In today’s split-decision in Mobility Workx v. Unified Patents, LLC, I thought the majority decision and the dissent were interesting for their discussion of previous cases and scholarly work describing where there is a potential for decision maker bias to occur. In a cursory review of the decision, I did not see any discussion of the Federal Circuit’s decision in Eolas Technologies, Inc. v. Microsoft Corp., 457 F.3d 1279 (Fed. Cir. 2006). In that case, the Federal Circuit discussed the Seventh Circuit’s practice of reassigning cases to a new district court judge upon remand for retrial from the Seventh Circuit or from the Federal Circuit.
The Seventh Circuit appears unique among the circuit courts of appeals because it sets forth its law on judicial reassignment in the form of a rule. Thus, contrary to Eolas’ arguments, Circuit Rule 36 is not merely an internal glossary for construing silence in Seventh Circuit opinions as a direction to reassign a case on remand. Rather, the Seventh Circuit rule makes reassignment the norm, unless our sister circuit alters the default rule with an express assignment back to the same judge. “The purpose of Rule 36 is to avoid, on retrial after reversal, any bias or mindset the judge may have developed during the first trial.” Cange v. Stotler and Co., 913 F.2d 1204 (7th Cir.1990) (emphases added). Because the operation of Rule 36 avoids “any bias or mindset” that “may have developed,” the law of the Seventh Circuit differs from that of other circuits. See, e.g., Procter & Gamble Co. v. Haugen, 427 F.3d 727, 744 (10th Cir.2005) (“[W]e will remand with instructions for assignment of a different judge only when there is proof of personal bias or under extreme circumstances.”) (internal quotes and citation omitted); Glen Holly Entm’t v. Tektronix Inc., 343 F.3d 1000, 1017-18 (9th Cir.2003) (explaining that reassignment considerations include “whether the district court judge would have substantial difficulty in putting out of his or her mind previously expressed views”); United States v. Microsoft Corp., 56 F.3d 1448, 1463 (D.C.Cir.1995) (explaining that reassignment does not require a finding of actual bias or prejudice, “but only that the facts might reasonably cause an objective observer to question the judge’s impartiality”) (internal quotes and citation omitted).
Eolas Technologies, Inc. v. Microsoft Corp., 457 F.3d 1279, 1283 (Fed. Cir. 2006).
You can read that Federal Circuit opinion [here]. I think it is interesting to note the steps that are taken to avoid the appearance of bias even at a level as high as the district court level.