Here’s the problem. In its district court brief opposing summary judgment, the appellant made a contract-based argument in defense that it is now making on appeal. The appellant challenges the district court’s judgment in favor of the plaintiff, saying that the court was wrong to conclude that the appellant had abandoned the defense during a telephonic hearing on the summary judgment motion. The appellant says there is no record to support that conclusion and it wants us to reverse based on the contract-based argument. Given the contract’s language, it looks like the argument that was supposedly abandoned is pretty strong.”

“Then I read the appellee’s brief.” Alexis continued. “Not only does the appellee say that the hearing was recorded and that the transcript supports the district court’s abandonment conclusion, but also that we should deem the argument forfeited as a penalty for the appellant violating FRAP Rule 10. We’ve granted the appellee’s request to file a supplemental appendix that includes the hearing transcript.”

Peirce nodded as though he understood. “I’ve seen appeals lost before because someone didn’t follow the Rules – if the appellant doesn’t give the Court what it needs to do its review, what does it expect? What’s the appellant’s reaction to the appellee’s brief?”

“That it thought the hearing was off the record and didn’t know that it was recorded.”

“Doesn’t sound right if it was a summary judgment hearing. Did you check the district court’s docket?”

“There’s an entry that the hearing transcript was filed, but that was after the appellant had filed its brief in our court.”

“Is there an entry for the hearing itself?”

“Let me check – yeah – there’s a minute entry of the hearing, and . . . there’s a reporter’s name listed.”

“It seems like someone’s been incredibly sloppy. Do you get the sense that something else is up? That someone’s trying to pull one over on the court?”

“Based on my reading of the transcript, maybe – I don’t know. The appellant also says that now that we have the transcript, there’s no reason to penalize it for the Rule 10 violation.”

“What’s the standard of review for the abandonment of the defense?”

“Abuse of discretion.”

“So,” said Peirce, “let me get this straight. The appellant says the district court was wrong to conclude that a contract-based argument was abandoned during a hearing, but then doesn’t get the transcript of the hearing to support that position on appeal, even though Rule 10 says it has to do that. Instead, it just asserts that there’s no record to support that it abandoned its defense. The appellee proves that it was possible to get a transcript by doing so to support its counter-argument on appeal. The appellant now wants our court to accept its dubious explanation for why it didn’t get the transcript, ignore its Rule 10 violation, decide that the district court abused its discretion on the abandonment question, and decide the contract issue in its favor?”

“Well, when you put it that way, I think I know how I have to write up the opinion I’ve been asked to draft.”

*************

The above is based in part on the Third Circuit’s decision in Lehman Bros. Holdings, Inc. v. Gateway Funding Diversified Mortgage Servs., L.P., 785 F.3d 96 (3d Cir. 2015).  As Judge Hardiman began the court’s opinion, “This appeal presents us with an opportunity to emphasize the importance of following the rules.”