What Is a Rule 36 Judgment?


Recently, the Federal Circuit issued a ruling in IA Labs CA v. Nintendo Co., LTD, which upheld Nintendo’s victory in the patent litigation brought by IA Labs in the United States Federal District Court for the District of Maryland. See Nintendo Wins Attorneys’ Fees Fighting Baseless Patent Lawsuit. The decision was hardly extraordinary. It simply read: “AFFIRMED. See Fed. Cir. R. 36.” This is what is called a “Rule 36 judgment,” or sometimes a “summary affirmance.”

A Rule 36 judgment can be entered without an opinion when it is determined by the panel that any one of five conditions exist and a written opinion would not have precedential value. The five conditions are:

  1. The judgment, decision, or order of the trial court appealed from is based on findings that are not clearly erroneous.
  2. The evidence supporting the jury’s verdict is sufficient.
  3. The record supports summary judgment, directed verdict, or judgment on the pleadings.
  4. The decision of an administrative agency warrants affirmance under the standard of review in the statute authorizing the petition for review.
  5. A judgment or decision has been entered without an error of law.

The per curiam decision of the panel in this case did not say which one of the five conditions applied, or if more than one applied, which is typical of a Rule 36 judgment from the Federal Circuit.

When I interviewed Chief Judge Rader, just prior to him becoming Chief Judge, the topic of Rule 36 Judgments came up briefly when we discussed the process the Federal Circuit follows to reach a decision in a case. In relevant part, our discussion was as follows:

QUINN: [C]an you describe how deliberations unfold? And what I mean by that is who decides who writes for the majority, when do you know whether you will write a dissent or write for the majority — sort of the mechanics involved.

RADER: When we come off of the bench, we immediately sit down as a panel of three and convene our conference. The junior-most judge always speaks first, and we do that for two reasons. One is to ensure a kind of judicial independence. The junior judge cannot defer to the more experienced senior judges, but must prepare his or her own independent opinion, which will be presented first in an oral fashion. And there is another reason for it, and that is if the first judge and the second judge differ, then the presiding judge can kind of rock back in his or her chair and listen, let the two judges represent the case and receive the benefits of that revisitation of the issues before making a decision that will decide the outcome of the case.

QUINN: So you pretty quickly after the oral argument the panel has an idea, or maybe even knows, whether there is going to be a split or it is going to be unanimous.

RADER: We do not know for sure. We do not discuss the cases in advance. Now, I’ve worked with everyone on this Court for many years and I generally predict with some degree of accuracy how they are going to vote. So I will often predict when we will have a split, but I am not always accurate on that. The conference is when we really decide and we discuss and come to a resolution. The second order of business, after we have discussed the outcome, is to decide how to resolve it. We decide whether to issue a simple Rule 36 affirmance, which is a standard one-page order that affirms on the basis of the judgment below. The second way of dealing with it is a non-precedential opinion, which is a short five-page opinion written solely for the benefit of the parties that is not binding on the Court in the future. Then there is the standard precedential legal opinion that you see regularly and discuss and which you see in casebooks. By the way, I think we tend to do about one-third of each: one-third of summary affirmance, one-third of non-precedential opinions and one-third of full-blown precedential opinions.

Thus, while it may seem strange to some that the Federal Circuit issue a one-page decision that merely says “AFFIRMED,” relying on this Rule 36 procedural tool is not uncommon and does allow the Court to manage its docket. This is critical because the Federal Circuit has an extraordinary workload and could easily use more judges.

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