Dissenting over Internal Procedures at the Federal Circuit

Normally, a denial of a petition for rehearing and rehearing en banc would be a non-event.  As Hal Wegner pointed out in his email newsletter, however, Judge Plager’s dissent from the rehearing in Middleton v. Shinseki is worth noting.  (Link: 13-7014.Order.1-31-2014.1)

Background: Judge Plager was a member of the three-judge panel that decided the original opinion (he dissented there as well).  Under Federal Circuit rules, he may participate in the panel rehearing and on the court sitting en banc if en banc review is granted, but may not participate in the vote whether to grant en banc review.  (You may have noticed that at the bottom of denials of petitions for rehearing and rehearing en banc there is sometimes the language “Senior Judge X, who was on the original panel, participated only in decision on the petition for panel rehearing.”).

Judge Plager’s words express his own views most directly.  In a footnote to his brief dissent to the panel rehearing, Judge Plager wrote:

The Chief Judge advises that the rule in this circuit, recently pronounced by a majority of the judges of the court in regular active service, is that judges in senior status, of which I am one, are prohibited from joining another judge’s dissent from a denial of en banc, or authoring their own dissent expressing on record a criticism of the judges in regular active service for the failure to take a case en banc. This apparently is the rule even in this case, though as a member of the original panel I am expressly authorized by law to have sat on the en banc panel if the court had agreed to have one, see 28 U.S.C. § 46(c), so that the failure to take the case en banc has denied me an opportunity to try to correct what I consider to be a miscarriage of justice. However, my compliance with this rule, prohibiting circuit judges, because they are in senior status, from expressing an opinion on this aspect of the decisional work of the court, should not be taken as agreement with this rule, its purpose, effect, or for that matter its constitutionality.

Why this matters: Practically speaking, as Hal Wegner notes this is a non-issue in this case, since Judge Plager can express his reasons for disagreeing in his dissent to the panel rehearing.  However, that Judge Plager chose to write about this minor internal procedural disagreement suggests that there are tensions within the court.

Surging Dissents: Lee Petherbridge and I recently revised our study of Federal Circuit dissents based on many of the comments we received on PatentlyO.  Below are some figures that did not make it into the revision but which are nonetheless quite striking.

The first is a graph that combines data from Table II of Professor Jeffrey Lefstin’s 2005 study of Federal Circuit dissents with our own data.  The usual caveats about cross study comparisons apply (although the data should be pretty comparable as it ultimately came from the same source).   These are absolute numbers of dissents, not frequencies; the frequency chart indicates an even more striking difference.

Lefstin + DisuniformityThe second item is a pair of pie charts showing the numbers of alternate writings (mainly dissents and concurrences) for each judge for the first and second parts of our period, using January 1, 2011 as a break point.  While Judge Newman is the most frequent author of alternate writings, she only accounted for about a quarter of the alternate writings for the first period, and since 2011 her relative frequency of alternate writings declined.  In other words, these alternate writings aren’t simply the work of a single judge; they’re being written by a significant number of judges on the court.

To 2011 From 2011

The legends in the above figures identify the judges with more than 5% of the total share of alternate writings for that period.  I haven’t yet broken out dissents alone, but my suspicion is that they aren’t going to be meaningfully different.

22 thoughts on “Dissenting over Internal Procedures at the Federal Circuit

  1. Arresting stats. Thanks.

    Not sure it is all due to personalities. There have always been strong personalities on the CAFC. Maybe the rise in dissents reflects the growing murkiness in patent law.

    Exhibit A: Section 101 has always been tautological but now is more tautological than ever, promoting dissent because analysis by tautology always does. Anyone can play Lourie’s game of distilling a claim to a pithy summary and then declaring that summary to be “abstract”. On a positive note, this has made opinion work child’s play.

    Exhibit B: Phillips v. AWH. Any moderately competent advocate can erect an argument for either side in almost any case, owing to the “fine line” (CAFC’s admission) between reading limitations into a claim and construing it in light of the spec. On a positive note, this has made opinion work child’s play.

    &c….

    1. Tour, there are a lot of issues where the judges disagree. A lot of times this manifests itself in dissents. But there are cases where a panel simply ignores prior precedent with which a panel disagrees. This unfortunately leads to two different lines of authority that cannot be reconciled until the court takes a case en banc.

      The place is an ugly dysfunctional mess plain for all to see. The reason for so many US Supreme Court reversal recently is the lower court’s arrogance, IMHO.

      1. Ned,

        I would posit that a large portion of your view is misplaced, and owes (ironically) to you acting as the judges you decry: you often attempt to create ‘different lines of authority’ based on how you want the law to be in opposition to how the law is.

        We have several examples of the Merry-Go-Rounds that exhibit this departure from reality to Ned-IMHO law, from the rants of dicta in Benson (and the counter-quote that the court did not hold that software could not be patented), to the Stevens loss-of-majority attempted explicit rewriting of the words of Congress to eliminate business methods. Very often our disagreements stem from how you want a line of authority that is not there. Very often our disagreements stem from your choosing to ignore prior precedent because you do not ‘like’ what that precedent allows.

