Thursday, December 23, 2021

Rehearing denied in Mondis v. LG. O’MALLEY dissents.

In dissent

O’MALLEY, Circuit Judge, dissenting from denial of the petition for rehearing en banc. With this case, this court compounds the error it made in Robert Bosch, LLC v. Pylon Manufacturing Corp., 719 F.3d 1305 (Fed. Cir. 2013) (en banc). In Robert Bosch, this court adopted an incorrect interpretation of 28 U.S.C. § 1292(c)(2). Section 1292(c)(2) gives us jurisdiction over district court decisions that are “final except for an accounting.” The majority in Robert Bosch misinterpreted “accounting” to include a damages trial and any willfulness determination, thus giving ourselves jurisdiction over appeals from district court decisions that are decidedly not final. In this case, this court further warps our jurisdiction over interlocutory appeals—this time by misapplying Supreme Court precedent and adopting an atextual interpretation of Federal Rule of Appellate Procedure (“FRAP”) 4(a)(4)(A). We should correct that error before it sows confusion among litigants and to prevent us from straying even further from the fundamental jurisdictional and procedural rules that govern all Article III Courts. Thus, I dissent from the denial of rehearing.


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