“No matter how you slice it, the D.C. Circuit ranks last or almost last in nearly every category that measures workload.”
— Sen. Charles E. Grassley (R-Iowa), news release, June 3, 2013
Note: This is the first of two columns looking at the rhetoric concerning the debate over the D.C. Circuit. On Friday, we will look at the White House claim that its judicial nominees face unusual delays.
President Obama’s move this week to simultaneously nominate three judges for three vacancies on U.S. Court of Appeals for the District of Columbia Circuit has once again placed a focus on this court.
The D.C. Circuit is generally regarded as the second most important judicial body in the United States, after the Supreme Court. It is currently split between four Republican and four Democratic appointees, though six senior (semi-retired) judges also hear cases; all but one of the senior judges are Republican appointees.
The D.C. Circuit has a unique role in the judicial system because it oversees many cases concerning independent federal regulatory agencies, often without even an earlier stop at a lower-level federal court. The court also is considered a stepping stone for the Supreme Court, where four of the nine justices are alumni of the D.C. Circuit.
Republicans have argued that the court does not need its authorized level of 11 judges, making Obama’s nominations unnecessary. Grassley has some credibility on this issue because, during the George W. Bush administration, he led a successful effort to reduce the size of the D.C. Circuit from 12 to 11 active judges.
But we clearly have a case of dueling rhetoric here. White House spokesman Jay Carney has told reporters that “the caseload is higher now than it was in 2005 when some of the same Republican senators were arguing for the necessity of confirming President Bush’s nominees to that court.”
Grassley, in direct response to such statements, has claimed that “there were nearly 200 fewer appeals filed in the D.C. Circuit in 2012 than in 2005.” His staff also provided an impressive list of 20 different ways to measure workload, involving filed cases, pending cases and terminated cases, that they say shows the D.C. Circuit at or near the bottom of the appeals courts.
What do the data show? Are there different ways to slice them?
Let’s start with the basic data on the number of appeals filed in the D.C. Circuit, using the voluminous charts on the Web site of the Administrative Office of the United States Court. (We will mainly use data for fiscal years ending in September.) In 2005, 1,379 appeals commenced, compared to 1,193 appeals in 2012. That’s a decline of about 200 appeals filed, as Grassley noted.
Carney’s statistic, by contrast, comes from counting pending appeals. In March of 2005, there were 1,313 pending appeals, compared to 1,315 pending appeals in September of 2012. There are eight judges now, compared to nine or 10 (and briefly 11) judges in 2005, meaning there are now more cases pending per judge.
Grassley’s staff dismisses pending cases as less significant than either statistic involving filed or terminated cases — simply a “snapshot of the current backlog.” When the filed cases are divided by the number of judges, it works out to roughly the same number of cases per judge in 2012 as in 2005 — and less than half the average of appeals courts across the nation. (Of course, there were also fewer appeals filed in 2003, when there were eight judges, as in 2012, which changes the number back in the White House’s favor.)
Confused? You should be.
Russell Wheeler, an expert on the courts at the Brookings Institution, guided us through the wealth of statistics about court performance. The big problem, he said, is “we don’t know the answer to the question of how we compare these caseloads.”
Wheeler also said that filed cases, pending cases and terminated cases all provide useful information, but the meaning is not always clear. Pending appeals, for instance, “may represent a heavy workload or may represent an inefficient court that can’t clear its docket,” he said.
The raw numbers also don’t tell the whole story. Challenged by Grassley’s claim that the D.C. Circuit is last “no matter how you slice it,” we came up with two other measures that might shed more light on the D.C. Circuit’s workload.
As former Chief Judge Patricia Wald put it in an opinion article, “The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans’ lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more.”
One way to measure this is by looking at the data for “administrative appeals.”
In 2012, nearly 45 percent of those appeals at the D.C. Circuit involved administrative appeals concerning federal rules and regulations, which many experts say are highly complex and take more time to review.
By contrast, at the other circuits, virtually all of the administrative appeals involve immigration cases. Using the data in Table B-3, we found that in the other circuits, administrative appeals that did not involve immigration matters accounted for less than 3 percent of the appeals. (In some circuits, it was less than 1 percent.)
This demonstrates how unique and different the D.C. Circuit is, making direct comparisons with other circuits about its workload so difficult. Still, Grassley’s staff disputed the idea that all administrative appeals are inherently more difficult, because, they said, in many cases the judges simply defer to the agency’s judgment.
When one looks at another part of the data, appeal terminations on the merits, Grassley’s staff noted that just 108 cases in the D.C. Circuit in 2012 were administrative appeals. In part, that’s because the D.C. Circuit also disposes of more cases by consolidation than other circuits. (What does this mean? The judges could just be clearing the docket. Or they could be creating one big case from several cases.)
(Update: After an inquiry to people familiar with consolidations in the D.C. Circuit, Wheeler learned that it means cases are consolidated into one lead case. “D.C. Circuit's consolidated on the merits numbers for administrative agency appeals are high because it is common to see some agency rules challenged by a number of organizations,” he said. “The Court then consolidates all appeals raising the same issue and addresses it once, with all parties participating.”)
When we scrubbed the same data for the other circuits, removing immigration cases (using the highest average among the other circuits), the unique quality of the D.C. Circuit is shown:
Administrative appeals terminated on the merits, 2012
Another measure of the complexity of the cases are statistics on written opinions. The raw data suggest that judges on the D.C. Circuit write fewer opinions than judges on other appeals circuits. (This was one stat that Grassley staff sent us.) But Table S-3 shows that the D.C. Circuit produced a greater proportion of written, signed opinions on cases determined on the merits than most other circuits. Crunching the data, in which we remove cases disposed of by consolidation, we find this:
Percent of Published Opinions, 2012
DC: 41 percent
First: 37 percent
Second: 8 percent
Third: 10 percent
Fourth: 6 percent
Fifth: 9 percent
Sixth: 12 percent
Seventh: 39 percent
Eighth: 26 percent
Ninth: 8 percent
Tenth: 18 percent
Eleventh: 7 percent
Once again, the D.C. Circuit comes out on top. Here’s another wrinkle: The statistics only count opinions by active judges, not opinions by senior (semi-retired) judges. So if more judges were confirmed, we could assume the stats for the D.C. Circuit would improve even more. (Recall that the D.C. Circuit has six senior judges.)
Still, Wheeler noted, the meaning of these statistics are unclear. The higher percentage of published opinions “could mean a greater workload — more of its cases need to be explained in published opinions — or it could mean the judges have time on their hands, so they write proportionately more opinions.”
The Pinocchio Test
Just as judges can sometimes rely on certain precedents to write their opinions, the voluminous and detailed statistics on the appeals courts allows each side to pick and choose the stats that supports their position. The White House’s reliance on pending appeals is a bit tortured, given that other metrics come up with less favorable results .But the certainty in Grassley’s argument is particularly misplaced, given the unusual nature of the D.C. Circuit.
Grassley claimed that “no matter how you slice it,” the D.C. Circuit ranks last or almost last in just about every category that measures workload. But you can’t just assert that one appeals filing is equal to another — or that one set of statistics is better than another. Depending on the metrics, the D.C. Circuit could very well be in first place.
Check out our candidate Pinocchio Tracker