Category Archives: Probability of Success

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.

Labor appeals in the Third Circuit: Is your chance of any success less than 1 in 10 or closer to 1 in 4?

You represent plaintiffs in a Fair Labor Standards Act case.  Yesterday you received notice that the district court granted the defendant’s Rule 12(b)(6) motion and dismissed all your claims. Being a rational lawyer, you’ve set aside your feelings of anger and frustration and are looking for information on what the chances might be that the Third Circuit will reverse or vacate any part of the judgment on appeal.  You’d be happy with an outcome that allows you to proceed with at least some of your original claims.

The Administrative Office of the U.S. Court’s recently published statistics show you that in FY 2014, 8.7% of all “Other Private Civil” appeals were reversed. See Table B-5. Based on that number, it seems you have a less than a 1 in 10 chance.  Now you’re really depressed.

But all is not lost. First, the 8.7% figure does not reflect partial victories; appeals in which the judgment was reversed in part are included in the “Affirmed” column in the Administrative Office’s statistics.  (Check out the fine print at the bottom of Table B-5).  That means 8.7% may be an estimate of complete success, but it does not reflect partial success.

Second, the best that can be said about the cases that 8.7% is based on is that they do not include criminal cases, U.S. prisoner petitions, other U.S. civil cases, private prisoner petitions, bankruptcy cases, administrative agency appeals, or original proceedings. In short, Fair Labor Standards Act cases are in the category of “other private civil” cases, but so are antitrust, intellectual property, employment discrimination, tort, contract, and a host of other cases.

Using data I’ve collected, I’ve posted before some information on the percent of various types of civil-case appeals the Third Circuit affirmed or dismissed (and thus reflect, when subtracted from 100, the percentage of appeals in which the appellant gained some change in the district court’s judgment).  That information was only for FY 2013.  I now have similarly detailed information for FY 2010 through FY 2014, along with percentages across those five years.  Percent of Other Civil Appeals Affirmed or Dismissed, by Case Type and Fiscal Year. (This Table is also posted on the Statistics page, under “Third Circuit Statistics.”)  The numbers in the Table are far from ideal – they do not reflect, for example, the percent of judgments affirmed in Fair Labor Standards Act cases – but they are more useful than what’s generally available.

Within a case-type category (e.g., Tort), the figures in the Table bounce around a bit across years.  Because the bounces generally don’t reflect a trend up or down, I’ve computed a five-year figure as well (the last column) that shows the percent affirmed or dismissed across all appeals in the same category over the FY 2010 to FY 2014 period.

Fair Labor Standards Act cases are in the “Labor” category. Per-fiscal year figures for Labor cases range from a high of 82.2% in FY 2010 to a low of 63.3% in FY 2012.  In my FY 2014 data set, the judgment was affirmed or dismissed in 67.6% of Labor appeals.  Across the five years, the number is 74.2%.  So, my data suggest that the Third Circuit affirmed the district court’s judgment or dismissed the appeal in just over 74% of the Labor appeals it decided between FY 2010 and FY 2014.  That suggests a 1 in 4 chance of getting some sort of relief from the district court’s judgment.

To get a sense of how “low” this number is, look at the comparable overall percent for all “other civil appeals” – it’s 83.2%. In short, it appears that judgments in Labor cases have a much smaller chance of being affirmed or dismissed than most every other type of civil appeal reflected in the Table.  In fact, Labor appeals in my data set had the smallest percent affirmed or dismissed of all “other” civil cases for three of the five years shown.  That translates to a higher probability of success for the appellant.

Feeling any better now?


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


The Third Circuit is going to hear argument in my appeal. Does that mean I’m going to win?

I’ve heard it said that “The Third Circuit will not reverse without oral argument” and that “Getting oral argument means you’re likely to win.” Turns out neither statement is true. Appeals in which the court hears argument are more likely than others to end with some modification to the judgment being reviewed. The probability of winning the appeal, however, is not anywhere near 100%.

Using appeals from district court judgments or orders in civil and criminal cases and appeals from administrative agency decisions, I created three categories of appeals that the Third Circuit disposed of in FY 2013: (1) appeals submitted under Local Rule 27.4 for “possible summary action”; (2) appeals submitted under Local Rule 34.1(a) (briefed but not argued); and (3) argued appeals. Then I computed the percentage affirmed or dismissed for each group:

Rule 27.4:                        95.64%               (344 cases)
Rule 34.1(a):                    92.11%               (1,001 cases)
Argued:                            57.14%               (301 cases).

