Appellate judges as gatekeepers? An investigation of threshold decisions in the federal courts of appeals.

• Author: Kaheny, Erin B.

1. INTRODUCTION

   Although litigants may take their claims to court, full merits consideration of those claims may or may not be provided. Judges, for example, might find that a litigant lacks standing to sue or that a claim was presented too early or too late for adjudication. They might conclude that the litigant failed to exhaust administrative remedies prior to seeking judicial resolution of a legal question or that the court lacks jurisdiction to decide the matter. These and other similar decisions are based on a group of threshold rules that are frequently raised in litigation which, when applied, might lead a judge to forego reaching the merits of a claim. Thus, when judges apply such threshold rules, they are aptly described as "gatekeepers." (1)

   Because of the significance of threshold rules, it is unsurprising that judicial scholars have explored their use in some detail, and they have done so especially with respect to the Supreme Court. (2) Yet relatively few scholars have acknowledged and analyzed the threshold decisions made by the judges of the federal courts of appeals. (3)

   But there is something very revealing about these sorts of rulings in the federal courts of appeals, which makes this situation all the more notable. After all, as Professor Cross describes, (4) these procedural rules provide judges with discretion. This fact alone makes a study of threshold decisions in the federal courts of appeals potentially worthwhile given how their dockets are marked by their non-discretionary nature. That is, federal appellate judges' interpretations of threshold rules might lead them to forego making decisions on appellate claims even if they might otherwise have no discretion to decline to hear particular cases. (5) In addition, while it is impossible to disagree with the argument that federal district judges play an important role as gatekeepers via the application of threshold rules, (6) their decisions pertaining to threshold matters are obviously subject to appeal. (7)

   This paper represents an effort to further explore this dimension of gatekeeping in the federal courts of appeals by providing a descriptive analysis of their threshold decisions over a substantial period of time. Employing the sample data available in the United States Courts of Appeals Database, (8) I investigate the frequency with which the federal courts of appeals consider cases raising threshold issues and examine whether the circuits seem to vary in their threshold behavior. Moreover, comparisons are drawn between Democratic and Republican appointees to the federal appellate bench and among "presidential appointment cohorts" (9) to determine whether presidents have selected federal appeals court judges whose voting behavior varies systematically on questions of judicial access and, if so, whether such tendencies are more pronounced in certain types of litigant contests and/or with respect to certain types of threshold issues.

2. BACKGROUND

   Judicial scholars have recognized the importance of threshold rules, given the implications such rules have on litigant access to the judiciary. (10) Review of the relevant literature suggests emphasis on the Supreme Court's procedural gatekeeping--investigating both the frequency with which the Court considers threshold questions and whether such decisions serve to restrict or enhance access. (11) The resulting analyses are suggestive of at least some differences in the consideration and treatment of these issues across select Supreme Court regimes (i.e., Warren versus Burger Court eras) (12) and also point to multiple sources of influence in the gatekeeping behavior of individual justices. (13) In addition, among the insights generated by this line of research is the basic notion that a justice's preferences pertaining to the merits of a case can influence how the justice construes threshold rules. (14)

   Of course, another important area of research involves an exploration of gatekeeping practices at the first rung of the judicial ladder--the federal district courts. Of particular note in this respect is a study that found support for the proposition that district judge decisions to grant standing might have their roots in the policy preferences of those who appointed the judges to the federal bench. (15) Certainly, this analysis of Reagan appointees to the federal district court bench was suggestive of the point, with such judges being more inclined to limit standing in cases in which underdog litigants were challenging upperdogs. (16) More flexible standing decisions for underdogs were provided, unsurprisingly, by Carter appointees but, as the authors note, such decisions were contingent upon the nature of the claims pursued. (17)

   Surprisingly, little systematic research has focused on the threshold decisions of courts of appeals judges. That which has been conducted, however, does suggest the significance of these decisions in this venue as well. Indeed, Professor Cross has noted that threshold issues appear with some frequency in the courts of appeals. (18) In addition, he reported modest support for the proposition that such decisions, even at this level, are related to judicial ideology. (19) This latter finding certainly supports the findings of an earlier study by Professor Pierce involving a more limited sample of standing decisions in environmental cases before the federal courts of appeals, which described notable differences in the gatekeeping behavior of judges appointed by Republican and Democratic presidents, with the former more likely to restrict standing. (20) Moreover, recent work modeling the likelihood of a federal appellate judge granting a pro-access vote also suggests "that both ideological considerations and litigant status may play a role in" these decisions. (21)

   While a few scholars have recognized that federal appellate judges render their fair share of threshold decisions and, while there is some evidence that such decisions have a partisan or ideological nature, a basic study of the extent of this role is noticeably lacking in the literature. Few scholars, for example, have sought to investigate whether the circuits vary in the extent to which they consider threshold questions and in terms of their overall access behavior. These trends alone, however, might yield substantively important patterns. Similarly, extension of the work already conducted in the federal district courts (22) to the appellate context might also yield valuable information regarding the political nature of threshold decisions in the federal courts of appeals and, specifically, the ability of presidents to achieve policy goals pertaining to judicial access via their appointments to the federal courts of appeals. The purpose of the present study is to address these descriptive voids.

3. DATA AND METHODS

   For the purposes of analyzing the extent and partisan nature of threshold decisions in the federal courts of appeals, I turn to the Original Courts of Appeals Database, which includes a sample of published opinions. (23) Cases raising a jurisdictional challenge or questions pertaining to the statement of a proper claim, standing, exhaustion, statutes of limitations, and the payment of fees are identified in the sample. In addition, cases involving determinations as to whether a party is immune from suit or whether a claim is ripe or moot, involves a possible political question, is frivolous, or raises a miscellaneous threshold concern are denoted in the dataset, which also indicates the pro- or anti-access directionality of the associated decision pertaining to the threshold question. (24)

   Utilizing this source of data, I first compute the percentage of cases in each circuit that raise threshold issues and then proceed to compute the percentage of pro-access decisions by circuit. For the purposes of this study, I define all threshold votes in which the court (or a judge) finds that a threshold bar does not restrict consideration of the merits of an appeal to be a pro-access decision. Similarly, if the court (or judge) finds that a threshold issue should not have barred the district court's consideration of the merits, the decision (or judge's vote) is coded as a pro-access decision. For example, a finding that an appeal was not frivolous would be coded as a pro-access vote, as would a finding that a standing or ripeness barrier should not have curtailed a district court decision on the merits.

   The analyses of the frequency of threshold decisions on each circuit's docket and the percentage of pro-access decisions in each circuit (in terms of majority outcomes) are conducted across five time periods delineating various Supreme Court eras and across all threshold issues coded in the Original Courts of Appeals Database. For this purpose, the first time period (1954 to 1961) corresponds to the early Warren Court era, while the second period (1962 to 1968) includes the later Warren Court years. The third (1969 to 1971) and fourth (1972 to 1985) time periods split the Burger Court, and the final period of the study, covering the early Rehnquist Court, includes the years 1986 to 1996, (25) the end date being the last year of data available in the Original Courts of Appeals Database.

   Subsequent analyses move beyond an investigation of case-level outcomes on threshold questions to an investigation of individual judge threshold votes, with specific attention to partisan-based sources of influence on those votes. Specifically, comparisons are made in the gatekeeping behavior of judges appointed by Republican and Democratic presidents. Moreover, based on previous research in the federal district courts, (26) the likelihood of a judge voting to grant access (i.e., to issue a pro-access threshold decision) is modeled as a function of the judge's appointing president in order to determine if larger differences among judicial appointees are apparent in the courts of appeals as well. (27)

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