The Future of Administrative Deference in Pennsylvania

By Brian J. Slipakoff and Joseph J. Pangaro

As Justice Neil Gorsuch’s confirmation hearings progressed in the early part of 2017, one of the most commonly discussed aspects of his legal background was his opposition to administrative deference. The legal profession will surely be watching to see whether the Supreme Court’s long standing position “that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer” will remain intact. Chevron, U.S.A., Inc. v. Nat. Resources Def. Council, Inc., 467 U.S. 837 (1984).  However, administrative deference is not simply a federal issue, and Pennsylvania’s view of the question is closely tied to the federal regime.  Continue reading The Future of Administrative Deference in Pennsylvania

How Long Will My Ninth Circuit Civil Appeal Take?

We hear that question frequently. Using the most recent statistics from the Administrative Office of the United States Courts published in its Judicial Business 2016 report for the fiscal year ending September 30, 2016, the median time from Appellee’s brief to oral argument in civil appeals terminated on the merits in the Ninth Circuit is 16.5 months, and from notice of appeal to decision is 25.5 months (and that is just the median time–half the appeals take longer.) (See Table B-4A.) This is the slowest of the circuits. The next slowest circuit—the DC Circuit—handles civil appeals in 3.8 months from Appellee’s brief to oral argument, and 11.7 months from notice of appeal to decision.

The Ninth Circuit is the largest circuit geographically, and it remains the busiest, with 13,152 cases pending as of December 31, 2016. The next busiest circuit—the Fifth—had 5,252 cases pending as of the same date.  But measured by matters terminated on the merits per active judge, the Ninth Circuit is very much in the middle of the circuits, with 488 merits-based terminations per judge through December 31, 2016. The circuit with the heaviest workload, using this same measurement, is the Eleventh Circuit, with 1,151 merits-based dispositions per judge. The lowest terminations per active judge is the DC Circuit, with 163.

The State of the California Appellate Courts and What It Means for Advocates

By: Heather U. Guerena and Theresa Langschultz

On April 17, the San Diego County Bar Association presented “The State of the Appellate Courts: A Joint Address,” featuring Administrative Presiding Justice Judith McConnell of the California Court of Appeal, Fourth Appellate District, and Circuit Judge M. Margaret McKeown of the Ninth Circuit Court of Appeals. Justice McConnell and Judge McKeown discussed multiple issues, but focused on: (1) the heavy workload in the Courts, and (2) the Courts’ work to foster civic education.

The California Court of Appeal, Fourth Appellate District and the Ninth Circuit Both Face Heavy Workloads.

Justice McConnell and Judge McKeown emphasized the California appellate courts face heavy workloads; however, the number of appeals filed in 2016 was less than 2015. The California Court of Appeal, Fourth Appellate District has three divisions: San Diego, Riverside, and Santa Ana. In 2016, The Fourth District received 1578 civil appeals, 1509 criminal appeals, and 682 dependency appeals. Of these three divisions, Riverside has the heaviest workload.

Judge McKeown noted the Ninth Circuit still handles far more cases than any other federal appeals court. As of December 31, 2016, the Ninth Circuit had 11,405 filed cases, 11,866 terminated cases, and 13,152 pending cases. By comparison, the First Circuit had just 1,573 filed cases, 1,443 terminated cases, and 1,482 pending cases, and the Fifth Circuit had 8,470 filed cases, 8,092 terminated cases, and 5,252 pending cases.

Where do the Ninth Circuit’s appeals come from? Interestingly, the greatest number of appeals come from the Central District of California, with approximately 1800 appeals per yet. Less than 500 appeals per year come from the Southern District of California. Of these appeals, a little less than half of them are filed by prisoners in civil rights cases.

Advocates should keep the heavy workloads of the Appellate Courts in mind to enhance their advocacy. While advocates may devote their undivided attention on a single case, the myriad of cases before the Courts means that they must address many cases at once. High workloads, especially in heavy filing districts, underscore the need for focused, concise briefs, which are tailored to the party’s issues. Each argument should be focused, and written in terms of the standard of review.

The Work to Foster Civic Education.

In addition to their heavy workloads, both the California Court of Appeal, Fourth Appellate District and the Ninth Circuit foster civic education.

Justice McConnell highlighted the importance of civic education to educate the public regarding the work of the Courts. This issue is especially important as the Legislature continues to give mandatory statutory preference to certain types of appeals by giving them expedited review, or implicitly giving trial-setting preference to certain types of actions. Expedited review may sound good in theory; however, the feasibility of such review can be difficult when there are judicial vacancies and a high volume of filings. It is imperative that our legislature and the general public understand the practicalities of drafting and reviewing an appeal properly.

