Repeat repeated: Do some judges have CFR extra usually than others? – Litigation, mediation and arbitration

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Repeat repeated: Do some judges have CFR more often than others?

April 03, 2021

Morrison & Foerster LLP

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In a recent post, we looked at data on repeat applications, specifically the timing of the call for replies (CFRs). Today we’re going to dig deeper into this data to see if we can identify judges whose panels are more likely to conduct CFR.

As you may recall, in order for a Federal Circuit retry petition to be successful, the court must first apply for CFR. A re-motion response cannot be responded to unless the court orders one. A CFR thus signals that at least one member of the court is interested in the petition.

The court does not publish who issues CFRs. But we can guess. As we discussed in our previous post, the Court’s internal operating procedures suggest that early CFRs – within 10 business days of the petition – are usually from someone who is on the original Merit Panel.

With that in mind, we’ve looked at the number of times each judge has appeared on a merit committee with an early CFR. We define this as within 14 calendar days (up to approximately 10 working days) after submitting an application for a committee and / or en banc repetition from November 2019 to March 2021. We saw the following:

The second column shows the number of times each judge was on a panel that issued a CFR (based on our assumptions). The third column shows how many of these cases the judge was dissent – which, in our view, increases the likelihood that the judge was interested in a repeat and is therefore responsible for the CFR. And the last column takes the second column and subtracts cases where someone else disagreed – on the theory that the dissenting judge probably issued the CFR. So this last column is a rough guess for the cases where each judge may have issued the CFR – the obvious limitation is that it could still be one of the other judges on this panel (or we could be wrong, that the CFR from the panel at all).

Interestingly, in these cases there are more judges than others. Could this mean Judges Lourie, O’Malley, Stoll, and Newman are more likely to have CFR-tight or interesting cases when they sit on the panel?

Maybe, but we have to take this with a large grain of salt (or several). For one thing, our sample is small, despite almost 18 months of data. And we don’t control who else was on a committee with a particular judge. Take Judges Lourie, O’Malley, and Stoll – they were all on 7 panels with early CFRs. However, if these data points were all from the same seven cases where the jury consisted of Judges Lourie, O’Malley, and Stoll, it could mean that most of these CFRs came from just one of those three cases. All of this confirms once again that we don’t really know who on the panel issued these CFRs – or whether the CFR definitely came from someone on the panel. So it is possible that even a judge who appears seven times on this list actually issued 0 CFRs. We also don’t know what idiosyncratic characteristics the CFRs might have influenced in these cases. Just because a judge issues CFRs in multiple cases in one year does not mean that it will do so the next year. As we recently investigated, Members of the Court also hear different numbers of cases (which probably explains why, for example, senior judges were at the bottom of the table). Even so, we will continue to build and monitor our data to see if these early trends continue.

Due to the general nature of this update, the information provided herein may not be applicable in all situations and should not be edited in certain situations without specific legal advice.

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