Federal Circuit Continues (And Even Expands) is Program of No-Opinion-Judgments

by Dennis Crouch

The Federal Circuit continues to aggressively issues R.36 No-Opinion Judgments as a mechanism for more efficiently deciding appeals.

I was looking forward to the outcome in an interesting Gov’t vs Gov’t takings case — Mississippi County, Missouri vs. USA.  However, rather than issuing an opinion, the court simply affirmed-without-opinion as permitted under Federal Circuit Local Rule 36.

No Opinion & No Oral Arguments: The oddity of the court’s action here is that it bucks what I thought was a longstanding internal rule established by Judge Rich of only issuing R.36 judgments in cases with oral arguments.  The idea with the rule apparently is that the parties should have an opportunity to receive some feedback and discussion from the court — at least either oral arguments or an opinion.   In Mississippi County, the court issued the R.36 judgment without opinion and without first holding oral arguments.  I have not gone back to the records to see the extent that this practice has been ongoing.

In my view, the court’s new approach does not violate any constitutional right or statutory requirement.  It is, however, a step in the wrong direction.

= = = = =

In Mississippi County, the US Corps of Engineers (and its contractors) operated huge equipment carrying loads of clay and rocks over Mississippi County roads.  The operation resulted in the need for extensive and expensive repairs – although apparently did not make the roads entirely impassible.  (E.g., crushing the concrete road — but hey, you can drive on gravel).   The Court of Federal Claims dismissed the resulting lawsuit on the pleadings — holding that the alleged partial damage was insufficient as a matter of law to result in a taking.

34 thoughts on “Federal Circuit Continues (And Even Expands) is Program of No-Opinion-Judgments

  1. 8

    Dennis wrote, “The oddity of the court’s action here is that it bucks what I thought was a longstanding internal rule established by Judge Rich of only issuing R.36 judgments in cases with oral arguments.” With the proviso that I am trying to remember things as they were ca. 1990-1992, if there was such an internal rule in place at that time I was not aware of it. The Circuit issues Rule 36s in cases on the briefs (no argument) all the time, and certainly did back then. Perhaps I don’t understand your statement precisely, Dennis. What I DO remember, and it would be interesting to hear from other GSR law clerks on this, is that Judge Rich did NOT much like the idea of issuing a single-word Rule 36 judgment when there HAD been oral argument but the court voted to affirm. Although I think GSR would certainly say many argued cases did not deserve a full-service precedential opinion from the Circuit, he would prefer in such cases to give the parties (who have presumably spent a lot of money getting a case up to and argued before the Circuit) a non-precedential one- (or at most two-) paragraph opinion, so that they would have the gist of why the Circuit affirmed the lower tribunal. I’ve heard that that was the practice in other circuits before the FedCir was created in 1982 (the other circuits did not have a Rule 36 at that time). Issuing a one paragraph non-precedential opinion might still be deemed a “summary affirmance”, I suppose (depending on how you define “summary”), but it’s much more to the parties than just the single word “Affirmed.” It gives counsel something—even if a scrap—of substance to convey to their client. I’d love to see the FedCir go back to that practice.

    1. 8.1

      The Circuit issues Rule 36s in cases on the briefs (no argument) all the time, and certainly did back then.

      I wonder if anyone has numbers on this. I’ve been following the court somewhat closely for 10 years and–just anecdotally–this isn’t what I’m seeing. From what I’ve seen, I would guess that the court issues a single-digit number of R36 dispositions per year in cases that aren’t argued. But if Prof. Mueller’s view is different, then my view may be wrong.

      I’ve heard that that was the practice in other circuits before the FedCir was created in 1982 (the other circuits did not have a Rule 36 at that time). Issuing a one paragraph non-precedential opinion might still be deemed a “summary affirmance”, I suppose (depending on how you define “summary”), but it’s much more to the parties than just the single word “Affirmed.” It gives counsel something—even if a scrap—of substance to convey to their client. I’d love to see the FedCir go back to that practice.

      Completely agree with this. At least some of the other circuits (3rd and 9th for example) follow this practice or something close, and it’s much better than the proverbial rubber stamp.

    2. 8.2

      My understanding is that there is no formal internal “rule” as such, but it was certainly the norm and the practice that R.36 would not be used except in argued cases. In non-argued cases, no matter how frivolous the appeal, my judge would always insist that some opinion be written.

  2. 7

    Speaking of the federal circuit I was reading an article about Rader the other day on law 360. I was reminded of how let down I was when I found out that I would have to change my ID to go and study with ol’ Rader downtown. But then as I read the article I found out that after his banishment he actually came to work right beside where I work.

