The Federal Circuit’s April court week, held amid the COVID-19 pandemic, was like no other in the court’s history. Instead of hearing 12 oral arguments per day in its three courtrooms, the Circuit held a handful of telephonic oral arguments and decided the great majority of this month’s cases on the briefs. As a side effect, this also marks the first time that the public could hear live Federal Circuit arguments remotely. These new practices not only will change your expectations and planning for oral argument, but also could foreshadow more permanent changes in how the Circuit handles appeals.
The Circuit’s total caseload for April was typical – 66 appeals spread out across 15 panels. A fairly standard panel includes four argued cases and one to be decided on the briefs. The cases on the briefs tend to be veterans or employment appeals, often where the appellant is pro se. In contrast, virtually every patent case, regardless of origin, receives an oral argument. If April had been a normal month, there would probably have been around 50-55 argued cases and another 10-15 decided on the briefs. Instead, there were only 19 argued cases, with the remaining 47 decided on the briefs. And all of those 19 argued cases were heard telephonically.
The new procedures for arguments are also affecting the timing and nature of opinions. The Circuit’s long-standing practice has been to provide written opinions (rather than Rule 36 summary affirmances) for all cases decided on the briefs. In a typical month when the Circuit hears 50-60 oral arguments, 20 of those appeals might be promptly affirmed under Rule 36. In April, of the 19 argued cases, so far only two were affirmed under Rule 36. Thus, we can expect a dramatic increase in written opinions. Many of those written opinions will likely follow the historical pattern for non-argued appeals – relatively short, non-precedential decisions that succinctly address the facts on well-understood law. We’ve already seen this new pattern emerging, with seven decisions in patent cases submitted on the briefs coming during court week. All seven were short, non-precedential affirmances; these are cases that likely would have been candidates for Rule 36 treatment had they been argued.
Will my appeal receive an oral argument if I want one? There’s no way to know for sure. Throughout March, the Circuit’s oral argument calendar evolved as panels decided what cases they wanted to hear and issued orders accordingly. The same thing is happening this month for May arguments. You may not find out one way or the other until a week or two before oral argument. Your fate depends on your panel judges and their perception of the usefulness and need for oral argument in your case. If your appeal is taken on the briefs, it can hardly be seen as a good sign for the appellant, but nothing is carved in stone. The inverse is not necessarily true either, because the panel judges may use the oral argument to clarify or organize issues rather than aim for a reversal. Listening to most of the arguments this week, that seemed to be the situation in some cases.
How will I find out if my appeal is going to be argued or on the briefs? An order will appear on your docket. It could come before or after your response to the oral argument order. For May court week, there are significantly more oral arguments set than were actually held in April. So it’s a fair assumption that some of those oral arguments will be taken off the calendar, and those cases will be heard on the briefs. One reason for the delay is that it requires time for the panel judges to study the appeals and make the oral argument decisions, and the judges also had to handle April court week in the interim.
How do the telephonic arguments work? The clerk will provide the parties with confidential instructions for connecting to the call for the oral argument. The morning of the oral argument, when the Circuit announces the panel judges, the clerk posts dial-in instructions for the general public. Although arguments are posted to start at 10 a.m., some presiding judges started arguments 10-15 minutes early, once all the participants were ready. So if you intend to listen to live oral arguments, plan to dial in by at least 9:45 a.m. The arguments themselves proceed very much like the live ones – the judges seemed to have no problem at all interjecting their questions. In some arguments, there were unusually long periods where counsel held the floor before questions began, but usually once questions did begin, they continued. When technical difficulties arose, the courtroom deputy stepped in, paused the recording and timer, and corrected the situation. Absent the lights used in the courtroom, the deputy instead rang a bell at the end of the various argument periods. There is an increased premium on speaking slowly and clearly, and keeping an ear out for judges’ questions.
When will I get my decision? If your appeal is heard on the briefs, there is a fair chance you will get your decision during court week – that happened with not quite half of such cases. It remains to be seen how long the others will take. Short, non-precedential affirmances might come quickly, but if there are reversals or precedential decisions in the works, those will take longer (precedential decisions are circulated for review before release). If your case is argued, there is a chance you might receive a prompt Rule 36 affirmance, but that chance is significantly smaller in this new era, because many appeals of that type will now be taken on the briefs. Thus, it is more likely than before that you are in for a wait if your case is argued.
Might any of these new procedures last beyond the COVID-19 era? At least two aspects of the new procedures could stick around. First, the Circuit’s docket has soared in the years since the introduction of the AIA’s post-grant proceedings, and according to the Circuit’s statistics, there has been a coinciding increase in the duration of appeals. Taking simpler PTAB appeals on the briefs could allow the Circuit to increase its overall throughput, which is at least in some respects limited by the sheer number of oral arguments that can be held during court week. Second, having demonstrated one possible implementation, and having the opportunity to observe any effects and hear feedback, the Circuit could decide to make live audio for oral arguments available permanently.