Amendments to Third Circuit Internal Operating Procedures

As detailed here, the Third Circuit announced amendments to its Internal Operating Procedures. The amendments involve IOPs 2.1, 2.2, 2.3, and 2.5, which deal with panel or en banc determinations as to whether a particular appeal will be argued orally.

The IOPs previously provided that, no later than eleven calendar days before the first day of panel sitting (or, in the en banc context, eleven days before the en banc sitting), the presiding judge furnishes the clerk with the determination as to whether oral argument will be held and how much time each side will have to argue. The amendments change the timing of that notification from eleven days to twenty one days before the sitting, while noting that “[t]he timing for furnishing the court’s determinations may be altered for expedited or emergency cases.” Relatedly, IOP 2.3, which had stated that a judge who does not provide his or her views about oral argument prior to noon of the eleventh day before a sitting agrees to be bound by the determination of the other panel judges, or the presiding judge in an en banc matter, has changed the eleven day reference to 22 days.

Finally, IOP 2.5, which deals with notifying counsel about oral argument determinations, has likewise been amended. Under IOP 2.5(a), counsel will be notified “[a]pproximately 18 days prior to the first day of the panel sitting,” counsel will be notified of the names of the panel members and whether the case will be argued orally. That IOP previously provided that notice would be given no later than ten days before the first day of the sitting. That gives counsel more time to research panel members and to prepare for oral argument if it has been granted. Again, though, the time for notice may be altered in expedited or emergency cases.

There is also one new provision in these amendments, IOP 2.5(b). That states: “In cases where there will be oral argument, the clerk will notify counsel of specific issues or areas counsel should be prepared to discuss at oral argument when the panel deems such notice appropriate. Such notice may assist counsel in preparing for argument and promote more productive argument.” That is a salutary development, for the very reasons that the final sentence of this new provision gives.