Minutes of Fall 2002 Meeting of

                                             Advisory Committee on Appellate Rules

                                                              November 18, 2002

                                                         San Francisco, California



1.                  Introductions


Judge Samuel A. Alito, Jr., called the meeting of the Advisory Committee on Appellate Rules to order on Monday, November 18, 2002, at 8:30 a.m. at the Park Hyatt Hotel in San Francisco, California.  The following Advisory Committee members were present:  Judge Diana Gribbon Motz, Judge Carl E. Stewart, Judge Stanwood R. Duval, Jr., Chief Justice Richard C. Howe, Prof. Carol Ann Mooney, Mr. W. Thomas McGough, Jr., Mr. Sanford Svetcov, and Mr. John G. Roberts, Jr.  Mr. Douglas Letter, Appellate Litigation Counsel, Civil Division, U.S. Department of Justice, was present representing the Solicitor General.  Also present were Judge J. Garvan Murtha, the liaison from the Standing Committee; Ms. Marcia M. Waldron, the liaison from the appellate clerks; Mr. Peter G. McCabe, Mr. John K. Rabiej, and Mr. James N. Ishida from the Administrative Office; and Ms. Marie C. Leary from the Federal Judicial Center.



II.        Approval of Minutes of April 2002 Meeting


The minutes of the April 2002 meeting were approved.



III.       Report on June 2002 Meeting of Standing Committee


The Reporter stated that, at its last meeting, the Standing Committee had approved this Committee’s request that Forms 1, 2, 3, and 5 in the Appendix to the Appellate Rules be amended to refer to “20___” instead of to “19___.”  The Standing Committee also agreed that these changes were technical in nature and did not need to be published for comment. 


The Reporter further stated that Judge Alito had informed the Standing Committee that this Committee was likely to act on controversial proposals to amend Rule 35(a) regarding en banc voting and to add a new rule addressing the citation of non-precedential opinions.



IV.       Action Items


F.         Item No. 01-01 (citation of non-precedential decisions)

    (Alternatives and Committee Notes Omitted)


The Reporter said that, at its April 2002 meeting, the Committee had decided to move forward on the Justice Department’s proposal that a new Rule 32.1 be added to the Appellate Rules to impose a uniform rule regarding the citation of non-precedential opinions.  Although the Committee supported this proposal in principle, members had raised a number of concerns about the specifics of the Department’s draft rule.  The Reporter agreed to take a look at this issue and prepare a revised draft.


The Reporter said that he was presenting to the Committee three alternative drafts of a proposed Rule 32.1.  The first Alternative A was the broadest.  It specifically authorizes courts to issue non-precedential opinions and permits their citation without qualification.  The second Alternative B takes a middle position.  Unlike Alternative A, it addresses only the citation of non-precedential opinions.  However, unlike Alternative C, it permits the citation of such opinions without qualification.  The third Alternative C is the narrowest.  It addresses only the citation of non-precedential opinions, and it permits such citation only in limited circumstances.


The Reporter said that he had prepared these alternative drafts for a couple of reasons.  First, the issue of non-precedential opinions has been a recurring one during the recent history of the Committee.  It may be helpful to get all issues and all alternatives on the table, so that this issue might be put to rest for at least a few years.  Second, the Committee may want to publish a broader proposal than it anticipates approving.  This would allow for a full public airing of all of the issues, and it would give the Committee room to compromise down the road.  Publishing Alternative A might also give comfort to those judges who could be persuaded to support a rule regarding citation (Alternative B or C) if they could be assured that such a rule is not a first step toward abolishing non-precedential opinions altogether.


After a brief discussion, the Committee agreed by consensus not to proceed with Alternative A.  Members expressed concern about using a procedural rule to embrace one side of the debate over the constitutionality of non-precedential opinions.  Members were unanimous in wanting to limit the involvement of the Committee to the issue of citation.


Most members who addressed the issue expressed a preference for Alternative B over Alternative C, largely for the reasons given in the draft Committee Note.  Mr. Letter said that the Justice Department had originally asked the Committee to approve a citation rule and continues to favor such a rule.  However, the Solicitor General received a phone call from Judge Alex Kozinski of the Ninth Circuit and other opponents of the rule, and he is troubled by some of the concerns that they raised.  The Solicitor General believes it essential that this Committee fully consult with the Ninth Circuit regarding its concerns.


Mr. Letter said that if the Committee decides to go forward with a proposed rule, the Department would favor Alternative B over Alternative C.  Although the Department originally proposed a qualified citation rule similar to Alternative C, it did so only because it thought that a qualified rule had the best chance of being approved by the Standing Committee and Judicial Conference.  Mr. Letter said that, upon reflection, the Department had decided that it was preferable to “lead” with the better rule Alternative B and “retreat” to Alternative C if Alternative B fails to attract the necessary support.