        Alappat is a fine example. Now joined by Nazomi (for which you have yet to address the logic the court used – the logic of the Grand Hall experiment).

        So please, Ned, do not QQ and try to paint the specific court created by Congress explicitly to bring order to the patent world when you are engaging in the very behavior that you say causes the dysfunction.

        After all, the dysfunction in the CAFC is directly traceable to the meddling and the nose-of-wax-twisting of the Supreme Court. It is that Court that should shoulder the blame for the dysfunctionality. It is that Court that at the same time lauds Diehr as a case most on point and unchanging, and yet yields Prometheus and the clear indication that accurately explicating law as written by Congress is less important to the nine than preserving the Court’s own implicit writings (as I have correctly explicated the ‘dead letters’ comment in that decision).

        1. “So please, Ned, do not QQ and try to paint the specific court created by Congress explicitly to bring order to the patent world when you are engaging in the very behavior that you say causes the dysfunction. ”

          I think Ned is qqing that they did not do so. And instead arguably simply made things worse.

          Though I would personally concede that in various ancilliary matters they’ve done a generally decent job. I wouldn’t say a good job (see burden of proving infringement recently) but a decent one.

  2. Hal Wegner is correct to point out that this has no practical significance.

    1. As Judge Plager’s opinion demonstrates, a senior judge who thinks that a case should be heard en banc can issue a dissent from denial of panel rehearing, just as Judge Plager did here.

    2. What if the senior judge thinks that the panel was right to deny rehearing, but the court should grant en banc rehearing? Then s/he can file an opinion *concurring* in denial of panel rehearing.

    3. What if the petitioner only asks for en banc rehearing and not panel rehearing? It doesn’t matter. Under Internal Operating Procedure 14.2(a), all rehearing petitions are sent first to the panel. So a senior judge on appeal who thinks that a case should be heard en banc can’t be bypassed by a petition that seeks en banc rehearing only. The IOP says this: “A petition for rehearing en banc that is not combined with a petition for panel rehearing will be presumed to request relief that can be granted by the panel that heard the appeal; consequently, the clerk will send the petition for rehearing en banc promptly upon filing first to the panel in accordance with IOP #12, paragraph 1(b), and action on the petition for rehearing en banc will be deferred until the panel has had the opportunity to grant the relief requested.”

    4. But isn’t it wrong that senior judges don’t get to vote on whether a case gets reheard en banc? Maybe, maybe not, but that’s the statute, not the internal rule. 28 USC 46(c) says that only active judges can vote on whether a case gets reheard en banc. A case can be heard en banc on the decision of a “majority of the circuit judges of the circuit who are in regular active service.

    5. So, what’s Judge Plager mad about? Any chance the rule’s unconstitutional? Unclear. The only practical consequence of the internal rule is that Judge Plager can’t officially “join” Judge Newman’s opinion dissenting from denial of rehearing en banc. Instead, he has to say, separately, that he agrees with all of it. As the original post notes, “that Judge Plager chose to write about this minor internal procedural disagreement suggests that there are tensions within the court.” I’m not sure what possible constitutional argument he might have. Surely not a First Amendment free speech issue. I’m not sure what else it would be. Indeed, if there’s any constitutional issue with the treatment of senior judges, I’ll note that a provocative article from seven years ago suggested that senior status is unconstitutional, at least as it currently operates. link to scotusblog.com link to lawschool.cornell.edu

    1. Good points. It’s more than just the internal CAFC rules that precludes Judge Plager from joining a dissent to the denial of rehearing en banc. 28 USC 46(c) provides that a hearing or rehearing of a case en banc is to be ordered “by a majority of the circuit judges of the circuit who are in regular active service.” The statute goes on to provide that once the the case is in banc, the court in banc “consist[s] of all circuit judges in regular active service,” except that any senior judge may participate where the in banc court is “reviewing a decision of a panel of which such judge was a member.”

      Under the statute, senior judges do not get to vote on whether to take a case en banc. If they can’t vote, they don’t get to dissent.

      In my view, the statute recognizes that there is a distinction between how the particular case ought to be decided (where the senior judge can participate) and whether the court’s precedent ought to be re-visited by going en banc, which may have implications for the court beyond the particular case and so ought to be decided only by the active judges.

      Because our court system is set up so that the circuit courts act through panels, there may well be reasons a judge may vote not to rehear another panel’s case en banc even when the judge disagrees with the decision. In my view, that’s why the statute provides for the initial en banc vote to be made by the active judges — they are the ones responsible for the overall direction of the court.

      1. Great points, Pilgrim, helpful to understanding the existing rules (which seen sensible) regarding how/when the CAFC decides to go en banc.

  3. I am not surprised the folks on the court want to freeze Plager out.

    Seems like a pretty limited “freeze out” of Plager (and whoever else falls under the scope of the rule.) Who else has “senior status” right now?

