Fote v. Iancu: R.36 Decisions and the Reasons for Judgment

I previously discussed Fote v. Iancu. Charles Fote has now petitioned the Supreme Court for certiorari — asking the following question:

Whether a court of appeals must provide an opinion explaining its reasoning in an appeal that involves a complex and unsettled area of the law and in which a written opinion would likely provide the appellant with a viable basis for seeking rehearing, rehearing en banc, or certiorari.

Petition.

We know that a district court judge deciding an issue on the merits must expressly the legal and factual basis for their decision. The rules of appellate procedure don’t provide the same requirement for appellate decisions.  However, the Federal Circuit’s local rules suggest that it will issue no-judgments affirmance only when an “opinion would have no precedential value” and the lower tribunal decision is properly affirmed. Fed. Cir. Rules of Practice R. 36.

After noting the prevalence of R.36 no-opinion judgments, the petition particularly asks the Supreme Court to “exercise its supervisory authority to provide guidance for the lower courts and ensure that decisions involving complex and unsettled areas of the law are explained—thereby providing the appellant with a viable basis for seeking rehearing, rehearing en banc, or certiorari.”

Does an appeal deserve an opinion?