Judge McKeown discussed the work of the Ninth Circuit in creating the Justice Anthony M. Kennedy Library and Learning Center. The Center is a hub of the federal judiciary’s civic education efforts. Just last month, the Center unveiled an online website: The new website provides a plethora of information about the Center’s educational programs for teachers and students and exhibits related to law and government.

In addition to the Justice Kennedy Library and Learning Center, the Ninth Circuit fosters civic education through public access. Every argument in the Ninth Circuit is live-streamed via the Court’s website, available at: C-SPAN has been given access to broadcast the oral argument in cases which, due to their popularity, may have high viewership which could overload the Court’s website. For instance, in February’s oral argument in Washington and Minnesota v. Trump, C-SPAN broadcasted the oral argument live (C-SPAN has since preserved the oral argument at Over 1.5 million people listened to the oral argument, confirming the importance of civic education and public access.

The Courts agree that access to appellate oral arguments is both an important civic education initiative and a useful tool for advocates. Novice practitioners can gain experience through live-streaming oral argument, while more seasoned advocates can follow cases which may affect their appeals.


Duane Morris Partner Rob Palumbos Appointed Vice Chair of the Appellate Court Procedural Rules Committee of the Supreme Court of Pennsylvania

Rob PalumbosDuane Morris congratulates partner Robert M. Palumbos on being appointed Vice Chair of the Appellate Court Procedural Rules Committee of the Supreme Court of Pennsylvania. The Appellate Court Procedural Rules Committee is responsible for making formal recommendations to the Supreme Court of Pennsylvania for refining and updating the rules of appellate procedure. Mr. Palumbos begins his term on June 30, 2017.

What Makes a Pennsylvania Superior Court Decision Non-Precedential?

By Andrew Sperl and Erica Fruiterman

In Carlitz v. Guse, No. 1370 MDA 2015 (Pa. Super. Apr. 4, 2017) the Superior Court recently issued a 49-page unpublished opinion affirming the lower court’s grant of a new trial. The new trial was originally granted on the basis that the plaintiff was prejudiced by defense counsel’s introduction of a new theory of causation in violation of a pre-trial order precluding that theory.

In deciding the matter, the majority crafted a 49-page opinion, to which the dissenting judge responded with a 12-page dissent, examining whether the new trial was warranted in light of defense counsel’s conduct. The crux of the appeal was whether the “new” theory introduced at trial was within the fair scope of the expert’s first report. These issues – the scope of related theories of causation, the proper remedy when a trial court fails to explicitly rule on whether an initial theory of causation encompasses a later related theory, and when attorney conduct constitutes prejudicial error warranting a new trial – are all factual issues that required extensive analysis by the court.

Given the infrequency with which cases go to trial and the even fewer number of those cases that are challenged on an abuse of discretion basis, relatively few cases like this receive appellate review. However, the Superior Court’s Internal Operating Procedures prohibit citation to unpublished decisions like Carlitz, even for persuasive value. A proposed amendment to the Rules of Appellate Procedure may change that.

On January 7th of this year, the Appellate Court Procedure Rules Committee sought comments on its proposal to amend Rule of Appellate Procedure 126. This amendment would create a uniform rule permitting citation to unpublished memorandum decisions of Pennsylvania’s appellate courts for their persuasive value. Currently, the Superior Court’s Internal Operating Procedures prohibit citation to that court’s unpublished opinions except in limited circumstances. 210 Pa. Code § 65.37. The Commonwealth Court permits citation to its unpublished opinions issued after January 15, 2008 “for [their] persuasive value, but not as binding precedent.” 210 Pa. Code § 69.414. The comments to the draft rule explain that only non-precedential decisions from the date the rule is adopted would be available for citation. The public comment window closed on February 9, 2017, and submission of the proposed amendment to the Supreme Court should soon follow.

In our common law system, judicial opinions are not just a byproduct of deciding an individual case. They also provide guidance to courts and litigants. In fact, it has even been argued that the Superior Court’s policy against allowing citation violates Article V, Section I of the Pennsylvania Constitution, which vests the Commonwealth’s judicial power in the courts (an argument the court rejected). See Schaaf v. Kaufman, 850 A.2d 655 (Pa. Super. 2004).

On the other hand, the Superior Court is one of the busiest in the nation, and its bar against citing unpublished opinions is motivated by, among other things, a concern that “[a]lthough the court give[s] every case the attention necessary to render a decision, [it] cannot draft each decision with as great of care. . . . [M]emorandum decisions are a useful, although admittedly not ideal, tool for deciding cases while maintaining control of our time and the development of the law.” Id. at 661.

