What To Do When No One Supports A Rule The U.S. Supreme Court Wants to Decide: Rodriguez v. FDIC

Perplexed and annoyed? (photo by Marilyn Swanson)

By: Donald L Swanson

What should the U.S. Supreme Court Justices do when, (i) they grant certiorari to resolve a circuit split on whether a rule of law is valid, but (ii) no party to the appeal argues in favor of that rule?

That’s exactly the circumstances in Rodriguez v. FDIC, Supreme Court Case No. 18-1269 (oral arguments occurred on December 2, 2019).

Perplexed and Annoyed?

In oral arguments, the Supreme Court Justices seem perplexed and a bit annoyed. Here’s why:

  • The Justices granted certiorari to resolve a circuit split on whether a federal common law rule, known as the “Bob Richards Rule,” is valid and how or whether it should apply to the facts before the Court [Fn. 1]; but
  • Neither party in the case supports the application of that federal common law rule to the facts at hand.

The Justices expected, apparently, that the Solicitor General would argue, on behalf of the United States, in favor of the Bob Richards rule. But the Solicitor General did not do so.

Comments from the Justices

Here are illustrative comments from the Justices on the matter:

JUSTICE GINSBURG: . . . Why should we take up Bob Richards at all in this case? Because both sides agree that that’s not what should be dispositive . . . The question presented, it seems, has now vanished from the case.

JUSTICE KAGAN: . . . had the government come to us and said we no longer intend to defend the Bob Richards rule, I think we probably wouldn’t have thought twice . . . we would have said, well, then we need to appoint an amicus.

JUSTICE KAVANAUGH: And there’s the circuit split. . . . the government benefits from this [Bob Richards] rule throughout the country. . . . And it’s manifestly indefensible.

CHIEF JUSTICE ROBERTS: [Addressing the Assistant Solicitor General] two words you haven’t used yet are Bob Richards. What is your position on the extent to which that is implicated in this case? And what is your position on its viability?

JUSTICE SOTOMAYOR: [Addressing the Assistant Solicitor General] . . . Assume this agreement doesn’t specify anything, all right? Can the Bob Richards rule stand? And why should it stand? . . . So you are rejecting the Bob Richards rule?

JUSTICE GORSUCH: . . . We took this to decide the Bob Richards rule, whether it’s a thing. And both sides seem to agree that it is not a thing, . . . Why shouldn’t we put a period at the end saying, both sides agree this is not a thing, go back and do it properly?

JUSTICE BREYER: . . . how do we know there is a Bob Richards rule? . . . How do we know it really exists? Because it could be every time a court has mentioned Bob Richards’ rule, what they’re doing is going to exactly where they would go if they simply looked to state law.


It will be interesting to see what the Justices do with this case.

Footnote 1: The specific “Question Presented,” on which certiorari was granted, is this: “Whether courts should determine ownership of a tax refund paid to an affiliated group based on the federal common law ‘Bob Richards rule,’ as three Circuits hold, or based on the law of the relevant State, as four Circuits hold.”

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