FIFTH CIRCUIT COURT OF APPEALS CLERK OF COURT UPDATE LYLE CAYCE JUNE 6, 2014 AUSTIN, TEXAS AGENDA Circuit overview and judges Rule Changes, the EROA, and citation formats Advances in Court Technology and Practice Implications 2012 2013 Circuit Statistics Questions 1
FIFTH CIRCUIT S NINE DISTRICT COURTS Louisiana Districts: Eastern District, New Orleans Clerk: Bill Blevins Middle District, Baton Rouge Clerk: Nick Lorio Western District, Shreveport Clerk: Tony Moore FIFTH CIRCUIT S NINE DISTRICT COURTS Mississippi Districts: Northern District, Oxford Clerk: David Crews Southern District, Jackson Clerk: Arthur Johnston 2
FIFTH CIRCUIT S NINE DISTRICT COURTS Texas Districts: Eastern District, Tyler Clerk: David Maland Northern District, Dallas Clerk: Karen Mitchell Southern District, Houston Clerk: David Bradley Western District, San Antonio Clerk: William Putnicki FIFTH CIRCUIT JUDGES Currently 14 active (17 authorized) and 8 senior* judges Houston: Judges Reavley*, King*, DeMoss*, Jones, Smith, and Elrod San Antonio: Judges Garza* and Prado Austin: Judges Benavides*, Higginbotham*, and Owen Dallas: Judge Haynes Jackson: Judges Barksdale*, Graves, Jolly, and Southwick Shreveport: Chief Judge Stewart Lafayette: Judge Davis New Orleans: Judges Wiener*, Dennis, Clement, and Higginson 3
FRAP 28 (BRIEFS) AND 28.1 (CROSS APPEALS) CHANGES FRAP Rules 28 (Briefs) and 28.1 (Cross Appeals). Amendment requires a single statement of the case to include the relevant factual and procedural history as well as identify the rulings to be reviewed. No longer will an appellant s brief contain separate statements of the case and facts. We modified Fifth Circuit Rule 28.3(g) and (h) to conform to the FRAP 28 and 28.1 amendments. 5 TH CIRCUIT RULE 28.2.2 (Record References) Change This change requires every factual assertion to be supported by a reference to the page number of the original record, whether in paper or electronic form, where the matter is found, using the record citation form as directed by the Clerk of Court. Citation guidance at Form 7 of the Appendix to Rules and Internal Operating Procedures posted at http://www.ca5.uscourts.gov/clerk/docs/frap2007.pdf. 4
WHY THIS RULE CHANGE? In 2012, to avoid costs associated with paper ROA, the court approved a pilot program to determine whether some panels could decide appeals with an electronic record, rather than a paper record. We began to develop an electronic record on appeal. We previously fielded a program that automatically inserts hyperlinks into e filed pleadings, permitting a judge reviewing a brief on a computer or an electronic device to quickly access the cited legal authority using a preferred engine (Lexis or Westlaw.) WHY THIS RULE CHANGE? As we prepared for the EROA pilot program, judges asked us to modify our hyperlinking program to also provide links to the electronic record, from record citations in briefs. To provide hyperlinks to the record as requested, our computer program had to recognize citations and point judges to the correct page of the record. This required that a standard electronic record on appeal (EROA) and standard citations in briefs. 5
WHY THIS RULE CHANGE? After notice and comment, the court amended local rule 28.2.2 to require parties to cite to the EROA using a citation format that our program could recognize. Today, when attorneys file briefs with these formats, the computer program automatically inserts hyperlinks to the EROA, and a court user viewing the electronic copy of the brief immediately is directed to the particular page of the record when the user activates the hyperlink. TWO TYPES OF RECORDS ON APPEAL Before the pilot EROA program, the official record on appeal was the paper record prepared by the district court clerk. This record contained pagination that included USCA5 and a page number. Our court has under review many appeals with records using this pagination format. 6
