Tag Archives: Ninth Circuit

How Long Does a Ninth Circuit Civil Appeal Take?

So how long does a Ninth Circuit civil appeal take? Using the most recent statistics from the Administrative Office of the United States Courts published in its Judicial Business 2017 report for the fiscal year ending September 30, 2017, the median time from notice of appeal to decision in the Ninth Circuit was 22.8 months (and that is just the median time–half the appeals take longer.) (See Table B-4A to the report.) The next slowest circuit—the Third Circuit—handles civil appeals in just about the same length of time: 22.3 months from notice of appeal to final decision. (The Third Circuit’s disposition time is puzzling because it is usually closer to the median.) The 2017 median time from notice of appeal to decision across all Circuits is 12.1 months.

The Ninth Circuit is the largest circuit geographically, and it remains the busiest, with 11,096 appeals filed in the year ending September 30, 2017. The next busiest circuit—the Fifth—had 7,099 appeals filed in the same period. Measured by matters terminated on the merits per active judge and per panel, however, the Ninth Circuit ranked third among the circuits for the year ending September 30, 2017, with 463 merits-based terminations per judge and 771 per panel. The circuit with the heaviest workload, using this same measurement, is the Eleventh Circuit, with 762 merits-based dispositions per judge and 904 per panel. The lowest terminations per active judge is DC Circuit, with 137 per judge, and 131 per panel.

Ninth Circuit Concludes Cosmetology Students Are Not Employees of School

On December 18, 2017, the Ninth Circuit held in Benjamin v. B&H Education, Inc., F.3d, No. 15-17147, 2017 WL 6460087, that cosmetology students were not employees of their schools. In doing so, the Ninth Circuit joined the Second and Eleventh Circuits in adopting the primary beneficiary test to determine whether students are employees. The Benjamin case was the first to reach a decision from the Ninth Circuit and joined many other jurisdictions that had previously dismissed virtually identical cases (including a recent affirmance of summary judgment by the U.S. Court of Appeals for the Seventh Circuit).

The Benjamin plaintiffs were former students who alleged that under federal, California and Nevada law, they should have been paid wages as employees for the time they spent practicing skills in the schools’ clinic classroom and performing concierge duties (e.g., cleaning, sanitizing, greeting clients, recommending hair products, etc.). U.S. District Judge Vince Chhabria for the Northern District of California granted summary judgment for the school, holding that “Plaintiffs were not employees under federal or state law because Plaintiffs were the primary beneficiaries of the educational program and they had not shown that [the cosmetology school] subordinated the educational function of its clinics to its own profit-making purposes.” [Note: Duane Morris represented B&H Education in this case in the Northern District of California.]

To read the full text of this Alert, please visit the Duane Morris website.

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 Ninth Circuit’s Workload Shows

The Administrative Office of the United States Courts released its 2014 federal court statistics this month and it reveals some interesting aspects of the Ninth Circuit’s workload. Not only is the Ninth Circuit the largest circuit geographically, it remains by far the busiest, with 13,868 cases pending in 2014.  By contrast, the next busiest circuit—the Fifth—had 4,717 cases pending in 2014.  Based on these caseload statistics, it is not surprising  that appeals take longer in the Ninth Circuit than in the other Circuits.  As the statistics indicate, the Ninth Circuit’s median time from Appellee’s brief to oral argument in civil appeals is 13.6 months, and from notice of appeal to decision is 21.3 months (and  that is just the median time.)  By contrast, the next slowest circuit—the DC Circuit—handles civil appeals in 5.5 months from Appellee’s brief to oral argument, and 12.7 months from NOA to decision.