Two Fifth Circuit Panelists Tweak Presiding Judge for Forcing Second-Chair Lawyer to Proceed with Oral Argument When the Lead Counsel Had a Medical Emergency

In an unsigned order, Doe v. HHS, No. 24-40778 (5th Cir. Sept. 8, 2025), two concurring panelists lambaste their presiding colleague for proceeding with oral argument when the lead counsel for plaintiff called in with a medical emergency two hours prior.

The text of the order is brief: “The court heard oral argument in this matter on September 4, 2025. But it did so after the emergency hospitalization of Appellant’s lead counsel and after Appellant requested a continuance.[fn] It is therefore ORDERED that we are willing to do an additional oral argument on Zoom if Appellant’s lead counsel requests it.”

Judge Haynes, the senior-most judge on the panel (and thus the presiding judge), signed a footnote.

“Because there were attorneys on both sides who had travelled to argue and the court was notified only shortly before the panel began hearing that day’s oral arguments, the court proceeded with oral argument given that the assistant attorney to the lead attorney had his name on the briefs filed by the Appellant. He was obviously prepared, and it seems highly likely that well before the day of oral argument, he assisted the lead counsel in preparing for the oral argument, as he presented very well at the oral argument. Accordingly, it is understandable if Doe’s lead counsel does not think it is necessary to do a further oral argument, but we respect if he does.”

In a concurrence, Judges Oldham and Ho cite several published opinions and orders from the U.S. Supreme Court and other U.S. Courts of Appeals where the courtesy of rescheduling was granted. “We write separately in the hope that this will help counsel in future cases to encourage courts to chart a similar course.” Indeed, they report that in this case, the government consented to rescheduling but that the parties were overruled.

They note that the second-chair attorney was only given two hours’ notice. “It goes without saying that members of our court expect appellate counsel to undertake well more than two hours to prepare for oral argument. We accordingly support the order offering to schedule this matter for oral argument at a future date, if Doe’s counsel requests it.”

Finally, in a riposte tucked in a footnote, they observe that “it seems obvious that there is a meaningful difference between lead counsel and second chair. We do not presume to know how much of the record even the most capable second chair could have mastered with two hours’ notice—and the extent to which that may have affected oral argument.”

Some questions: Did the presiding judge get up on the wrong side of the bed? Did he even trouble to consult his co-panelists before denying a continuance? And why was this order even published?