One member argued strongly against approving any rule regarding the citation of non-precedential opinions.  He said that, although he had previously favored such a rule, he had been persuaded by discussions with Judge Kozinski and others from the Ninth Circuit that no such rule should be approved.  He said that non-precedential opinions are a response to circumstances (particularly caseloads) that differ from circuit to circuit, and thus each circuit should be free to adopt its own rules on the matter.  He also pointed out that opinions designated as “non-precedential” or the like vary dramatically from one-paragraph, per-curiam orders to 20-page, signed opinions containing exhaustive legal analysis.  The variation in practices among circuits argued against trying to impose a single national standard.


In addition, the member said, it is logical for circuits to bar the citation of their non-precedential opinions for their persuasive value.  If the rationale of a non-precedential opinion is persuasive, there is nothing that prevents a litigant from repeating that rationale in its brief.  The reason that litigants want so badly to cite non-precedential opinions is not for the persuasiveness of their rationales, but because litigants want the court to be influenced by the fact that three judges agreed with a rationale.  But this is a misleading use of non-precedential opinions.  The practice in the Ninth Circuit and elsewhere is that a judge will join a non-precedential opinion as long as he agrees with its result, even if he does not agree with its reasoning.  No-citation rules thus prevent parties from using non-precedential opinions in an unfair manner.


Several members disagreed.  They pointed out that courts already know all of this and can take it into account when deciding what weight to give to non-precedential opinions.  All judges have written non-precedential opinions, and all judges have joined them.  Judges are not going to be misled into thinking that these opinions have more force than they do.  Moreover, it is strange to regulate the force of an authority by forbidding lawyers to talk about it.  Lawyers should be free to cite any non-binding source of authority they want, and judges should be free to give that authority as much or as little weight as they deem appropriate.  Judges do not need to be protected from having their own non-precedential opinions drawn to their attention.


A member said that, as a judge, he frequently confronts issues that have not been addressed directly by a precedential opinion of his circuit.  As far as he is concerned, the more illumination from whatever source the better.  He is confident in his ability to decide how much weight to give a non-precedential opinion; after all, he decides every day how much weight to give to law review articles, decisions of state courts, and the other non-binding sources of authority that are cited to him.


The member who opposed a national rule said that the unique circumstances of the Ninth Circuit account for the Ninth Circuit’s strong opposition to a citation rule.  The Ninth Circuit must dispose of a huge number of cases.  The practice in the Ninth Circuit is for judges to give their full attention to both the reasoning and result of precedential opinions.  However, judges will join non-precedential opinions even if they do not agree with the reasoning, as long as they agree with the result.  They do this precisely because they know that the opinions will not be binding precedent and will not be cited to the Ninth Circuit.  If the Ninth Circuit was forced to permit citation of its non-precedential opinions, the court would likely issue many fewer such opinions and many more one-word orders.


A member responded that she thinks that such a development would be a good thing.  In her view, if three judges agree on a result, but not on reasoning, they should issue only a result that is, a one-word order.  She believes this practice would be better than issuing hundreds of non-precedential opinions that have been joined by judges who may or may not agree with what the opinions say.  The member who opposed a citation rule disagreed, stating that the use of one-word dispositions is unfair to the parties, who should receive some explanation of a result.


The Committee also revisited the question of whether parties who cite non-precedential opinions should be required to attach copies of those opinions to their briefs, motions, or other papers.  At its April 2002 meeting, the Committee decided not to include such a requirement.  Non-precedential opinions are widely available today for all practical purposes, they are as available as precedential opinions and thus a general requirement to attach copies would result in the needless copying, serving, and filing of hundreds of thousands of pages of non-precedential opinions.


Although no member of the Committee argued in favor of a general requirement to attach copies of non-precedential opinions, a couple of members did express concerns about citations to the non-precedential opinions of the Fifth and Eleventh Circuits.  Those circuits do not release their non-precedential opinions to West for publishing in the Federal Appendix, do not release their non-precedential opinions to Westlaw and LEXIS for inclusion in their electronic databases, and do not post their non-precedential opinions to their websites.  The only way to get a non-precedential opinion of the Fifth or Eleventh Circuit is to call the clerk’s office and request a copy.


Others discounted concerns about the Fifth and Eleventh Circuits.  Because their non-precedential opinions are so difficult to get, those opinions will rarely be cited.  When they are cited by a party, the other parties can pick up the phone and get a copy either from the party that cited the opinion or from the clerk’s office.  To amend the Appellate Rules to address a minor problem existing (for now) in only two circuits would be overkill.