  4. Instructions for improving your microwave brought to you by guy from New Zealand. “Patents? Nope, this is just a fun project,” he writes. Presumably he’s a communist or he’s completely lost his mind.

    link to madebynathan.com

    Junky patent covering similar technology appears to have lapsed for failure to pay maintenance fees:

    link to google.com

  5. OT but lest we forget the bigger picture:

    link to nytimes.com

    As politicians and pundits in Washington continue to spar over whether economic inequality is in fact deepening, in corporate America there really is no debate at all. The post-recession reality is that the customer base for businesses that appeal to the middle class is shrinking as the top tier pulls even further away. If there is any doubt, the speed at which companies are adapting to the new consumer landscape serves as very convincing evidence. Within top consulting firms and among Wall Street analysts, the shift is being described with a frankness more often associated with left-wing academics than business experts.

    ….Mr. Fazzari also said that depending on a relatively small but affluent slice of the population to drive demand makes the economy more volatile, because this group does more discretionary spending that can rise and fall with the stock market, or track seesawing housing prices. The run-up on Wall Street in recent years has only heightened these trends, said Guy Berger, an economist at RBS, who estimates that 50 percent of Americans have no effective participation in the surging stock market, even counting retirement accounts.

    Clearly more patents are needed to create those better paying jobs for the middle class! Government jobs to repair and create improved infrastructure? That’s commie talk! Besides, that stuff is just for cities and nobody wants to go there anyway because there’s no parking.

    1. MM, accepting the conclusion that the middle class is being reduced in size — probably because of the continued high unemployment, the American people need to look at who are advocating policies and practices that harm the people.

      Certain, when it comes to businesses, anything that drives manufacturing offshore is harmful. There are a number of factors that cause a business to make such a decision, but if an oppressive patent environment contributes, that is something we should look at.

      Back awhile, there was a study that almost all “new” jobs are added by new, startup firms. Older established firms tend to decline in employment, and are eventually replaced by newer firms with the newest products. Thus our patent system must emphasize support for the startup and small firm.

      Unfortunately, big, established business back “reform” that benefits them and them alone, while adding costs and uncertainty to the startup. First to file. PGR. IPR. All are designed of the big company, by the big company and for the big company that they shall not perish from the earth.

      And who is in charge? Democrats. I find their backing of big business against the people to be puzzling.

      We need a change. But to whom? There seems to be no good answer at this point.

      1. “Unfortunately, big, established business back “reform” that benefits them and them alone, while adding costs and uncertainty to the startup. First to file. PGR. IPR”

        There is some of that, but reforms before Congress now such as losing-party-pays and pleading reforms will be significant benefits to startups and small companies. By reducing the cost of litigation and making speculative predatory litigation less attractive, they will reduce the risk involved in patent litigation. That risk is the largest cost the patent system imposes on small, innovative businesses.

        Also, small businesses may not be asking for PGR but it will certainly benefit small businesses by reducing the quantity of junk patents waiting to be abused in the future.

      2. Ned: big, established business back “reform” that benefits them and them alone, while adding costs and uncertainty to the startup. First to file. PGR. IPR.

        None of those changes “benefit big business alone.”

        who is in charge? Democrats. I find their backing of big business against the people to be puzzling.

        Who is “the people”, Ned? Last time I checked, “the people” don’t want “more stronger easier to get and enforce patents.”

        Don’t any of you patent attorneys go to parties and stuff with regular people? Do you ever get out into the real world and meet people just struggling to pay their rent, feed their kids, and find a way to make steady money without having to worry about life-destroying b.s. like patent lawsuits? You know: like most people in this country? Serious question.

        there was a study that almost all “new” jobs are added by new, startup firms.,

        That’s nice. Even if that’s true, what does it have to do with patents? I have a business. Why do I need patents? Why should I have to worry about patents just because I modify a computer used in my business? Why in the world forcing me and everyone like to me to worry more about patents “help the economy”?

        The time where a big difference could have been made to lessen the incredible economic costs of this recession is passed. And that time passed because, in large part, because Republicans cared more about crippling Obama with responsibility for the recession (something they failed to achieve) than they did about the pain inflicted on vast numbers of ordinary people in this country.

  6. “However, that Judge Plager chose to write about this minor internal procedural disagreement suggests that there are tensions within the court.”

    Of course. There are always tensions in the court. If you’ve ever met all those characters you’d know why. They’re all willful folks.

    1. All, even Taranto? The reason I ask is that his decision in the recently discussed 101 case was very narrow and restrained. That indicates a judicial temperament to me.

      When one comes out of the legislative process as some historical figures have, one tends to write broadly in a case with narrow facts, trying to impose his or her point of view on others, and even to the extent of ignoring prior precedent.

      I am not surprised the folks on the court want to freeze Plager out. This would be consistent with the what we have seen from the court over the years where there appears to be a struggle for power going on all the time.

      1. Sorry, he’s new right? I don’t think I’ve met T yet. Though I’d go out on a limb and say he’s likely one as well if he’s like his buds.

        1. 6, I daresay, Taranto seems different.

          What do you think of O’Malley. While I do not always agree with her, she does write a good opinion.

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