August 7, 2020 - Federal Circuit Insights

Are Some Federal Circuit Judges More Likely to Decide a Case Without Oral Argument?

So now that the Federal Circuit has wrapped up its fifth oral argument sitting by telephone, I thought it could be a good time to look again at what factors affect whether the Court holds a telephonic hearing or submits a case on the briefs (perhaps with a request to the parties for letter briefs on specific questions). We previously looked at how a case’s merits relates to whether argument is cancelled and found, probably unsurprisingly, that the Court seems more likely to submit on the briefs if it is going to affirm. But a case’s merits doesn’t seem to be the only relevant factor. After all, the Court has continued to affirm without opinion under Rule 36 in cases argued telephonically, and if merits were the only factor cases affirmed in that manner would seem likely cases for submission on the briefs.

I decided to take advantage of the data behind our statistics to see if I could tease out another factor—the effect of panel assignment on argument cancellation. Identifying trends here is tricky without more sophisticated tools like a regression analysis, because each panel typically has three judges yet it takes only one to request oral argument. Still, that means to submit without argument all three judges must have agreed, so looking at argument/submission frequency by judge gives at least a floor for how often a judge votes to submit without argument. And as the table below shows, it appears likely that some judges vote to cancel argument more frequently than others:

For example, among active judges, Judge Lourie (27.8%) and Judge Chen (29.4%) had the lowest frequency of argued cases across the panels on which they sat.  On the other end, Chief Judge Prost (71.9%) and Judge Newman (66.7%) had the highest frequency, followed by Judge Stoll (62.9%) and Judge Dyk (58.5%).

I also wondered whether anything could be gleaned from how often cases are argued based on which judge presides.  Although any judge can request argument regardless of who is presiding, it seems possible that the presiding judge makes the initial recommendation for a panel, which may amount to a thumb on the scale for or against argument.  The amount of data available for this metric depends significantly on the judge; Chief Judge Prost, for example, always presides when she is sitting so there’s lots of data for her, but several of the more recently appointed judges didn’t preside at all in the past five months (Taranto, Hughes, Stoll).  Looking at the data, we find the same judges again on either end of the spectrum in terms of lowest and highest frequencies of argued cases when presiding:  Judges Lourie (16.7%) and Chen (8.3%) on the low end and Chief Judge Prost (71.9%) and Judge Newman (64.3%) on the high end.  But when looking at only cases where they presided, both Judge Moore (21.7%) and Judge O’Malley (28.6%) had significantly lower frequencies of argued cases compared to their frequencies overall, whereas Judge Wallach (100%) had a much higher frequency (though he presided over only 5 cases during these months, so the sample size is very small).