A member asked whether the Appellate Rules should be amended to force all circuits to make their non-precedential opinions available on-line or to Westlaw and LEXIS.  The Reporter said that the former chair of the Committee, Judge Will Garwood, had appointed a subcommittee to look into this very issue a few years ago, but nothing had come of that.[1]   The Reporter also said that, although his recollection is vague, he believes that the reason nothing came of the subcommittee is that someone had concluded that the issue was more properly within the jurisdiction of the Committee on Court Administration and Case Management (“CACM”).  Mr. Rabiej said that his recollection was similar.


Several concerns were raised about the wording of Alternative B.


A couple of members asked whether both sentences were necessary.  One member suggested that the second sentence “[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” might be deleted.  The Reporter responded that he feared that, without that sentence, the courts of appeals that are hostile to the citation of non-precedential opinions would impose so many conditions on such citation as to defeat the purpose of the rule.


Another member suggested that the first sentence could be deleted, and that the second sentence, standing alone, would accomplish all that the rule is intended to do.  He said, though, that he would prefer that the sentence be written passively (“no restriction may be imposed”) rather than actively (“a court must not impose”), as the former sounds less confrontational.  A member expressed concern that the second sentence might prevent a court from requiring parties to serve a copy of a non-precedential opinion of the Fifth or Eleventh Circuit.


A couple of members raised concerns about the use of the term “non-precedential.”  One member said that he thought the term was misleading, as these opinions are precedent (although not necessarily binding precedent).  The Reporter pointed out that the rule refers to opinions being designated as non-precedential; it does not take a position on whether or to what extent any particular opinion is in fact “non-precedential.” 


Another member expressed concern that the term might not be broad enough to reach all of the opinions that the Committee wanted to reach.  For example, could a court argue that the rule does not force it to permit citation of its non-precedential opinions because those opinions are labeled “unpublished” instead of “non-precedential”?  One member suggested substituting the phrase “not officially reported,” but another member responded that no opinion of a federal court of appeals is “officially” reported.  A member suggested substituting a phrase such as “non-precedential, not-for-publication, or the like.”


A member said that he was also concerned about the use of the word “opinions” for similar reasons.  He fears that a hostile court will argue that the rule does not apply to its non-precedential opinions, because those opinions are “orders” or “memorandum dispositions” instead of “opinions.”


Finally, a member suggested that the title of new Rule 32.1 should refer to “Citation of Opinions Designated As Non-Precedential” rather than “Citation of Non-Precedential Opinions.”  Picking up on the Reporter’s point, she was concerned that the latter title might imply a view about the jurisprudential impact of these opinions.


A member moved that the Committee approve Alternative B in substance, except that the Reporter be directed to draft a revised version of Alternative B incorporating the following changes:


1.  New Rule 32.1 should be a single sentence, modeled after the second sentence of the current draft, but stated passively.  The member suggested something like:  “No restriction may be imposed upon the citation of opinions designated as non-precedential, unpublished, or the like that is not generally imposed upon the citation of other sources.”  Members conceded that the Reporter would have to tinker with the language of the rule to improve its clarity, make it consistent with the style rules, and make certain that it covers all of the judicial dispositions that the Committee wishes to reach. 


2.  The title of new Rule 32.1 should refer to judicial dispositions that are designated as non-precedential, unpublished, or the like. 


3.  Finally, a sentence should be added to the rule to require a party to serve copies of non-precedential opinions that the party has cited and that are not readily available, such as the non-precedential opinions of the Fifth and Eleventh Circuits.


The motion was seconded.  The motion carried (7-1, with one abstention).  The Reporter said that he would present a revised draft of Alternative B at the Committee’s spring 2003 meeting.


G.        Item No. 02-01 (FRAP 27(d) C apply typeface and type-style limitations to motions)


The Reporter introduced the following proposed amendment and Committee Note:



Rule 27.  Motions

                                                           * * * * *


[1]The minutes of the April 1998 meeting of the Committee state (on page 29):


Judge Garwood said that he was prepared to entertain the following motion:  Item No. 91-17 would be removed from the Committees study agenda, without prejudice to any specific proposals regarding unpublished opinions that might be made in the future.  At the same time, Judge Garwood would appoint a subcommittee to discuss whether and how the Third, Fifth, and Eleventh Circuits might be encouraged to provide their unpublished opinions to LEXIS and Westlaw.  A member made the motion suggested by Judge Garwood.  The motion was seconded.  The motion carried (unanimously).

Judge Garwood appointed a subcommittee consisting of Judge Alito, Judge Motz, and Mr. Meehan, asked Judge Motz to chair the subcommittee, and asked Judge Kravitch if she would work with the subcommittee in her capacity as liaison from the Standing Committee.