Handbook XI.C: Argument Time — D.C. Cir.

1. Screening by the Panel

When cases are assigned to panels, the Clerk designates one judge of the Court on the panel for each day to have primary responsibility for screening cases for that day. The screening function is concerned with alignment of parties and issues, and allotment of times for the arguments. Senior judges of this Court do not serve as screening judges. The name of the screening judge is not made public.

The Clerk's Office distributes the briefs, appendices, and other relevant materials to the judges. In addition, the panel has before it any motions for allotment of argument time. The screening judge reviews the assigned cases and then sends a memorandum to the other judges on the panel containing his or her screening decisions.

There is no standard length of oral argument time, although the allotment of 15 minutes per side is perhaps the most common. The screening judge determines the amount of argument time and may set a particular format for oral argument. The argument may be limited to certain issues, counsel may be advised that the panel wishes additional questions to be addressed at oral argument, and the usual order of presentation contemplated by Federal Rule of Appellate Procedure 34(c) may be altered. The screening judge also advises the Clerk of the order in which cases set for a particular day will be heard.

When the screening judge allots time for argument, that decision is automatically effective, and no concurrences are necessary from the other members of the panel. If the screening judge recommends instead that the case be submitted without oral argument, pursuant to Circuit Rule 34(j), it is necessary that the other two members of the panel concur in this recommendation. After receiving the judge's screening memoranda, the Clerk's Office issues orders that reflect the screening decisions.

Parties allotted less time than they believe is warranted may move promptly for additional time. The Court rarely grants such motions. If the Court orders a case to be submitted without argument pursuant to Circuit Rule 34(j), counsel has 10 days from the date of the screening order within which to move to restore the case to the argument calendar. The Court rarely grants these motions. On the other hand, a party in a case that has been set for argument may wish to move to submit the case on the briefs alone. Counsel should file such a motion as soon as possible after receiving the argument date and briefing schedule.

If a case is screened and then postponed before oral argument, the screening decision will be subject to redetermination when the argument is rescheduled.

2. Rule 34(j) Dispositions

Pursuant to Federal Rule of Appellate Procedure 34(a)(2), the Court may, under certain circumstances, decide a case without oral argument. Among the factors the Court considers are: (1) whether the appeal is frivolous; (2) whether the dispositive issue has previously been authoritatively decided; and (3) whether the facts and legal arguments are adequately presented in the briefs and record so that oral argument would not significantly aid the decisional process. The decision to dispense with oral argument must be unanimously made by a three-judge panel.

The Court's Case Management Plan is designed to identify early in the appellate process cases suitable for disposition without oral argument under Circuit Rule 34(j). When a staff attorney screens a new appeal and concludes that Rule 34(j) treatment might be appropriate, that screening recommendation goes to the Clerk's Office, and a briefing schedule (but no oral argument date) is set. A staff attorney then reviews the briefs, and if the staff attorney concludes that the case should be disposed of without oral argument, the staff attorney recommends to the special panel that it decide the case on the merits, pursuant to the Rule. The staff attorney also proposes a disposition, embodied in a draft judgment and, where appropriate, an accompanying memorandum. If the special panel accepts the recommendation for Rule 34(j) disposition, the panel issues an order advising the parties that the case will be decided without oral argument. Counsel may move within 10 days for reconsideration of that order. In the absence of a successful motion to reconsider, the special panel will decide the case on the merits, usually by an unpublished per curiam judgment.

The second way in which a case may be submitted for decision without oral argument is if the screening judge, with the concurrence of the other two members of the merits panel, determines that a case, originally set for argument as a "Regular Merits" case, should be removed from the calendar and handled pursuant to Rule 34(j). The Clerk's Office issues an order notifying counsel of that decision, and counsel has 10 days to move for reconsideration. The Court rarely grants such motions.

The merits panel discusses cases submitted without oral argument at a conference following oral argument on the day on which the case was originally scheduled to be heard. The disposition is usually in the form of an unpublished per curiam judgment.