    I’ll give the guy this much, he sure taught me what can happen when a role model goes down in flames.

    1. 7.1

      His whole “fall from grace” has politics written all over it.

      Maybe not the brightest of tools in the tool shed for some of the things that he did (giving praise to those before him was just not necessary), but he WAS in the way of the Efficient Infringer group.

  3. 6

    In the April cases 31 of 78 cases were Rule 36’ed. Another 5 so far are decided on the merits

  4. 5

    I don’t understand what the basis is for the thought that Rule 36 affirmances traditionally only come out of cases that had oral argument. A substantial number (a majority?) of ex parte appeals to the CAFC from the PTAB are Rule 36’d, and appellants generally are content to let those cases be decided on the papers.

  5. 4

    This case is an oddity in that both parties wrote to the court specifically to say that they didn’t think oral argument was necessary and agreed to have the case submitted on the briefs. In that rare circumstance where the parties have an opportunity for oral argument and both say that they don’t want it, I’m not bothered by the court issuing a Rule 36 disposition. I would assume that the Judge Rich practice is based on the idea that all parties should get some kind of feedback from the court to show that the court has spent some time with the appellant’s arguments–in the form of a written opinion or oral argument, and usually both. Most appellants get both, but no one should get neither… except maybe when they’re offered oral argument and turn it down. If the case is a prime R36 candidate, parties shouldn’t be able to force the court to write an opinion by turning down oral argument.

    Anecdotally, I think the court still sticks with the practice of offering oral argument in all cases with counsel on both sides, and of issuing Rule 36 dispositions only in cases with oral argument, with very rare exceptions. This may be one such exception (parties are offered oral argument but both turn it down). Another exception I’ve seen is serial pro se litigants with frivolous claims. After the same litigant has gotten several written opinions from the court already, the court sometimes stops See, e.g., this. link to cafc.uscourts.gov I think the Judge Rich rule is alive and perfectly healthy, but would be interested to hear if anyone has information to suggest otherwise.

    1. 4.1

      I read too quickly and my eyes jumped over this sentence in the post The idea with the rule apparently is that the parties should have an opportunity to receive some feedback and discussion from the court — at least either oral arguments or an opinion.

      I agree. Short version of the above is that I’m not bothered when a party is offered one of these things and turns it down.

  6. 3

    “In my view, the court’s new approach does not violate any constitutional right or statutory requirement. It is, however, a step in the wrong direction.”

    Hmm . . . sounds like a lot what Dowd wrote in his article . . . link to papers.ssrn.com

    1. 3.1

      Regarding Dowd’s article: There is a difference between the case here and appeals from the PTO where the statute requires an opinion.

  7. 2

    Dennis – I think you wanted “its” in the title, not “is.”

  8. 1

    In my view, the court’s new approach does not violate any constitutional right or statutory requirement. It is, however, a step in the wrong direction.

    Exactly correct. In a common-law system like ours, one knows what the law is by reading how appellate judges analyze and apply the law to a given set of facts. The less often they set this analysis and application down in writing, the less clear the law is. There is no good purpose served by this trend.

    I think that the rules of appellate procedure need to be revised to set conditions on when the court might be allowed to decide a case without a precedential judgment. At the very least, it should require a vote of the entire court (en banc) before a panel may be allowed to decide a case without a precedential judgment.

    1. 1.1

      At the very least, it should require a vote of the entire court (en banc) before a panel may be allowed to decide a case without a precedential judgment.

      I cannot agree.

      It looks like you borrowed a page from Robert KS’s book of “every decision must be precedential.”

      I would hold the very opposite:
      Most every case should NOT be precedential.

      Most every case should be merely applying established law to each case’s set of facts.

      Doing so – may – involve some explanation from the court (hence, the distaste with the ‘voiceless’ R36 actions may still be present), but this simply does not rise to the level of warranting the notation of cases as precedential.

      Mind you, this view finds full force in our particular neck of the woods of patent law – which is statutory law and for which, the Constitution was rather explicit about which branch of the government was allocated the authority to write that law.

      In other woods of the forest of law, in those woods wherein the use of writing law through common law evolution may have a more reasoned application, there, the effect of each decision building on common law evolution may find more ground for providing more precedential judgments.

      But even there, I would rather have the evolution be much more slow and measured. If one approaches a view that every case sets some new precedent, then the very notion of “precedent” loses its effect, as “precedent” would only last unto the next case (and thus, not be “precedent” at all).

