With the start of the Federal Circuit’s July oral arguments, we thought it made sense to look back at the Court’s first three months of telephonic hearings (April, May, and June). What do those sittings show about how the COVID pandemic is affecting the Court? Does the Court’s choice to cancel (or keep) arguments indicate something about its view of the merits? Are there any trends worth keeping an eye on? We answer these questions and more below.
From April through June, the Federal Circuit initially scheduled oral argument in 164 cases but then canceled argument and submitted on the briefs in 84, just over half. Yet as shown below, the canceled arguments were not distributed evenly across each month. Instead, the percentage of cases in which the Court canceled a scheduled argument declined each month—in April, the Court canceled argument in 34 cases and heard telephonic arguments in 19, but by June those numbers basically flipped, with the Court canceling argument in just 19 cases and hearing telephonic arguments in 35.
Note: “Submitted cases” excludes cases where the Court never scheduled oral argument (which usually occurs when one party appears pro se).
One possible reason for this trend is that judges, clerks, and court staff have become more comfortable with telephonic arguments over time. That may be leading the Court gradually to drift back to its usual practice of hearing argument in most cases where both parties are represented by counsel.
At least so far, the Court’s choice to cancel argument strongly correlates with a likely complete loss for the appellant (e.g., an outright affirmance, dismissal for lack of jurisdiction, etc.). Based on MoFo’s tracking of Federal Circuit outcomes, since November 2019 the appellant has suffered a complete loss about 73% of the time. But for cases where the Court canceled scheduled arguments in April, May, or June of this year, that percentage jumps to more than 92%, as illustrated below (for cases decided as of July 1, 2020).
The numbers from submitted cases are perhaps unsurprising but may not yet tell the whole story. It might be expected that cases in which the Court cancels oral argument and issues a quick decision tilt overwhelmingly against the appellant. The Court’s choice to cancel argument suggests the judges saw the outcome as clear, and it may be quicker for the Court to issue an affirmance than to grant relief because in affirming the Court is maintaining the status quo. But that also suggests the strong correlation between canceled arguments and affirmance may be short-lived. There are still many undecided cases from these months. It’s reasonable to think those undecided cases may bring the affirmance average closer to the historical average—delayed decisions may be more likely to involve some relief for the appellant, because it may take more time to explain why a judgment is wrong, especially where the Court needs to give guidance for a remand.
It’s harder to draw inferences about argued cases, in part because more of those remain undecided. For argued cases from April, May, or June’s sitting, appellants have suffered a complete loss in 75% of cases decided as of July 1, 2020, right around the historical average. Almost three-fourths of those losses (19/26) have been affirmances without opinion under Federal Circuit Rule 36.
That may suggest that the judges keep different cases for argument for different reasons. In some cases, the judges may keep argument because a case’s outcome is unclear and they have questions. In other cases, the outcome may be clear, but the judges prefer to hold argument and issue a Rule 36 affirmance rather than skip argument and draft a short opinion. Of course, there are other reasons judges may keep cases for argument, and those reasons likely vary from judge to judge. Also, the Court has issued Rule 36 affirmances in two cases that were submitted without argument, so at least for some judges hearing argument in a case is not necessarily a prerequisite for affirming without an opinion.
The switch to telephonic arguments raises several timing issues. First, the Court continues to issue its notice that a case has been scheduled for oral argument roughly six weeks in advance. The Court appears to issue those notices in all cases that would have had oral argument under the pre-pandemic practice.
Second, over the next few weeks after the initial notice, the clerk’s office issues notices for those cases where the Court has canceled oral argument; the office often seems to issue cancellation notices on the same day for cases scheduled before the same argument panel. In general, the office seems to issue the last of the notices to cancel argument at least two weeks before the scheduled argument week.
Third, the Court continues to issue timely decisions following an argument or submission date. Especially for cases submitted without argument, decisions can often come quickly. As shown in the chart below, many decisions issue within a week or two of the scheduled submission date. That suggests some judges and clerks may be using the time they would have needed for oral argument preparation to instead prepare draft opinions that are ready for release on or shortly after the scheduled submission date.
Finally, the move to telephonic hearings does seem to have affected argument timing. For one, argument sessions often begin a few minutes before the scheduled 10 a.m. Eastern Time start. And—at least anecdotally from participating in and listening to multiple telephonic hearings—telephonic hearings also seem less likely to go over time than in-person hearings. Regardless of whether your case is the first or last of the session, if you have a telephonic hearing it’s important to advise your clients and co-counsel to be on the line early so they don’t miss the beginning of the argument.