Priority of Precedent: When Same-Day Federal Circuit Opinions are in Tension

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.”

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  Although the opinion at that point was already designated as precedential, under-seal opinions are seemingly not binding precedent in the ordinary course.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.




16 thoughts on “Priority of Precedent: When Same-Day Federal Circuit Opinions are in Tension

  1. 10

    Might it be that the court deliberately set two hares running side by side to see which of them has the longer legs? Might this be a trial run with a matter of minor legal importance, before using the same tactic with a more important legal puzzle?

    1. 10.1

      Such would be an improper exercise within our Sovereign’s limitations of the judicial power, MaxDrei.

      Now, please, clean up the feces that you have thrown against the wall.

  2. 9

    What’s the tension? Does one opinion state a rule of law that would lead to a different result if applied in the other case? Do both opinions state different rules of law? If so, that seems like a rehearing petition issue. If not, any tension is probably illusory and comes from reading precedential opinions as if they’re statutes.

    There’s no overlap in the panels, but both of these opinions presumably circulated to the full court at the same time for 10 working days before issuance. IOP10.5 link to

    Dennis’s broader question is interesting, though. Ordinarily “earlier” precedential opinions bind panels deciding “later” cases. If 2 truly irreconcilable decisions are handed down on the same day… (1) I’m not sure how the earlier-opinion-controls rule would actually work; (2) in practice, I imagine that judges would either (i) strain mightily to fight the premise and to reconcile the two decisions if at all possible, or (ii) if that doesn’t work and the panel truly concludes that faithfully “following” one decision versus the other would lead to different results, then they might do some kind of en banc resolution, possibly behind-the-scenes as in Abbott-Sandoz (566 F.3d 1282) or Williamson-Citrix (792 F.3d 1339). Or they might just “follow” the opinion that issued earlier in the day and flag the problem for a possible rehearing petition.

  3. 8

    The Fed. Cir. lack of adherence to its own clear rules of stare decisis are not just due to dubious “distinguishing” arguments.* Attorneys who know or should know the Fed. Cir. rules of stare decisis often deliberately fail to cite the controlling [earliest] decisional authority in their appellate briefs if the case could be used against them, and seem to get away with it unsanctioned. The Fed. Cir. clerks [“technical advisors”] may not find them. I have seen numerous cases in which for even a fundamental old legal point, like what is a full 102 anticipation, or what is the test for a “best mode”, the parties and the judges pick and choose among much later cases on point that they want to quote from [too often out of context]. As in the case of best mode defenses, that can lead to latter decisions seriously drifting away from the earlier precedent’s guidance, causing litigation problems so bad the AIA finally killed best mode as a defense.
    *E.g., Newell v Kenney, 864 F2d 757 (CAFC 1988) where the Court concluded:
    “This court has adopted the rule that prior decisions of a panel of the court are binding precedent on subsequent panels unless and until overturned in banc. See UMC Elecs. Co. v. United States, 816 F.2d 647, 652 n. 6, 2 USPQ2d 1465, 1468 n. 6 (errata) (Fed.Cir.1987), cert. denied, — U.S. —-, 108 S.Ct. 748, 98 L.Ed.2d 761 (1988). Where there is direct conflict, the precedential decision is the first. Even if all comments in the decisions considered here are not completely harmonious, Newell points to no actual conflict, and we see none.”

  4. 7

    In the AIDS Healthcare case, I trust the attorneys seeking to invalidate 5 AIDS drug patents with this [denied] declaratory judgment suit had a good reason not to use faster, cheaper, and normally much better odds IPRs? Hoping to get a price break as a settlement before the patents expired perhaps?
    I have not seen any statistics, but suspect usage of DJ actions against patent validity [versus non-infringement] is now generally down considerably?

  5. 6

    Whether you can get two panel Judges to agree that a “direct conflict” exists is the difficult part, but here is the law. See Newell Cos., Inc. v. Kenney Mfg. Co., 864 F.2d 757, 765 (Fed. Cir. 1988) (“This court has adopted the rule that prior decisions of a panel of the court are binding precedent on subsequent panels unless and until overturned in banc. Where there is a direct conflict, the precedential decision is the first.”) (internal citation omitted).

  6. 5

    It seems to me it has been some time since later CAFC panels felt bound to follow a first panel’s ruling on a particular point. Which makes this entire discussion somewhat academic.

    1. 5.1

      Good point – F A R too often one panel does not give the proper preclusive effect to a point of law that an earlier panel has deliberated upon.

      I know that Rader when he was Chief Judge indicated that the group was unmanageable, and I think that the current chief judge does not even bother.

  7. 4

    Two comments:

    (1) It is somewhat ironic that AIDS Healthcare seems to make more of Sandoz v. Amgen, 773 F.3d 1274 (Fed. Cir. 2014) than does Altaire, despite the fact that this particular precedent is much more clearly on point in Altaire than in AIDS Healthcare. One is left with the impression that Judges Wallach and O’Malley had a particular end that they wanted to reach, standing be hanged. Judge Schall’s dissent had the better of that one.

    (2) I confess that I had never considered the question of priority of precedent when two arrive on the same day. It is an interesting question (although probably never to be of certain effect in this particular case). Thanks for raising that question to our attention.

  8. 3

    “When two decisions are released simultaneously, how should we treat the precedential value of the cases relative to one another?”

    Apparently, neither should be cited, as neither is of any value. If different panels don’t care to be consistent with each other when dealing with the same issue on the same day, than why should attorneys think any other panel will act consistent with any cited precedent?

  9. 2

    The premise of this post is fundamentally wrong. There is no tension with respect to the law. The cases come to differing outcomes based on differing factual circumstances.

    1. 2.2

      Perhaps here (I have not bothered digging into whether or not the facts drive the result through the same application of law), but most definitely, the premise is NOT fundamentally wrong. Even worse, the issue occurs even when the span of time is of moderate or longer durations.

      Within one court, there should NOT be such panel to panel variability.

  10. 1

    Fits this pattern well…

    Or not (seeing as no one – and I do mean no one has yet to square the Supreme Court’s 101 decisions cohesively).

    As a quick example, if Diehr were heard today, the result would not be the same (even as later cases were not only explicit about not changing Diehr, but also explicitly stated that Diehr was most on point.

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