ALTERNATIVE A

Rule 32.1. Non-Precedential Opinions

(a) Authority to Issue Non-Precedential Opinions. A court of appeals may designate an opinion as non-precedential.

(b) Citation of Non-Precedential Opinions. An opinion designated as non-precedential may be cited for its persuasive value, as well as to support a claim of claim preclusion, issue preclusion, law of the case, double jeopardy, sanctionable conduct, abuse of the writ, notice, or entitlement to attorney’s fees, or a similar claim. A court must not impose upon the citation of non-precedential opinions any restriction that is not generally imposed upon the citation of other sources.

Committee Note

Rule 32.1 is a new rule addressing the issuance and citation of non-precedential opinions (commonly but misleading referred to as “unpublished” opinions). Subdivision (a) confirms the authority of courts to issue such opinions, and subdivision (b) authorizes the citation of such opinions for their persuasive value, as well as to support a claim of claim preclusion, issue preclusion, law of the case, double jeopardy, sanctionable conduct, abuse of the writ, notice, or entitlement to attorney’s fees, or a similar claim.

Subdivision (a). Subdivision (a) confirms the authority that long has been recognized and exercised by every one of the thirteen federal courts of appeals — the authority to designate an opinion as non-precedential. The courts of appeals have cumulatively issued tens of thousands of non-precedential opinions, and about 80% of the opinions issued by the courts of appeals in recent years have been designated as non-precedential. Administrative Office of the United States Courts, Judicial Business of the United States Courts 2001, tbl. S-3 (2001). Although the courts of appeals differ somewhat in their treatment of non-precedential opinions, they generally agree that a non-precedential opinion of a circuit does not bind panels of that circuit or district courts within that circuit (or any other court).

Only once has a panel of a court of appeals expressed doubts about the constitutionality of this practice. See Anastasoff v. United States, 223 F.3d 898, 899-905 (8th Cir. 2000). That panel decision was later vacated as moot by the en banc court, 235 F.3d 1054 (8th Cir. 2000), and its rationale was refuted by Hart v. Massanari, 266 F.3d 1155, 1159-80 (9th Cir. 2001). See also Symbol Technologies, Inc. v. Lemelson Med., Educ. & Research Found., 277 F.3d 1361, 1366-68 (Fed. Cir. 2002). Although there continues to be a great deal of debate about whether issuing non-precedential opinions is wise as a matter of policy, the “overwhelming consensus” of judicial and scholarly opinion is that issuing non-precedential opinions does not violate the constitution. Hart, 266 F.3d at 1163.

The ability to issue non-precedential opinions is a matter of survival for many of the courts of appeals, who have seen their workload increase dramatically faster than the number of judges available to handle that workload. Issuing non-precedential opinions takes less time than issuing precedential opinions, because judges can spend less time explaining their conclusions. Non-precedential opinions are written primarily to inform the parties of the reasons for the decision. The parties are already familiar with the case, and thus a detailed recitation of the facts and procedural history is unnecessary. More importantly, an opinion that simply informs parties of the reasons for a decision does not have to be written with the same degree of care and precision as an opinion that binds future panels of the court and district courts within the circuit. The Ninth Circuit made the point well:

A judge drafting a precedential opinion must not only consider the facts of the immediate case, but must also envision the countless permutations of facts that might arise in the universe of future cases. Modern opinions generally call for the most precise drafting and re-drafting to ensure that the rule announced sweeps neither too broadly nor too narrowly, and that it does not collide with other binding precedent that bears on the issue. Writing a precedential opinion, thus, involves much more than deciding who wins and who loses in a particular case. It is a solemn judicial act that sets the course of the law for hundreds or thousands of litigants and potential litigants. When properly done, it is an exacting and extremely time-consuming task.

Hart, 266 F.3d at 1176-77 (citation and footnote omitted). Permitting courts to issue non-precedential opinions enables courts to devote sufficient attention to drafting precedential opinions.

Non-precedential opinions have been the subject of much criticism — understandably, as they are not without disadvantages — but missing from the criticism has been any suggestion of a realistic alternative. There is no reason to believe that the size of the federal courts of appeals will increase substantially in the foreseeable future. Thus, depriving the courts of appeals of the ability to issue non-precedential opinions would seem to leave them with three options. First, they could write hurried and inevitably mistake-prone precedential opinions in all cases — opinions that would bind future circuit panels and district courts within the circuit — creating substantial damage to the administration of justice. Second, they could write detailed and careful precedential opinions in all cases, adding months or (more likely) years to the time that it takes to dispose of appeals, dramatically inflating the already unwieldy body of binding precedent, and creating countless (often inadvertent) intra- and inter-circuit conflicts in the process. Finally, they could dispose of most cases with one-word judgment orders — “affirmed” or “reversed” — that leave parties completely in the dark as to the reasons for the dispositions. None of these options is preferable to the status quo.

Rule 32.1(a) does not require any court to issue any non-precedential opinion. It also does not dictate the circumstances under which a court may choose to designate an opinion as non-precedential, the procedure that a court must follow in making that decision, or what effect a court must give to one of its non-precedential opinions. Because non-precedential opinions are a response to caseloads, and because caseloads differ substantially from circuit to circuit, these are matters that should be left to each court to decide for itself.

Subdivision (b). Subdivision (b) confirms that a non-precedential opinion may be cited to support a claim of claim preclusion, issue preclusion, law of the case, double jeopardy, sanctionable conduct, abuse of the writ, notice, or entitlement to attorney’s fees. Not all of the circuits have specifically mentioned all of these claims in their local rules, but it does not appear that any circuit has ever sanctioned an attorney for citing a non-precedential opinion under these circumstances. In part, then, subdivision (b) simply codifies and clarifies existing practice.

