Tag Archives: Research posts

McKee’s early end to Third Circuit chief judgeship: collegiality over partisanship? [updated after speaking to Judge McKee]

When Third Circuit Judge Theodore McKee stepped down from his role as Chief Judge on October 1, he ended his chief judgeship early. Judge McKee’s term as chief would have run through 2017.

What’s the actual reason he stepped down early? I don’t know. The court’s press release didn’t mention that he was giving up his role before his term was over, let alone say why. And I don’t have any inside information. But I’ve got a theory.

[UPDATE: After I posted this, Judge McKee confirmed to me that my theory about why he stepped down early was “exactly dead on.”]

First, some background. Circuit-chief-judgeship-selection procedure is set by statute, 28 USC § 45. To become chief, you have to be under 65; your term runs for 7 years or until you turn 70, whichever comes first. McKee became chief in 2010 and was born in 1947, so his term was set to end in 2017.

Did he end early due to health? Because he wanted to scale back? Because he’s tired of the extra administrative role? I’ve seen nothing to support any of those hypotheses. The court’s press release says he’s not going senior, and his recent creation of the eyewitness-identification task force shows how comfortable he still was wielding the chief’s power.

But McKee’s decision to step down in 2016 had this clear consequence: it allowed Chief Judge Brooks Smith to become chief. Smith turns 65 in December, so, if McKee had served out his term into 2017, Smith would have been too old to become chief. Judge Michael Chagares would have been next in line, instead.

An aside: am I suggesting McKee gamed his retirement date to keep Chagares from succeeding him? No. Chagares will still be chief (assuming he remains on the court and wants to be chief). If Smith serves his full term, he will be chief until 2021 when he turns 70. In 2021 Chagares will be only 59, so he’d still be eligible to serve a full seven-year term.

So why did McKee step down early? My guess [now confirmed] is he did it simply so that Smith could have the honor of serving as circuit chief. Third Circuit collegiality, pure and simple.

Okay, so now let’s look at all this through a partisan lens. McKee’s decision to step down early is remarkable in this poisonously partisan era, and not just because he’s a liberal and Smith was nominated by President George W. Bush. Here’s how the circuit’s chief judgeship succession will now play out in the years ahead, assuming everyone stays on the court, serves as chief when eligible, and serves a full term:

2016 – 2021 Smith

2021 – 2028 Chagares

2028 – 2035 Hardiman

2035 – ? [to be determined — no judge who’s currently on the court]

So Republican-nominated judges can be chief until 2035, and likely longer than that if the next president is Republican.

Now, look at how the succession would have played out (same assumptions as above) had McKee served out his term:

2017 – 2024 Chagares

2024 – 2031 Hardiman

2031 – 2038 Krause

A Dem-appointed judge would have taken over in 2031, regardless who wins this November. GOP-nominated judges would have been able to be circuit chief for ‘only’ 14 years, not 19-plus.

Now, that’s all pretty deep in the weeds, obviously, but it demonstrates a basic point: McKee’s decision to step down early didn’t just benefit Smith, it also benefits Republicans. I doubt Judge McKee gave a damn.

If I’m right about all this [and I am], it shows that, even in 2016, there are still leaders who choose collegiality over partisanship.

What the 2016 presidential election means for the Third Circuit

Much has been written about how the upcoming presidential election will impact the U.S. Supreme Court, but the election’s impact on the circuit courts has gotten much less attention. Liberal advocacy group Alliance for Justice posted this useful analysis back in May, and Russell Wheeler’s excellent research on circuit vacancies, such as here and here, also sheds light on what the election means for the circuits. [Update: also Matthew Yglesias’s interesting piece on Vox.com here.]

With this post, I want to focus on what the election means for the composition of the Third Circuit.

The Third Circuit has 14 seats and currently has two openings: Judge Rendell’s seat since last summer, and Judge Fuentes’s seat since July. President Obama nominated Rebecca Haywood for the Rendell seat back in March, but that nomination appears stalled. Obama has not nominated anyone for the Fuentes seat yet.

In addition, the court currently has three judges who are eligible to assume senior status and thus create new openings: Chief Judge McKee and Judges Ambro and Fisher. McKee is 69 and his term as chief will end next month. Ambro is 66. Fisher is 71 and has been eligible to go senior since the first year of Obama’s presidency [CORRECTION: he became eligible in 2014]. A fourth, Judge Vanaskie, will become eligible to go senior during the next president’s first term. (So will Judge Smith, but he will become Chief instead.)

So there’s a realistic chance that the next president will get to fill 6 of 14 Third Circuit seats in her or his first term.

Obviously it would be fewer if any of the eligible judges choose to remain active past 65 (which isn’t unusual). Or it could be more if any other active judges left the court. (The most exciting way that would happen is if a Third Circuit judge were elevated to the Supreme Court. Candidate Trump included Judge Hardiman on his Scotus-nominee list, and Scotusblog and I have both mentioned Judge Krause as a possible Democratic-president nominee.)

Now, what does all that mean for the composition of the court? Well, of the court’s current 12 active judges, 7 were nominated by Democratic presidents and 5 were nominated by Republicans. If all 4 eligible judges go senior in the next president’s first term with no other changes, that would leave 4 Dem nominees and 4 GOP nominees. If the next president fills 6 seats in her/his first term, that’s a 10-4 party majority either way.

