The COVID-19 pandemic has forced many changes in the legal profession over the last 10 months.  Those receiving the most focus have been, for obvious reasons, things like remote proceedings such as telephonic hearings and video conference arguments in trial and appellate courts.  We’ve even heard of remote jury trials.  But there have also been many less publicized departures from the norm required by this unprecedented public health crisis.  And one of those adaptations in the Fourth Circuit is the Court’s newfound ability to issue published opinions in cases without having oral argument.  This is the story of those coronavirus creations.

The Backdrop: Local Rule 36(a)

Fourth Circuit Local Rule 36(a) sets the standard for a panel opinion to be published.  Under that rule, a published opinion must satisfy one or more of the following criteria:

i. It establishes, alters, modifies, clarifies, or explains a rule of law within [the] Circuit; or
ii. It involves a legal issue of continuing public interest; or
iii. It criticizes existing law; or
iv. It contains a historical review of a legal rule that is not duplicative; or
v. It resolves a conflict between panels of [the] Court, or creates a conflict with a decision in another circuit.

But in addition to the above, Local Rule 36(a) also states “[t]he Court will publish opinions only in cases that have been fully briefed and presented at oral argument.” (emphasis added).  From this last part, one could deduce that the answer to the question in the title of this blog post is “pretty important.”  The Court will not allow an opinion to be published, and thus become the binding law of the Circuit, unless the parties have had the opportunity to present their arguments orally to the panel, and the judges have had the opportunity to ask questions of the parties’ counsel.  The Fourth Circuit is unique in this regard—no other Circuit Court of Appeals has such a requirement for a published opinion.

Standing Order 20-1

When the pandemic caused the country to come to a screeching halt in March of last year and the Fourth Circuit on March 17, 2020 closed its courthouse in Richmond and suspended in-person oral arguments, I pondered whether the situation might require a modification to Local Rule 36(a).  Sure enough, less than a week later, Chief Judge Gregory issued Standing Order 20-1, which temporarily suspended Local Rule 36(a), and allowed for an opinion to be published after submission on the briefs with the unanimous consent of the panel.   Local Rule 20-1 has since been extended and amended, and it remains in place indefinitely while in-person argument sessions are suspended.

So, with Local Rule 36(a) put on ice by the coronavirus, what did that mean for the opinions that the Fourth Circuit has been publishing during the pandemic.  How frequently were panels publishing opinions without oral argument?  Were there certain types of cases more likely than others to get that treatment?  What kind of insight might statistics on opinions published after submission on briefs give us into the Court and its view of oral argument?

Thanks to a program offered by my undergraduate alma mater College of the Holy Cross that pairs alums with current students interested in learning more about a certain profession, I now have those statistics and share them with you.  Aspiring law student and current Holy Cross sophomore Julianna Bender spent her semester break assisting me in scouring all of the opinions published by the Fourth Circuit since Standing Order 20-1 went into effect on March 23, 2020.  Here’s what we found:

About a quarter of the published opinions have not had oral argument.

Of the 180 opinions that the Court has published since March 23, 2020, 47 of them were published after submission on the briefs.  The first opinion to be published without argument was Stepp v. U.S. Bank Trust National Association, on April 20, 2020, and the most recent was Arakas v. Commissioner, Social Security Administration, published on December 14, 2020.

Interestingly, Stepp was one of seven opinions that were submitted on the briefs to the panels before the adoption Standing Order 20-1, but then subsequently published.  Thus, it would appear that the panels had been prepared to issue these opinions unpublished without argument, but then decided to publish once that became an option after the suspension of Local Rule 36(a).

Published opinions without oral argument have been more common in civil cases than criminal cases.

Of the 47 opinions published after submission on the briefs, 28 were in civil cases while 19 were in criminal cases.  (I included in the 28 “civil cases” four (4 ) immigration matters, one Tax Court appeal, and one Petition for Review of a Federal Aviation Administration Order.  I included in the 19 criminal cases two (2) habeas proceedings.)  That civil cases were more likely to get this treatment than criminal cases was not a shock to me, as I had suspected that would be the case.  I was actually a bit surprised that the ratio of civil to criminal cases was not higher in favor of civil cases.

The panels have typically, but not always, been unanimous in these decisions.

