Tag Archives: court statistics

What’s behind declining oral argument rates in the Third Circuit – Part I

A paltry 10.4%.

The Administrative Office’s published oral argument rate for the Third Circuit for fiscal year 2015 will undoubted evoke commentary – much has been made of the Third Circuit’s relatively low rate for several years now. This is a bit of surprise: the Third Circuit has had relatively low oral argument rates for nearly 20 years. In fact, in 1997, it had the lowest rate of the 12 federal courts of appeal for which the Administrative Office publishes statistics – 29.6%. For many of the subsequent 19 years, only the Fourth Circuit’s, Eleventh Circuit’s or Fifth Circuit’s rates were lower than those of the Third Circuit. Bottom line: the Third Circuit’s FY 2015 oral argument rate is at the low end of the spectrum, but that is where the Third Circuit has historically been.

The Third Circuit’s rates have also been declining over time. But oral argument rates having been declining over time across all circuit courts. In FY 1997, for example, the highest oral argument rate was 64.9%. In FY 2012, the highest reported rate was 38.3%. Although it was back up to 56.4% for FY 2015, the last time any circuit court had a reported rate of over 60% was in FY 2003.

What’s going on? Are circuit courts simply more likely to decline to hear argument, or does something else explain the declines in reported rates over time?

Turns out the Administrative Office’s published oral argument rates have declined over time for several different reasons, some of which have nothing to do with what’s going on in the circuit courts.

First Reason:
The Administrative Office has changed how the denominator is defined.

For FY 1997, oral argument rates were computed as:

 The number of cases for which oral argument was heard    x 100
    The total number of cases terminated on the merits

Compare Table B-1 to Table S-1 (under the new numbering system, Table S-1 is now Table B-10) in the set of tables associated with the Administrative Office’s Judicial Business report for FY 1997. The total number of cases terminated on the merits did not include cases disposed of by consolidation or procedural terminations. See Table B-1. Thus, the reported percent in Table S-1 was the percent of all cases terminated on merits for which oral argument was heard. Simple enough.

But in 1998, the Administrative Office added significantly to the types of cases included in its “original proceedings” category. (Check the footnotes at the end of Table B-1 for FY 1998). It again changed the types of cases included in the “original proceedings” category in 2014 (to include “miscellaneous applications”).

These changes increased the size of the “total number of cases terminated on the merits” — i.e., the denominator in the formula used to calculate oral argument rates. Original proceedings are generally not cases that require oral argument, and so changes to the cases included in the original proceedings category substantially increased the denominator without causing a commensurate increase in the numerator. As a result, the reported percentages dropped.

The same effect, but for a different reason, occurred in FY 2012. Before FY 2012, terminations via a denial of a certificate of appealability were counted as procedural terminations. See, for example, Table B-5A for FY 2011. But since FY 2012, the Administrative Office has counted cases terminated through denial of a certificate of appealability as cases terminated on the merits. See Table B-5 for FY 2012. For the Third Circuit, this change added 334 cases to the denominator in FY 2012, again without causing a commensurate change in the numerator. Oral argument rates could be expected to decline for all circuit courts that regularly see a sizeable number of requests for a COA. (This may partly explain why, after FY 2012, the D.C. Circuit has consistently had the highest oral argument rate).

Second Reason:
The Administrative Office’s published rate is simply wrong.

This is does not explain much, but does show up in one year’s published rates in Table S-1: those for FY 2012. In that year, for whatever reason, the Administrative Office “forgot” to remove consolidated cases from the figure used as the denominator. As a result, for courts that had a sizeable number of consolidated cases in that year, the denominator was too high, making the published rate artificially low.

The effects of the Administrative Office’s errors and changes.

Removing all original proceedings cases (both those argued and not argued), all certificate of appealability cases after FY 2011, and all consolidated cases for FY 2012 allows figures for all years between FY 1997 and FY 2015 to be directly compared. The graph below shows the effect of these changes on rates for the Third Circuit:

Oral Arg Rates Over Time

As expected, the corrected rates are in all instances greater than the uncorrected rates (the blue line is above the red line throughout the period). Notably, the corrected rate for FY 2015 is 16.14% – still comparatively low, but not 10.4%.

The blue line still shows a general decline over time, suggesting that other forces are also work to reduce the oral argument rate. Possible reasons will be the focus of a future post.

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


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.

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

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).