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Wednesday, September 02, 2015

Median duration of appeal = 10.0 months

·      This is germane to the question of whether the Second Circuit will be in a position decide Brady vs. NFL prior to the end of the 2015 season. The losing side will likely have to file a motion to “expedite” the appeal. But even expedited appeals take time (see O’Bannon & Christie II).

Number of active judges = 13

·      This is important for rehearing en banc. A majority of the court’s active judges (e.g., not senior judges) determine whether to rehear en banc

When three-judge panel for case is identified = Thursday before oral argument

·      In the Second Circuit, panel members’ identities are disclosed at noon on
    Thursday of the week before the panel sits.

Rehearing En Banc is Rarely Granted = Less Than 3/100 of 1% of the Cases

·      The Federal Court Management Statistics published by the Administrative Office of the United States Courts confirm that the Second Circuit does indeed consider a far smaller percentage of its cases en banc than do the other regional circuits. (Source)

·      According to the official statistics, in the 11-year period from 2000 through 2010, the twelve regional circuits heard a total of more than 325,000 cases that were terminated on the merits after oral hearings or submissions on briefs. A total of 667 (as reported) to 670 cases (using our Second Circuit data) were heard en banc during that same 11-year period—a little over 2/10 of 1% of the total. (Source)

·       The average for the Second Circuit was about one-eighth that of the system-wide average: eight cases heard en banc out of a total of 27,856 appeals that were terminated on the merits, or less than 3/100 of 1% of the cases. (Source)

·       The court appears to have taken an even more restrictive approach to granting en banc review, as in the 11-year period from 2000 through 2010, the court heard only eight cases en banc—a decline from an average of about 1.2 cases per year from 1979 through 1993 to a rate of about 0.7 cases per year from 2000 through 2010. (Source)

·      Second Circuit Judge Robert A. Katzmann explains, in a concurring opinion in Riccio v. DeStefano, 53 F.3d 88, 89-90 (2d Cir. 2008), that “our Circuit [has] a “longstanding tradition of general deference to panel adjudication—a tradition which holds whether or not the judges of the Court agree with the panel’s disposition of the matter before it. Throughout [its] history, [the Court] ha[s] proceeded to a full hearing en banc only in rare and exceptional circumstances.” (Source)

·       Another explanation for the small number of cases heard en banc by the Second Circuit may be the informal procedure its judges follow of circulating cases to each other before issuance of a panel opinion in cases that might otherwise merit en banc review. (Source)

Second Circuit employs a “mini-en banc” procedure:

·      The Federal Court Management statistics, which reflect reports by the United States courts of appeals, show that the Second Circuit takes what appears to be a unique approach to en banc review among the regional courts of appeals.

·       The Second Circuit has, at times, made use of an informal “mini-en banc” procedure when issuing panel decisions that may conflict with prior panel opinions. These mini-en banc decisions state that the panel has circulated the opinion to all active judges prior to filing, and that no judge objected to the decision. (Source)

·       This “mini-en banc” process has been in effect informally for many years. As Judge Newman wrote in 1984, it is “not the normal practice in the Second Circuit” to circulate proposed panel opinions to non-panel judges, but it does occur from time to time:

·       The mini-en banc process does appear to serve some of the purposes underlying Rule 35, at least where there is unanimity among the active judges.

·       If every opinion that was subject to the mini-en banc procedure in the Second Circuit had instead been the subject of a full en banc rehearing, the Second Circuit’s en banc rates could approach those of some of the other circuits, depending on how one tabulates the number of en banc and mini-en banc cases in each circuit. (Source)

Rate of reversal in Second Circuit = below 10% for civil appeals

·      Most recent reported statistics are from June 2014

·      SeeTable B-5: U.S. Courts of Appeals—Decisions in Cases Terminated on the Merits, by Circuit and Nature of Proceeding, During the 12-Month Period Ending June 30, 2014”

-- Daniel Wallach


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