Bobcar SCOTUS petition seeks redress for constitutional violations posed by Federal Circuit abuse of Rule 36
“Abuse of rule 36 [creates] “The story of two litigants… The first is granted a reasoned justification for its appeal decisions, which are then the subject of requests for revision, bench review and requests for certiorari. Litigants, the public and the courts can review these decisions in the event of a potential error. The second is granted silence, which precludes further examination. ‘ “- Bobcar petition
On August 2, New York-based marketing firm Bobcar Media filed a petition for certiorari with the United States Supreme Court, asking the court to consider various legal issues related to the use of summary assertions of rule 36 by the United States Court of Appeals for the Federal Circuit (CAFC). Bobcar argues that the practice of Federal Circuit Rule 36, which allows the court to make short statements of lower court decisions despite being fully informed of issues and holding oral arguments, “has become uncontrollable, violating the principles set out by the Founders of the Constitution and fundamental principles of justice.
Rule 36 raises due process issues
Bobcar’s petition notes that the company, which had developed an innovative mobile showroom to promote brands interactively with consumers, sought redress in U.S. courts when its business was allegedly bankrupted by Aardvark Event Logistics, whose the offending “Aardy” vehicles stole belongings from Bobcar. customers like T-Mobile. The Southern District of New York City dismissed Bobcar’s trade dress, utility patent and design patent applications by summary judgment, despite lack of evidence from Aardvark’s R&D and after the court excluded the witness Bobcar expert on trademarks.
Bobcar has raised several issues on appeal to the Federal Circuit. Bobcar challenged the district court’s decision on due process grounds regarding his trade dress claims, which were dismissed on the basis of a raised defense spontaneous sua by the district court for the first time in the dismissal order without notice or significant opportunity for Bobcar to respond. The company also appealed its Seventh Amendment right to a jury and challenged the district court’s ruling that Bobcar lacked standing over its patent claims as inappropriate under the court ruling. supreme of 2014 in Lexmark International v. Static control components. “Within 24 hours of the pleading, the [Federal Circuit] issued a one-word statement “without addressing any of the arguments raised by Bobcar.
IPWatchdog has written extensively on the Federal Circuit’s abuse of rule 36 summary assertions as a case management tool and Bobcar’s motion in brief cites a January 2017 article on this website co-authored by the founder and CEO of IPWatchdog, Gene Quinn and Peter Harter, founder of The Farrington. Group:
It seems doubtful … that the Supreme Court considered that Rule 36 decisions, all of which consist of a single short sentence, would be used in almost half of all cases brought before a Circuit Court. But that is precisely what is happening at the United States Court of Appeals for the Federal Circuit. American innovators feel like they are under siege, and by any honest objective examination, that sentiment is based on substantial fact.
Abuse of Rule 36 is contrary to constitutional principles of law and justice
The practice of Federal Circuit Rule 36 runs counter to the constitutional principles set out in Federalist 78, written by Alexander Hamilton, which states that “[t]We can really say that the judiciary has neither FORCE nor WILL, but simply a judgment. Bobcar argues that the summary assertions of Rule 36 unduly avoid the judiciary’s responsibility to pronounce the law and prevent arbitrary decisions. The need for written explanations in court decisions is further reinforced by the Supreme Court precedent against secrecy in decision-making, a line of jurisprudence that cuts across both constitutional and administrative law.
“If the circuits can indulge in rules that eliminate the obligation to interpret national laws in a uniform manner, the promise of the Constitution is flawed,” argues Bobcar’s petition. The practice of Federal Circuit Rule 36 also creates great tension with the common law structure of the US legal system, which requires fact-specific statements of law for application in subsequent decisions. Without reasoned written opinions, “[l]educators, commentators and the public often wonder why seemingly strong arguments have been rejected. Even seemingly minor points in decisions can have major impacts on legal developments, as Bobcar points out, especially in the case of Carolène products footnote 4 and its subsequent impact on First Amendment law.
