Category Archives: How long will my appeal take?

How long does a criminal appeal take in the Third Circuit?

An internet search of the question “how long does a federal criminal appeal take” reveals multiple blogs, articles, and yes, even YouTube videos that say “about a year,” “longer than what you’d expect,” “a long time,” among other such answers. I’ve posted statistics (see here and here) that suggest that in the last couple fiscal years, 50% of criminal cases the Third Circuit decided took about 12 months or less (from the date of docketing in the circuit court to the date of decision) and 75% of those cases took about 16 months or less.  Based on these statistics, a conservative estimate of how long a criminal appeal takes in the Third Circuit is 16 months.

But it stands to reason that not all criminal appeals are alike – an appeal after a jury trial and sentencing, for example, can be expected to take longer than an appeal from a denial of a motion to modify a sentence under 18 U.S.C. § 3582(c)(2).

Most, but not all, of the criminal appeals in my data sets are direct appeals from cases in which the defendant challenges his or her conviction, sentence or both. There are some direct appeals in which the government filed a cross appeal; other appeals were initiated solely by the government.  In my FY 2014 data set for the Third Circuit, I have:

  • 136 appeals from cases in which the defendant was convicted after a jury or bench trial (this includes 3 government-initiated cross appeals);
  • 115 appeals from cases in which the defendant was convicted after pleading guilty (this includes 5 government-initiated appeals);
  • 1 appeal from a case in which the defendant pleaded nolo contendere;
  • 15 cases returning to the Third Circuit after resentencing;
  • 28 appeals from revocations of supervised release;
  • 53 appeals seeking review of decisions on post direct-appeal motions and petitions (e.g., motions for a sentence reduction; Rule 36 motions; motions for return of forfeited property; petitions for a writ of coram nobis); and
  • 5 other cases seeking review of various “other” decisions. This is the group in which any government appeal of a grant of a motion to suppress or a motion to dismiss an indictment falls.

For appeals in the first group of 136 (conviction after trial):

25% of the appeals were decided within 11.07 months;
50% of the appeals were decided within 14.55 months (the median); and
75% of the appeals were decided within 18.73 months.

So these cases appear to take a bit longer than other criminal appeals (based on the 12 and 16 month figures above). This is confirmed by the following:

►Including the nolo contendere case in the group of appeals from cases in which the defendant pleaded guilty (for a total of 116 appeals):

25% of the appeals were decided within 9.03 months;
50% of the appeals were decided within 11.47 months (the median); and
75% of the appeals were decided within 15.07 months.

►The median time to decision for the 28 appeals from revocations of supervised release was 10.17 months; 75% of these cases were decided within 12.43 months;

►The median time to decision for the 53 appeals from post direct-appeal motions (which does not include habeas petitions) was 5.10 months; 75% of these appeals were decided within 10.32 months.

In short, how long a criminal appeal takes in the Third Circuit depends on the nature of proceeding leading up to the appeal. It can take a year and half in the case of appeals from jury trials, but if what is being challenged is a denial of a Rule 36, Rule 35, or other post-direct appeal motion or petition, the appeal can be decided in substantially less than a year.

New FY2014 Statistics

I finally have some basic statistics for FY 2014 (October 1, 2013 to September 30, 2014).  As before, the “cases” in the table below are appeals and petitions decided by the Third Circuit, with every unique docket number being treated as a case.  To enlarge the table, just click on it.

Compared to FY 2013, see here, statistics for FY 2014 show fewer cases (1,425 versus 1,718 in FY 2013) but generally about the same amount of time between docketing and disposition (e.g., the median for all cases in FY 2014 was 9.83 months, exactly the same as in FY 2013).  The percent of cases affirmed, dismissed or denied goes from a low of 72.22% (for bankruptcy appeals) to a high of 100% (for petitions for a writ of mandamus or prohibition).  This is a wider range than was found for FY 2013.

Third Circuit Opinions – Fiscal Year 2014

 

Moving for summary action under the Third Circuit’s Rule 27.4 may shorten time to disposition

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.

To appeal or not to appeal – an example using Third Circuit contract appeals.

Switching from the employment-case scenario of my last post, now let’s say you just learned that the district court judge granted the opposing party’s motion for summary judgment in a breach-of-contract case. As before, you’re still within the period you have to file a notice of appeal. My data has 84 contract-case appeals the Third Circuit decided in FY 2013.

A bit of background on those 84 cases: About a third of them involved insurance policies. In about 30% of the 84 cases, the claims were dismissed, usually under Rule 12. In another 39%, the district court granted summary judgment. Judgment was entered after a bench or jury trial in another 12%. These percentages don’t add up to 100 – other cases came to the Third Circuit after decisions on injunctions, Rule 60 motions, as well as other motions. Some other statistics:

Time to disposition:    First quartile – 9.12 months
Median – 11.57 months
Third quartile – 14.73 months

Percent affirmed or dismissed:                      78.57%.

