“Rule 36 abuse [creates] ‘a tale of two litigants… The first is granted reasoned justification for its appellate decisions, which are then subject to petitions for rehearing, en banc review, and petitions for certiorari. The litigants, public, and courts can review those decisions for potential error. The second is granted silence, precluding further review.’”- Bobcar petition
On August 2, New York City-based marketing company Bobcar Media filed a petition for writ of certiorari with the U.S. Supreme Court asking the Court to consider various legal issues related to the use of Rule 36 summary affirmances by the U.S. Court of Appeals for the Federal Circuit (CAFC). Bobcar contends that the Federal Circuit’s Rule 36 practice, which allows the court to issue one-word affirmances of lower court decisions despite being fully briefed on the issues and holding oral arguments, “has gotten out of hand, contravening the principles set forth by the Founders of the Constitution, and basic tenets of justice.”
Rule 36 Raises Due Process Concerns
Bobcar’s petition notes that the company, which had developed an innovative mobile showroom for promoting brands interactively with consumers, sought redress in the U.S. court system when its business was allegedly ruined by Aardvark Event Logistics, whose infringing “Aardy” vehicles stole business from major Bobcar customers like T-Mobile. The Southern District of New York dismissed Bobcar’s trade dress, utility patent and design patent claims on summary judgment, despite Aardvark’s lack of R&D evidence and after the court excluded Bobcar’s expert witness on trademarks.
Bobcar raised several issues on appeal to the Federal Circuit. Bobcar challenged the district court’s ruling on due process grounds as to its trade dress claims, which were dismissed on a defense raised sua sponte by the district court for the first time in the dismissal order without notice or a meaningful opportunity for Bobcar to respond. The company also appealed its Seventh Amendment right to a jury and challenged the district court’s determination that Bobcar lacked standing on its patent claims as improper under the Supreme Court’s 2014 decision in Lexmark International v. Static Control Components. “Within 24 hours of oral argument, the [Federal Circuit] issued a one-word affirmance” without addressing any of the arguments raised by Bobcar.
IPWatchdog has written extensively on the Federal Circuit’s abuse of Rule 36 summary affirmances as a docket management tool and Bobcar’s petition for writ quotes a January 2017 post on this website co-authored by IPWatchdog Founder and CEO Gene Quinn and Peter Harter, Founder of The Farrington Group:
It seems doubtful… that the Supreme Court envisioned Rule 36 decisions, which are all of one short sentence, would be used in close to half of all cases brought to a Circuit Court. But that is precisely what is happening at the United States Court of Appeals for the Federal Circuit. America’s innovators feel as if they are under siege, and by any honest objective review that feeling is based on substantial fact.
Rule 36 Abuse Runs Contrary to Constitutional Principles of Right and Justice
The Federal Circuit’s Rule 36 practice runs contrary to constitutional principles outlined in Federalist 78, penned by Alexander Hamilton, which states that “[t]he judiciary … may truly be said to have neither FORCE nor WILL, but merely judgment.” Bobcar contends that Rule 36 summary affirmances improperly avoids the judiciary’s responsibility to pronounce the law and prevent arbitrary decisions. The need for written explanations in legal decisions is further bolstered by Supreme Court precedent disfavoring secrecy in decision-making, a line of jurisprudence that runs through both constitutional and administrative law.
“If circuits can indulge in rules that eliminate the obligation to interpret the national laws uniformly, the promise of the Constitution is vitiated,” Bobcar’s petition argues. The Federal Circuit’s Rule 36 practice also creates great tension with the common law structure of the U.S. legal system, which requires fact-specific pronouncements of law for application in later decisions. Without reasoned written opinions, “[l]itigants, commentators, and the public are often left scratching their heads as to why seemingly sound arguments were rejected.” Even seemingly minor points in decisions can have major impacts on legal developments as Bobcar points out, especially in the case of Carolene Products footnote 4 and its later impact on First Amendment law.