But, as I’ve observed before, nominating party is a far-from-perfect proxy for the ideology of Third Circuit judges. One day I’ll do a full-blown update my analysis of en banc outcomes, but for now I’ll focus on one observation: the court’s en banc cases in recent years reflect a court that is very evenly divided ideologically. Of the 9 en banc decisions since 2010 that I consider more ideological, the conservative side has won 5 and the liberal side has won 4. This week’s 8-7 vote in the Biderup felon-gun-rights en banc underscores just how evenly the court is divided.

I’d expect the court’s ideological center of gravity to shift somewhat to the left if Clinton wins, or to shift substantially to the right if Trump wins. Trump’s likely impact would be bigger because three of the four judges eligible to go senior are liberal or moderate Dem appointees, as were both of the judges whose seats are already open.

Bottom line, the upcoming election is likely to have a real impact on the Third Circuit, and if Trump wins that impact will be yuuuge.

Rendell’s role in Third Circuit en banc cases, and another look at whether the court uses en banc rehearing ideologically

I posted here about yesterday’s blockbuster capital-habeas en banc ruling in Dennis v. Secretary. Here are a couple thoughts on what Dennis can tell us about the dynamics of the court.

Rendell’s outsized role in en banc cases

Often en banc opinion assignments in the Third Circuit are just based on panel assignments — that is, if an en banc majority member wrote a panel opinion, then that judge normally writes the en banc majority opinion. But in Dennis no judge in the en banc majority was on the original panel, because all three panel members were en banc dissenters. So Chief Judge McKee (the ranking judge in the majority and thus the majority authorship assigner) had more latitude than usual in choosing who to assign the opinion to, and he picked Rendell. I see that as the latest sign of the great esteem in which she is held by her colleagues on the court.

Judge Rendell’s pivotal role in the current court’s en banc cases goes beyond yesterday’s case. The court has decided 4 en banc cases in the past 12 months (Lewis, Langbord, NCAA, and Dennis), and Rendell wrote the majority opinion in 3 of the 4! In the fourth, she wrote the dissent. Of the court’s 22 en banc cases decided since McKee became Chief in 2010, Rendell wrote for the court five times — more than any other judge — and wrote the lead dissent 4 other times — also more than any other judge.

Remarkable.

Outlier-panel correction, revisited

In my big en banc-analysis post in May of 2015, I wrote:

Don’t expect the en banc court to trump an outlier panel. In some other circuits, en banc rehearing is often granted when the court’s majority wants to wipe out a ruling from an ideologically unrepresentative panel (like when you draw a panel with two liberals in a majority-conservative circuit). If that sort of nakedly ideological use of en banc rehearing happens in the Third Circuit these days at all, it is rare. It may have happened in Katzin, where Greenaway and Smith went from panel majority to en banc dissenters in an ideologically charged case. But even Katzin involved an important novel issue, not a garden-variety instance of we-disagree-with-the-panel. So, as far as I can tell, the court is honoring its IOP 9.3.3 claim that it does “not ordinarily grant rehearing en banc when the panel’s statement of the law is correct and the uncontroverted issue is solely the application of the law to the circumstances of the case.”

Four en banc cases have been issued since I wrote that, and 3 of the 4 effectively reversed the panel outcome. More interestingly, 2 of them look like what I said is rare, en banc majorities trumping outlier panels:

In Lewis, a panel majority of two Republican-nominated judges (Fisher with Chagares) issued a conservative ruling* (holding a criminal-trial error harmless). The court granted rehearing en banc and issued a liberal ruling, with every Democratic-nominated judge in the majority and three Republican-nominated judges dissenting.
In Dennis, a panel of three Republican-nominated judges (Fisher with Smith and Chagares) issued a conservative ruling (denying capital habeas relief). The court granted rehearing en banc and issued a liberal ruling, with every Democratic-nominated judge in the majority and four Republican-nominated judges dissenting.

* I’m using “conservative ruling” in these two bullets as shorthand for “ruling whose outcome conservatives traditionally favor.” Same idea with “liberal.”

What happened in Lewis and Dennis bears watching, but I still doubt it’s the new normal. Consider the other two en banc cases decided in the past year:

Langbord split the court’s Democratic-nominated judges, with four of them in the majority and three dissenting.
NCAA voting broke down non-ideologically, with liberal and conservative judges all in the majority and only Fuentes and Vanaskie dissenting.

There will never be enough en banc cases to draw robust conclusions from them about the court’s dynamics. The tiny sample size makes it impossible to tell the meaningful trends from the statistical blips.

Still, for appellate nerds, it’s fun to try.

Senator Toomey is Blocking a Well-Qualified Judicial Nominee and Adding to the Lack of Gender Diversity in Our Judiciary

Note: I had the pleasure of co-authoring this post with Ellen C. Brotman, Chair of the White Collar and Government Investigations Practice at Griesing Law, LLC, a Philadelphia-based, woman-owned law firm. You can follow Ellen on Twitter @EllenBrotman.

Last month, the United States Court of Appeals for the Third Circuit held the swearing in of its latest judge, the Honorable L. Felipe Restrepo, a naturalized American citizen, born in Colombia, a graduate of the University of Pennsylvania and Tulane Law School. Judge Restrepo is a universally respected jurist and legal scholar who brings a diversity of background and training to the Court.

But despite this positive development, the Third Circuit still has a diversity problem: the Court has 13 active judges, and only two of them are women. That’s the lowest proportion of women of any federal appeals court in the country.

