by Dennis Crouch
On May 11, 2018 the Federal Circuit released two opinions in a bit of tension over the constitutional requirement of a “case or controversy.”
- Altaire Pharma v. Paragon Biotech, App. No. 2017-1487 (Fed. Cir. May 2, 2018) (Opinion kept under seal until May 11, 2018) (finding petitioner has standing to pursue appeal of PTAB PGR decision; dissenting opinion)
- AIDS Healthcare Found., Inc. v. Gilead Scis., Inc., App. No. 2016-2475 (Fed. Cir. May 11, 2018) (finding no standing for declaratory judgment action)
The tension between the cases in this situation is actually fairly small, but the setup raises an interesting question in my mind. When two decisions are released simultaneously, how should we treat the precedential value of the cases relative to one another? My initial answer is that the cases should be treated as we would a plurality Supreme Court decision. Although law-of-the-circuit rules prohibit a later panel from upsetting prior precedent, the reality is that principle is treated as an internal rule rather than one opening the later decision to collateral attacks by the parties.
Veering away from the simultaneous release — would it matter if one were uploaded to PACER (the Docket) a few hours before the other? Under Federal Rules of Appellate Procedure R. 36, “a judgment is entered when it is noted on the docket.” The rules do not, particularly define priority of precedent, and I have not seen any Federal Circuit precedent on-point. Supreme Court becomes precedent immediately upon release. Federal Circuit decisions should seemingly have the same result by Default.
In this particular case, the opinions were not released simultaneously. See my comparative timeline below:
- AIDS Healthcare: Decision posted to PACER at 05/11/2018 09:22AM; Posted on the Court Website at approximately 10:00 AM that same date.
- Altaire Pharma: Decision originally issued under-seal on 05/02/2018 10:22 AM; ordered unsealed on 05/04/2018 11:13 AM; Posted on the Court Website at approximately 9:00 AM on 05/11/2018. (It is unclear to me at what point in time the opinion was effectively unsealed).
For Altaire, the initial release of the decision was under-seal. Although the opinion at that point was already designated as precedential, under-seal opinions are seemingly not binding precedent in the ordinary course. The docket notes that the Altaire opinion was ordered unsealed on 5/4/2018 and thus should be seen as having precedential priority over AIDS Healthcare, which was not released until 5/11/2018.
Of course, in many ways, Precedential Priority is an illusory marker. Except when squarely on point, later panels have power to substantially shift precedent by adding nuances or “explaining” the prior decision in terms that better fit to a new narrative. Later panels are often even better at explaining how prior cases fit together rather stand in tension. Although the Supreme Court is not bound by its own prior precedent, the high court’s patent eligibility jurisprudence fits this pattern well.