Every six months, the Administrative Office of the U.S. Courts publishes the dreaded Six Month List. The Six Month List describes itself as a “semiannual report showing, by U.S. district judge and U.S. magistrate judge, all motions pending more than six months, all bench trials that have remained undecided more than six months, and all civil cases pending more than three years . . . and Social Security appeals pending more than six months.” As stated in Appendix B to the Six Month List, it adds up all civil motions pending for at least six months from 30 days after the date the motion was filed, and it adds all social security appeals pending from six months after the filing of the administrative transcript. Officially, the Six Month List is “designed to help reduce both costs and delays in civil litigation in the district courts. The information also may be used to evaluate demands on the district courts’ resources.” Translating this into plain English, the purpose of the Six Month List appears to be a judicious use of public shaming to encourage federal judges to make decisions on pending civil motions within six months. With that in mind, does the Six Month List accomplish its goal, and is it an accurate depiction of where the goal posts should be in the first place?
The Administrative Office released its latest Sixth Month List on September 21, 2018. It has some eye-catching statistics. Most notably, federal district judges nationwide had 4,949 civil motions on the Six Month List, but U.S. magistrate judges had only 401 civil motions on the list. In the federal District of Rhode Island, Chief Judge Smith has 10 civil motions on the Sixth Month List, District Judge McConnell has zero, U.S. Magistrate Judge Almond has 1, and U.S. Magistrate Judge Sullivan has zero. Chief Judge Smith also has 3 social security appeals pending over six months, and all the other judges have a clean sheet.
Starting with the obvious, the latest report says that U.S. magistrate judges have significantly fewer motions than federal district judges. This makes sense — federal district judges have lifetime tenure and can be removed only by retirement or impeachment. The Six Month List might be annoying, but it’s probably not going to lead to impeachment. By contrast, U.S. magistrate judges are appointed to an eight-year term through a merits-based process and have no guarantee of reappointment. They have more of an incentive to steer clear of the Sixth Month List.
The latest Six Month List describes the types of motions most likely to be delayed. At the top are “civil rights” motions, “prisoner petitions,” and “social security appeals.” These three types of motions mostly likely end up on the Six Month List based on the sheer volume of court filings. Federal district judges and magistrate judges each have their fair share of civil rights motions — these are probably 42 U.S.C. 1983 actions brought by pro se plaintiffs, prisoners, and other litigants that allege violations of constitutional guarantees like illegal restrictions to religious materials or unreasonable seizures. Prisoner petitions usually fall to the district judges and consist of habeas corpus petitions under 28 U.S.C. 2254 (challenging a state court criminal conviction) and 28 U.S.C. 2255, which is a motion to set aside or vacate a federal criminal sentence. Federal district judges rarely refer 28 U.S.C. 2255 motions to U.S. magistrate judges because they require review of the federal district judge’s decision in a case, and it’s a weird dynamic to ask a magistrate judge to overturn a district judge’s prior ruling. Prisoners tend to file high volumes of section 2254 and 2255 petitions, resulting in a heavy workload for federal district judges. Finally, magistrate judges handle social security appeals in most judicial districts, but many of their decisions are appealed to district judges, which can land them on the Six Month List based on the timing involved between the magistrate judge’s decision and the federal district judge’s review. Social security appeals are civil actions filed in federal court that challenge Social Security Administration benefits decisions for disability income or supplemental income based on disability. They often involve voluminous medical records and lengthy briefing.
District Judges can get the short end of the stick for Six Month List purposes on motions that they refer to magistrate judges. The Six Month List clock starts ticking 30 days after a motion is filed. If a District Judge refers a matter to a magistrate judge, and the magistrate judge takes four months to issue a recommended decision, the briefing by the parties on an objection to the magistrate judge’s decision would probably take at least a month. This would give the District Judge very little time to issue a decision and avoid the Six Month List. In other cases, a motion might end up on the Six Month List because the parties are engaging in settlement negotiations and the judge agrees to put off pending motions.
Each federal district judge in Rhode Island takes in about 250 new cases each year. The Six Month List doesn’t provide a snapshot of a judge’s overall docket, productivity, or complexity of cases. For example, Chief Judge Smith wrote a monster 108-page opinion in an environmental case in 2017. It’s hard to estimate how long it would take to write an opinion like that, but a reasonable guess is at least 45 minutes per page for researching, analyzing, writing and editing — which adds up to about 80 hours of work for the opinion. That’s 80 hours that isn’t spent on other motions or matters.
The Six Month List is not without irony because it brooks no exceptions if a motion is over six months old. In other areas of the law, ironclad rules usually have exceptions, whether it be the statute of limitations, the First Amendment, or other topics like sovereign immunity. The current Six Month List says that Judge Woodlock in the District of Massachusetts has 2,303 cases pending for over three years, while all other judges in the First Circuit have 199 cases pending for over three years combined. Does anyone really think Judge Woodlock has let 2,303 cases stack up over the years while other judges have not? Of course not — a three-second internet search (prompted by a footnote in the Six Month List) reveals that Judge Woodlock is presiding over a complicated Multi-District Litigation that probably has a very large number of cases on the docket.
In the end, the Sixth Month List is a blunt instrument. It probably adds some incentive to federal judges to make quick decisions. But the Six Month List is less than it seems because it doesn’t provide an accurate depiction of the size of a federal judge’s docket. And it’s more than it seems because there are all sorts of reasons why a motion might end up on the Six Month List that have nothing to do with the alacrity of the judge.