The Third Circuit’s shortage of women judges undermines both the public’s confidence in our justice system and the Court’s ability to tap into diverse perspectives in its deliberations. Yet, as part of a Republican effort to thwart President Obama’s judicial nominations, Pennsylvania’s Republican United States Senator Pat Toomey is currently blocking the nomination of a well-qualified woman, Rebecca Ross Haywood, to the Court. This partisan obstructionism has to stop.

The Third Circuit sits in Philadelphia and hears appeals from federal courts in Pennsylvania, New Jersey, Delaware, and the Virgin Islands. It is one of 12 regional federal circuit courts. Federal judges are nominated by the President, confirmed by the Senate, and serve for life. Once judges reach a certain age and number of years of service, they have the option of entering a sort of semi-retirement known as senior status. When a judge takes senior status, it creates an open seat on the court for a new active judge.

Nationwide, about a third of federal appellate judges are women. All but two other circuits have a proportion of women judges that’s twice as high as the Third Circuit’s; in three circuits, the proportion of women is three times greater. For example, the Eleventh Circuit — considered by many the most conservative circuit court in the country — has five women among its 11 active judges, or 45 percent.

Of course, it is encouraging that the Third Circuit is doing better when it comes to racial and ethnic diversity. The Court’s proportion of African American and Hispanic judges is above the national circuit-court average.

But those responsible for selecting judges should be doing everything they can to correct the Third Circuit’s shortage of women. After Judge Rendell took senior status a year ago, President Barack Obama nominated Rebecca Ross Haywood, the Chief of the Appellate Division in the United States Attorney’s Office in Pittsburgh, to fill Judge Rendell’s seat. AUSA Haywood has more experience as a federal prosecutor and appellate advocate than any recent Third Circuit appointee. And Haywood’s nomination is historic — she would be the Court’s first-ever African-American woman. The American Bar Association gave Haywood its highest rating, Unanimously Well Qualified. Yet Senator Toomey questions Haywood’s abilities and is using Senate procedural rules to block her nomination.

Why is gender diversity important? Aside from the importance of equally recognizing accomplishments and providing role models and exemplars, diverse perspectives lead to better decision making. One study found that women federal appellate judges are significantly more likely than men to rule in favor a party alleging discrimination. Just having women judges on the panel deciding a case has a significant impact on how the men judges on the panel rule, too: with a woman on the panel, the study found, men are significantly more likely to rule in in favor of a civil rights litigant. The recent scandal over misogynist and racist emails exchanged between Pennsylvania Supreme Court justices and attorneys here in Pennsylvania demonstrates how important a diverse bench is to the public’s ability to have confidence in justice system.

Just a decade ago, the Third Circuit had a solid contingent of women judges: Judge Delores Sloviter, Judge Jane Roth, Judge Marjorie Rendell, and Judge Maryanne Trump Barry. But, since 2006, all four women have taken senior status, and Judge Sloviter recently stopped hearing cases altogether. In that time, only two male Third Circuit judges went senior, and only two of the judges added since 2006 — Judge Patty Shwartz and Judge Cheryl Krause — are women. From 2000 and 2012, 10 new judges joined the Court: all 10 were men.

AUSA Haywood deserves the nomination because she has the acumen, the training, and the character. The Third Circuit deserves a judge with AUSA Haywood’s skills, wisdom and distinct perspective. Senator Toomey’s constituents deserve a representative who will stop playing politics with our justice system. It’s time to move AUSA Haywood’s nomination forward.

Third Circuit recusal procedure, the basics and beyond

Okay, quick show of hands — let’s see everyone who predicted that judicial recusal would ever be a national politics headline-grabber? Anybody?

First, there was a flurry of silly coverage about whether Judge Maryanne Trump Barry would recuse from the Bridgegate-disclosure appeal. Then the media tsunami about Donald Trump’s bashing a Hispanic district judge for not recusing from the Trump University case. All the sudden, judicial recusal is right up there with Game of Thrones and gorilla-enclosure practices amongst the key issues of our age that you’re expected to be able to discuss intelligently.

Fear not, I’m here to help.

The federal standard for judicial recusal is defined by statute, 28 USC § 455 (emphasis mine):

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

b) He shall also disqualify himself in the following circumstances:

1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

i) Is a party to the proceeding, or an officer, director, or trustee of a party;

ii) Is acting as a lawyer in the proceeding;

iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.

That’s all pretty clear (albeit sexistly worded). Third Circuit IOP 11.2.2 elaborates on what counts as a financial interest.

Another situation not specifically mentioned in § 455(b) is where an appellate judge presided over the same case in trial court or state court. This comes up whenever a new circuit judge used to be a district or magistrate judge — that was true of six of the last seven Third Circuit appointees, so this pops up a lot. Third Circuit local rule 26.1.2 addresses this situation, requiring the parties to notify the court whenever it applies.

Okay, so that’s the standard, but what is the procedure for raising grounds for recusal? Recusal can happen either on the judge’s own initiative or at the request of a party.

Judicial-initiated recusal in the Third Circuit is covered by the circuit IOP 11.1:

11.1.1 Before cases are sent to a panel, the clerk transmits copies of the docket sheets and disclosure statements to each judge who responds promptly informing the clerk of those cases in which the judge is recused.

