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

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.

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