Expedited appeal on early calendar

The expedited appeal in Missouri v. Biden, now before the Fifth Circuit Court of Appeals, is already on the calendar.

Expedited appeal – for real

When the first three-judge panel received the appeal from the Western Louisiana District Court, they ordered an expedited appeal. But they also stayed the Big Injunction that Judge Terry A. Doughty issued on July 4, effectively until further notice. That provoked a cynical expectation that the stay would remain through the Election of 2024.

That’s not the case. After Judges Stewart, Graves and Oldham issued their orders, a flurry of notices went out to the attorneys – notices that the non-profit Court Listener site might have been late in receiving. Those notices are now available from the docket page for the case.

At 7:39 p.m. CDT, Court Deputy Clerk Charles Whitney sent this notice to counsels for appellants and appellees.

An expedited appeal requires an expedited briefing schedule, as follows:

• Appellants’ brief due on July 25, 2023,
• Appellees’ brief in response due on August 4, 2023, and
• Appallants’ reply due on August 8, 2023.

The notice also set a date for oral argument, of August 10, 2023.

Most of the other paragraphs in the notice concerned formatting requirements – and a reminder that the clerk has full authority to dismiss an appeal, summarily and without notice, for being late with a brief or otherwise not following the rules of the court. But the most remarkable warning the clerk gave concerned the sealing of documents. Any party moving to seal a document, must justify that at oral argument. In fact Judge Doughty has not so far sealed anything.

Calendar notice

At 8:06 p.m. CDT, the Deputy Clerk sent a formal calendar notice.

The case will go for oral argument on Thursday, August 10, 2023, at 9:00 a.m., in the en banc courtroom at the New Orleans courthouse. It will be the sixth case to come to argument on that day. According to the calendar page, the court has allotted twenty minutes for oral argument.

The calendar notice says little else specific to the case. An en banc courtroom, by definition, has seating on the bench for the full court. That does not mean, however, that the full court will hear the appeal. Neither the notices nor the docket page give any clue as to which three judges will hear argument.