11.1.2 Each judge may submit to the clerk in writing those circumstances which would generally require a recusal, including names of businesses in which the judge or family members have a financial interest, names of lawyer relatives whose names may appear as counsel in the appeals, and names of law firms on whose cases the judge does not sit.

Third Circuit judges’ standing recusal lists (the second paragraph in 11.1) are not available to the public. But in the past the Third Circuit released information about at least one individual judge’s recusal practices. Howard Bashman reported that in 2000 the court disclosed that Judge Rendell recused herself from all cases in which a party or its law firm contributed over $2500 to her then-husband Edward Rendell’s political campaign, unless waived by the parties, and from any case involving such a contribution of $2500 or less if any party objected. Bashman reported in 2001 that Rendell’s contribution-related-recusal policy was on the Third Circuit’s website, but I don’t find any notices related to specific judges’ recusal policies on the website today.

Also, then-Judge Alito’s CA3 standing recusal lists were released to the Senate during his Supreme Court confirmation proceedings. He stated that his list included cases involving his sister’s law firm and, for his first four years on the court but not thereafter, cases he’d handled as a U.S. Attorney. His hearing testimony also indicated he updated his standing list annually.

Information about financial interests that could cause a judge to recuse is available from the disclosure forms that all federal judges are required to file annually. Those forms are available here (2015 reports are here [UPDATE: unfortunately now they’re behind a paywall], a searchable database is ~~or at least was~~ here), and I’ve mentioned them on the blog here and here.

Also, judges occasionally pledge to recuse from certain cases during their confirmation proceedings. For example, Alito’s circuit-nomination Senate questionnaire reportedly pledged to recuse from cases he had prosecuted as U.S. Attorney or involving certain companies.

For recusal requests raised by a party, 28 USC § 144 applies:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

Whether recusal is initiated by the judge or by a party, either way a judge’s decision to recuse (or not to recuse) is normally not explained to the parties or the public. I’m not aware of any Third Circuit opinions where a judge explained his or her reasons for recusing or not recusing from a case (but I wouldn’t be surprised if it’s happened and I’ll update the post if anyone enlightens me). In a similar vein, there are Third Circuit cases about a district judge’s failure to recuse (notably US. v. Antar), but I don’t know of any about a circuit judge’s.

Not only do judges not explain why they recused, but in many cases no one outside the court will realize it happened. As indicated by IOP 11.1 quoted above, judge-initiated recusals normally occur long before the composition of the panel is disclosed to the parties. The recused judge is replaced on the panel, IOP 12.1, and the parties are none the wiser. But, at least for cases calendared by the court, it often will be apparent from the calendar when a judge may have recused from a specific case. If judges A, B, C comprise a panel deciding five cases submitted on a given day, but judges A, B, and D are the panel deciding another case, then it’s at least a good bet that judge C recused from the case D is hearing.

It’s easier to tell when judges have recused from considering a petition for rehearing en banc, because the order granting or denying rehearing en banc lists only the judges who participated, as I explained here. (But back in 2005 then-Chief Judge Scirica reportedly found frequent errors where recused judges were listed as participating; I don’t know how much such errors still occur.)

And I’ve also blogged here about a case decided earlier this year where the entire court apparently recused (due to one judge’s indirect financial stake in the case, as best I could tell [see John’s comment below]) and so the case was decided by a conflict panel of other-circuit judges.

So there you have it, recusal in all its glory. If I’ve overlooked anything, please post a comment or email me.

Trump’s judge-bashing, closer to home

Perhaps you’ve noticed Republican presidential candidate Donald Trump in the news lately. This week, the main storyline has been Trump’s criticism of the California federal district court judge presiding over a suit over Trump University. Here’s one story among gazillions.

Yesterday’s New York Times featured an article headlined, “A Biased Judge? Donald Trump Has Claimed It Before.” As a Third Circuit junkie, here’s the passage that jumped out at me:

Mr. Trump ridiculed a Pennsylvania judge appointed by President Jimmy Carter as “not his most brilliant appointment,” and wrote that the judge was “a willing accessory” to any crimes of convicts she had released from prison.

He does this despite his close ties to a federal judge, Maryanne Trump Barry, his sister.

What? A Pennsylvania judge appointed by Carter? Was he talking about Judge Sloviter? The article didn’t say.

So I went digging. It turns out he wasn’t talking about Sloviter, he was talking about EDPA Judge Norma Shapiro. The comments are from Trump’s 2000 book The America We Deserve. Trump argues we need judicial elections because “Criminals are often returned to society because of forgiving judges” and “When they hurt us, we need to make sure we can vote them out of the job.” He muses “what wonders a public vote would work on the career of Norma Shapiro,” then describes a 90’s case where she ordered prisoners released due to prison overcrowding. (Here’s one contemporary news story.) He called the ruling a “disaster” and “Shapiro’s jailbreak,” and said:

From 1998 to 1992, 20 percent of thugs arrested for killing cops were out on probation or parole. In my opinion, Judge Shapiro was a willing accessory to all those crimes.

Trump went on to write, “Unfortunately, there are plenty of Shapiros out there, which is one major reason why our streets are full of dangerous convicts.” Conclusion: “Clearly we don’t have too many people in prison. Quite the contrary.”

I have not seen any reporting at all on whether Trump still believes federal judges should be elected, and he has largely avoided discussing criminal-justice reform.

So, not Sloviter, but still extraordinary.

