One of my hobby-horses here is regularity of procedure. For a long time I’ve been meaning to write a post about the ongoing saga of the Seventh Circuit appeal in Motorola Mobility v. AU Optronics, segments of which have been discussed by Alison Frankel and Jacob Gershman. The original panel opinion is here, but the new and interesting developments keep coming fast enough that I haven’t ever found the time to actually write out everything that has happened.

Today, Motorola Mobility filed a petition that contains a succinct statement of the case, which I quote below. Obviously it’s a litigation document written on one side of the case, but having followed the case pretty closely I can say that I think this is a generally accurate rendition of what I know of the story so far. [Full disclosure: I’m friends with one of the lawyers for Motorola and talked briefly about the case with him, but I had no involvement with this motion and have my own views on the matter.]

The proceedings in this Court began as a straightforward request for interlocutory review under 28 U.S.C. § 1292(b). At the behest of both petitioner Motorola and the defendants below, the district court certified its decision for interlocutory review. Motorola then filed in this Court its currently pending Petition for Permission to Appeal. Dkt. 1 (Feb. 24, 2014). Appellees responded, agreeing that the petition should be granted. Dkt. 9 (Mar. 10, 2014).

There has never been any dispute that the standards for review under Section 1292(b) are easily met here. A motions panel (Posner, Rovner, Kanne, JJ.) promptly acted on that petition, granting it. Dkt. 14 (Mar. 27, 2014). At that point, the Federal Rules of Appellate Procedure and this Court’s own rules and operating procedures called for the case to be briefed and argued in due course before a merits panel. See infra at 7-15.

Notably, no party requested that the motions panel depart from the Court’s ordinary procedures. None requested that the motions panel decide the merits of the case. None requested expedited review. For its part, the panel did not make a finding that expedited treatment was warranted, and no reason for expedited or unusual treatment is apparent.

Nonetheless, without permitting the parties or any amici to submit briefing or argument, the motions panel sua sponte issued an opinion by Judge Posner affirming the district court’s judgment on the merits. Dkt. 14 (Mar. 27, 2014). That ruling dramatically circumscribes the scope of the Sherman Act with respect to global cartels, both in private suits and in federal criminal prosecutions. The opinion addressed a number of issues that were not raised by defendants in their limited submissions in this Court, were not the basis for the district court’s opinion, and (as a consequence) were not addressed by Motorola either. Conversely, the panel did not address a number of significant arguments for reversal, which of course had not been briefed to it. But the panel opined that, because “the petition and the defendant’s response, together with the district judge’s opinion explaining her order and the record in the district court, provide an ample basis for deciding the appeal, we dispense with further briefing and with oral argument.” Op. 1-2. (The opinion criticized Motorola for being “oblivious” to the practical consequences of its position, although of course the panel had refused to permit Motorola to submit a brief or appear for oral argument to explain its position. Op. 9.)

Appellant filed a Petition for Rehearing En Banc. Dkt. 20 (Apr. 24, 2014). The petition noted that no federal court of appeals had ever before employed the procedure used by the motions panel in this case: ordering a petitioner’s claim dismissed on the merits without briefing or argument in the course of granting a petition for leave to appeal under Section 1292(b). Further, the context of interlocutory review under Section 1292(b) made such a summary procedure particularly anomalous, because that statute grants this Court jurisdiction
only if the case presents an important legal question “as to which there is substantial ground for difference of opinion.” 28 U.S.C. § 1292(b).

The Department of Justice filed an amicus brief on behalf of “the United States and the Federal Trade Commission” supporting Motorola’s petition for rehearing en banc. Dkt. 23 (Apr. 24, 2014). It explained that, in the government’s view, the panel’s ruling was erroneous and would present substantial obstacles to the criminal prosecution of international cartels that target this country. Two private amici supported the petition as well. Dkts. 24, 25 (Apr. 24, 2014).

As is appropriate for requests for en banc review, the petition and amicus briefs focused on the reasons for the full court to review the case, not the merits. The Court ordered defendants to respond to the en banc petition. Dkt. 26 (Apr. 25, 2014).

The panel then issued an order directed specifically to the Department of Commerce and Department of State, inviting each to file its own separate
amicus brief. Dkt. 33 (May 1, 2014). This appears to have been the first instance in which any federal court of appeals has ever responded to a brief filed by the United States by soliciting submissions from particular departments of the executive branch. The same order sua sponte extended defendants’ time to respond to the petition (which would trigger the time for the en banc court’s vote on the petition) until those further governmental briefs were due. Solicitor General Donald Verrilli personally wrote the Court in response, explaining that he had authorized the brief filed on behalf of the United States, which was submitted after consulting with the relevant departments of the federal government and which set forth the views of the executive branch. Dkt. 34 (May 19, 2014).

The panel responded by ordering Solicitor General Verrilli personally, within one week, to not only explain what it means for a brief to “reflect[] the views of the United States,” but to identify the specific executive branch officials who had been consulted in the course of preparing that brief and the nature of that consultation. Dkt. 35 (May 22, 2014). This order was similarly unusual, to say the least. The next day, the panel sua sponte withdrew its order to the Solicitor General. Dkt. 38 (May 23, 2014).

Defendants then filed their answer to the petition for rehearing en banc. Dkt. 39 (May 23, 2014). An agency of the Korean government submitted a brief in support of the panel’s decision. Dkt. 36 (May 23, 2014).

