Featured / Federal Circuit Announcement

This morning the Federal Circuit announced that starting August 30, for the first time since the onset of the pandemic more than a year ago, it will hold in-person oral arguments. Indeed, the court has indicated that every argument will be scheduled to occur in person, but that the court will entertain motions for leave to appear remotely in appropriate circumstances. The court issued protocols for these in-person arguments, along with an indication of appropriate bases for obtaining permission to appear remotely. Notably, the protocols highlight “the court’s strong preference for in-person argument, based on the court’s experience of its distinctive value.” Case in point: the court has indicated that, even if one side to an appeal gains permission to appear remotely, the other side will not be excused from appearing in person. Moreover, for the first time the court has opted to use videoconferencing (rather than audioconferencing) for remote appearances “unless the court directs otherwise.” Here are highlights from the protocols along with the text of today’s announcement.

As mentioned, the protocols include rules governing in-person arguments. These rules indicate that “[o]nly arguing counsel and no more than two other attendees whose presence is necessary to assist or supervise arguing counsel (e.g., a client, lawyer sitting second chair, or paralegal) are permitted access to the National Courts Building and the courtroom.” As for masking and physical distancing in the courthouse, “[f]ully vaccinated individuals may forgo wearing masks and physical distancing” while “[i]ndividuals who are not fully vaccinated must continue to wear masks and observe physical distancing in accordance with current guidance from the U.S. Centers for Disease Control and Prevention (CDC) unless otherwise directed or given permission by the court during an argument session.” Notably, while arguing counsel may be joined by two other attendees, it is the responsibility of arguing counsel to “certify in advance of the sitting that they have read, understand, and will comply with these Protocols and that they are responsible for ensuring that all of their attendees have read and will comply with the Protocols while in the National Courts Building.”

The court’s protocols also address motions for leave to appear remotely. The protocols indicate the bases for remote appearance include “COVID-19-related medical risk to certain arguing counsel or members of arguing counsel’s household.” Other medical risk is not included. Nor is risk to any of the “other attendees” such as clients, second-chair lawyers, or paralegals. Indeed, the protocols make clear that “[t]he court will not adjust argument solely because counsel’s attendees are unable to enter the National Courts Building.” It is notable, though, that the COVID-19-related medical risk may pertain not just to the arguing counsel but also to members of the arguing counsel’s household.

The protocols specify the appropriate process to seek permission for a remote appearance: “Within 14 days of the notice of calendaring, arguing counsel seeking leave to appear remotely must complete [a court-prescribed form] and declare under penalty of perjury that counsel’s travel to, and physical presence at, argument would place counsel or a person in counsel’s household at an unacceptable risk of developing serious health complications from COVID-19.” The protocols go on to explain that “[n]o other proof or evidence in support of the motion is needed.”

Significantly, the protocols indicate that the court is prepared to move forward with an in-person argument even if one side obtains permission to appear remotely. The protocols state that “[t]he permitting of one arguing counsel in a case to appear remotely because of COVID-19-related medical reasons does not excuse other arguing counsel in the case from having to appear in person.”

Another important point the protocols highlight is that, for the first time, the court will use videoconferencing. The protocols state that “[c]ounsel who have been permitted to appear remotely must do so through videoconferencing unless the court directs otherwise.” The protocols, however, do not indicate that videoconferencing will be broadcast publicly.

The protocols also address the potential for those who attended an oral argument to discover later that they were sick during their time at the court. The court is requiring counsel to “notify the Clerk’s Office . . . if counsel or any of counsel’s attendees . . . exhibited symptoms or tested positive for COVID-19 within five days after being in the National Courts Building.”

In short, today’s announcement heralds a significant step in returning the court to in-person oral arguments with appropriate precaution as well as the introduction of videoconferencing and the prospect for oral arguments with one side in person and the other participating remotely.

Here is the text of today’s announcement along with links to the protocols and relevant court orders:

Starting with the September 2021 court sitting, the United States Court of Appeals for the Federal Circuit will resume in-person arguments and has issued necessary protocols that will govern appearances for that sitting and future sittings until further notice.  These Protocols for In-Person Argument, as well as a new administrative order implementing these changes, are available on the court’s website. 

Pursuant to Administrative Order 2021-10, the Clerk’s Office gives notice that nonelectronic filings and materials may be submitted through the U.S. Postal Service or third-party commercial carrier, or they may be deposited in the night drop box on H Street, N.W.  In-person filings inside the courthouse remain unavailable. See Administrative Order 2021-09.