TWO TYPES OF RECORDS ON APPEAL The EROA in appeals under the pilot program, however, uses a new pagination format, which contains the appellate case number followed by a period, then the page number. For example, 13 12345.121. Note that an appeal could contain both USCA5 and EROA pagination formats, when the district court holds supplemental proceedings. HOW TO CITE THESE DIFFERENT RECORDS (EROA VS. USCA5) Cite to the EROA (any record with pagination that includes the case number) using the new formats required by local rule 28.2.2. Do not use the new citation formats for records with USCA5 pagination. Instead, cite USCA5 and the page number, as appropriate. In a mixed record appeal, use the citation format for the type of record you reference. 7
HOW TO CITE THE EROA Single Record Cases ROA.123 Multiple Record ROA.13 12345.123 Agency Cases ROA.123 PERMISSIBLE EROA CITATIONS To specific lines on pages of the record: Single Record Cases " ROA," followed by a period, followed by the page number, followed by a colon, followed by the line number(s), as follows: ROA.143:22 24 or ROA.143:22 145:10 (to mean page 143 starting with line 22 and ending at page 145, line 10). For multiple record cases, line citation would be as follows: ROA.13 12345.143:22 24 or ROA.13 12345.143:22 145:10. 8
ADVANCES IN COURT TECHNOLOGY CIMS4iPAD DEMONSTRATION ipad app that provides judges all case related information, including docket entries, pleadings, and the record on appeal. Information can be stored on the judge s ipad to be available when there is no Wi Fi or cell connection. Application automatically loads appropriate data when the clerk assigns the appeal to a judge, and deletes data after the judge completes work. Application navigates from a hyperlink, to the reference material, and back to the brief. ADVANCES IN COURT TECHNOLOGY CIMS4iPAD DEMONSTRATION Application hyperlinks legal citations in briefs, permitting a judge to access the authority using the judge s preferred search engine. Application hyperlinks citations in briefs to the EROA, permitting a judge to immediately access the matter referenced in a brief. After reviewing hyperlinked matters, the application returns the judge seamlessly to the location of the hyperlink in the brief. 9
CIMS4iPAD DEMONSTRATION WHY DO YOU CARE IF A JUDGE IS USING THIS TECHNOLOGY? All judges receive paper briefs, but many judges use the ipad or computer to read briefs when preparing for oral argument. There are obvious differences between a judge reviewing a paper brief and reviewing a brief on a desktop computer or the ipad application. Does it matter to you that a judge may review an electronic copy of your brief, and can by a simple mouse click or screen touch immediately see your legal or record authority? 10
YOU SHOULD CARE, SO CONSIDER THESE MATTERS Use proper case citations so that our program will create good links. (We might find an improperly cited case, but.) Cite to the correct page of the EROA (the judge will know immediately if you have the wrong page!) OTHER MATTERS YOU MAY WANT TO CONSIDER Properly characterize the record. Make sure that the material actually says what you say it means. The judge will know immediately if you even inadvertently mischaracterize the record. Consider where you present the citation (in the body of the brief or in a footnote?) 11
Backup Slides 12