In addition, the practice of Federal Circuit Rule 36 conflicts with nine other circuit courts which provide explanations, albeit sometimes brief, to every decision rendered under that court’s internal rules or established practice. While each circuit court is able to develop and modify its own rules of court, the abuse of Rule 36 on the Federal Circuit creates a significant circuit split that Bobcar said should be resolved by the Supreme Court. “To ensure that these local rules are compatible with the principles. of law and justice ”, citing the 1987 Supreme Court decision in Frazier v. Heebe.
Bobcar identifies several principles of law and justice that the practice of Federal Circuit Rule 36 violates. Reason and truth in the legal system are damaged by Rule 36, as summary assertions create a body of secret laws providing no statement of reasoning providing the basis for judgment. Transparency in the legal system, which the Constitution was drafted to embrace, requires the publication of court decisions as an essential check against the justice system. Rulings in a nutshell also undermine accountability to the law and uniformity in the application of the law, which are fundamental principles that must be observed in our constitutional system. Bobcar also cites foreign courts in countries like India and England, where unwritten decisions are significantly disadvantaged. “The United States should be a judicial vanguard in protecting these principles, as the Constitution intended. But Rule 36 gives the impression that the United States is struggling to catch up, ”says Bobcar.
Practice of Rule 36 breeds public distrust of the CAFC
One-word assertions under Rule 36 preclude the possibility of meaningful review, which “forecloses the statutory right” to ask the Supreme Court for a writ of certiorari under 28 USC § 2350 (a). Bobcar notes that, ironically, the Federal Circuit recently complained about a lack of decisions “capable of providing a meaningful appellate review of the reasons for its decisions” in a series of cases on the US District Judge’s docket. Alan D. Albright from the Western District of Texas. The abuse of Rule 36 further undermines equal protection under the Constitution, creating “a story of two litigants … The former is granted a reasoned justification for his appeal decisions, which are then subject to motions. in new hearing, in examination bench and in certiorari. Litigants, the public and the courts can review these decisions in the event of a potential error. The second is granted silence, which excludes further examination. Equal protection issues are even more prevalent in this scenario given the Federal Circuit’s exclusive jurisdiction over patent appeals.
After arguing that the abuse of Rule 36 gives a semblance of injustice that tarnishes the U.S. justice system and engenders public distrust of Federal Circuit decision-making, Bobcar raises several points from his own case that make this appeal an excellent avenue for appellate review. Many circuit courts find that abuse of discretion is a matter of course when a district court makes a decision on an issue. spontaneous sua theory without giving the parties a chance to respond, and although the regional court of appeal of the second circuit has a legal precedent on this point, the federal circuit has “affirmed in silence without explanation”. Further, the district court ruled on summary judgment despite dozens of factual material provided by Bobcar that should have precluded summary judgment, violating Bobcar’s Seventh Amendment right to a jury trial. The Federal Circuit also failed to respond to the district court’s incorrect ruling on standing despite previous appeals court rulings that the court needed to change its approach to standing under Lexmark International, said Bobcar. The petition concludes:
Minutes after the Constitution was ratified, Benjamin Franklin declared that we have “a republic, if you can keep it”. Constitutional principles can only support the republic if they are protected. If they can be swept away, without an explanation, then there is no protection at all. We can have a Constitution in theory. But we can’t keep it.
With nearly half of all Federal Circuit decisions reciting a simple one-word assertion under Rule 36 at some point, many litigants and legal commentators are understandably disturbed by the opacity of the court. ‘appeal in decision-making. As IPWatchdog’s Gene Quinn made clear in a January 2019 article on the subject:
Think about it: the parties and lawyers have traveled to Washington, DC, for oral argument at the Federal Circuit, they are attending 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 justification even before they leave their hotels to return home. And some actually wonder why the Court’s practice of Rule 36 is viewed with such disdain.
Aardvark’s response to Bobcar’s petition is expected by September 3.
Steve Brachmann is a freelance journalist based in Buffalo, New York. He has worked professionally as a freelance for over a decade. He writes about technology and innovation. His work has been published by Buffalo News, Hamburg sun, USAToday.com, Chron.com, Motley Fool, and OpenLettersMonthly.com. Steve also provides website copies and documents to various business clients and is available for research projects and freelance work.