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.