Guess which circuit holds the fewest oral arguments. (Hint: it’s the same one that issues the fewest published opinions.)

In the 12 months before September 30, 2014, the Third Circuit decided 2,402 cases. It heard oral argument in 238 of them, or 9.9% of its cases. The other 90.1% it decided without oral argument.

So what does that mean?

Well, the Third Circuit heard the fewest oral arguments in 2014 of any circuit. (The circuit-comparison stats all exclude the Federal Circuit.) The D.C. Circuit, which decided about a fifth as many cases, held more oral arguments. The Eighth Circuit, which decided a similar-but-smaller number of cases versus the Third Circuit, held 169 more oral arguments, or over 40% more. Even the Fourth Circuit, the only circuit that held oral argument in a (barely) lower percentage of its cases, held over 100 more arguments. When it comes to number of cases decided on the merits, the Third Circuit ranks 8th out of 12 circuits, middle-of-the-pack. Overall, the Third Circuit granted oral argument half as often as its sister circuits.

What about 2013? Same picture, even a little more extreme. In the year ending in 2013, the Third Circuit decided 2,715 cases and heard oral argument in 225, or 8.3%. Again, fewer oral arguments than any other circuit, and this time the Third Circuit had the lowest argument rate of any circuit.

[For 2015, the AOC hasn’t done the math yet. The raw numbers they’ve released for the 12 months before June 30, 2015 — the most recent data available — show the Third Circuit still holding the fewest oral arguments of any circuit, with an argument rate of 10.7%.]

Whoa, right? But there’s more.

Let’s look at how the Third Circuit’s argument numbers have changed over time. This graph shows the number of oral arguments the court has heard each of the past 17 years:

And here is the percentage of the court’s cases in which it heard argument over the same period:

That second graph shows that the plunge in oral arguments isn’t caused by a drop in the total number of cases. (To the contrary, the court is deciding on the merits 30% more cases per year compared to the late 90s.)

So it’s clear what we’re looking at isn’t any statistical blip: this is a robust trend, a historically significant transformation of the functioning of the court. The Third Circuit hears half as many oral arguments as it did a decade and half ago. A Third Circuit litigant around 2000 was three times more likely to get oral argument than she is today.

Startling.

Now, I’m not the first one to notice this trend. Howard Bashman wrote this column in the Legal Intelligencer — after a year (2011) when the court heard 82 more arguments than it did in 2014 — arguing that “the growing rarity of oral argument at the Third Circuit should be viewed with increasing concern.” He concluded:

It may require at least a bit more work from the Third Circuit’s judges to slightly relax their current extreme reluctance to grant oral argument, but I cannot help but think that the extra work would yield great benefits in the form of stronger rulings and more satisfied litigants who will know that, win or lose, their arguments have been heard.

As a CA3 practitioner myself, there have been a few times I’ve been disappointed when the Third Circuit decided a case of mine without argument, cases where I believed I had raised substantial appellate issues. But, since I started my practice in 2010, the Third Circuit has heard oral argument in 30% of my cases. So I can’t complain, I’ve actually been fortunate.

But there’s still more to the story.

I’ve blogged here before about how the circuit’s rates for published opinions have dropped and are the lowest in the country. So, how do recent oral argument rates and publication rates compare? Take a look:

Both curves are down from 2009, cratered in 2013, and rebounded a bit in 2014.

Curiously, the circuit’s reversal-rate curve is similar, too:

Coincidence? Or are the similar-looking argument and publication graphs related?

Back in 2011, former Third Circuit Judge Timothy Lewis wrote (the emphasis is mine):

There are some very practical consequences to leaving so many judicial openings unfilled, too, and they have to do with the court’s business. The district courts are the federal trial courts; the circuit courts are where appeals are heard. While the Supreme Court is the court of last resort in the federal system, it only takes a handful of cases each year. So a delay in confirming judges for these lower federal courts means that the business of justice is slowed. A court with two or three vacancies simply cannot meet the demand with the efficiency the parties deserve and that the rules and procedures mandate.

It’s natural to wonder if the plunging rates for argument and publication are related to the unconscionable delays in filling the seats vacated by Judges Sloviter and Scirica in 2013 — over a year before Judge Krause was commissioned, over 2.5 years before Judge Restrepo was. The court faces still a similar delay now, seven months and counting since Judge Rendell went senior, still waiting for a nominee.

As I noted above, the court is deciding 30% more merits cases now than it did in the late 90s — about 750 more per year — yet it hasn’t gotten a single new seat since 1990. When you take a busy court, jack up its caseload by 30%, add zero new judges, and drag your heels filling openings — well, at some point, as Judge Lewis said, there are consequences.

My hypothesis is that we’re looking at two consequences: fewer oral arguments and fewer published opinions. Now, these trends didn’t just appear in 2012 and they’re not limited to the Third Circuit. They could well be unrelated to caseloads and to each other. And the Third Circuit isn’t the only circuit struggling with vacancies. So I haven’t proven that hypothesis here.

But, if I am right, then the root of the problem here isn’t the court: it’s Congress.

[Notes: I’m grateful to top CA3 advocate Brett Sweitzer, among others, for raising my awareness of the oral argument drop at a recent forum of the Third Circuit Bar Association. The oral-argument data cited in this post are from AOC table B-10. The decided-cases data and the 6/30/2015 raw data come from B-1, reversal data come from B-5, and opinion-publishing data come from B-12.]

