According to Judge Boyle’s answers to the Senate Judiciary Committee questionnaire in 2003 during the 108th Congress, his opinions had been “reversed, vacated or otherwise adversely determined” by the Fourth Circuit or the Supreme Court 139 times as of January 2003.10 In his earlier Judiciary Committee questionnaire, submitted in response to his 2001 nomination, Judge Boyle stated that, to put his large number of reversals “in perspective,” he has had a very long career as a judge.11 Boyle estimated that he had decided approximately 11,000 to 12,000 cases.12 He estimated that approximately 10% of his decisions have been appealed.13
As of 2003, even considering the large number of cases Boyle has decided in his career, Boyle still has a disproportionately high number of reversals. According to the data that Judge Boyle provided to the Judiciary Committee, Boyle has been reversed in approximately 12% of his decisions that have been appealed.14 By comparison, cases appealed to all the U.S. Courts of Appeal were reversed at an average of only 9.7% per year in the comparable years for which data are available.15 During that same period, cases brought before the Fourth Circuit were reversed even more rarely, with approximately 7.5% of the Circuit’s district court opinions being reversed in a given year,16 making Boyle’s percentage of cases reversed unusually high within the Fourth Circuit.
Judge Boyle’s reversal statistics are also revealing when compared with the reversal statistics for the President’s other appeals court nominees who have served as district court judges. As of the time he submitted his 2003 questionnaire, Boyle had an average of 7.3 reversals per year. This average annual rate of reversal is the highest of any of the district court judges nominated by President Bush to the courts of appeals, and is more than twice as high as the next highest nominee.17 This is probably among the reasons why Boyle was given the lowest American Bar Association rating of any district court judge nominated for elevation to the Circuit court by Bush.18
As troubling as Boyle’s record appeared at the time he submitted his Senate Judiciary Questionnaire to the 108th Congress in 2003, the recent submission of an updated questionnaire to the 109th Congress raises even more cause for concern. When asked in his 2003 questionnaire to list “all appellate opinions where [his] decisions were reversed or where [his] judgment was affirmed with significant criticism of [his] substantive or procedural rulings” during his judicial career, Boyle listed 139 decisions. However, when asked the exact same question in his 2005 questionnaire, Boyle inexplicably listed only 68 decisions. Of these, only 59 had been listed in the 2003 questionnaire.19 Of the remaining nine, six were reversed after the 2003 questionnaire had been submitted, and three pre-dated the 2003 questionnaire but were left out of the 2003 questionnaire for unknown reasons. In addition, a preliminary search of the LEXIS legal database finds an additional eight cases in which Boyle was reversed since submitting his 2003 questionnaire that are not listed in his 2005 questionnaire.
Adding the reversals listed in the 2003 questionnaire to the reversals first listed in the 2005 questionnaire and the reversals found on the LEXIS legal database that are excluded from both questionnaires, it appears that in his nearly 21 years on the Eastern District of North Carolina bench, Boyle has been reversed at least 157 times. This would mean that Boyle has actually averaged not 7.3 reversals per year, but more than 7.45 reversals per year, making his true rate of reversal even more disturbing when compared to other district court judges President Bush has nominated to the courts of appeals. It also increases his total rate of reversal to approximately 13% of his decisions that have been appealed.20 Recalculating the average rates of reversal for the Circuit Courts to include statistics from 2003 and 2004, we find that Boyle’s rate of reversal is even worse compared to the average reversal rates of 9.59% for all Circuits and 7.29% in the Fourth Circuit.21
The extraordinary and unexplained difference between the number of cases Boyle concedes were “reversed or . . . affirmed with significant criticism” in his 2003 and 2005 questionnaires suggests, at best, an inability to consistently read and respond to identical questions while under oath. At worst, the difference sheds light on a convoluted effort to obscure his distressingly high rate of reversal.22 For example, in his 2005 questionnaire Boyle omitted at least five cases where the Fourth Circuit vacated and remanded his decisions because he committed a “plain error” of law.23 He left out at least two cases where the Fourth Circuit vacated and remanded Boyle’s opinions after he granted summary judgment to defendants pursuant to a magistrate judge’s recommendation without even considering the objections of plaintiffs.24 And he somehow excluded at least two cases where the Circuit reversed him for issuing sentences so obviously erroneous that even the government conceded Boyle was mistaken.25 The apparent attempt to cast his record in a more favorable light through his heavily edited new questionnaire has only given more force to concerns about his nomination.
Judge Boyle’s record of reversals is not only troubling because of the high, above-average numbers and attempts to mitigate them, but it is also disturbing because Boyle has been reversed repeatedly for committing “plain error” and other fundamental legal mistakes, as discussed below. The nature of the errors for which the Court of Appeals has found it necessary to overturn Judge Boyle’s rulings call into serious doubt his qualifications for a lifetime promotion to the appellate bench.