The new AOC statistics are out. They’re a trove for appeals-nerds like me, and I’ll probably have a couple posts about them. First up: a look at the stats for published and unpublished decisions.
The big news? In 2014, for the second year in a row, no circuit issued fewer published opinions than the Third Circuit.
CA3 issued 177 published, signed opinions last year. The next lowest was CA2, with 210. So CA3 isn’t just the lowest, it is the lowest by over 15%. By contrast, there were 3 circuits that published over 500 opinions (CA7, CA8, and CA9). (All the 2014 data I’m using here is from report table B-12, which in prior years was S-3.)
Except for CA3, all the circuits fall into one of two categories: the ones like CA9 with lots of cases and a high unpublished-decision rate, and the ones like DC with fewer cases and a lower unpublished-decisions rate. CA3 is an outlier because it doesn’t have lots of cases relative to other circuits but still has a high unpublished rate.
Here are some numbers.
92.3% of CA3 dispositions were unpublished last year, which is slightly lower than CA4 and CA11 and only a little higher than CA6 and CA9. But these other circuits with high rates of unpublished dispositions all decide more cases. So, for example, even with a higher unpublished-cases rate, CA4 still issued 217 published opinions, 40 more than CA3 did.
Meanwhile, CA3 terminated a total of 2493 cases last year. That was more than five other circuits: DC (634), CA1 (942), CA7 (1902), CA8 (2348), and CA10 (1457). But all of those circuits issued unpublished decisions at far lower rates than CA3’s 92.3%: DC (54.1%), CA1 (64%), CA7 (63.4%), CA8 (75.2%), and CA10 (79.1%). And the other circuits joining CA3 above 90% unpublished all have a lot more cases than CA3’s 2493: CA2 (3111), CA4 (3787), CA5 (5203), CA6 (3460), CA9 (7515), CA11 (3999).
Interesting, no? But what’s the explanation? Is the reason for CA3’s low number of published opinions the judicial emergency?
Maybe. Recall, Sloviter and Scirica both went senior in the summer of 2013; Krause filled Sloviter’s seat last summer, while Scirica’s seat remains open with Restrepo’s nomination stiiiiiill pending. Do the numbers show a sudden drop in published opinions fitting that timeframe? Here:
Year — Number of published signed opinions — percentage unpublished
2009 — 245 — 89.3
2010 — 246 — 89.8
2011 — 214 — 90.9
2012 — 234 — 87.3
2013 — 163 — 93.8
2014 — 177 — 92.3
So CA3 has had low publishing numbers for a while, but things did get more extreme in 2013. And that holds true when you compare CA3 to other circuits: from 2009 to 2012, there were 2 or 3 circuits each year with fewer published opinions. In 2013 and 2014: zero.
So you could make a good case that the Third Circuit’s judicial emergency helps explain its recent low publishing numbers.