Third Circuit en banc procedure — the basics and beyond

There was lots of national news coverage of yesterday’s en banc rehearing grant in the New Jersey sports-betting case, and just about every story had an error or two. The Washington Post story originally said 10 to 12 judges would participate, then changed it to “at least 12,” and now it says “possibly 12 or more.” But it’s hard to blame reporters for being confused about en banc procedures — even experienced circuit practitioners can get stumped.

So, let’s first hit the basics:

What is en banc rehearing? Federal appeals courts almost always decide cases using three-judge panels. But in very rare instances, the court decides cases en banc. As I’ve noted, in recent years the Third Circuit has done so in roughly 1 out of every 1000 cases it decides. En banc means the entire court decides the case, but figuring out exactly what ‘the entire court’ means can get tricky. So …

Which judges participate in an en banc rehearing? (“Participate” means to vote on which side wins the case (affirm or reverse), not on whether to grant rehearing in the first place.) It’s math:

All of the active Third Circuit judges (right now there are 12; senior judges are not active judges)
Minus active judges who recuse (in NCAA 3 active judges are not participating)
Plus any senior Third Circuit judges who (a) sat on the original panel and (b) elected to participate in the en banc (in NCAA 2 senior judges are participating)

Senior Third Circuit judges who did not sit on the panel are not eligible to participate in the en banc, period. (Several other circuits allow this.) Visiting judges (judges who are not Third Circuit judges) are not eligible to participate in en banc rehearing, period, even if they did sit on the panel, IOP 9.5.3.

If rehearing en banc has been granted, how can you tell which judges are participating? How can you tell if active judges recused, or if senior judges on the panel opted in? The order granting rehearing en banc. It gives a list of judges, and that identifies the judges who are participating in the en banc rehearing of that case as of that date. (After this, subtractions would occur only if a judge leaves the court or belatedly recuses; additions would occur only if a judge joins the court before en banc oral argument).

Which judges get a vote on whether to grant en banc rehearing in the first place? It’s the same as who gets to participate except that no senior judges get to vote, even if they sat on the panel.

Okay, so much for the basics. Now, let’s look at some other potential sources of confusion. First, some issues about the vote on whether to grant rehearing:

What if there is a tie about whether to grant rehearing en banc? It takes a majority to grant rehearing, so a tie means rehearing en banc is denied. That in turn means a three-judge panel decides the appeal, so, if there already is a panel opinion, it remains in force.

Is en banc rehearing ever granted before there is a panel ruling? Yes. The court can grant rehearing en banc any time it wants, and it doesn’t have to wait for a party to ask. In cases where en banc rehearing is granted, it is not unusual in recent years for the Third Circuit to do so before the panel issues any opinion.

Which majority is required to grant rehearing en banc — all active judges, or only participating active judges? If judges recuse, does that reduce the number of votes needed to grant rehearing? Yes. 3d Cir. LAR 35.3 says, “For purposes of determining the majority number necessary to grant a petition for rehearing [see 28 USC 46(d)], all circuit judges currently in regular active service who are not disqualified will be counted.” (IOP 9.5.3 is to the same effect.) That means you only need a majority of non-disqualified judges. (But be aware that a very authoritative secondary source cites R. 35.3 to mean that the Third Circuit will not grant rehearing en banc unless a majority of active judges are not disqualified).

And here are some issues for cases where rehearing en banc has been granted:

If en banc rehearing is granted, what happens to the panel decision? It is vacated when rehearing is granted, so it’s like it never existed. En banc opinions often do not discuss prior panel opinions.

What if there is a tie by the en banc court about whether to affirm or reverse? An en banc tie leaves the district court’s ruling in place. It does not reinstate the panel opinion. It’s like the appeal never happened.

If a judge takes senior status while the en banc case is pending, does s/he still get a vote? Yes. If a judge voted on whether to grant rehearing en banc, that judge gets to participate in the entire rehearing even if s/he goes senior.

If a new judge joins the court while en banc rehearing is pending, does the judge get a vote? If this situation is addressed by the rules, I can’t find it, which is odd. This is a timely question, since it is very likely that Judge Restrepo will join the Court before either Chavez or NCAA are submitted, and possible he’ll be confirmed before Dennis or Langbord are decided (they were argued yesterday). I’ll update this answer if I’m able to find out more. Any commenter insight?

UPDATE: At least since 2010, new CA3 judges always participate in en banc cases if they are commissioned before the en banc oral argument (like Shwartz in Rojas and Caraballo-Rodriguez), but never if they are commissioned after oral argument (like Krause in Katzin and Flores-Mejia, like Shwartz in Quinn and Morrow, and like Vanaskie and Greenaway in Rigas and Puleo). So it’s a good bet that Restrepo will participate in Chavez (set for argument in February) and NCAA.

If all this makes your head spin, just be glad we’re not wading back into the recent thorny questions about how to tell the difference between an en banc plurality vs. a majority and whether it matters.

A closer look at the Third Circuit’s recent en banc cases

Can a middle-school student be punished for wearing an “I ♥ boobies” bracelet to school? Can a defendant be prosecuted using evidence from a GPS tracker that police hid on his car without a warrant? Can police take DNA samples from everyone they arrest? These are among the questions that have led the Third Circuit in recent years to rehear cases en banc.