Further, the Federal Circuit’s Rule 36 practice conflicts with nine other circuit courts that provide explanations, albeit sometimes brief, with every issued decision under either the internal rules of that court or by established practice. While each circuit court is able to make and amend their own rules of practice, Rule 36 abuse at the Federal Circuit creates a significant circuit split that Bobcar argues should be solved by the Supreme Court “to ensure that these local rules are consistent with the principles of right and justice,” citing to the Supreme Court’s 1987 decision in Frazier v. Heebe.
Bobcar identifies several principles of right and justice that the Federal Circuit’s Rule 36 practice flouts. Reason and truth in the legal system are damaged by Rule 36 as summary affirmances create a body of secret law providing no statement of reasoning providing the basis for the judgment. Transparency in the legal system, which the Constitution was drafted to embrace, requires the publication of legal decisions as an essential check against the judicial system. One-word decisions also harm accountability to the law and uniformity in legal application, core principles that must be respected in our constitutional system. Bobcar also cites to foreign courts in countries like India and England, where unwritten decisions are significantly disfavored. “The United States should be a judicial vanguard in protecting these principles, as the Constitution intended. But Rule 36 makes it seem that the U.S. is struggling to catch up in the rear,” Bobcar argues.
Rule 36 Practice Engenders Public Distrust of CAFC
One-word affirmances under Rule 36 preclude the opportunity for meaningful review, which “eviscerates the statutory right” to petition the Supreme Court for a writ of certiorari under 28 U.S.C. § 2350(a). Bobcar notes that, ironically, the Federal Circuit has itself been recently complaining of a lack of rulings “capable of providing meaningful appellate review of the reasons for its decisions” in a series of cases on the docket of U.S. District Judge Alan D. Albright of the Western District of Texas. Rule 36 abuse further undermines Equal Protection under the Constitution, creating “a tale of two litigants… The first is granted reasoned justification for its appellate decisions, which are then subject to petitions for rehearing, en banc review, and petitions for certiorari. The litigants, public, and courts can review those decisions for potential error. The second is granted silence, precluding further review.” Equal Protection concerns are even more prevalent in this scenario given the Federal Circuit’s exclusive subject matter jurisdiction over patent appeals.
After contending that Rule 36 abuse provides a semblance of injustice tarnishing the U.S. court system and engendering public distrust in Federal Circuit decision-making, Bobcar raises several points from its own case that make the present appeal an excellent vehicle for appellate review. Many circuit courts find abuse of discretion as a matter of course when a district court enters a ruling on a sua sponte theory without providing parties the opportunity to respond, and although the Second Circuit regional appellate court has legal precedent on this point, the Federal Circuit “silently affirmed without explanation.” Further, the district court ruled on summary judgment despite dozens of factual exhibits provided by Bobcar that should have precluded summary judgment, violating Bobcar’s Seventh Amendment right to a trial by jury. The Federal Circuit also failed to address the district court’s improper ruling on standing despite intervening precedential decisions by the appellate court finding that the court had to change its approach to standing under Lexmark International, Bobcar said. The petition concludes:
Minutes after the Constitution was ratified, Benjamin Franklin famously said that we have ‘A republic, if you can keep it.’ Constitutional principles can only sustain the republic if they are protected. If they can be brushed off, without explanation, then there is no protection at all. We may have a Constitution in theory. But we cannot keep it.
With nearly half of all decisions issued by the Federal Circuit reciting a simple one-word affirmance under Rule 36 at one point, many litigants and legal commentators are understandably perturbed by the appellate court’s opacity in decision-making. As IPWatchdog’s Gene Quinn made clear in a January 2019 post on the subject:
Think about that—parties and attorneys have traveled to Washington, DC, for oral arguments at the Federal Circuit, they attend live in the courtroom because these matters are of extraordinary importance to the parties involved, and they receive a one-word judgment unaccompanied by any reasoning or rationale before they are even checked out of their hotels to fly home. And some actually wonder why Rule 36 practice by the Court is viewed with such disdain.
Aardvark’s response to Bobcar’s petition is due by September 3.