2012 2013 Fifth Circuit Court Term Statistics 1 July 2012 30 June 2013 U.S. COURTS OF APPEAL APPEALS COMMENCED, TERMINATED AND PENDING FILINGS TERMINATIONS PENDING CIRCUIT 2012 2013 PERCENT CHANGE 2012 2013 PERCENT CHANGE 2012 2013 PERCENT CHANGE DC 1,197 1,137 5.00 1,179 964 18.20 1,306 1,479 13.20 FIRST 1,618 1,562 3.50 1,558 1,528 1.90 1,310 1,344 2.60 SECOND 5,643 5,186 8.10 5,436 6,069 11.60 4,698 3,815 18.80 THIRD 3,771 3,859 2.30 3,897 3,886 0.30 2,370 2,343 1.10 FOURTH 4,907 5,064 3.20 5,280 5,079 3.80 2,396 2,381 0.60 FIFTH 7,626 7,401 3.00 7,339 7,451 1.50 4,765 4,715 1.00 SIXTH 4,829 5,088 5.40 5,418 5,593 3.20 4,443 3,938 11.40 SEVENTH 3,059 2,909 4.90 3,039 3,001 1.30 1,988 1,896 4.60 EIGHTH 3,046 2,943 3.40 2,966 2,916 1.70 1,503 1,530 1.80 NINTH 12,793 12,669 1.00 12,656 12,879 1.80 14,289 14,079 1.50 TENTH 2,237 2,125 5.00 2,169 2,232 2.90 1,448 1,341 7.40 ELEVENTH 6,973 6,417 8.00 6,335 6,936 9.50 4,013 3,494 12.90 TOTALS 57,699 56,360 2.30 57,272 58,534 2.20 44,529 42,355 4.90 NOTE: This Table does not include data for the U.S. Court of Appeals for the Federal Circuit 13
2008 2013 NEW APPEALS FILED **Texas District Courts are slightly above the Nation Average for Circuits. Texas Southern had the second most appeals of any district court in 2013. Only California Central District had more appeals. Texas Southern had more appeals than two circuit courts. 9000 8000 7000 6000 5000 4000 3000 2000 1000 0 New Appeals Filed 2008 2009 2010 2011 2012 2013 National Average 4950 4950 4675 4613 4808 4697 Circuit Total 7634 7415 7337 7537 7626 7458 TXDC Total 5044 4974 4767 5121 5077 4927 National Average Circuit Total TXDC Total 6000 TEXAS NEW APPEALS (2008 2013) 5000 4000 3000 2000 1000 0 2008 2009 2010 2011 2012 2013 Northern 1273 1339 1306 1338 1349 1335 Southern 1710 1675 1702 1850 1839 1714 Eastern 630 649 497 665 545 579 Western 1431 1311 1262 1268 1344 1299 TEXAS Total 5044 4974 4767 5121 5077 4927 Northern Southern Eastern Western TEXAS Total 14
NEW APPEALS PERCENTAGE BY STATE New Appeals 2012 New Appeals 2013 Other 8.3% MS 6.8% Other 8.7% MS 6.7% TX 66.1% LA 18.3% TX 66.6% LA 18.5% TX = 5077 LA = 1395 Other = 636 MS = 518 TX = 4927 LA = 1381 Other = 647 MS = 503 NEW APPEALS BY CASE TYPE Table 3-2013 New Appeals by Case Type BIA 5.4% Agency 0.9% Miscellaneous 0.8% Other 0.6% U.S. Civil 1.3% Bankruptcy 1.6% Civil Rights 7.5% Mandamus 0.5% Diversity 6.3% Federal Question 8.0% IFP Mandamus 1.3% Successive Habeas Corpus 6.6% Criminal 31.0% Prisoner Appeals 28.1% Criminal Prisoner Appeals Successive Habeas Corpus IFP Mandamus Federal Question Diversity Mandamus Civil Rights Bankruptcy U.S. Civil Other Agency BIA Miscellaneous 15
Cases Commenced STATISTICAL SNAPSHOT For the 12 month period which ended June 30, 2013 Merits Total Terminations Merits Procedural Merits After Terminations Terminations Terminations Oral Hearing on Briefs % Placed On Oral Argument Calendar % Reversed Criminal 2,318 579 1,886 243 1,390 12.9% 3.4% U.S. Prisoner Petitions 685 276 433 24 366 5.5% 2.8% Other U.S. Civil 191 88 97 39 51 40.2% 17.8% Private Prisoner Petitions 1,410 698 747 58 610 7.8% 4.2% Other Private Civil 1,560 660 779 354 260 45.4% 11.4% Bankruptcy 117 51 61 35 9 57.4% 13.6% Administrative Agency 487 247 215 29 160 13.5% 4.8% Original Proceedings (including successive habeas 633 166 468 3 453 0.6% 0.0% corpus and pro se mandamus petitions) Miscellaneous 57 5 45 0 45 0.0% 0.0% TOTAL 7,458 2,765 4,686 785 3,299 16.8% 5.4% Total Number of Published Total Number of Unpublished Number of Petitions for Panel Number of Panel Rehearings Number of Petitions for Rehearing Number Opinions Opinions Rehearing Granted En Banc Granted 369 2,643 290 17 229 6 TEXAS 237 1,908 193 7 149 1 CASE PROCESSING TIMES 2012 2013 Notice of Appeal to Filing of Last Brief: Last Brief to Hearing or Submission: Hearing to Final Disposition: Submission to Final Disposition Notice of Appeal to CA 5 Final Disposition: 5.8 Months 3.9 Months 1.3 Months 0.6 Months 9.7 Months 28% of all appeals are placed on the oral argument calendar, although some of these cases will later be decided without argument. The median time from filing of the Notice of Appeal to CA 5 final disposition in oral argument cases is 13.4 Months. 16
