Percentage-Affirmed Statistics Over Time: Some lessons from four samples of employment-case appeals

Yes, I’ve gone back to my academic roots and inserted a colon in the title of this post.

I mentioned before that my data shows that the percentage of Third Circuit employment-case appeals that ended with either an affirmance or a dismissal was high – 91.3% to be exact. I don’t think that result comes about because something is wrong with my sample, but it could occur because of the type of cases that the Third Circuit decided in FY 2013. To see whether in other years a similarly high percentage of employment-case appeals ended with either an affirmance or dismissal, I checked what my data showed for FY 2010, FY 2011, and FY 2012. (No doubt you are thinking that I must have way too much time on my hands to read and code all those cases. But I do have a plan . . .).

First, the numbers. As before, the appeals are from employment cases brought under statutes such as Title VII, the ADEA, and the ADA. Each fiscal year begins on October 1 and ends on September 30. Thus, FY 2010 began on October 1, 2009 and ended on September 30, 2010.

FY 2010:           91 cases        85.71% affirmed or dismissed.

FY 2011:         129 cases        94.57% affirmed or dismissed.

FY 2012:           97 cases        90.72% affirmed or dismissed.

FY 2013:           92 cases        91.30% affirmed or dismissed.

Across the 409 employment cases (sum of all four years), the Third Circuit affirmed the district court’s judgment or dismissed the appeal in 372 – or 90.95%.

So now the lessons. The percentages do show some bounce – no doubt because the nature of the issues raised in the appeals can’t be expected to be exactly the same year to year. They do not by themselves suggest any trend – it may well be that both FY 2010 and FY 2011 were unusual (and thus are associated with the low and the high percentages, respectively) and that FY 2012 and FY 2013 are more the norm. If the percentage affirmed or dismissed is going to be used to decide whether or not to appeal in FY 2014 an adverse judgment in an employment case, 90.95% is probably a safer number to use.

Determining whether any of the above percentages is low or high requires a comparison to something. For that something, I took from my data all the “other civil appeals” the Third Circuit decided in the four years and calculated the percentage affirmed or dismissed for cases other than employment-case appeals. I got:

FY 2010:         650 cases        82.31% affirmed or dismissed.

FY 2011:         609 cases        81.28% affirmed or dismissed.

FY 2012:         546 cases        82.78% affirmed or dismissed.

FY 2013:         550 cases        79.27% affirmed or dismissed.

The number for FY 2013 is different from the number that I presented in an earlier post (see here) because the employment cases have been removed.

These percentages don’t bounce as much because they reflect a mix of a wide variety of cases (Section 1983 cases, CERCLA cases, antitrust, tort cases, contract cases, etc.). But a comparison shows that in every year, the affirmed-or-dismissed percentage for employment cases is higher than the percentage for other civil cases. This suggests that it is more difficult to get a district court judgment reversed or vacated – in whole or in part – when that judgment is in an employment case compared to another type of civil case.

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