[This is another installment in the Matters of Practice series—designed to explain specific problems facing Supreme Court cert petitioners.]
Not every granted petition for certiorari raises an issue on which the lower courts are divided; it just seems that way. While circuit conflicts are by far the most common way to obtain a grant of certiorari, they are not the only way.
On rare occasion, the Court takes cases resulting from decisions where only one lower court has ruled. We’ll call this the “solo decision.”
Why are solo decisions difficult for the cert petitioner? Well, if a single court decides an issue, the Supreme Court normally won’t wade in to decide that same issue without first letting it “percolate” in the lower courts. Percolation is the main reason why the Court waits for deep circuit splits to develop.
To put it differently, it is difficult to demonstrate, persuasively, that the solo decision is important for the Court to resolve now; for the Court can always wait for another petition to arrive. Remember, the Court only reviews important lower court decisions—not just terribly awry ones.
I’ve been working on this exact type of cert petition for the last two weeks and it’s much more difficult than arguing lower court conflict (I write briefs for lawyers on an independent contractor basis). It requires creative arguments for why the issue is important and why the Court should step in to—in the words of Above the Law—benchslap the lower court.
Fortunately for me, I’m not creating the wheel here. I don’t need to figure out how best to perform this delicate act on my own. A few others have gone before me. One petition from last Supreme Court term exemplifies the proper way to deal with outlier decisions.
The case was Costco v. Omega, S.A., No. 08-1423, and the attorneys were Roy Englert, Jr. and Ariel Lavinbuk of Robbins, Russell, Englert, Orseck, Untereiner, & Sauber. The Costco petition can be found here.
In Costco, the Ninth Circuit held that the first-sale doctrine does not apply to imported goods manufactured abroad. That holding was one-of-a-kind; no other court had addressed the precise issue. And while the decision was in tension with a Third Circuit decision there was no clear cut circuit conflict.
So how did the Robbins Russell attorneys convince the Court to take the case? Well, they first started by emphasizing that the Ninth Circuit’s decision was contrary to the plain language of the Copyright Act and a relevant Supreme Court decision addressing the first-sale doctrine. While most cert petitioners lodge the same type of complaints against lower court decisions, the attorneys at Robbins Russell emphasized how far off the Ninth Circuit’s decision went by using choice phrases like:
In doing so, the lower court gutted the venerable “first-sale doctrine,” well summarized by this Court more than one hundred years ago.
This Court should grant certiorari to reiterate that the Court meant what it said in Quality King, and to forestall needless damage to the nation’s economy.
The decision below does more than merely misinterpret the statutory text and its history, however. It also blatantly ignores clear principles articulated clearly and unanimously by this Court in Quality King.
Although conflicts with plain statutory language and relevant SCOTUS decision are good, they still had to convince the Court that this solo decision was worth correcting. They did so by explaining the dire economic consequences of the Ninth Circuit’s decision:
Though the distinction between goods made at home and those made abroad has no basis in the Copyright Act, as long as such a distinction exists in the case law it will have severe consequences for the U.S. economy. Manufacturers who sell globally will prefer to manufacture their goods abroad because of the increased control they will gain over subsequent use of their products. Conversely, retailers will be hesitant to sell such products for fear of unintended liability for infringement.
“Because of its relatively open markets and historically strong currency, the United States has developed a large gray market economy.” [citation omitted] Indeed, the size of the secondary market for information technology alone is currently estimated to be more than $40 billion annually. [citation omitted]
The Ninth Circuit’s opinion gives copyright holders an unfettered right to eliminate these secondary markets, and the American jobs and tax revenue that flow from them. By granting greater protections to goods made abroad than to those made at home, the Ninth Circuit’s opinion creates perverse incentives, not intended by Congress, for United States copyright owners to produce all copies of their copyrighted works outside the United States.
Finally, they had to persuade the Court that the solo decision would not fix itself—only the Court could correct the Ninth Circuit’s error. They accomplished that goal with what may be the best paragraph of the petition:
Without review by this Court, those erroneous outcomes are very unlikely to be corrected. Both the Ninth Circuit and the lower courts have for many years now completely overlooked the statutory text at issue, even after this Court’s clear and unanimous instruction to “[r]ead literally” the “unambiguous”text of § 109(a). [citation omitted] Some, like the Ninth Circuit, have become enamored of policy disputes. Others have announced a result with no analysis or treated a lone concurrence as the law of the land. None has followed Quality King. The time is therefore ripe for this Court again to refocus analysis on the Copyright Act itself, which requires application of the first-sale doctrine to goods made and sold abroad.
Costco was not an easy case to get cert granted. As SCOTUS Blog’s Lyle Denniston noted, “[w]hen the case reached the Supreme Court, the Justice Department urged the Justices either to uphold the lower court ruling without briefing and argument, or to dismiss the case for ‘lack of a substantial federal question.’” But Englert and Lavinbuck were able to demonstrate, and convincingly so, the cert worthiness of the petition by focusing on the Ninth Circuit’s conflict with a relevant Supreme Court decision, the practical consequences of the erroneous lower court decision, and the unlikely chance of the Ninth Circuit correcting their decision.
If you want your splitless case to become that rare grant, those are exactly the types of arguments you must make when petitioning a solo decision.