SCREENING CLASSIFICATION 5000 3548 4000 3000 2681 2934 2124 2999 3076 2886 2857 2215 2183 2055 2057 2000 1000 0 863 808 781 890 823 795 4 2 3 3 8 5 2008 2009 2010 2011 2012 2013 Class I and II Class III Class IV Total Screeners TEXAS 2013 1,533 506 4 2,043 4000 3778 NUMBER OF OPINIONS, PUBLISHED AND UNPUBLISHED 3500 3000 3297 3149 3210 3192 3024 3012 2500 2728 2810 2776 2654 2643 2000 1500 1000 500 481 421 400 416 370 369 0 2008 2009 2010 2011 2012 2013 Total Opinions Unpublished Published TEXAS 2013 2,145 1,908 237 17
TYPES OF OPINIONS 100 P E R C E N T A G E 90 80 70 60 50 40 30 87.1 85.7 86.9 86.8 86.8 86.8 20 10 0 12.2 13.5 12.8 12.7 12.4 12.5 0.7 0.8 0.3 0.5 0.8 0.7 2008 2009 2010 2011 2012 2013 Per Curiam Signed R.47.6 TEXAS 2013 1,885 247 13 R. 47.6 is affirmance without opinion. PETITIONS FOR CERTIORARI P E R C E N T A G E 45 40 35 30 25 20 15 10 5 0 38.2 25.2 26 23.5 22.7 23.7 2008 2009 2010 2011 2012 2013 TEXAS 2013 26.5% 568 Petitions Filed 2,145 Opinions Percentage of Petitions Filed to Opinions 18
NEW APPEALS BY DISTRICT 2013 647 503 1381 4927 2012 636 518 1395 5077 2011 2010 2009 573 508 660 544 664 565 1335 1366 1212 5121 4767 4974 Other Texas Mississippi Louisiana 2008 752 561 1277 5044 0 1000 2000 3000 4000 5000 6000 SUMMARY OF APPEALS COMMENCED, TERMINATED AND PENDING 10000 9000 8000 7000 7634 8594 7415 7337 7266 7625 7537 7801 7626 7403 7458 7501 6000 5000 4000 4883 5031 4744 4479 4772 4730 3000 2000 1000 0 2008 2009 2010 2011 2012 2013 Commenced Terminated Pending 19
UNASSIGNED CARRY OVER* Year Unassigned Cases New Appeals % Unassigned Cases to New Appeals 2008 4171 7634 54.6 2009 4324 7415 58.3 2010 3939 7337 53.7 2011 3643 7537 48.3 2012 3924 7626 51.4 2013 3727 7458 49.9 *Cases pending briefing, or briefed but not yet argued, or argued and not decided, are reported as Unassigned Carry-Over. SCREENING CLASSIFICATION Year I and II (No Argument) III (Limited Argument) IV (Full Argument) Total No. % No. % No. % No. % 2008 2681 75.6 863 24.3 4 0.1 3548 100 2009 2124 72.4 808 27.5 2 0.1 2934 100 2010 2215 73.9 781 26.0 3 0.1 2999 100 2011 2183 71.0 890 28.9 3 0.1 3076 100 2012 2055 71.2 823 28.5 8 0.3 2886 100 2013 2057 72.0 795 27.8 5 0.2 2857 100 TOTAL 13,315 72.8 4960 27.1 25 0.1 18,300 100 TEXAS 2013 1,533 75.0 506 24.8 4 0.2 2,043 20
SIGNED OPINIONS NUMBER AND PERCENTAGE Unpublished 16.2% Published = 315 Unpublished = 61 Published 83.8% PER CURIAM OPINIONS NUMBER AND PERCENTAGE Published 2.1% Unpublished 97.9% Published = 54 Unpublished = 2560 21
PERCENTAGE COMPARISON (PUBLISHED) 100 P E R C E N T A G E 90 80 70 60 50 40 30 87.3 86.2 85.2 84.4 81.3 83.8 20 10 12.7 13.4 12.5 13 12.2 12.2 0 1.6 2 1.8 2.7 2.5 2.1 2008 2009 2010 2011 2012 2013 Signed Per Curiam All Opinions LENGTH OF PUBLISHED OPINIONS 16 14.4 14 12 10 8 8.1 8.8 8.6 7.9 9.1 6 4 2 0 2008 2009 2010 2011 2012 2013 Average Page Length 22
MANDATES HELD Statistical Year Mandates Held Average Time Held in Days Rehg. Den. w/ Poll 2004 32 120 3 2005 26 131 7 2006 46 103 8 2007 32 170 2 2008 30 88 4 2009 21 101 2 2010 22 112 3 2011 32 85 5 2012 43 85 6 2013 54 73 5 GRAND TOTAL 338 107 45 COURT OF APPEALS FEE SCHEDULE INCREASES Fee Increase (28 USC 1913): The fee to file a Notice of Appeal (or Writ of Habeas) increased to $500 ($505 with fee to District Court) Petition for Review and Writ of Mandamus Fees also increased to $500 23