No End in Sight for Rule 36 Racket at Federal Circuit
According to Federal Circuit Rules, a Rule 36 judgment can be entered without an opinion when it is determined by the panel that one of five conditions exist relating to the underlying decision being sufficient or exhibiting no error of law. In such cases, because a written opinion would not have precedential value, a judgment of affirmance without opinion is allowed.
The Federal Circuit use of Rule 36 has been well documented and extremely problematic. As of January 28, the Federal Circuit has issued 44 decisions in 2019. Of those 44 decisions, 24 have been Rule 36 judgments, which are simply one-word judgments that substantively say: “Affirmed.” Twenty of the decisions have been non-precedential decisions. So far in 2019, only 13 decisions of the Federal Circuit have been designated precedential. To do the math, this means 42.1% of the Court’s decisions have been Rule 36 judgments. More generally, combining Rule 36 and non-precedential opinions together, we see that 77.2% of the Court’s decisions are non-precedential, and only 22.8% are precedential.