One would think that it would be impossible to panel shop at the Federal Circuit; but, I wonder if clever litigants have done so to a limited extent. For example, I noticed that Judge Dyk frequently sits by designation with the US Court of Appeals for the First Circuit during the last week of July/first week of August. Presumably, he does not sit with the Federal Circuit in August during those years. Therefore, I wonder if an appellant has ever cared enough about not having Judge Dyk on the panel that it calculated the average time for briefing etc. and strategically filed the notice of appeal on a date that would most likely have the Federal Circuit hear the argument in August? I suppose that there’s a pattern as to when senior judges hear oral arguments, as well. For example, a litigant with a 101 issue might not want — let’s just pick a random judge, Judge Mayer — to hear its case. I wonder if such a litigant has ever looked at the history of appearances and strategized accordingly. Of course, such litigants would have been significantly limited by the narrow window that one has to file a notice of appeal after a decision by a lower tribunal.
The Federal Circuit can easily counter such tactics by being random with its scheduling.