December 4, 2020 - Oral Argument Recap

November Oral Argument Recap

Thanksgiving has come and gone, and we’ve all hopefully had a chance to ponder what we’re thankful for (including that a wild 2020 is about to close). Next week marks the start of the Federal Circuit’s last oral argument session of 2020. Lucky for those Monday-morning advocates, the Court’s session starts on December 7 and not the Monday after Thanksgiving—as it did for those who argued in the Supreme Court this week (or those at the Federal Circuit last year). But don’t worry, 2021 will include the Federal Circuit’s “coveted” January 4 and July 6 oral argument days; something to look forward to!

So before December arguments kick off, how did the November sitting turn out statistically? Well, there was an uptick in the percentage of arguments cancelled compared with September and October—the Court ended up cancelling scheduled arguments in 19 out of 55 cases, or 34.5%. As we reported previously (see October Oral Argument Recap), September and October saw cancelled argument percentages in the low 20s.  But although November went up, it’s still on the low side for the year, and much lower than the first few months of telephonic arguments when the Court was cancelling roughly half of scheduled arguments (see July Oral Argument Recap).

At the same time as the percentage of cancelled arguments went up, the percentage of argued cases affirmed without an opinion under Rule 36 went down.  So far, the November sitting produced 13 affirmances via Rule 36, but only 11 of those were in argued cases, or just 30.6%. That’s much lower than in October and September (48% and 61%, respectively). That may suggest that judges are still figuring out what works best—holding argument and then issuing an affirmance without opinion, or cancelling argument and drafting a short affirmance. Or it may just be noise—the numbers here are all still pretty small.

Those two cases where the Court affirmed without opinion and without argument were also noteworthy. Although we’ve seen one or two of those already this year, they’re still pretty rare. The ones last month came from two different panels—one from Panel J (Newman, Moore, and Hughes), and one from Panel D (Moore, Reyna, and Taranto). In fact, the Rule 36 affirmance from Panel D issued just four minutes (at 10:07 am) after the case was formally submitted on the briefs (at 10:03 am) on the morning of the originally scheduled argument. The Court definitely didn’t leave anyone waiting for its decision on that one!

Looking forward to December, the Court cancelled argument in 16 out of 55 cases originally scheduled for oral argument (29%), which is pretty on par with November. The Court also looks to be continuing its trend of cancelling appeals from the PTAB at a higher rate than appeals from district court—so far, it has cancelled argument in 6 out of 15 PTAB appeals but only 4 out of 18 district court appeals. Check back next month for a full run-down of December.

Finally, here are some additional statistics from the November sitting:

Total cases: 36 arguments (and 19 counseled cases submitted on the briefs)

Oldest case: In re: Advanced Media Networks, LLC, No. 19-1766 (docketed April 12, 2019; 573 days from docketing to argument).

Quickest case: Baggage Airline Guest Services v. Roadie, Inc., No. 20-1540 (docketed Mar. 6, 2020; 241 days from docketing to argument)

PTAB cases: 7 arguments (and 6 counseled cases submitted on the briefs)

District court cases: 11 arguments (and 3 counseled cases submitted on the briefs)

Rule 36 affirmances: 13 (11 in argued cases, 2 in counseled cases submitted on the briefs; 5 from district court, 4 from the PTAB, and 1 each from the MSPB, ITC, CAVC, and BCA)

Number of argument days by judge:

  • Prost: 3
  • Newman: 3
  • Mayer: 0
  • Plager: 0
  • Lourie: 4
  • Clevenger: 1
  • Schall: 2
  • Bryson 1
  • Linn: 0
  • Dyk: 4
  • Moore: 3
  • O’Malley: 4
  • Reyna: 4
  • Wallach: 3
  • Taranto: 4
  • Chen: 3
  • Hughes: 3
  • Stoll: 3