The Third Circuit’s Local Rule 27.4 allows a party to “move for summary action affirming, enforcing, vacating, remanding, modifying, setting aside or reversing a judgment, decree or order, alleging that no substantial question is presented or that subsequent precedent or a change in circumstances warrants such action.” The Court can also list a case for summary action without a party’s motion. Motions under Local Rule 27.4 are supposed to be filed before the appellant’s brief is due (Local Rule 27.4(b)), so seeking summary action has the potential to shorten significantly the amount of time to disposition.
When I say significantly I mean a lot. Looking at appeals in my FY 2013 data set – civil cases, criminal cases, and appeals from administrative agency decisions – the median time to disposition for the 344 cases submitted under Rule 27.4 was just 3.94 months. Compare that to a median of 10.58 months for the 1,001 appeals that went through the entire briefing process but for which the merits panel did not hear argument (appeals submitted under Local Rule 34.1(a)), and a median of 14.47 months for the 301 cases that were argued in addition to being briefed.
Looking at the data another way, 75% of the 344 appeals submitted under Rule 27.4 were disposed of in 166 days, or 5.46 months. Twenty-five percent of the 1,001 appeals submitted under Rule 34.1(a) were disposed of in 250 days, or 8.22 months. Thus, it took less time to decide ¾ of the Rule 27.4 cases than it took to decide ¼ of the Rule 34.1(a) cases.
The numbers for FY 2013 are not unusual. Computing the same statistics for FY 2012 showed the same pattern: the median time to disposition for the 302 appeals submitted under Rule 27.4 was 3.06 months. For the 1,083 appeals submitted under Rule 34.1(a), the median time was 10.98 months. The median for the 359 cases that were argued was just over 15 months. The medians for FY 2011 Rule 24.7, 34.1(a) and argued cases were 4.17 months, 11.7 months and 16.97 months, respectively.
So, if you think you have a legitimate reason to argue that the appeal in which you are a party presents no substantial question, consider asking for summary action. It could shorten significantly the amount of time to disposition.