Back in January I blogged about how frequently, and in what types of cases, the Fourth Circuit was issuing published opinions after submission on briefs–a new phenomenon in the Circuit made possible only by the pandemic-related suspension of Local Rule 36(a) by Standing Order 20-1. See here and here. At the time of those posts, the frequency of the Court’s use of the reprieve from the requirement to have argument for an opinion to be published was waning. This was presumably due to the Court’s growing familiarity with and comfort in using the remote argument process.
Three months later, the Court remains remote for arguments and Standing Order 20-1 remains in effect indefinitely. And while the instances of panels issuing published opinions without argument are still infrequent, they continue to occur. For example, today the Court issued two published opinions after submission on briefs: one in an employment discrimination case and one in a petition for review from an Administrative Review Board’s decision in a Department of Labor matter. Two completely different panels issued these opinions. Earlier this week the a panel of the Court issued an opinion after submission on briefs in an Immigration case. And last week there was a criminal appeal that resulted in a published opinion without oral argument. So, just as appeared to be the case from the start, the Court has continued to use Standing Order 20-1 to publish opinions without argument in all manner of appeals, and with all different panels of judges; there does not seem to be any particular type case or specific panel makeup that results in a published opinion after submission on briefs more than others (at least not in a statistically meaningful way).
When I addressed this issue in January I contemplated whether once in-person arguments returned, Rule 36(a)’s requirement for argument to be held in order for an opinion to be published would also return, At that time, I concluded
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.
Now, however, I’m not so sure. Because what remains clear three months later is that Fourth Circuit panels continue to identify certain appeals that they believe warrant published opinions, but for which they believe oral argument is unnecessary. If and when we return to something resembling pre-Covid operations, will the judges push to keep the flexibility that Standing Order 20-1 currently provides? Hopefully in-person arguments will return soon, and we won’t have to wait long to find out.