Appellate Judges as Gatekeepers? An Investigation of Threshold Decisions in the Federal Courts of Appeals

I. 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. II. 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. …