When I read this odd non-prec per curiam opinion, I had several thoughts. The panel consisted of Judge Newman, who authored the now-overruled Brooks Furniture decision, along with Judge Mayer and Lourie.
First, as a non-prec opinion it went out without the imprimatur of the court as such. Sort of odd since they had asked for additional briefing after remand from SCOTUS.
Second, the opinion refers to Brooks as the “then-authoritative test,” when, in fact, it was a panel decision that had already been chipped away at prior to Octane coming by, and which as I and others have shown was at odds with prior panel decisions of the CAFC. (And, which SCOTUS held was wrong.) It is an interesting choice of words, in other words: it seems defensive.
Finally, the defensiveness or some emotion like it comes through with the panel’s repeated statements that 285 remains an issue for discretion, even in exceptional cases. I don’t know if that was simply a message to remind the district court on remand that there is still discretion to deny fees, or what, but it seemed odd to me in this nonprec per curiam remand.
Just my two cents.
Any decision by the CAFC will seem odd in the larger scale of things, seeing as they have been bully-whipped by the Supreme Court and have to guess at what the Court wants from them.
We have lost our way and need a leader like Judge Rich who knew the law well enough to be able to stand up to the Supreme monkeying. There is no spin anymore, and Newman alone knows that she is just not strong enough.
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