      Greg,

      Further, your view here of requiring the exceptional “en banc” path to deal with what should be the more cut and dried (vis a vis NON-precedential, as opposed to non-precedential, but with explanation) puts the cart before the horse.

      1. 1.1.1

        “But even there, I would rather have the evolution be much more slow and measured. If one approaches a view that every case sets some new precedent, then the very notion of “precedent” loses its effect, as “precedent” would only last unto the next case (and thus, not be “precedent” at all).”

        But isn’t that why the common law relies on the principle of stare decisis?

        1. 1.1.1.1

          The setting of precedntial removes the notion of all prior precential cases eviscerating stare decisis.

          It is only subsequent NON-precedential cases that adhere to >i>stare decisis.

          1. 1.1.1.1.1

            You’ve got it backwards, in part because you rely on a logical fallacy that any precedential decision must necessarily overturn prior decisions rather than comporting with them. When judges issue precedential decisions, they promote stare decisis by (at least in theory) compelling future jurists to follow their reasoning under factually analogous circumstances. On the other hand, when judges can label a case “non-precedential” they can short-circuit stare decisis by issuing an opinion that need not be followed at all even under in scenarios that are factually virtually identical.

            1. 1.1.1.1.1.1

              It is you that have things backward.

              And badly so.

              The words mean opposite of how you attempt to use them.

              1. 1.1.1.1.1.1.1

                I’m not sure what you mean, but I look forward to your forthcoming journal article on the subject spelling it all out. In the meantime, it’s academic, because Rule 36 exists, and Rule 32.1 no longer stops anyone from citing nonprecedential decisions.

                1. Great – neither of which mean anything to the present conversation and how you have things backward here.

                  Do you want to share any more non sequiturs?

            2. 1.1.1.1.1.2

              Exactly. When an appellate court designates an opinion as non-precedential, they are—in effect—saying “we reserve the right to encounter a materially identical set of facts in the future and, nevertheless, render an opposite judgment.” That does not—cannot—comport with stare decisis.

              To be clear, every now and again, you encounter a case where both sides deserve to lose. For example, the trial judge egregiously misapplied the FRE, but the injured party neglected to make a timely objection. In those cases, any judgment you render is going to be fatally flawed, and it makes more sense for the appeals court to say, as it were, “we have to rule for somebody here, but this case is such a dog’s breakfast that future litigants should not waste their time trying to analogize their facts to the holding of this case.” That is the value of being able to designate a decision as non-precedential, but such cases are more the exception than the rule. The circuit courts should not be routinely making more nonprecedential decisions than precedential ones.

              1. 1.1.1.1.1.2.1

                The circuit courts should not be routinely making more nonprecedential decisions than precedential ones.

                The bizarro world of suspending the understanding between common law evolution and statutory law continues….

                Did neither of you attend the day in law school that explained why statutory law is different than common law?

                Come people – this is a basic notion.

          2. 1.1.1.1.2

            What are you talking about? Precedential cases must be followed–that’s why they are precedential. Future precedential cases cannot overturn earlier precedents, they follow earlier precedents and add additional precedents. The only thing that can overturn a precedent of the Circuit is en banc action or the Supreme Court.

            1. 1.1.1.1.2.1

              Exactly. As the late, great Judge Giles Rich put it in his concurrence in Atlantic Thermoplastics Co. v. Faytex Corp., 974 F.2d 1279, 1281 (Fed. Cir. 1992), “[T]his court has another rule—as yet to be ignored by a panel, I believe—that where there are conflicting precedents, the earlier precedent controls,” (emphasis in original). There is certainly no worry that a designation as precedential might upset stare decisis with such a rule in place.

              1. 1.1.1.1.2.1.1

                as yet to be ignored by a panel, I believe

                You certainly have not been paying attention to the ping-ponging of panel 101 decisions…

                (note as well that the very first panel after the Supreme Court Bilski case came out reaffirmed that In re Alappat remained good law).

      2. 1.1.2

        I appreciate the shout-out but I’m hardly the first one to think that judges shouldn’t be able to selectively nullify stare decisis, and that cases should be precedential as a general rule, to promote the building of a common law and thus stability in the law. The original motivation behind nonpublication of judicial opinions was not any kind of worry about overcomplicating the law with numerous factual examples. (Many areas of jurisprudence, section 101 law after Alice and Fourth Amendment law in particular, are increasingly reliant on having a plethora of decisions on often minutely varying factual circumstances.) Instead, the initial impetus, circa 1964, was solely over the difficulty of printing up, widely distributing, storing, and searching an exponentially growing number of court decisions. This rationale was demolished with cheap electronic information storage and accessibility. See, e.g., 85 Cal. L. Rev. 541.

