April 8, 2021 - Federal Circuit Insights

Will Your Appeal Have Argument Soon?

There’s a perception in the Federal Circuit bar that that Court has been scheduling cases for oral argument a bit quicker recently.  Now, on some levels, it’s all relative—the Federal Circuit has always been pretty quick in getting cases to argument (see our sister blog Left Coast Appeals for some timing on the Ninth Circuit).  But there definitely is a feeling that things are quicker now.  So with nothing better to do over the Easter weekend, I decided to see if that perception is a reality.  Spoiler alert:  it is.

The last time I looked at timing was back in December, when I looked at all the blog’s data.  At that time, it took about 150 days or so from the filing of appendix to oral argument (see post here).  Now one caveat was that our data (sortable stats here) tracks appeals once there’s a decision—precedential opinion, non-precedential opinion, or Rule 36.  So it’s not good for seeing if recently argued cases are being scheduled quicker than cases argued a year ago.

This time, with the help of MoFo’s appellate paralegal Chad Borgman, I decided to look at individual calendars:  March 2021, April 2021, and May 2021.  And for comparison purposes, Chad and I looked at March 2020, April 2020, and May 2020.  People will probably remember that March 2020 was the last in-person argument session and April 2020 was the first telephonic session.  So what did we find?

The Court has been scheduling cases quicker to argument.  In a year-to-year comparison, appeals have been scheduled about a month quicker.  And even over the past three months in 2021, the time has been steadily decreasing—although one wonders if that’s a real trend or a blip.  One note:  I decided to use median days rather than average days, as there were some outliers on either end of the spectrum.  But overall, the average days comparison wasn’t all that different.

So next question:  do some types of appeals take less time to get to argument than others?  I decided to look at PTAB appeals versus district court appeals.  Another general perception has been that, given the number of PTAB appeals the Court sees every year, those appeals take longer to get to oral argument.  That was somewhat true, at least in April and May 2020.  But in 2021 PTAB appeals are slightly quicker to oral argument than district court ones.

Of course, next month things could be different.  But right now, it seems that appeals are being scheduled for argument at a fairly fast pace.  So if you just had an appendix filed in your appeal, best to be ready for argument soon.