Processing All Things Federal Circuit
September 06, 2022 - Federal Circuit Insights

Is It Ever Too Late To Be Rule 36’d?

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Those that regularly practice before the Court know about Rule 36s. We’ve written about them before. It’s a one-line per curiam decision that generally comes a few days after oral argument:

AFFIRMED. See Fed. Cir. R. 36.

This post isn’t going to say anything about the merits of Rule 36s. That’s been well discussed many other places. One thing, of course, critics of the practice should keep in mind is how much they like their oral arguments. In many respects, Rule 36s go hand-in-hand with the Court’s practice to hold argument in every case represented by counsel. And with only a few primarily pandemic related exceptions where the Court cancelled a telephonic argument (see post here), the Court will issue an opinion when there is no argument. As someone who practices before the Court, this makes sense. You only generally have a sense (maybe strong emphasis on generally) of how judges are thinking about your case when there’s an oral argument, and it’s hard to predict the outcome. But if you’re listening and answering the questions (as you should), you might get the gist of what some judges are homing in on. By contrast, in cases without argument, the opinion speaks for itself.

The other positive (or negative, I suppose, depending if you’re on the losing side) is that a Rule 36 comes quickly. In our statistics, Rule 36s come about 6 days after oral argument. That’s incredibly fast, as it means you usually get a decision the week after oral argument when there’s a Rule 36. Usually, when there’s no Rule 36, that means good things for the appellant. Your odds of prevailing significantly increase once you get beyond that Rule 36 period (see our posts here and here).

This post, however, is one of those don’t count your chickens before they hatch cautionary tales. While you might think you’re always going to get an opinion—be it precedential or nonprecedential—once you’re a few weeks out from oral argument, that’s not 100% the case. Over the past few years we’ve been tracking the Court’s decisions, there have been some anomalies. In fact, we’ve found three Rule 36s that came pretty long after oral argument, where the Rule 36 might have been a surprise to the parties when it happened:

  • Mass Engineered Design, Inc. v. Planar Systems, Inc. (No. 19-1365), 75 days (Judges Lourie, Dyk, Stoll)
  • Spigen Korea Co., Ltd. v. iSpeaker Co., Ltd. (No. 19-1292), 137 days (Judges Newman, Lourie, Reyna)
  • Biogen, Inc. v. Iancu (No. 19-1364), 376 days (Judges Newman, Moore (before she was Chief Judge), Chen)

There’s no way to know why these appeals took so long to Rule 36. Listening to the arguments perhaps suggests that the Court hadn’t yet made up its mind in two of the cases. In Mass Engineered Design (75 days) and Biogen (376 days), the Court did press the appellees on some issues, strongly so in one of the appeals. So as a matter of pure speculation, it could have been a situation where the Court wanted to investigate the issues more only to conclude that there was nothing really to write about. But in the third appeal (Spigen), the Court asked very few questions—and those questions seemed to press the appellant for answers. So it seems impossible to even guess why that appeal took 137 days to Rule 36. Perhaps the only conclusion that can be drawn from these cases is that, even when it has been months from oral argument, there’s still always that chance that your appeal might be Rule 36’d.