Since Chief Judge McKee became chief in 2010, the Third Circuit has issued 18 en banc rulings (they’re all listed at the bottom of this post). Looking at the court as a whole, a couple things jump out at me:

18 cases in about 5 years isn’t many;
Of the 18 cases, 6 are criminal, 4 education (3 student speech, 1 due process), 2 immigration, 2 bankruptcy (both asbestos-related), 1 habeas, 1 class action, and 2 other civil cases. I expected more civil cases;
5 of the 18 rulings were unanimous;
In at least 5, the court’s decision to go en banc was sua sponte. In at least 6, en banc rehearing was granted before the panel ruled; and
Of the 6 criminal cases, the government won 5.

Interesting, right? But I wanted to see how much these 18 cases can tell us about the ideology of the court and its judges. En banc cases are an especially useful lens because (most) every active judge votes in every case, so we can compare votes much more directly than we can in panel cases. Can votes in 18 cases tell us anything meaningful about the court or the judges? I’m not sure. But I’ve crunched some numbers so you can decide for yourself what, if anything, it all means.

Here’s what I did. For each case, I classified one side–majority or dissent–as liberal, one as conservative. In my scoring, liberals side with criminal defendants, students, consumers, etc.; conservatives side with prosecutors, corporations, etc. (I omitted a unanimous bankruptcy case, Grossman’s, that I couldn’t classify). Then I tallied the votes to find each judge’s percentage of liberal votes.

But some of the cases seemed more telling ideologically than others. So also I picked out 6 cases from the 17 that presented the clearest ideological divide–cases where it was clearest to me that liberals and conservatives would favor different outcomes –and ran the numbers for those cases separately.

The results? With apologies to my smartphone readers, here is a table with how the judges voted in the 17 cases:

Liberal votes in blue, conservative in red. (Gray means the judge dissented in part, black means the judge wasn’t on the court yet, white means the judge did not sit, presumably due to recusal). The names of the 6 more ideological cases are bolded. Again, links to all these cases are at the bottom of this post.

Overall, the liberal side won 10 times and the conservative side won 7 times.

Now let’s interpret. Here is how I’d characterize the voting records in ideological terms — judges with similar voting records are listed on the same line, from liberal on the left to conservative on the right:

More liberal

McKee

Smith / Fuentes

Greenaway / Ambro

Rendell / Vanaskie / Jordan

Chagares / Fisher / Hardiman

More conservative

So, for example, the McKee-era en banc votes of Smith and Fuentes are more conservative than McKee and more liberal than Greenaway and Ambro, with Smith’s votes slightly more liberal than Fuentes’s.

Note that I’ve omitted Sloviter, Scirica, Barry, and Shwartz from this analysis. All were active for only part of this period, so their sample sizes were smaller. For what it’s worth, Sloviter’s profile was close to McKee, while Shwartz and Scirica were both close to Ambro.)

So–again, looking purely at votes in this body of cases–I’d describe the Third Circuit’s judges as 1 liberal (McKee), 4 moderates (Smith, Fuentes, Greenaway, Ambro, plus Shwartz so far), and 6 conservatives (Rendell, Vanaskie, Jordan, Fisher, Chagares, Hardiman). Krause has not voted in a decided en banc yet.

A few more thoughts on the ideology data:

The conservative judges were more predictable than the liberals. Chagares and Hardiman were the only two judges who never disagreed. And in the 6 most ideologically charged cases, 3 judges voted conservative every time, 0 voted liberal every time.
Smith’s moderately liberal en banc voting record is probably not what George W. expected; Vanaskie’s conservative record is probably not what Obama expected.
Rendell’s en banc votes do not align with her reputation. By my count, she voted with the conservatives more than half the time; and in the more ideologically charged cases, she voted with the conservatives two-thirds of the time.
Again, I’m not sure how much stock I put in the ideology analysis here. It’s a fairly small sample size, my choices about which side is liberal or conservative are debatable, and my choices about which cases are more ideological are debatable, too. Circuit judges regularly follow controlling precedent over their own policy preferences. En banc voting patterns may not match panel voting patterns. Bottom line, I think these numbers are interesting and suggestive, but far from definitive.

Anyway, so much for ideology. What does all of this mean for lawyers practicing in this circuit? Here are the conclusions I draw about Third Circuit en banc practice:

Don’t get your hopes up. The court grants rehearing en banc in about 1 decided case in 1000. Federal Appellate Practice‘s observation applies here: “filing a petition for rehearing is a little like buying a lottery ticket. It most often will prove a waste of time and money. But occasionally–and sometimes unpredictably–it will produce an enormous return.”
Your best hope for getting en banc rehearing might be to overrule a prior precedent. Of the last 6 CA3 en banc decisions, 4 overruled prior precedent. In 3 of those 4, the overruled precedent had made CA3 an outlier. Two other factors leading to recent en banc overrulings: subsequent CA3 and Supreme Court cases had eroded the precedent, and the precedent caused confusion and uneven results. The opinions provide a valuable roadmap for lawyers looking for effective arguments for en banc rehearing.
Don’t wait until after the panel has ruled to argue why the precedent should be overruled. Panels lack the power to overrule prior precedent, so you may be tempted to hold your arguments about overruling a case for your rehearing petition. But these cases show that’s a mistake. When the Third Circuit grants rehearing en banc to overrule a prior decision, it usually does so before the panel rules, per 3d Cir. IOP 5.5.4 (requiring internal circulation of all published and split-panel unpublished opinion drafts). Of the 6 cases I see where the court overruled a precedent, rehearing was granted before the panel had ruled in 5; only once since 2010 has the en banc court overruled a precedent after the panel had ruled.
Don’t expect the en banc court to trump an outlier panel. In some other circuits, en banc rehearing is often granted when the court’s majority wants to wipe out a ruling from an ideologically unrepresentative panel (like when you draw a panel with two liberals in a majority-conservative circuit). If that sort of nakedly ideological use of en banc rehearing happens in the Third Circuit these days at all, it is rare. It may have happened in Katzin, where Greenaway and Smith went from panel majority to en banc dissenters in an ideologically charged case. But even Katzin involved an important novel issue, not a garden-variety instance of we-disagree-with-the-panel. So, as far as I can tell, the court is honoring its IOP 9.3.3 claim that it does “not ordinarily grant rehearing en banc when the panel’s statement of the law is correct and the uncontroverted issue is solely the application of the law to the circumstances of the case.”