        Your tidiness theory sucks, because it’s better volume and precision of available example to draw from is more helpful to practitioners and jurists than tidiness for the sake of tidiness. Your theory is one for a civil law country like France, not for the good ol’ US of A. I am not unappreciative of the legal realities of caseloads and docket backlogs and limited hours for clerks and opinion-writers and other court personnel. Even so, I think this issue is important enough that if I were Congress, I would require every circuit appeals court to publish a precedential opinion reciting all the material facts of record and the rationale that leads to the decision–even if that rationale is a substantial recapitulation or quotation from a decision below.

        Most appellants don’t bother to appeal unless they have good and newly engineered arguments as to why there is error in the decision below. That paternalism is the worst part about being Rule 36’d–you never know why your new arguments failed to persuade. Appellants who expend the time and money to draft briefs usually deserve to be treated better than a child told “because” and sent to his or her room.

        1. 1.1.2.1

          Your tidiness theory sucks, because it’s better volume and precision of available example to draw from is more helpful to practitioners and jurists than tidiness for the sake of tidiness. Your theory is one for a civil law country like France, not for the good ol’ US of A.

          Except that you are wrong on a number of important factors – especially in patent law which – by the Constitution – has limited law making ability to only a single branch of the government.

          Granted, the legislative Branch can – and does share its authority (but only under certain rather subscribed conditions).

          THIS is a fundamental aspect of law here in the US of A.

          Certainly – as I clearly indicated – there are woods in which common law is fully permisssible.

          But if you think that this is entirely unconstrained – AND you operate in the patent law sphere, I suggest that you get your money back from your law school.

        2. 1.1.2.2

          I am not unappreciative of the legal realities of caseloads and docket backlogs and limited hours for clerks and opinion-writers and other court personnel.

          Like yourself, I would be inclined to sympathy for law clerks if I thought the motivation for the (rapidly accelerating) trend away from precedential opinions had to do with workload. That hypothesis, however, is unsustainable in view of the thoroughness of the nonprecedential opinions that get published every month.

          As long as you have put the time in to write the opinion, why not make it precedential? It takes no more effort to publish it in the West’s Third Federal than in the Federal Appendix.

          1. 1.1.2.2.1

            precedential does not have to do with “effort.”

            Never did.

            It has to do with CHANGING the law.

            If every case is setting precedent, then there is no such thing as stare decisis, because precedent would be a constantly moving target. Robert’s post at 1.1.1.1.1 overstates the “overturn” nature but still gets the whole stare decisis aspect 180 degrees off. Precedential DOES change the law. If every case changes the law, then there can be NO stare decisis (each decision would only last until the next).

            When it comes to appeals courts APPLYING the law (statutory law) – the BY FAR common occurrence should be merely that: applying the law.

            1. 1.1.2.2.1.1

              In your conception, each new precedential case overrules a previous one. Until you accept that that need not and ought not be true when judges do the job correctly, it’s going to be tough to reconcile our viewpoints. Rather than constantly shifting a target, as you say, precedential cases create more and ever finer targets, making it easier for future cases to be pinned to just the right target.

              1. 1.1.2.2.1.1.1

                In your conception, each new precedential case overrules a previous one.

                No. That is your conception.

                1. I’m not sure even you understand what you mean. If you want to continue this, would you please explain what you mean by “If every case is setting precedent . . . precedent would be a constantly moving target” if not that precedent is constantly being overturned?

                2. Same for you Robert – you clearly are not understanding what you are saying in wanting each case to set a precedent (thereby, no prior case’s precedence would hold sway).

                  Yours is a constantly moving target, wherein “stare decisis” is meaningless.

                3. Robert,

                  I think that the point of contention that you should grasp (in order to come to an understanding here) is that common law evolution is the judicial branch writing law.

                  This may pass in many instances in the US sovereign.

                  Critically though, this does not pass in all instances.

                  One instance in which this does not pass is in the strict treatment of statutory law.

                  Do you remember the classic movie, “The Paper Chase?” (the classic one – 1973, with John Houseman)

                  Watch the movie – taking careful note of the teaching at the one hour, six minute mark.

                  THEN come back (with or without your own writing of a journal article on “tidiness” or any other dust that you may want to kick up).

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