In addition to its Local Rules, the Fourth Circuit has Internal Operating Procedures.   I.O.P. 34-2 outlines that for a panel to decide not to have oral argument in a case, all three judges of that panel must be in agreement that oral argument is not necessary under Rule 34(a)(2) of the Federal Rules of Appellate Procedure.  That I.O.P. goes on to say that “if a case is decided without oral argument the decision on the merits generally will be unanimous also.” (emphasis added).  Thus, in the pre-pandemic world if there was no argument, then the decision was almost always unanimous (in fact, the Fourth Circuit’s Appellate Procedure Guide for attorneys actually says “if a case is decided without oral argument the decision on the merits must be unanimous also.” (emphasis added)).  Standing Order 20-1 also requires that to publish an opinion without argument, the panel must unanimously agree that such publication is appropriate.  Thus, it is perhaps unsurprising that in most cases where the panel published an opinion after submission on the briefs, the panel was unanimous in its disposition of the appeal.  But not all.  Of the 47 opinions, four (4) had dissents.  Of those cases with dissents, two (2) were civil cases and two (2) were criminal.  The four (4) dissents were each written by a different judge, and came from cases decided by entirely different panels.  Three (3) additional opinions had concurrences.

The lower court was as likely to be reversed as affirmed.

This one surprised me.  My instinct was that most of the opinions published without oral argument would be affirming the decision of lower court.  But that was not the case.  Of the 47 opinions, 18 were fully affirmed, while 16 were fully reversed or vacated.  The other 13 cases were either some combination of affirmed/reversed/vacated/modified, or they were dismissed/denied.  The 18 cases that were fully affirmed were equally split between civil and criminal.  This included both of the habeas corpus opinions.  Of the 16 cases that were fully reversed or vacated, seven (7) were civil and nine (9) were criminal.

Some judges have been on panels that published without argument more than others.

Judge Harris and Chief Judge Gregory have been on the most panels that published opinions without having oral argument, with 17 and 16 respectively.  Eight opinions had both of these Judges on the panel, with Judge Wynn being the third member of the panel five times and Judge Floyd being the third member of the panel the other three times.  Judge Motz appeared on 14 such panels, Judge Wynn on 12, and Judge Richardson on 10.  Judges Wilkinson, Niemeyer, Agee, and Keenan each were a part of nine (9) panels that published opinions without argument, Judge Quattlebaum was a part of eight (8), Judges Diaz and Floyd seven (7) apiece, Judge Thacker five (5), and Judge Rushing four (4).  Senior Judge Traxler was on two (2) panels that published opinions without argument.  Finally, six (6) opinions that were published after submission on the briefs included a non-Fourth Circuit Judge who was sitting by designation.

Of the 47 opinions, Chief Judge Gregory and Judge Harris authored the most majority opinions, with six (6) each.  Judge Wilkinson authored five (5); Judges Motz, Agee, and Keenan wrote four (4) each; Judges Niemeyer and Wynn wrote three (3) apiece; Judges Diaz, Floyd, Quattlebaum, Richardson, and Thacker authored two (2); and Senior Judge Traxler and Judge Rushing each wrote one (1).

The four (4) dissenting opinions referenced above were written by Judge Wilkinson, Judge Agee, Judge Floyd, and Judge Richardson.  Senior Judge Traxler, Judge Agee, and Judge Wynn each wrote a concurring opinion.

Can we infer anything from how frequently an individual judge was on a panel that published an opinion after submission on the briefs?  For example, is Chief Judge Gregory or Judge Harris more likely to publish an opinion without argument than Judge Thacker or Judge Rushing?  The pure numbers might suggest that to be the case.  However, the numerous factors in play when a randomly assigned panel of three judges (see I.O.P.-34.1) reviews a case and (a) decides whether or not to have argument (FRAP 34(a)(2)) and then (b) decides whether to publish the opinion in accordance with Local Rule 36(a), almost certainly prevent such conclusions from being drawn with any degree of confidence.

Published opinions after submission on the briefs appear to be getting rarer.

The vast majority of the opinions published after submission on the briefs were submitted to their panels on June 1, 2020 or before.  Only seven (7) of the 47 were submitted after June 1.  This would appear to indicate that the clear preference of the Court is to have oral argument for published opinions, and that as the judges have gotten more comfortable with remote oral arguments, the panels are much less likely to forego oral argument on a case in which they expect to publish an opinion.

What’s next?

Presumably, and hopefully sooner rather than later, we will return to something resembling the “Before Times,” and in-person oral arguments in Richmond will resume.  When that occurs, will the Court’s ability to publish opinions without oral argument disappear?  Likely yes.  There has been no indication that the suspension of Local Rule 36(a) is here to stay, and the Court’s less frequent publishing of opinions after submission on the briefs in recent months suggests that the judges still believe that oral argument is a critical part of the process when opinions are likely to be published.

If you have thoughts about the statistics above, let us know in the comments.  And my sincerest thanks to Julianna Bender for digging so deeply into this and to Holy Cross for connecting us–Go ‘Saders!

–Patrick Kane

Summary (3/23/20 through 1/19/21)

Total Opinions Published after Submission on Briefs-47 (out of 180 total published opinions)

Unanimous Opinions-43
Fully Affirmed-18
Fully Reversed/Vacated-16