Tag Archives: Third Circuit

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.

Judges’ reversal (or affirmance) rates

For those who are curious about how judges in the Third Circuit compare to one another on their reversal rates and who don’t want to pay for that information, I offer this table. Percent Affirmed by Judge, FY2010-FY2013.

The table lists judges of district courts in the Third Circuit who had more than ten appeals from their judgments in either of two three-year periods (FY 2010 to FY 2012, and FY 2011 to FY 2013). Three-year periods were used to smooth out year-to-year variation and to ensure a reasonable number of appeals for most judges. The listing shows 91 judges for the first three-year period and 93 judges for the second. A total of 38 judges – mostly magistrate judges (MJ) – were omitted from the table because there were fewer than 10 appeals from their judgments in both periods. The percentages show the percent of appeals that end with the judgment on review left intact (either because it was affirmed in its entirety or because the appeal was dismissed). A sense of a reversal rate (or more accurately, the percentage of appeals ending with something other than an affirmance or a dismissal) can be found by subtracting the listed percentage from 100. Rankings were assigned based on reported percentages, with the same ranking given to judges with the same percentage (e.g., if two or more judges had a reported percentage of 100, they were each assigned a “1”). Rankings range from 1 to 78 in both periods.

To give the reported percentages some context: across the 4,753 appeals in the FY 2010 to FY 2012 period captured in my data, 86.05% of those appeals ended with either an affirmance of the judgment or a dismissal of the appeal. Across the 4,524 appeals in the FY 2010 to FY 2012 period, 85.92% ended with either an affirmance of the judgment or a dismissal of the appeal. These percentages include the appeals from judgments issued by all judges, both listed in the table and omitted due to having too few cases.

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.

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).