Yesterday, the Federal Circuit released its calendar for its September sitting, setting oral argument for 40 appeals. So if you were waiting for a case to be set for oral argument but didn’t receive a notice, you’ll be waiting a little longer.
Not surprisingly, the notices of oral argument stated that the Court will continue its COVID-19 practice of telephonic oral arguments. And if the past is any indication of the future, arguments in a significant number of the cases will be cancelled, and the cases will be decided on the briefs. These cancellations likely will occur a few weeks from now. So far, they generally will happen on a panel-by-panel basis, with all the cancellations for a particular panel released on the same day.
While it is impossible to know how many of the September cases will be submitted, the past several months likely provide some guidance. Several weeks ago, we looked at the first three months of telephonic arguments (April-June), and we found that just over half (51.2%) the cases originally scheduled for oral argument were submitted on the briefs. But we also found that those numbers progressively favored more oral arguments each successive month. In other words, more cases—both in actual numbers and percentages—were argued in June than in May and in May than in April.
Of course, three months shows a trend, but it hardly is a robust sample size. And we now have two more months of data. So has the trend continued, and what does that mean for September? Here’s what the data show:
Just as things wind down a bit in D.C. during July and August as people try to escape the heat and humidity, those months are typically lighter months for the Federal Circuit. And for the past several terms the Court has heard argument only on three days in August. Even so, the Court somewhat reversed its trend of increasing the number and percentage of argued cases. In July and August combined, the Court cancelled argument in 32 of the 62 cases originally scheduled for argument. Thus, it’s probably reasonable to expect about half the arguments to be cancelled in September. But given that it takes only one judge to insist upon having oral argument, that percentage could fluctuate higher or lower depending on the cases and the compositions of the panels.
Check back later this week, when we take a look at the July argument wrap-up.
Samuel B. Goldstein co-authored this article as an associate in our Appellate + Supreme Court practice before departing the firm for a judicial clerkship.