A Circuit-Level Component to District-Level Variation

Case assignment within a district court is essentially random, so disability appeals heard by each judge within a given district should have similar characteristics. Our findings suggest that factors beyond the preferences or idiosyncrasies of individual judges determine remand rates. A district’s placement within a particular circuit is one of these. Some district-level

differences result from differences in understandings of applicable law that prevail in the circuits, as well as the tone that circuits set for social security cases.468 _{The Seventh Circuit has earned a}

468 _{Krent & Morris, supra note 1 at 396 (doubting that case law alone determines circuit-level variations, and}

suggesting that circuit “culture” is important as well).

reputation for its pro-claimant tilt in recent years.469 _{Most of the districts within it have above-}

average remand rates, a pattern that surely reflects the influence of Seventh Circuit decisions. To provide a simple visual sense of circuit influence over district remand rates, Figure 3 plots the district-level remand rate on the vertical axis against the circuit to which each district belongs on the horizontal axis. Districts with more cases decided over our 2010-2013 period have circles with wider radii, indicating that they have more weight in the determination of the circuit-level remand rate. A horizontal line in the middle of the graph once again represents the district-level mean remand rate of 43.7%.

Figure 3

469 _{E.g., www.empirejustice.org/issue-areas/disability-benefits/litigation-legal-updates/court-decisions/seventh-}

circuit-decisions-too.html.

Notably, Figure 3 indicates that, for several circuits, all or nearly all districts cluster on one side of the mean. Virtually all districts in the Second, Seventh and Tenth circuits have remand rates above the mean, and most of the districts in the First Circuit also have above-mean remand rates. Nearly all the districts in the Fifth, Sixth and Eleventh Circuits have remand rates below the mean. Several circuits encompass districts with remand rates that are spread across the mean. This is so for the Third, Fourth, Eighth and Ninth Circuits. Thus, three types of circuits appear to exist: “high-remand” circuits (First, Second, Seventh and Tenth), “low- remand” circuits (Fifth, Sixth and Eleventh), and “broad-spread” circuits (Third, Fourth, Eighth and Ninth).470 _{The remand rates over all cases in each of these circuit groups were 36.9% for}

low-remand circuits, 45.0% for broad-spread circuits, and 58.2% for high-remand circuits. An equally striking observation concerns the location of the districts with top-5 and bottom-5 remand rates. Figure 3 indicates these districts with labels to the right of the points in the figure that represent their remand rates. Four of the five top-5 districts – the Southern and Eastern Districts of New York, the District of New Mexico, and the Eastern District of Oklahoma – are located in high-remand circuits. The other one is the Western District of Washington, which is located in the Ninth Circuit. Three of the five bottom-5 districts – the Southern District of Mississippi, the Eastern District of Kentucky, and the Western District of Texas – are located in low-remand circuits. The other two – the Southern District of West Virginia and the Eastern District of Arkansas – are located in broad-spread circuits.

470 _{This taxonomy differs somewhat from what one might have concluded based on results Professors Krent and}

Morris reported. For example, they indicate that cases in the First Circuit had the lowest remand rate of any circuit. Krent & Morris, supra note 1 at 395. We find that the First Circuit is a high-remand circuit. We suspect this

difference is the result of the fact that Krent & Morris gathered their data from Lexis searches, which, they note, might not have included all cases. Id. at 387. This is a commonly discussed challenge in using searches of Lexis or similar databases. See generally JOE S.CECIL ET AL.,FED.JUDICIAL CTR.,MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM AFTER IQBAL:REPORT TO THE JUDICIAL CONFERENCE 37 n.47 (2011), at

www.uscourts.gov/file/17889/download.

To measure the importance of circuit-level variation more systematically, we conducted a standard analysis of variance, focusing on circuits. This technique quantifies the share of

variance in the remand rate across districts that is attributable to (i) variation across circuits and (ii) variation within circuits. The results show that cross-circuit variance accounts for 45% of the variance in district-level remand rates.471 _{Thus, nearly half the variance in district-level remand}

rates is attributable to factors associated with a district’s circuit. This finding comports with our sense that circuit-specific differences in the law applied to district court appeals is likely to be important. We also have no reason to doubt the conclusion that Professors Krent and Morris make in their study, that circuits can influence district court decision-making through informal mechanisms such as the tone they set.472

The importance of circuit influence on remand rates has implications for evaluating the significance of district-level inconsistencies and identifying who is responsible for them. To the extent that Second Circuit precedent compels a district judge in Connecticut to rule in a

particular way,473 _{she cannot be blamed for an outcome that might come out differently had she}

been sitting in Florida and thus within the Eleventh Circuit. Courts of appeals, however, may deserve scrutiny for the degree to which they pursue (or fail to pursue) a goal of national uniformity in the elaboration of a federal legal regime. We return to this point in Part VI.