Although all of the circuits appear to have permitted the citation of non-precedential opinions in these circumstances, the circuits have differed significantly in the restrictions that they have placed upon the citation of non-precedential opinions for their persuasive value. An opinion cited for its “persuasive value” is cited not because it is binding on the court or because it is relevant under a doctrine such as claim preclusion. Rather, it is cited because the party hopes that it will influence the court as, say, a law review article might — that is, simply through the depth of its research and the persuasiveness of its reasoning.

Some circuits have permitted such citation without restriction, some circuits have disfavored such citation but permitted it in limited circumstances, and some circuits have not permitted such citation under any circumstances. These rules have created a hardship for practitioners, especially those who practice in more than one circuit. Subdivision (b) is intended to replace these conflicting practices with one uniform rule.

Parties may cite to the courts of appeals an infinite variety of non-precedential sources, including the opinions of federal district courts, state courts, and foreign jurisdictions, law review articles, treatises, newspaper columns, Shakespearian sonnets, and advertising jingles. No court of appeals places any restriction on the citation of these non-precedential sources (other than restrictions that apply generally to all citations, such as requirements relating to type styles). Parties are free to cite them for their persuasive value, and judges are free to decide whether or not to be persuaded.

There is no compelling reason to treat non-precedential opinions differently. It is difficult to justify a system under which the non-precedential opinions of the D.C. Circuit can be cited to the Seventh Circuit, but the non-precedential opinions of the Seventh Circuit cannot be cited to the Seventh Circuit. D.C. Cir. R. 28(c)(1)(B); 7th Cir. R. 53(b)(2)(iv) & (e). It is equally difficult to justify a system under which a litigant can cite a court of appeals to a law review article’s or district court’s discussion of one of its non-precedential opinions, but cannot cite the court to the opinion itself. And, most broadly, it is difficult to justify a system that permits parties to bring to a court’s attention virtually every written or spoken word in existence except those contained in the court’s own non-precedential opinions.

Some have argued that permitting citation of non-precedential opinions would lead judges to spend more time on them, defeating their purpose. However, non-precedential opinions are already commonly cited in other fora, widely read and discussed, and not infrequently reviewed by the United States Supreme Court. See, e.g., Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 122 S. Ct. 1889 (2002) (reversing unpublished decision of Federal Circuit); Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (reversing unpublished decision of Second Circuit). If this widespread scrutiny does not deprive courts of the benefits of non-precedential opinions, it is difficult to believe that permitting a court’s non-precedential opinions to be cited to the court itself will have that effect. The majority of the courts of appeals already permit their own non-precedential opinions to be cited for their persuasive value, and “the sky has not fallen in those circuits.” Stephen R. Barnett, From Anastasoff to Hart to West’s Federal Appendix: The Ground Shifts Under No-Citation Rules, 4 J. App. Prac. & Process 1, 20 (2002).

In the past, some have also argued that, without no-citation rules, large institutional litigants (such as the Department of Justice) who can afford to collect and organize non-precedential opinions would have an unfair advantage. Whatever force this argument may once have had, that force has been greatly diminished by the widespread availability of non-precedential opinions on Westlaw and Lexis, on free Internet sites, and now in the Federal Appendix. In almost all of the circuits, non-precedential opinions are as readily available as precedential opinions. Barring citation to non-precedential opinions is no longer necessary to level the playing field.

Unlike many of the local rules of the courts of appeals, subdivision (b) does not provide that citing non-precedential opinions is “disfavored” or limited to particular circumstances (such as when no precedential opinion adequately addresses an issue). Again, it is difficult to understand why non-precedential opinions should be subject to restrictions that do not apply to other non-precedential sources. Moreover, given that citing a non-precedential opinion is usually tantamount to admitting that no binding authority supports a contention, parties already have an incentive not to cite non-precedential opinions. Not surprisingly, those courts that have liberally permitted the citation of non-precedential opinions have not been overwhelmed with such citations. See, e.g., Boyce F. Martin, Jr., In Defense of Unpublished Opinions, 60 Ohio St. L.J. 177, 195 (1999). Finally, restricting the citation of non-precedential opinions may spawn satellite litigation over whether a party’s citation of a particular opinion was appropriate. This satellite litigation would serve little purpose, other than further to burden the already overburdened courts of appeals.

Imposing a uniform rule cannot harm the administration of justice; to the contrary, it will expand the sources of insight and information that can be brought to the attention of judges and make the entire process more transparent to attorneys, parties, and the general public. At the same time, a uniform rule will relieve attorneys of several hardships. Attorneys will no longer have to pick through the conflicting no-citation rules of the circuits in which they practice, nor worry about being sanctioned or accused of unethical conduct for improperly citing a non-precedential opinion. See Hart, 266 F.3d at 1159 (attorney ordered to show cause why he should not be disciplined for violating no-citation rule); ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 94-386R (1995) (“It is ethically improper for a lawyer to cite to a court an unpublished opinion of that court or another court where the forum court has a specific rule prohibiting any reference in briefs to [unpublished opinions].”). In addition, attorneys will no longer be barred from bringing to the court’s attention information that might help their client’s cause; whether or not this violates the First Amendment (as some have argued), it is a regrettable position in which to put attorneys. Finally, game-playing should be reduced, as attorneys who in the past might have been tempted to find a way to hint to a court that it has addressed an issue in a non-precedential opinion can now directly bring non-precedential opinions to the court’s attention. As is true with any non-binding source, the court can do with that information whatever it wishes.