Will Your Appeal Have Argument Soon? Part II | Morrison & Foerster LLP – Federal Circuitry
Now that the Court is open to the public—not just for arguing counsel but for anyone to watch arguments and visit the Court—I thought it was time to take a look at argument timing again.
Back in April 2021, I first looked because it seemed that cases were getting scheduled for argument more quickly (see post here). My perception was a reality, as cases were in fact being scheduled quicker when I compared argument timing year to year. And that was confirmed by judges who have noted in speeches that there is no backlog and cases are being set two to three months after the reply brief.
Fast forward to today, that no longer seems to be the case. Appeals you might expect to be calendared haven’t been calendared yet. So that begs the question:are things slowing down? I decided to take a look again. And at least over the past three sittings, they are.
Just taking district court and PTAB cases, the median time from appendix filing to argument for October was 172 days, for November 169 days, and for December 185 days. (I used the median, rather than the average, in order to account for outliers that might skew the results, such as expedited cases or comeback cases that might require some of the original panel.) By comparison, if we look at the first three sittings of the year, things were quicker: January 2022 was 122 days, February 2022 was 134 days, and March 2022 was 132 days. Going even further back, when I looked back in April 2021, the numbers for all appeals were even faster: 100 days for March 2021, 88 days for April 2021, and 81 days for May 2021.
After we pulled the data, my co-editor Sam Goldstein wondered, maybe the Court always slows down at the end of the year. So I grumbled, and appellate paralegal Mia Harris and I took a look at the same months last year. As the chart below illustrates, the results were mostly the same. It’s taking longer and the end of the year isn’t an outlier from the beginning of the year:
What, of course, does this all mean? I think if you currently have an appeal fully briefed and waiting for argument, it may take closer to six months than three months for argument. In fact, it doesn’t seem like it has been three months for some time. While we didn’t do the calculation every month, it seems that things were quicker in the early part of 2021 than they were a year ago, or certainly now. Whether this continues, who knows? If anything, the Court has shown it’s quite efficient and effective in getting cases to argument, so we very well could get back to the quicker pace in early 2021. That said, there’s one thing to keep in mind. From January 7, 2017 to March 3, 2022, the MSPB had no quorum and could issue no final decisions; now that a quorum exists and the MSPB can issue those decisions, it remains to be seen if there will be a flood of decisions subject to Federal Circuit review.
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