December 11, 2020 - Federal Circuit Insights

No Argument, No Opinion—a Quick Look at Unargued Rule 36 Decisions During the Pandemic

Last week, Seth Lloyd and I noticed that there had been two more Rule 36s in appeals without oral argument from the Federal Circuit’s November sitting (here).  And then yesterday, Bloomberg’s Perry Cooper tweeted that two more Rule 36s were handed down from this month’s sitting in appeals without argument.  That got me thinking, how many times since the pandemic began has the Court Rule 36’d without argument?  And can anything be gleaned from those decisions?  Usually, one expects that if there’s no oral argument then the parties will get a short explanation as to why the Court ruled a certain way in a non-precedential decision.  But if there’s an argument, there’s perhaps less need for a written explanation:  the parties likely learned enough at oral argument from the judges’ questioning to understand the basis for the decision.  But here, in this subset of cases with no opinion or oral argument, some appellants may be left wondering “why did I lose?”

So how many appellants did we find in that special category?  Nine.  Seven were in patent appeals—and those seven were pretty evenly divided between PTAB (three) and district courts (four).  One was a government contracts case.  And the last one was (at first glance) a little mysterious.

Let’s take the two non-patent appeals first.  Neither case was a cancelled argument per se.  And the government contracts case likely has a straightforward reason for why the Court Rule 36’d without argument—the appellant contractor waived argument.  Given that the appellant didn’t see the need to argue, it seems entirely possible that the panel (Judges Bryson, Wallach, and Hughes) didn’t see a reason to provide written reasons for its disposition.  Maybe had the appellant not waived the oral argument, the Court would have held argument and Rule 36’d.  Or maybe it would have cancelled argument anyway and would have issued a non-precedential decision.  We’ll never know, but it seems possible—if not likely—that the appellant’s decision to waive argument played some role in the Court’s decision.

As for the mystery case:  it was a pro se appeal, so it made sense that there was no oral argument.  What made less sense was the affirmance by a Rule 36, as usually the Court issues a short non-prec opinion explaining the decision.  Wanting to know more, I looked at the docket.  What I found made the case both more and less mysterious.  The case was entirely under seal; I couldn’t see what documents (redacted or not) were filed and when.  Given the secrecy, it made more sense that the Court might Rule 36 rather than draft an entirely sealed decision.  (For those wondering, you can Google the parties and (perhaps) get some information about the case.)

That leaves the seven patent cases.  All seven of these appeals had oral argument cancelled.  Not surprisingly, there wasn’t a clear pattern.  For the PTAB cases, two appeared to be substantial evidence challenges and one a claim construction challenge.  And they were split two-to-one between patent-challenger appellant and patent-owner appellant.  Interestingly, two of the district court cases were 101 appeals, where the patent owner had its claims determined ineligible on a motion to dismiss.  I suppose one could say it’s both surprising and unsurprising that the Court didn’t want to hear argument and write about another 101 appeal.  The last two were a mixed bag.  One was an attorney fees appeal, where a prevailing party wanted fees awarded.  And the last appeal had something to do with personal jurisdiction, but my five to ten minute read didn’t give me much insight into the issues, so I can’t say more.  Perhaps that’s why the panel decided both oral argument and a written decision were unnecessary.  Or perhaps I just should have had that second cup of coffee before looking at the briefs.

Some final tidbits:

  • Judge Lourie was on four Rule 36s in appeals without argument—all cancelled argument cases.  Judge Newman was next with three, and several other judges were on two such appeals.
  • Of the active judges, only Judge Chen has not been on a Rule 36 without argument since the pandemic began.
  • While the sample size is so small that it’s hard to suggest this is anything but anecdotal, it’s interesting that most of the Rule 36s without argument have occurred in the last three months—two each in October, November, and December.  By comparison, there were only three Rule 36s without argument in the first six months of telephonic arguments (April-September).  It may be that as the telephonic argument format has continued, judges have decided that some cases are so straightforward that argument wouldn’t assist the Court and the parties don’t need a written explanation.  If so, it seems likely that the Rule 36s without argument may continue.