Federal Circuit on its COVID-19 Protocol

by Dennis Crouch

In re: Violation of the Revised Protocols (Fed. Cir. 2022)

In a new precedential order, the Federal Circuit has issued notice to attorneys and parties to abide by the court’s COVID protocols.  One such protocol is a strict limit on the number of people who can attend oral arguments — only two people:

Only arguing counsel and no more than one attendee 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. All counsel are advised that the court will not entertain any motions to expand access to attend argument beyond arguing counsel and the one necessary attendee.

Notice of Resumption of In-Person Arguments for the March 2022 Session [February 15, 2022].  The court particularly requires arguing counsel to certify personal responsibility in this situation both for himself and all guest-attendees.

Notwithstanding the order, a group of attorneys involved in an appeal recently requested a party-of-six: attorney arguing; an assistant; two more attorneys; and two other individuals.  The court denied that motion two days before oral arguments.

Still on the day of oral arguments, the four attorneys showed up “hoping . . . that the panel would let them attend.”  Once inside the courtroom, the clerk then kicked them out of the building.

In its decision, the court found that these folks “clearly violated the Revised Protocols. . . Most troubling is Respondents’ decision to come together in person to the National Courts Building after this court had just denied their motion for additional attendees only two days earlier.”

Still, the court did not identify the parties responsible here and “decided not to impose sanctions” since “Respondents express earnest remorse, have not previously been accused of misconduct, and because this situation has not arisen before.” The opinion was drafted as a general warning:

[T]he bar is on notice that this court takes compliance with these protocols very seriously and that sanctions will likely be imposed if a future violation of the protocols takes place.

We have been warned.

26 thoughts on “Federal Circuit on its COVID-19 Protocol

  1. 4

    >>[T]he bar is on notice that this court takes compliance with these protocols very seriously and that sanctions will likely be imposed if a future violation of the protocols takes place.

    They need a protocol for applying the law and not making up the law to fit their feelings.

  2. 3

    I know the law responds to reality slowly, but this is ridiculous.

    It’s not March 2020, it’s (almost) March 2022, and for vaccinated people omicron is a cold. Get with the program, CAFC.

    1. 3.1

      That is probably correct. In defense of this decision, however, these rules were necessarily promulgated before we knew that the vaccine would prove robust against the Omicron varient. I think that it is safe to say that these scofflaws can now plead “no harm, no foul,” but that is a feeble sort of exculpation.

  3. 2

    My wife and I just went to a sold-out concert at the Anthem in D.C. with 3,200 people in attendance, all of whom were fully vaccinated and wearing masks. Why is that O.K., but only two people can attend an oral hearing at the Federal Circuit?

    1. 2.1

      My wife and I just went…

      “Just,” as in only a few days ago? As in, you went during a time period after the Omicron surge had already passed? The Omicron surge began late Dec and finished a few weeks ago. The opinion does not say when the violation in question happened, but it had to have been after the court resumed in-person argument in Sept 2021. If the violation occurred at the height of the surge, that would be a materially different matter than after the surge had ended. It is hard, therefore, to say whether the violators were engaged in a materially worse behavior than were you or your wife, but it is easy to imagine how they might have been.

      1. 2.1.1

        I believe the incident happened in 2021.

        I don’t think it matters where the “surge” stood at the time. 3 of the court’s 12 active judges were born in the ’20s or ’30s. If the court’s rule seems unduly strict, ask them to change it or ask for an exception. These people asked for an exception, were told no, then sneaked in anyway. That’s why I don’t understand the absence of sanctions. The rule’s clear, the violation’s clear, and there’s no excuse.


          So there is your answer to “Why is [it] O.K. [to attend a concert with 3,200 fully vaccinated and masked people], but only two people can attend an oral hearing at the Federal Circuit?” You were attending your concert after the Omicron surge had passed, while the scofflaws at the CAFC were (probably) attending during the Omicron surge. The sorts of behavior that are responsible and appropriate during as surge and after are surge are different.

      2. 2.1.3

        “the violation” “the violators”

        You can always tell when someone is rolling hard btch baby just by their language used in discipline related situations.

        “that would be a materially different matter than after the surge had ended. ”

        Yeah it would be liek tots freedom n sheet.

        Friendly reminder that Omicron is literally an upjumped flu and kills way less, even among the vulnerable.


              Not only that anon, rona is constantly kil ling people yes, but that’s the old, the obese, the diabetic, etc. etc. in 80-90%+ of cases. Obviously such folks should take great care. Other than them though, people need to be out and about taking reasonable care.

              “More than 5,000 people across the U.S. died of COVID the last week of 2021.”

              Pathetic nums, and that includes non-omicron variants. At that rate it would take about 10 years to make a significant dent (1%) in the population of the country. And that is a “surge”. And again, that’s usually with heavy co-mor biditi es.

              Wo wie zo wie modern medicine can’t save the unhealthy at truly beyond miraculous rates all the time. Guess we better significantly shut the whole country down for around 5 years (literally 1/15th or so of generally a person’s life) and create “health offenses”. You know, because we all have to bend over backwards for a long time to account for those other individuals definitely super healthily lived lives.

              Yep, yep yep yep. Very virtuous.

              “There’s also the possibility, Swartzberg said, that “tragically COVID has already culled out the people who are most likely to die of influenza.””

              I do wish they would confirm or disconfirm this, as it obviously affects the numbers significantly.

              I’m pretty sure I had the omicron, 2x in fact, and it will knock you out for sure (whatever I had was pretty bad). With that being said however, we gotta go forward, we’re like two years in now.

    2. 2.3

      It would be fun to see who would complain if the CAFC required people to be vaccinated to attend a hearing.

      1. 2.3.1

        It would be fun to see if those trying to flaunt the court rules were already vaccinated (and showing their activist privilege).

  4. 1

    I wish the court had named these folks or made the filings public. I don’t understand why they didn’t.

    It’s not hard to figure it out. I don’t think there’s more than one instance of a party requesting to bring SIX people to oral argument, and having that motion denied two days before the argument. What could these people have been thinking other than just acting on feelings of entitlement?

    1. 1.1

      Before you criticizing them, remember how their profession is structured to foster feelings of entitlement.

    2. 1.2

      I also do not understand why they felt it was so necessary to attend in person, sitting in the back of the courtroom where they would have absolutely no impact on what happens in the argument, rather than simply listen to the live audio feed.

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