July 28, 2021 - Ninth Circuit Insights

The Ninth Quickens its Pace

A Ninth Circuit appeal is generally a long-term endeavor. The Court itself tells parties that the likely “time-to-argument”—i.e. the time between a filing a notice of appeal and the Court hearing oral argument—is between 12 and 20 months, and even that range may sometimes be optimistic. But in recent months, at least anecdotally, cases appear to be getting to oral argument more quickly than they have in the past.*

We wanted to put some numbers to this perceived trend. Long story short, it is real: in the last year and half, the median time-to-argument in the Ninth Circuit has decreased by nearly two months. The decline is even more dramatic among appeals in civil cases (a category that excludes criminal, prisoner, immigration, bankruptcy, tax, and agency appeals).

These numbers are based on our data set of every non-criminal, non-prisoner appeal resolved by a Ninth Circuit merits panel between January 2, 2020 and May 20, 2021. To gauge trends, we broke this data into three chronological chunks: cases decided in the first half of 2020 (through June 30), cases decided in the second half of 2020 (from July 1 to Dec. 28), and cases decided in 2021 through May 20.

Over the entire 18-month period, the median time-to-argument (TTA) was right in the middle of the Court’s suggested 12-20 month range: 480 days, or almost exactly 16 months. This number is lower for civil appeals, which had a median TTA of 446 days. It is significantly higher for the other types of cases in our data set (i.e., immigration, bankruptcy, tax, and agency): 669 days. Immigration cases move particularly slowly, taking 764 days to reach argument.

But things are also moving more quickly. For argued cases decided in the first six months of 2020, the median TTA was 512 days (around 17 months). The six months after that, it was 460 days. The trend continued in 2021: the median TTA for cases decided in 2021 was 447 days. That’s a difference of over two months in cases decided just a year apart.

This trend is even more pronounced for appeals in civil cases. For civil cases decided in the first six months of 2020, the median time-to-argument was 491 days (a little more than 16 months). This number fell to 436 days in the second half of that year. It then fell again in 2021, all the way down to 393 days (around 13 months). That’s right—on average, civil appeals in the Ninth Circuit are getting to argument three months faster than they were a year ago.

This tendency is generally consistent across the Ninth Circuit. Pasadena and San Francisco—where the majority of Ninth Circuit cases are heard (or at least scheduled to be heard)—each saw consistent decreases in TTA. In Pasadena, median TTA fell from 532.5 days, to 490 days, to 458 days, for a total decrease of 74.5 days. In San Francisco, it fell from 529 days, to 449.5 days, to 431.5 days, for a total decrease of 97.5 days (or over three months).

The trend is not entirely uniform. The story is murkier among non-civil appeals: TTA stood at 699 days for cases decided in the first six months of 2020, fell to 608 days in the next six months, but has since rebounded back to 687 in 2021. These figures could be in part the product of the greater variability in this category, which includes relatively quick-to-argument tax and bankruptcy cases, as well as the very slow immigration cases.

Likewise, the trend is not as clear among cases heard in the two other primary Ninth Circuit oral argument locations: Portland and Seattle. Time-to-argument for cases argued in Portland jumped from 447 days in the first half of 2020 up to 497 days in the second half, before falling back to 419.5 days in cases decided in 2021. And median TTA for cases heard in Seattle has actually increased slightly, going from 405.5 days and 399 days in the first and second halves of 2020 to 447 days for cases decided in 2021. This increase could represent a sort of regression to the mean: Seattle’s 2020 TTA figures were substantially lower than those of other argument locations, while its 2021 figure is right in line with those of San Francisco, Pasadena, and Portland.

Despite these variations in the data, the overall takeaway is clear: parties and advocates, particularly in civil appeals, aren’t having to wait quite as long to argue before the Ninth Circuit as they used to. If you’re interested in these breakdowns, the interactive graph on our Statistics page lets you play around with this data yourself—dig in and let us know if you spot any other interesting trends.

*Credit for the research and drafting for this post goes principally to Jackson Myers, who has since left us to clerk.