Notice & Comment

D.C. Circuit Review – Reviewed: A Quiet Week

It was a pretty quiet week at the D.C. Circuit this past week. No opinions (which is fairly typical for early fall), and not many arguments. Two days of sittings, three cases each, and only two of them were squarely in the admin law lane (three if you include a FOIA case). Which got me thinking, is the D.C. Circuit’s docket as overwhelmingly admin-law-focused as it is (sometimes) anecdotally described? Having nothing more pressing to report for this week’s D.C. Circuit Review post, I looked at the numbers.

I had to go back to the 2022 Judicial Business tables published by the Administrative Office of the U.S. Courts (covering FY22, i.e., October 1, 2021 through September 30, 2022), because the 2023 tables aren’t out yet. Looking at Table B-1, you’ll see that out of the 995 cases filed in the D.C. Circuit in that period, 331 were appeals from administrative agencies. Presuming that count includes only petitions for review filed directly in the court of appeals, we would have to add some share of the 277 “Other U.S. Civil cases” to get a comprehensive admin law number. Alas, even for the district court tables, APA actions aren’t broken out as a separate category. Therefore, we must use “appeals from administrative agencies” as an (undercounted) proxy for admin law cases. By that metric, the D.C. Circuit’s 2022 docket was about 33% admin law, compared to 12.6% for all courts of appeals. Unsurprisingly, that is the largest admin-agency-appeal share of any circuit; only the Ninth Circuit comes close, at 30.2%, (perhaps due to a heavy immigration docket?). The Second Circuit is in third place at 16.6%. So, the D.C. Circuit’s reputation as the preeminent admin law circuit is merited—but admin law isn’t perhaps the majority of what the court does (without a breakdown of the “other U.S. civil” count, it’s hard to know).

To throw another “gee whiz” number out there, Table B-5 tells you the percent of cases that were reversed, by type of appeal. Across all courts of appeals, 6.4% of administrative agency appeals resulted in reversals (in 2021-2022). The D.C. Circuit’s admin-agency-appeal reversal rate (13.2%) was higher than the aggregate rate but not the highest. Its reversal rate was fourth-highest, after the First (34.4%!), Eleventh (17.9%), and Seventh (16.2%).

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