As courts across the country grapple with the COVID-19 pandemic, the Federal Circuit has streamlined its docket and moved oral arguments from the courtroom to conference calling. Early indications suggest that is changing how the Court decides cases —cases in the past that would have been affirmed without an opinion under Federal Circuit Rule 36 may now be decided by short non-precedential opinions.
The Federal Circuit, unlike many other courts of appeals, normally allows oral argument in every case in which all parties are represented by counsel. In mid-March, however, the Federal Circuit announced that it would remove some of those cases from the April argument calendar and submit them on the briefs. In the remaining cases, the Court would hold oral argument by telephone. In all, 35 of the 54 cases originally scheduled during the Court’s April session were submitted on the briefs, and oral argument was held in only 19 cases. In at least one of the cases submitted on the briefs, the Court issued a few written questions to the parties and asked for letter briefing.
Last week, the Federal Circuit conducted its first round of telephonic oral arguments. They proceeded much like the Court’s in-person arguments. There was no uniform practice of allowing the advocates to speak uninterrupted for the first few minutes of argument or each judge asking all their questions before moving to the next judge, as some other courts have done in their telephonic arguments. Rather, the judges generally acted as they did during in-person arguments, with some particularly active questioners jumping in before advocates could complete their first sentence and others asking relatively few questions. The most notable difference was that few arguments lasted longer than their scheduled duration, likely because an audible chime sounded at the end of each advocate’s allotted time. Overall, the new system worked without any noticeable technical difficulties.
The Federal Circuit’s cancellation of oral arguments may lead to a concomitant change in its disposition of cases: there may end up being fewer cases in which the Court issues an affirmance without an opinion under Federal Circuit Rule 36. Before COVID-19, the Court regularly issued so-called Rule 36 affirmances in argued cases. In recent years, nearly half the Court’s patent cases were decided as Rule 36 affirmances. By contrast, the Court issued written opinions in almost all cases submitted without oral argument.
So far, the Court’s April sitting has produced almost no Rule 36 affirmances. In cases originally scheduled for oral argument but later submitted on the briefs, the Court has issued relatively short, non-precedential opinions, many within a few days of when the case was scheduled to be heard. To date, all those opinions have been affirmances, though the sample size is still relatively small. Of the cases where the Federal Circuit still held oral argument, the Court has issued only two Rule 36 affirmances, both in patent appeals from the U.S. Patent and Trademark Office. One possible explanation for this lower-than-usual rate of Rule 36 affirmances is that cases that previously would have been disposed of under Rule 36 instead were submitted on the briefs after the panel prescreened the cases and determined that oral argument was unnecessary. Because the Court held no argument in those cases, it appears to have followed its past practice of writing in cases submitted without oral argument and drafted short summary affirmances explaining its reasoning.
As the COVID-19 pandemic continues, the Federal Circuit likely will continue this new system for the foreseeable future. The Court has already started to cancel oral arguments and submit cases on the briefs for its May sitting. This approach seems to be allowing cases to progress toward oral argument at roughly the same pace as before the pandemic — the Court has not automatically extended briefing deadlines, and it continues to request scheduling conflicts from the parties shortly after the filing of the joint appendix in each case. Of course, once the pandemic ends, it will remain to be seen whether the Court makes any of these changes permanent, such as whether the Court will revert back to its pre-COVID-19 practice of holding oral argument in every case where parties are represented by counsel.
Samuel B. Goldstein co-authored this article as an associate in our Appellate + Supreme Court practice before departing the firm for a judicial clerkship.