The 18 CA3 en banc cases since McKee became chief, from most recent to oldest, are:

US v. Caraballo-Rodriguez

Singer Mgt v. Milgram

Layshock v. Hermitage SD

US v. Blue Mountain SD

Sullivan v. DB Investments

In re Global Indus. Tech.

In re Grossman’s

US v. Rigas

Puleo v. Chase Bank

A closer look at reversal rates — habeas is the big news

The suddenly famous Ellen Brotman commented here yesterday that CA3’s 5% reversal rate was lower than previous years. Very true. Reversals are dropping, led by a freefall in CA3 habeas reversals. I’ve whipped up some quick graphs to illustrate.

First, CA3’s overall reversal rate over the last 13 years:

At first glance that looks like a steep, steady drop. But notice that two years — 2006 with its 28% reversal rate, and 2013 with 5.4% — are outliers. Eight of the 13 years fall between 9% and 12%.

Here are CA3’s reversal rates for the two largest categories of cases, criminal and private civil:

So civil reversals are dropping, while criminal reversals spiked in 2006* but have otherwise have held relatively stable. Bottom line: private civil and criminal appeals don’t explain the 2013 reversal-rate plunge.

To get the plunge, we need to look at prisoner post-conviction appeals.** Here there are two groups: 2255 petitions for federal convictions, and habeas corpus petitions for state convictions. The numbers are startling:

Look at that habeas relief rate, the red line. For 10 years 2002 to 2011, CA3 reversed over 12% of cases every year, peaking in 2011 at 16%. Then, the elevator shaft: 6% in 2012, 3% in 2013. That’s a historic shift happening before our eyes.

Now look at the blue line, which is post-conviction challenges to federal convictions. Except for 2009,* that’s been a fairly steady downward trend, but now “downward” has become “dream on, appellant.” CA3’s 0.8% reversal rate was the lowest of any circuit in 2013. In fact, it was the lowest one-year reversal rate of any circuit since 2004. Hard to believe.

Aside: what explains this abrupt drop in post-conviction reversals? Did district court judges suddenly get more perfect? Unlikely. Did a landmark case require appeals courts to defer more to district courts? Don’t think so. On the habeas side, there were two big 2011 decisions (Richter and Pinholster) that make it harder for courts to grant habeas relief (and another one last week); if district courts started denying everything in 2011 and CA3 started affirming them all when they arrived on appeal a year later, the drop in habeas relief would make sense. I haven’t found habeas relief-rate stats, so that’s only hypothesis, and it shouldn’t explain the 2255-reversal-rate drop. But I strongly suspect the difference is that CA3 is now affirming a lot of denials that, in past years, it would have reversed.

Anyway. So how does CA3 compare to its sister circuits? Here’s a comparison of CA3’s overall reversal rate vs. the rate for all circuits:

Until the last couple years, CA3 was reversing more often; not any more. Here are the criminal and private civil reversals, CA3 and for all circuits:

Nothing too startling. Other than 2006, criminal and civil reversals nationally have been steady. Here’s a comparison of CA3 habeas and 2255 reversal rates vs. all circuits**:

So habeas & 2255 reversals are dropping sharply nationwide. And CA3’s big habeas-reversal drop (red) brings it in line with the national average (green) after a decade of above-average reversing.

Update: I have more analysis of habeas reversal rates in other circuits here.

The source for all this data is here and here — the table I used is B-5, the lines I used are criminal, U.S. prisoner petitions (which I’ve called 2255), private prisoner petitions (which I’ve called habeas), and other private civil.

* I assume the first big CA3 reversal spike — criminal direct appeals in 2006 — is the result of Booker‘s holding in 2005 that Apprendi applies to the Sentencing Guidelines. I don’t know offhand what caused the second CA3 spike, for 2255 appeals in 2009; nationally, the 2255 reversal rate went down that year.

** Update: The available numbers defy precise answers, and the stats I’ve posted obscure some of the complexity. The stats I gave above for 2255 cases actually are the stats for all US prisoner petitions. That includes 2255s, but, it also includes prisoner civil rights and conditions cases; roughly, 2255s were about 84% of the category nationally. The same caveat applies to the habeas stats I gave; in 2013 habeas cases were about 55% of their category. (Source: 2013 table B-7). Bottom line, it’s no easy thing to pin down causes of the drop in reversals.

CA3blog

News & analysis of the United States Court of Appeals for the Third Circuit, by Matthew Stiegler