Time to disposition is about what it is for “other civil cases” generally, and the percentage affirmed or dismissed is slightly smaller. See FY 2013 statistics here. The percentage affirmed or dismissed is a good deal smaller than the comparable percentage for my sample of employment cases, though contract-case appeals also appear to take longer. See here.

A quick way to get an idea of whether it makes sense to appeal from the district court’s summary judgment decision in the contract case is to apply the above percentage to what’s on the table. If, for example, $100,000 is at stake – this is what you’ll get (or get to keep) if you win the appeal – then an estimate of the “expected benefit” of the appeal is $21,430. From that, you’ll have to subtract attorney fees and other costs associated with the appeal that you will have to pay.

Why only $21,430? If 78.57% of decisions in contract cases are affirmed or dismissed, then 21.43% (100-78.57) can be taken as an estimate of the chance that there will be some meaningful change to the district court’s decision – either it’s reversed or vacated in whole, or reversed or vacated in part. If you lose the appeal, you’ll be out attorney fees and other costs you have to pay and you will gain nothing (you will still be faced with the adverse district court decision and what that means for what you’ll have to pay or do without). If you are looking at fees and costs likely totaling more than $21,430, then you’ll have a negative expected value of the appeal. Generally, this means you should not appeal.

Now, if there’s $1M at stake, the expected benefit would be $214,300, and, unless your attorney’s fees and other costs are more than that, you’ll be looking at a positive expected value of the appeal.

This expected value example is a simple one; it does not include all the factors that you should consider when deciding whether or not to appeal. But it may give you a good – and objective – starting point.

Should you appeal your employment case?

How can you use statistics like the ones published on this site to help you decide whether to appeal a court judgment? Let’s say you just learned that the district court judge granted the opposing party’s motion for summary judgment in the Title VII case in which you’re a party, and you’re still within the period you’re allowed to file a notice of appeal. Statistics can give you some idea of what might happen once your case is on review (hence the name of this site, by the way – Once Upon Review). The statistics I’m going to address here are:

For Civil Rights – Employment cases (N=92):

Time to disposition: First quartile – 6.99 months
Median – 9.55 months
Third quartile – 11.91 months

Percent affirmed or dismissed 91.30%

In FY 2013, the Third Circuit decided 92 cases brought under employment-related statutes (e.g., Title VII, the ADA, the ADEA). I’m not including in this discussion cases brought under Section 1983 that allege some constitutional violation in the context of an employment relationship (e.g., retaliation for exercising First Amendment rights).

Of the 92 cases, 57 ended with a decision on a summary judgment motion (about 62%). Another 19% ended with a dismissal, usually on a Rule 12(b)(6) motion. Eight cases were brought to the Third Circuit after a jury or bench trial. Yes, I’m going by the data that I collected here – the Administrative Office’s published information doesn’t include such details.

By the time of the Third Circuit’s decision, those 92 cases had been on the appellate court’s docket from 65 days (minimum) to 1,196 days (maximum). The median time between docketing and disposition was 290.5 days, or 9.55 months. So, 50% of the 92 cases were decided in about 9½ months. Other statistics show that 25% of the cases were decided in about 7 months and 75% of the cases were decided in just under a year (362.25 days or 11.91 months). So, one way of looking at the statistics above is that they suggest that if you do appeal, you can expect that you’ll have to wait 9½ to 12 months to get a decision on the merits of your employment case. Obviously, a lot of things can happen to bring your specific case either under or over that range, but that range is a probably a good starting estimate.

Now, what you’re probably most interested in is your chances of success on appeal. Taking things from a general perspective – without delving into the specific facts of your case – one indicator of your chances of success is how often the Third Circuit affirms the district court decision. From an appellant’s perspective this is usually a complete loss, and conversely, from an appellee’s perspective, it is a complete win.

In FY 2013, the Third Circuit affirmed or dismissed 91.30% of the 92 cases described above.

Yes, that’s a high number. Yes, that’s a quite a bit higher than the 81% percent listed in my prior post for “other civil cases” – the category that includes the 92 employment cases. And finally, yes, that number means that you could wait a year only for the Third Circuit to tell you that you lose.

What the percent affirmed number doesn’t tell you is whether your specific case is like the cases in which the Third Circuit affirmed or whether it is more like the cases in which the Third Circuit reversed, reversed in part, vacated, or vacated in part the district court’s judgment (the remaining 8.7%). If someone is advising you to appeal, however, a good question to ask that person is how your case is more like the cases in the 8.7%.