Tag Archives: summary action

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.

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.