This article originally appeared in The Recorder on April 11, 2018.
In 2016, the average Ninth Circuit appeal took nearly 16 months to wind from the notice of appeal to a conclusion. Even meritless appeals that require little opinion-writing time can take a year or more to be processed by the court. The delay is made worse by the court’s seven judicial vacancies, with at least one more announced — nearly a quarter of the circuit’s allotment.
That can be a long time if you’re waiting for payment of a judgment, especially with the federal post-judgment interest rate hovering around just 2 percent. It can also be an expensive process if you need to retain high-end appellate counsel, which you’re wise to do if serious money or issues are at stake.
Most of the time, there’s nothing a civil litigant can do but grit teeth and see the process through to its end. But if you’re up against a clearly frivolous appeal, or the Supreme Court has just issued a decision that unquestionably conflicts with the trial court’s ruling, you may be able to hurry things along with a little-known and rarely employed technique: a motion for summary disposition.
The Federal Rules of Appellate Procedure don’t mention summary disposition motions. In the Ninth Circuit, they arise pursuant to Circuit Rule 3-6, which allows a party in a civil appeal to bring a motion to immediately resolve an appeal where (1) “clear error or an intervening court decision or recent legislation requires reversal” or remand, or (2) “it is manifest that the questions on which the decision in the appeal depends are so insubstantial as not to justify further proceedings.”
In other words, summary disposition is a possible avenue for relief where an appeal is so straightforward that the appellate court doesn’t really need to consider the record facts or any complicated arguments to reach the only possible result. In U.S. v. Hooton, the court explained that summary disposition is appropriate where it is “manifest that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument” and the “outcome of a case is beyond dispute.”
That high standard — not just that you should win, but that your opponents don’t have a gavel to stand on — is why summary disposition is granted relatively infrequently. In the Ninth Circuit, many summary dispositions involve petitions for appellate review in immigration cases, where an individual has been ordered removed and arguably seeks appellate relief to delay deportation rather than to bring a meritorious appeal. But other types of civil cases crop up too: in an appeal of an action unquestionably correctly dismissed on res judicata grounds, for example, or one in which a prisoner sought to sue judges who ruled against him based on the merits of their rulings. New on-point controlling precedent can justify summary disposition, but only if the precedent is truly indistinguishable from the case you’re litigating.
Under Circuit Rule 3-6, a summary disposition motion may be brought any time before briefing concludes, unless the issue raised involves a defect in the court’s jurisdiction, in which case it can be brought any time before an opinion is issued. The court will almost certainly not hold oral argument on the motion; if argument is necessary, the case is ipso facto inappropriate for this type of early resolution.
As with other Ninth Circuit motions, a request for summary disposition may not exceed 5,200 words and 20 pages, your opponent has 10 days to oppose with the same limits, and then you have seven days to file a reply no longer than 2,600 words and 10 pages. That’s a lot shorter than the 14,000 words permitted for a standard appellate brief. And in truth, a motion for summary disposition with a good chance of winning will max out well beneath the word limit — the whole point is that the issue is so simple the court doesn’t need to hear anything resembling a full appellate presentation.
The lack of oral argument and tightly constrained word limits mean that if the court grants summary disposition, it can save you months of delay and substantial legal fees. But you don’t want to bring a summary disposition motion unless you have a strong basis for doing so. Otherwise, you risk irritating the judges and jamming the court’s docket with yet another time-wasting filing. In a worst-case scenario, you could face judicial sanctions for bringing a frivolous motion.
Ultimately, while they won’t be appropriate most of the time, summary disposition motions are the kind of often overlooked tool that skilled Ninth Circuit appellate specialists should keep in their utility belts for just the right case.
Ben Feuer is chairman of the California Appellate Law Group LLP*, an appellate boutique with offices in San Francisco and Los Angeles. Ben handles business and civil appeals in California and the Ninth Circuit. He’s co-chair of the Appellate Section of the Bar Association of San Francisco and serves as an Appellate Lawyer Representative to the Ninth Circuit Judicial Conference. Ben’s bio is at www.calapplaw.com/ben, and you can email him at firstname.lastname@example.org.
On Appeals is a monthly column from the appellate lawyers of the California Appellate Law Group.
*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.
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