How long will it take for my appeal to be decided?

The Ninth Circuit Edition

One of the most common unanswerable questions a client asks is “how long will it take for the court to decide the case?” I personally found it frustrating to have no answer to this question, so I decided to start calculating average decision times. A few months ago, I provided an answer to this question for the Oregon Supreme Court, and now I’m here to provide an answer for the Ninth Circuit.

Caveats

Before getting into the numbers, I want to explain my methodology.  I reviewed 110 Ninth Circuit opinions published over the last 90 days.  I didn’t look at any en banc opinions, orders on petitions for rehearing en banc, original proceedings, or complaints of judicial misconduct.  I only looked at three-judge panel opinions on appeal.

The size of this dataset likely suffers from some flaws. First, it only captured three months of opinions. At some point, I’ll want to add to it in order to get a more representative sample across the year.

I also want to flag that only 37 of the 52 judges on the Ninth Circuit authored opinions in my dataset (along with a few district court judges and judges on other circuit courts).  So, the dataset is limited in this way.  But, with a sample size of 110 opinions, I don’t anticipate that the topline number would drastically change if additional opinions are added.

The Topline Answer

The basic conclusion is this: it takes an average of 178 days for the Ninth Circuit to issue an opinion after the case has been submitted (either on the briefs or after oral argument).  That’s a little less than six months.

What about cases submitted on the briefs?

The Ninth Circuit sometimes decides cases without oral argument.  This is usually because the case is seen as more straightforward than other cases, and so oral argument isn’t expected to add much to the decision-making process.  For this reason, I assumed that removing these cases would lengthen the average time for opinion.

It did, but not by much.  Removing cases decided on the briefs increased the average to 187 days–i.e., it only adds 9 days.

If you look only at cases decided on the briefs, the average time from submission to decision is 97 days.  This cuts the decision time in half.  But, for this number, I only had a sample size of 12 opinions, and one was a three-page opinion issued on the day it was submitted.  So, I would take this number with a grain of salt.  It’s clear that submitting a case on the briefs cuts the time down, but it’s hard to definitively say that it cuts the time in half. 

What about narrowing the types of cases?

If we narrow the types of cases to civil alone, the average doesn’t change much.  It gets reduced to 170 days, which is still about six months. When you remove the civil cases decided on the briefs, this number goes up to 180 days.

If we look only at agency cases, the time increases to 214 days.  And when I removed the one case decided on the briefs, this number went up to 226 days. There were only 12 agency cases, so this sample size is also small. But this is enough to recognize that agency cases will likely take months longer to decide than civil cases (and this tracks with my personal experience clerking).

Looking only at criminal cases, the average drops to 128 days. There were 17 criminal cases, so I’m a bit more confident in this number, but it’s still a relatively small sample size. And this average stayed the same when I removed the three criminal cases decided on the briefs.

How much time do dissents and concurrences add?

If I remove all the opinions with dissents or concurrences, the average drops to 142 days.  That’s a bit more than a month shorter.  So, dissents and concurrences do add a significant amount of time. Unfortunately, it’s hard to predict whether a case will have a concurrence or dissent, so this doesn’t give much insight while you’re waiting for an opinion.

Conclusion

When a client asks how long it will take to get an opinion, you can refer to these numbers for a rough approximation.  On average, you can assume that your case will take about six months to be decided after submission at the Ninth Circuit.  If you have a criminal case, you can assume it will be be decided about a month faster than this.  If you have an agency case, add a month.  And if your case is decided on the briefs, you can assume it will be decided at least a month sooner.