The United States Court of Appeals for the Second Circuit has tightened its once-liberal policy with respect to oral arguments. The court has adopted Interim Local Rule 34, which limits the circumstances under which parties to an appeal will be entitled to oral argument. Interim Local Rule 0.29 also establishes a procedure under which certain types of immigration-related appeals are placed on a non-argument calendar. Because oral argument is no longer automatically available, parties can no longer count on being able to clarify points in oral argument. Businesses with appeals in the Second Circuit should make certain that every argument they intend to make to the court is included in the briefing.
Under the old rules, parties were generally entitled to oral argument, although the court could determine, on its own, to decide the case based on the briefs. Interim Rule 34 states that parties now must request oral argument within a specified time frame or the case will be decided on the papers. The court has invited the public to comment in writing on the new rule. Comments must be submitted by September 27, 2007.
Interim Rule 34 requires that in an appeal where all parties are represented by counsel, counsel for the parties must confer and file, within 14 days after the due date of the last brief, a joint statement indicating whether the parties seek oral argument or intend to submit the case for decision on the briefs. If only some of the parties want oral argument, the statement must identify those parties. If the statement is not filed within the specified time, the case will be decided on the briefs unless the court otherwise directs.
The court has created a form for the joint statement that is available on the court’s website. Parties are not required to indicate why oral argument would be helpful to the court, and the form does not provide any place for the parties to do so.
Even if the parties request oral argument, the court, on its own motion, may choose not to hear oral argument. If the court contemplates doing so, the parties will be given an opportunity to file a statement setting forth the reasons for hearing oral argument. Oral argument will be allowed unless all three judges on a panel agree that (1) “the appeal is frivolous,” (2) “the dispositive issue or set of issues has been recently authoritatively decided,” or (3) “the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.”
Interim Rule 34 does not apply to certain types of immigration cases that are automatically placed on the non-argument calendar under Interim Rule 0.29. This rule applies to appeals or petitions for review of the denial of: (1) “a claim for asylum under the Immigration and Nationality Act (“INA”),” (2) “a claim for withholding of removal under the INA,” (3) “a claim for withholding or deferral of removal under the Convention Against Torture (“CAT”),” or (4) “a motion to reopen or reconsider an order involving one of the claims listed above.” Cases on the non-argument calendar will be disposed of by a panel without oral argument unless the court chooses to transfer the case to the regular argument calendar.
Because arguments not made in the briefing may be waived, it is never a good idea to omit an argument from the briefs with the intent of raising it at oral argument. Overall, these new rules are another reminder that a lawyer should never think “I’ll just wait for the argument” to clean up the brief or to really flesh out the arguments you intend to make.
The court’s order adopting Interim Local Rule 34 and inviting public comment may be found here: http://www.ca2.uscourts.gov/Docs/News/localrule34final.pdf