By Jason Rantanen
Last week, in writing about the Federal Circuit’s grant of en banc review in SCA Hygiene Products v. First Quality Baby Products, I observed that the order was not yet available on the court’s website. Upon checking again this morning, I noted that it continues to be unavailable.
As a general matter, I tend to favor the existence of the Federal Circuit and believe that the judges who sit on that court are largely just folks who are trying to do the best they can in deciding very challenging cases. I don’t always agree with the judges’ reasoning, but I appreciate the difficulty of what they are called upon to do (as well as how much easier it is to criticize an analysis than it is to assemble an analysis).
Where I tend to be most disappointed is with those aspects of the court that do not operate at this high level; or even at a “pretty good” level. In particular, I am routinely unimpressed with the lack of public transparency when it comes to information about the court’s decisions. One example is the court’s statistics page, which contains data that can be difficult to interpret because no methodology is provided. Worse, the variety of statistics that the court has publicly released has shrunk over the years. The court used to provide data on the dispositions of patent infringement cases, for example; that data is no longer provided by the court.
Much greater than problems with the court’s statistical data, however, is the lack of transparency in connection with the court’s decisions themselves. This is not to say that there is no information: the court deserves credit for deciding, several years ago, to post its opinions on the Federal Circuit webpage. These opinions are published at http://www.cafc.uscourts.gov/opinions-orders/ throughout the day. Since around the middle of 2007, the material released at this location has included summary affirmances under Rule 36, and for the past few years “selected” orders have been published there as well.
Unfortunately, no criteria for which orders are “selected” for publication on the website are provided, and extremely significant and important orders are sometimes not released there. For example, even though the Federal Circuit’s announcements page contains an announcement about the grant of en banc review in SCA Hygiene and an invitation for amicus participation, the order itself (which contains the questions presented) is not available on the court’s website. Instead, users are directed to download the order from PACER, a registration-required, fee-based system that is routinely criticized on access to justice grounds. Surely, such an important order would be easily available to the interested public. It is not.
In addition, as Hal Wegner recently pointed out in his email newsletter, the court’s public revelation of its decisions via PACER creates a second, possibly more significant, issue: those folks who do have PACER access will know about the court’s decisions before those who merely follow its public website. This is because the decisions can appear on PACER up to two hours before they appear on the Federal Circuit’s website. The result is that those who follow that particular docket on PACER will gain first knowledge about the outcome of the case, something that may have significant financial implications.
There are some actions that followers of the Federal Circuit can take if they want to stay on the cutting edge of the court’s dispositions. First, the court has an RSS feed through which it announces releases of opinions on PACER. You can subscribe to the RSS feed here: http://www.cafc.uscourts.gov/rss-opinions.php (thanks to Hal Wegner for the tip!). I’m told, but haven’t yet confirmed, that this feed updates at the same time that an opinion is released on PACER. Second, if you have access to a document monitoring service, such as BNA, you can set it to alert you when individual dockets are updated. Again, I haven’t yet confirmed how “real time” the alert is. Both approaches have drawbacks, but they do provide partial solutions.
But the bigger problem remains: the challenge of gaining access to all of the court’s theoretically “public” decisions. PACER is not like, say, the USPTO‘s trademark search system, which a model of transparency and ease of use. Instead, it is the electronic equivalent of the warehouse at the end of Indiana Jones and the Raiders of the Lost Ark, with the addition of a fee to open each box. And the court’s recent elimination of the “daily disposition sheet” has only made it more difficult to even know what’s kept in that warehouse.
With all the technological and political issues surrounding PACER, figuring out how to open up all the court’s judicial decisions to greater public access is, perhaps, not an easy problem to solve. But given the court’s ability to address complex issues of fact and law in its decisions, it’s rather disappointing that it hasn’t applied that same ability to releasing those decisions in a more transparent way.
One possible start might be to ensure that court opinions and orders are released simultaneously on the court’s website and PACER. Another would be to post all the court’s orders on the website, not just those that are “selected.” And a third would be to create an electronic, publicly-available historic set of all the court’s decisions, not just the incomplete set that is currently provided. All three would would go a substantial way to ensuring greater judicial transparency and to avoid any more embarrassing lapses like the SCA Hygiene snafu.
By the way – if you are looking for that particular order, you can download it here: SCA Hygiene en banc order
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Edit to add a reference to the elimination of the daily disposition sheet after the comment from Pilgrim. Some additional minor edits for clarification.