The court does not hear argument in Rule 27.4 or Rule 34.1(a) cases. And yet, some appeals submitted under those rules are reversed or vacated, either in whole or in part. So the Third Circuit does reverse or vacate without oral argument (albeit not often).

The percentage affirmed or dismissed is quite a bit lower for argued cases than for other cases – no doubt the persons uttering the statements above had a sense of that. But the majority of argued cases still end with the judgment or order being affirmed or the appeal being dismissed (often on jurisdictional grounds).

The same pattern emerges looking appeals disposed of in FY 2012:

Rule 27.4:                       97.35%                  (302 cases)
Rule 34.1(a):                   91.32%                  (1,083 cases)
Argued:                           61.00%                  (359 cases).

What can you take away from the above? For one thing, if your appeal makes it through to the point that you argue before the Third Circuit, you can revise your initial estimate of your probability of success based on the patterns reflected above. To an appellant, things might look more favorable; to an appellee not so much. Another takeaway is that the majority of argued cases still end with the judgment under review left intact.

Your Probability of Success Drops To Zero If You Miss Your Appeal Deadline

I’m sometimes surprised by the number of appeals that are dismissed simply because the appellant filed its notice of appeal too late. But then I remember that I was a law clerk for a federal appellate judge and spent a year checking – for every case I was assigned – whether the notice of appeal had been filed on time.

For civil cases in federal court, filing a notice of appeal after your applicable deadline – the deadline that is set within the confines of the rules – means the appellate court doesn’t have jurisdiction over the appeal, and it will be dismissed. You’re done – outta there. Need proof? Read Bowles v. Russell, 551 U.S. 205 (2007).

The general rule in federal courts is that you have 30 days “after entry of the judgment or order appealed from” to appeal; 60 if the United States, a United States agency, or a United States officer or employee sued in his official capacity is a party. Fed. R. App. P. 4(a)(1). This seems simple enough, but it’s made a whole lot more complicated by the operation of other rules and principles. The best way to deal with the situation is to use a checklist, or to have a list of questions to go through to figure out your deadline. Here’s a list that I’ve used for cases involving district court orders and judgments:

  • Is the order a “final order” – that is, is there anything that still needs to be decided? Have all claims against all parties been disposed of? [If the adverse decision is not a final order, the clock hasn’t started running yet.]
  • Are attorney fees and costs part of the damages being sought, or are they separate from those damages? [If separate, not having a decision on those fees and costs does not stop the clock from running.]
  • Is Federal Rule of Civil Procedure 58 applicable, and if so, does the order comply with that Rule? What does case law in the circuit say about what complies, and what does not comply, with Rule 58? [If Rule 58 applies, but the trial court’s order doesn’t comply with that Rule, the clock doesn’t start running for 150 days. Fed. R. App. P. 4(a)(7).]
  • Has anyone filed a motion under any of the rules in Fed. R. App. P. 4(a)(4)(A)? If so, has that motion been timely filed? [Generally, the motion will stop the clock from running only if it was timely filed. If, for example, a Rule 59 motion has been filed seeking a new trial, but it was filed outside the time limit for that Rule (28 days) the motion will not stop the clock from running.] Has there been a decision on the motion(s) that were timely filed? [The clock starts running on the date of entry of the order disposing of the motion. If more than one motion has been timely filed, the clock starts when the last motion is decided.]
  • If I have missed my deadline, can I still make use of Fed. R. App. P. 4(a)(5)? [It’s not a good idea to look at Rule 4(a)(5) as a safety net – showing “excusable neglect or good cause” in this context is not easy.]

You may also want to check out the checklists on the Eleventh Circuit’s website (under Forms/Documents). A number of state courts have jurisdictional checklists too.

One way to get a sense of how the Court of Appeals for the circuit you’re in handles cases that involve more than one rule operating at the same time (e.g., Rule 58 and Rule 59) is to read unpublished decisions. Often, they show how applicable deadlines can be missed (including how certain events can cause confusion); sometimes they also explain in detail how the rules apply to the particular facts at hand. See, for example, Washington v. Showalter, No. 10-3513 (3rd Cir., August 27, 2012)  and Cumberland Mutual Fire Ins. Co. v. Express Prods., Inc., No. 11-3919 (3rd Cir., June 24, 2013).