Citation
Rantanen, J. (2022). Missing decisions and the United States Court of Appeals for the Federal Circuit. University of Pennsylvania Law Review Online, 170, 73–89. https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1266&context=penn_law_review_online
Research Question
To what extent are the Federal Circuit’s terminating appellate decisions missing from its public website and commercial databases, and what kinds of decisions are systematically excluded?
Key Takeaways
A meaningful slice of Federal Circuit terminations, especially on jurisdiction, timeliness, and transfer, never appears in the court’s online opinions or in typical research database searches; Even in a heavily studied court, important gatekeeping decisions are effectively “off the grid,” so lawyers relying only on published opinions and standard database queries may underweight jurisdictional and procedural risk; A nontrivial number of nonprecedential but substantive merits orders exist only in PACER, underscoring that judicial reasoning affecting real parties can be practically invisible; Original proceedings (mandamus and related matters) are particularly underpublished, despite their growing strategic importance in patent venue and procedural fights; Litigators planning appeals or mandamus petitions in the Federal Circuit should factor in this hidden body of practice and, where stakes justify it, look beyond surface-level case law to docket-level data.
Dataset Description
The study uses two main datasets from the Federal Circuit Dataset Project: (1) the Compendium of Federal Circuit Decisions (opinions, Rule 36 summary affirmances, and orders posted on the court’s website) and (2) a docket dataset of every Federal Circuit appeal accessible via PACER since 2000. For the core quantitative analysis, it examines appeals docketed from 1999–2021, with a focused comparison for 2008–2018, and a detailed hand-coded review of all 1,636 appeals filed in 2015 that lacked a terminating document on the court’s website. It also compares these counts to search results for Federal Circuit decisions in Westlaw, Lexis, and Bloomberg Law for calendar years 2008–2020. Jurisdiction is the U.S. Court of Appeals for the Federal Circuit, including both regular appeals and original proceedings (mandamus and other miscellaneous dockets).
Methodology
statistical/quantitative
Key Findings
Rantanen shows that while the Federal Circuit publicly posts nearly all merits decisions in regular appeals (opinions and Rule 36 affirmances), a sizable share of its case-ending activity remains effectively invisible. For appeals filed between 2008 and 2018, about 63% of dockets end in an opinion or Rule 36 decision on the court’s website; roughly 37% have no such decision available, and about 25% of all appeals have no associated document on the site at all. A close read of all 2015 appeals reveals that 31% lacked a terminating document on the website, most due to voluntary dismissals or failures to prosecute, but with a nontrivial residue of contested dismissals for lack of jurisdiction or untimeliness, transfer and remand orders, and a handful of nonprecedential merits orders that contain substantive reasoning. Many decisions on the “appropriateness” of an appeal (jurisdiction, timeliness, transfers, remands) and most rulings in original proceedings are accessible only by mining PACER dockets, not through the court’s opinions page or standard research databases. For practitioners, this means that doctrinal signals on threshold issues and mandamus practice are systematically underrepresented in the sources they typically search, subtly distorting assessments of appellate risk, jurisdictional pitfalls, and venue-transfer prospects.
Summary
This article extends Merritt McAlister’s “Missing Decisions” project to the U.S. Court of Appeals for the Federal Circuit, a court that is unusually important for patent and federal claims practice and unusually opaque in some of its decisionmaking. Because the Administrative Office reports Federal Circuit data in a format that cannot be plugged directly into McAlister’s method, Rantanen reconstructs the picture from the ground up using two bespoke datasets: a compendium of all decisions the court itself posts on its website and a docket-level database of every appeal on PACER since 2000. By matching dockets to documents, he can ask a very basic but critical question: for each appeal, is there any publicly posted terminating decision, and if so, of what type?
For appeals docketed between 2008 and 2018, he finds that roughly 45% end in written opinions and another 17% in Rule 36 summary affirmances, almost all of which are publicly available. That part of the Federal Circuit’s work is quite visible. But about 37% of appeals have neither an opinion nor a Rule 36 decision on the website, and even after accounting for posted orders, roughly a quarter of appeals have no decision document on the site. Comparing counts across Westlaw, Lexis, Bloomberg Law, and the court’s site shows some variation and some evidence that commercial vendors sometimes pull extra orders from PACER, but not nearly enough to close the gap. In short, there is a stable pocket of “missing decisions” that never show up in the usual research channels.
Rantanen then drills down into a single year, 2015, to see what those missing terminations actually are. Of 1,636 appeals filed that year, 790 produced an opinion and 343 a Rule 36 affirmance; 6 more had terminating orders online. That left 497 appeals (31%) with no terminating document posted. Reviewing the underlying dockets and orders, he finds that most of these were voluntary dismissals or failures to prosecute, but a meaningful subset were not. After stripping out voluntary dismissals and remands and dismissals for mootness or inaction, he identifies 41 contested dismissal orders (largely for lack of appellate jurisdiction or untimeliness), 23 transfer orders to other circuits, 6 contested remands, and 12 merits orders that contain substantive analysis but are labeled “orders” rather than “opinions.” None are precedential, yet several address recurring issues, such as the proper scope of collateral estoppel in patent cases and the handling of cross-appeals and substitution of parties.
Equally important, original proceedings are largely off the public radar. In 2015, there were 45 “miscellaneous” matters (mandamus and similar petitions); only 2 had decisions on the website, despite the doctrinal and practical significance of Federal Circuit mandamus practice for patent venue and case management. In some other years, the court posted more of these orders, but the pattern is inconsistent. Rantanen concludes that, while the Federal Circuit deserves credit for posting nearly all merits decisions in ordinary appeals, it systematically fails to post many dispositive orders in jurisdictional, timeliness, transfer, remand, and original-proceeding matters.
For litigators, the message is straightforward but important. The public-facing body of Federal Circuit law you see in opinions and even in standard database searches omits a slice of the court’s gatekeeping work. That slice is not enormous in percentage terms (perhaps 6–8% of terminations in a year like 2015), but it clusters precisely in areas that shape whether a case will be heard at all and in which forum. Venue-transfer mandamus, appellate jurisdiction, filing deadlines, improper cross-appeals, and contested remands all generate uncollected, nonprecedential orders that still reflect the court’s instincts and thresholds. Ignoring that shadow record can lead to miscalibrated advice on whether to appeal, how aggressive to be on mandamus, or how safe a jurisdictional theory really is. Rantanen’s recommendation that the court simply post all dispositive orders to its website is a modest transparency fix, but the broader lesson for modern practice is that judicial behavior is patterned and measurable only if you are willing to look beneath the surface of published opinions to the docket-level data where many of the real strategic signals live.
How the Study Advances Empirical Understanding of Legal Outcomes
The study finds that appellate outcomes at the Federal Circuit exhibit systematic, repeatable patterns of visibility and omission shaped by institutional publication practices and procedural categories rather than by ad hoc or random processes. The analysis shows that a substantial portion of dispositive appellate activity, particularly on jurisdictional, timeliness, transfer, and original proceeding matters, remains outside the body of decisions captured by published opinions and standard databases, which matters for accurately understanding how appellate institutions actually function and resolve cases. By relying on comprehensive docket-level data, document matching, and longitudinal comparisons rather than surface-level opinion counts, the study employs an empirical, case-based approach to legal outcomes and decision contexts, consistent with Pre/Dicta’s emphasis on rigorous measurement as a necessary component of sophisticated litigation analysis.
