October 30, 2020 - Oral Argument Recap

October Oral Argument Recap

Before October is out the door, we wanted to take a moment to review the Federal Circuit’s sitting earlier this month.

Looking at statistics from the October sitting, the same two things we noticed last month stood out to us again.  First, the Court continues to cancel far fewer arguments now than it did earlier this year.  We’ve seen the rate of argument cancellations plummet from 55% in July and 46% in August to 22% in September and, now, 21% in October.

Second, as the number of cancelled arguments stays low, the Court number of Rule 36 summary affirmances stays high.  This month, 48% of the argued cases were summarily affirmed—which is not quite as high as last month’s 61% whopper, but still higher than pre-pandemic times (38% from November to March) and earlier in the pandemic (less than 30% from June through August).

We thought that this might reflect the Court’s increasing comfort with telephonic arguments, which may have led it to hold argument even in cases that aren’t particularly close.  But a peek ahead at the November sitting suggests the first trend—the low cancellation rate—may not have been a real trend after all.  A much higher portion of the arguments in November, 59%, have already been cancelled.  As to those November cases, a few things to note:

  • PTAB cases remain the relative losers on the oral argument front, getting cancelled in 6 out of 13 cases (46%).  That’s generally consistent with what we’ve seen throughout the pandemic.
  • District court, Court of Federal Claims, and Board of Contract Appeals cases fared much better—if you want argument—getting cancelled at a 21% rate (4 out of 19).
  • Veterans cases came in at 50-50, with 4 cases argued and 4 cases cancelled.

We’ll have to wait and see which was the blip in the radar:  the low cancellation rates in September and October or the higher rate in November.

Here are some additional statistics from the Court’s October sitting:

Total cases: 33 arguments (and 7 counseled cases submitted on the briefs) 

Oldest case: Military-Veterans Advocacy v. Secretary of Veterans Affairs, No. 19-1600 (docketed Feb. 24, 2019; 591 days from docketing to argument).

Quickest cases: NetSoc, LLC v. Quora, Inc., No. 20-1430 , and NetSoc, LLC v. Oath Inc., No. 20-1437 (docketed Jan. 31, 2019; 249 days from docketing to argument)

PTAB cases: 6 arguments (and 2 cases submitted on the briefs)

District court cases: 15 arguments (and 3 cases submitted on the briefs)

Rule 36 affirmances: 16 (all in argued cases; 5 from district court, 5 from the PTAB, 2 from the CFC, 2 from the CAVC, 1 from TTAB, 1 from BCA).

Number of argument days by judge:

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