The petition was only the most recent legal challenge lodged over the Federal Circuit's manner of deciding appeals without commenting on them whatsoever. In fact, Virentem had cited a small history of criticism the court has received over it, like a legal paper from former Sterne Kessler Goldstein & Fox PLLC lawyer Rebecca A. Lindhorst titled "Because I Said So: The Federal Circuit, The PTAB, and the Problem With Rule 36 Affirmances," as well as a paper by Dennis Crouch, a professor at the University of Missouri School of Law, called "Wrongly Affirmed Without Opinion." In 2021, another failed petition made the case that the practice has "gotten out of hand."
The article also noted that at a recent conference, two Federal Circuit judges defended the court's practice, asserting that such summary decisions are appropriate in cases where the standard of review is for substantial evidence (and where appellants fatally misunderstand that standard). Further, because the Federal Circuit allows oral arguments in every case, that is enough: Judge Sharon Prost said, "Once you've had oral argument, I think you will agree that you can rest assured that the judges understand your case and spent a lot of time on it."
Thank the stars for California, where appellants have the right to oral argument AND to a reasoned decision in writing.
[Bloomberg Law has a 4/3/23 article on this: No-Opinion Federal Circuit Orders Face Long Shot at High Court]
Posts
