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Article: March 2013 Appellate Update—The Appellate Timetable

March 01, 2013
Business Litigation Reports

When faced with the prospect of an appeal, the most common question asked by clients, no matter whether they won or lost below, is “how long is the appeal going to take?” The most current data available from the Administrative Office of the United States Courts shows that the median time it takes in the United States Courts of Appeals to resolve an appeal is eleven months from the filing of the notice of appeal to final disposition. That simple figure, however, masks a number of differences between the regional circuits.

The Ninth Circuit, which has by far the largest docket of any of the circuits, has a median decision time from notice of appeal to disposition of nearly eighteen months. But the relationship between docket size and time to decide a case does not hold for all of the circuits. For example, the Sixth Circuit, which has just over a third of the docket size as the Ninth, has a median time of more than fifteen months to issue a disposition. The Second Circuit has a median decision time of just over a year, while the D.C. Circuit is a couple of months faster, having a median disposition time of approximately ten months. The Eighth Circuit is the fastest, with a median disposition time of under seven months.

Clients are often concerned more specifically in two sub-periods of the appellate process, the time from conclusion of briefing to oral argument, and the time from oral argument to final disposition. Again, there are differences between the circuits. For example, given the Sixth and Ninth Circuits take nine and eight months, respectively, to hold oral argument after receiving the final brief, while the median time from conclusion of briefing to oral argument in both the Second and D.C. Circuits is less than three months.

Interestingly, some of the circuits that are slower to hold oral argument after the conclusion of briefing are quicker in issuing a decision after holding oral argument. For example, while it may take the Ninth Circuit a median time of eight months to schedule oral argument, it takes only a month and a half (the third fastest in the country) to issue a decision. The Second Circuit, already speedy in scheduling oral argument following the conclusion of briefing, leads the circuits in the time between oral argument and decision, with a median rate of just a half month. It is important to note, however, that this median rate includes cases disposed of by summary order and cases disposed of by published decision; whereas the former often occurs within weeks of oral argument, the latter can take several months.

Data on the Federal Circuit is somewhat more sparse than data for the other circuits, but it suggests that the Federal Circuit’s median disposition time is in line with many of the other circuits, at just under ten months. This median time varies, however, depending upon the type of appeal. While an appeal from a district court takes nearly twelve months, an appeal from the International Trade Commission (ITC) takes over sixteen. Indeed, ITC cases have traditionally been among the slowest of cases at the Federal Circuit, suggesting that both the complexity and form of ITC cases causes the Federal Circuit to take its time disposing of such appeals.

Cases before the Supreme Court of the United States operate on an entirely different schedule. Although the certiorari-petition and merits-briefing phases of a Supreme Court case often can span two Terms, the Supreme Court almost always decides all cases argued in a given Term (which begins the first Monday in October) before the Court’s summer recess, which usually begins on the first day of July. With few exceptions, this tradition results in a firm deadline for the Court to issue all decisions from cases argued that Term by June 30. And while the Court normally takes, on average, slightly over three months from oral argument to issue a decision, that time varies directly on where a case appears in a Term. Thus, if a case is heard early in a Term, such as in October, it takes the Court nearly four months to issue a decision, whereas if a case is heard late in the Term, such as April, the Court’s average time to issue a decision is under two months. The data reveals that litigants who have their cases argued in October are also the parties who are most likely to have waited the longest, in contrast to those parties who have their cases argued in April.

The above figures for the circuits are, importantly, only median figures, and it is worth noting that several circuits provide the opportunity for litigants to request expedited treatment of their appeal. The local rules of many Circuits, including the Second, Ninth, and D.C. Circuits, allow parties to file formal motions to expedite an appeal, though these rules require a showing of some form of irreparable harm to justify such a motion.