The proposed rule change takes a reasonable approach by maintaining unpublished opinions as tools for the court to dispose of cases without precedential effect, while still allowing those decisions to be cited for their persuasive value. Allowing citation to unpublished opinions particularly makes sense where there is no restriction on litigants’ ability to cite other types of non-binding precedent (such as trial court cases from other jurisdictions), and where the court’s unpublished opinions are widely available online.

Supreme Court to Review Limitations on Appellate Extensions

The U.S. Supreme Court has granted certiorari in a case that will provide much needed clarity about the ability of district courts to extend appeal deadlines. The case, Hamer v. Neighborhood Housing Services of Chicago (No. 16-658), involves the interplay between 28 U.S.C. § 2107(c) and Federal Rule of Appellate Procedure 4(a)(5)(C). The Court will hear the case during its October 2017 term.

Section 2107(c) provides that district courts may extend the deadline to appeal “upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal.” Rule 4(a)(5)(C), however, provides that no extension “may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.”

In Hamer, the Seventh Circuit held that the district court lacked authority to grant a 60-day extension of an appeal deadline in response to a motion that was timely filed under 28 U.S.C. § 2107(c). Relying on the Supreme Court’s decision in Bowles v. Russell, 551 U.S. 205 (2007), the Seventh Circuit held that “Rule 4(a)(5)(C) is the vehicle by which § 2107(c) is employed and it limits a district court’s authority to extend the notice of appeal filing deadline to no more than an additional 30 days.” Because the notice of appeal was filed after the 30-day limitation in Rule 4(a)(5)(C), the Seventh Circuit dismissed.

In reaching that conclusion, the Seventh Circuit sided with the Second, Fourth, and Tenth Circuits, which had split with the D.C. and Ninth Circuits on the issue. The Supreme Court’s decision in Hamer should resolve the split and provide the bench and bar with much needed certainty about deadlines to appeal.

Government Abandons Prior Interpretation of 2006 Veterans Act in New Brief to the Supreme Court

In a brief filed with the Supreme Court on September 29, 2015 in the case Kingdomware Technologies, Inc. v. United States, 14-916, the government abandoned the restrictive interpretation of the 2006 Veterans Act that it pressed before the U.S. Court of Appeals for the Federal Circuit (background on the case may be found here). The 2006 Veterans Act requires that the VA prioritize competitive bidding by veteran-owned small businesses, but the VA has for years declined to follow that mandate to the full extent Congress required. In briefing before various courts, including the Supreme Court, the government had for several years (and as recently as May 1, 2015) contended that the VA was allowed to limit competitive bidding by veteran-owned small businesses for VA contracts, but the government has now – six weeks before oral argument before the Supreme Court – abandoned that position. Instead, the government now contends that VA “orders” that may be filled through the Federal Supply Schedule should be excluded from mandatory competitive bidding, while VA “contracts” should not. Continue reading Government Abandons Prior Interpretation of 2006 Veterans Act in New Brief to the Supreme Court

Duane Morris’ Robert L. Byer Named by Best Lawyers as “Lawyer of the Year” for 2016

Duane Morris is pleased to announce that partner  Robert L. Byer has been selected as the “Lawyer of the Year” in Pittsburgh Appellate Practice, an honor he previously received in 2011. Only one lawyer in each practice area and city is given this honor. Lawyers are selected based on high marks received during peer-review assessments conducted by Best Lawyers each year.

Mr. Byer is head of the Appellate division of Duane Morris’ Trial Practice Group. His appellate work and legal-issues litigation experience covers a wide variety of legal areas, including corporate governance, intellectual property, administration law, tax cases, Constitutional law, insurance coverage, contracts, professional liability, products liability and toxic torts.

Duane Morris Partner Paul Killion Appointed Chair of California State Bar’s Committee on Appellate Courts

Duane Morris partner Paul J. Killion of the firm’s San Francisco office has recently been appointed chair of the California State Bar’s Committee on Appellate Courts for the term commencing at the close of the 2015 State Bar Annual Meeting on October 11, 2015.

Killion is a Certified Appellate Specialist and practices in the area of complex civil litigation. He has argued or briefed over 100 appellate matters, including appeals, writs, petitions for review, merits briefing and amicus curiae briefing. He has handled a variety of litigation and appeals, including significant national experience in asbestos, pollution, toxic tort insurance coverage litigation and large personal injury claims. He has a broad range of appellate experience, with a particular focus on appeals from complex jury trials. Killion has appeared before all Districts of the California Courts of Appeal and before the California Supreme Court, as well as the Ninth and Tenth Circuits and the Supreme Courts of Washington and Oregon. He also represents clients as amici counsel in the California Supreme Court and Courts of Appeal.