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

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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.

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

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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).

Use a probability-of-success number that most closely matches your case

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My “other civil appeals” category is big – it includes all civil appeals other than bankruptcy appeals and prisoner petitions. A statistic that shows that for FY 2013, 81% of 642 “other civil appeals” in the Third Circuit ended in affirmance or dismissal is useful. But it would be more useful to have figures on the various types of cases within the broad category. In earlier posts, I presented the percentage affirmed or dismissed for my FY 2013 samples of employment cases (91.3%) and contract cases (78.57%). Here I present statistics for other types of civil case appeals.

Other Civil Rights cases (e.g., Section 1983 cases):

Number of cases in sample:    203                     Percent affirmed or dismissed: 86.2%

Labor cases (e.g., ERISA, FLSA, Labor/Management relations):

Number of cases in sample:     38                      Percent affirmed or dismissed: 78.9%

Social Security benefits cases:

Number of cases in sample:     16                      Percent affirmed or dismissed: 93.8%

Cases brought under other statutes (e.g., antitrust, securities, intellectual property, tax, consumer credit, RICO):

Number of cases in sample:  114                       Percent affirmed or dismissed: 63.1%

Tort cases:

Number of cases in sample:    87                       Percent affirmed or dismissed: 82.7%.

Percentages derived from smaller samples – like Social Security cases – are likely to be more susceptible to the mix of cases that the court decided in FY 2013. But the percentages do show quite a bit of variation, and suggest that using 81% may be overly optimistic (e.g., other civil rights cases) or overly pessimistic (other statutory cases).

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

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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.

Third Circuit judgments in a sample of civil appeals

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A few posts ago, I reported 81% as the share of “other civil appeals” in my sample that were affirmed or dismissed by the Third Circuit in FY 2013. See here. Because this percentage treats everything that is not an affirmance or a dismissal the same way, I thought I’d give some more detail on the Third Circuit’s judgments.

For FY 2013, I collected information on 642 Third Circuit appeals that fell within the “other civil appeal” category (i.e., they were not bankruptcy appeals or prisoner petitions). Of those 642 appeals, the Third Circuit:

Affirmed the district court’s judgment in 489 cases (or 76.17%);
Dismissed the appeal in 31 cases (or 4.83%);
Reversed the district court’s judgment in 36 cases (or 5.61%);
Reversed the district court’s judgment in part in 16 cases (or 2.49%);
Vacated the district court’s judgment in 41 cases (or 6.39%); and
Vacated the district court’s judgment in part in 29 cases (or 4.52%).

Reasons for the dismissals included a lack of jurisdiction (12 cases), the issues had become moot (8 cases), and failure to prosecute (or abandonment) (2 cases). I treated one denial of a petition for a writ of mandamus as a dismissal because the petitioner asked the Third Circuit to order the district court to reverse two interlocutory orders. The court dismissed 8 appeals under 28 U.S.C. § 1915 because the appellant’s challenge lacked an arguable basis in law.

If the dismissed appeals are removed from the total, the Third Circuit:

Affirmed the district court’s judgment in 80.03% of 611 cases;
Reversed the district court’s judgment in 5.89%;
Reversed the district court’s judgment in part in 2.62%;
Vacated the district court’s judgment in 6.71%; and
Vacated the district court’s judgment in part in 4.75%.