Motorola moved to file a reply in support of en banc review, explaining that the filing would aid the full court’s understanding of Motorola’s position because the panel had not permitted it to submit a merits brief. Dkt. 41 (May 28, 2014). Judge Posner denied the motion personally. Dkt. 44 (May 29, 2014). The same day, Judge Posner personally granted a motion by a ministry of the Government of Taiwan to file a letter to the en banc court in support of the panel’s ruling, although that request was out of time, the movant had not sought consent, and the motion was filed by one defendant’s principal outside counsel. Dkt. 46 (May 29, 2014).

Because the period for an en banc vote was underway, Motorola filed a request—setting forth no argument—that its motion to file a reply be distributed for decision by the full court rather than by Judge Posner individually. Dkt. 48 (May 29, 2014). Judge Posner sua sponte construed that request as a motion for him to reconsider his own prior order and granted it, ordering the reply distributed. Dkt. 49 (May 30, 2014). Judge Posner also directed the Clerk to circulate to the en banc court defendants’ opposition to the motion to file a reply, which defends the panel’s opinion, Dkt. 43 (May 28, 2014), though none of the other motion papers were circulated, including Motorola’s motion to file a reply, the initial order denying leave to file a reply, and Motorola’s request for en banc consideration of its motion.

The panel then issued another order to the Solicitor General. Dkt. 50 (June 2, 2014). Although the Solicitor General had previously explained that the government’s amicus brief was based on consultations with all the relevant departments of the federal government, which disagreed with the panel’s assessment of the effect of Motorola’s claim on U.S. foreign relations, and although the panel had revoked its order to explain which departments had been consulted, the panel explained that it still had a “special interest” in the views of the Departments of Commerce and State. The order expressed concern with “the credibility” of the government’s first brief disagreeing with the panel’s opinion, and stated that a further submission stating the views of those other departments would be “helpful” in that regard. (The order refers to the brief of the United States as having been filed merely by “the FTC and the antitrust division,” while characterizing the short submissions by individual ministries of foreign governments as broadly setting forth the views of “the Republic of Korea” and “Taiwan.”)

The government responded by filing another brief on behalf of “the United States” authorized by the Solicitor General. This brief was pointedly signed not only by the Assistant Attorney General for Antitrust and the General Counsel of the Federal Trade Commission, but also by senior legal officers of both the State and Commerce Departments. Dkt. 57 (June 27, 2014). The brief disagreed at length and in detail with the panel opinion’s view that a legal rule permitting Motorola’s claim to go forward would harm U.S. foreign relations.

Before the full court acted on the en banc petition, the panel sua sponte vacated its opinion, Dkt. 58 (July 1, 2014), even though Motorola had sought only rehearing en banc, not panel rehearing. Having returned the case to its initial status in this Court, the panel in the ordinary course would have proceeded to make the straightforward determination—on which Motorola, the defendants, the district court, and the panel itself had all agreed—that this case satisfies the requirements for interlocutory appeal under Section 1292(b). That determination would cause the case to be set for orderly briefing, argument, and decision by a merits panel.

But in a parallel order, the panel instead set the case for briefing and argument before it, although it did not specify whether it planned to decide only the question of appellate jurisdiction or to go on to decide the merits again. Specifically, the panel imposed an extremely expedited schedule for the parties to submit “supplemental briefs” (although there were no “opening” briefs to be “supplemented”) and to appear for oral argument. Dkt. 59 (July 1, 2014). Still no party had suggested that the case should be expedited, and more than five weeks had passed since defendants had answered the petition for rehearing en banc. But the panel ordered Motorola to submit its brief five business days later (the briefing spanned the Independence Day holiday), and further required that the brief be physically printed and received by the panel on the fifth day. But see Fed. R. App. P. 31(a). It ordered defendants to file their brief a week later. But see Id. Motorola was not permitted to submit a reply. But see Fed. R. App. P. 28(c). The panel set the case for argument three business days after submission of defendants’ brief, during a four-week period in which the Court was not otherwise hearing argument.

Appellant filed a motion seeking clarification, Dkt. 62 (July 2, 2014), to which the panel promptly responded, Dkt. 63 (July 3, 2014). With respect to Motorola’s inquiry whether the panel had “jurisdiction over the merits of the appeal, so that the case will not be assigned to a separate merits panel,” the panel provided no further guidance but instead repeated its prior statement that “[t]he panel has decided to rehear this appeal.” The order specified that “[n]o extensions of time will be granted in light of the oral argument scheduled for July 21, 2014.”

The petition asks for the en banc court to intervene and decide whether this behavior by a motions panel is permissible. I don’t know the answer. The Federal Rules of Appellate Procedure do allow “a court of appeals” to “suspend” most of the other rules “to expedite its decision or for any other good cause.” But it is not clear to me whether the motions panel can exercise that power, whether it thinks it is exercising that suspension power, or how broad its discretion is if so.

In any event, I think the whole case stands as a useful reminder about why we have procedural rules and write them down in advance. It can seem tempting to temporarily dispense with the rules and decide things summarily, but sometimes that’s because a judge doesn’t know all of the facts, all of the arguments, or all of the parties who were planning to become involved. Here, I think it’s fair to say that it would have been a better use of everybody’s time and energy to just allow the case to proceed to briefing (and argument if needed) under the normal rules of procedure.