On Dec. 1, 2006, two amendments to the Federal Rules of Appellate Procedure will officially take effect.
The first amendment adds Federal Rule of Appellate Procedure 32.1, which will require all federal appellate courts to allow citation to their own unpublished and non-precedential opinions issued on or after Jan. 1, 2007. The second amendment, which affects Federal Rule of Appellate Procedure 25(a)(2)(D), will authorize federal appellate courts to require electronic filing.
FRAP 32.1, permitting citation to unpublished and non-precedential federal appellate court rulings, stands as the most controversial amendment to the Federal Rules of Appellate Procedure of all time. Nevertheless, this new rule is guaranteed to arrive on the scene not with a bang but with a whimper. That's because, although FRAP 32.1 officially takes effect on Dec. 1, the rule will only apply to unpublished and non-precedential opinions issued on or after Jan. 1, 2007. As a result, the impact of FRAP 32.1 will probably be imperceptible for many months in those circuits that, before the new rule's advent, had prohibited any citation to their own unpublished and non-precedential decisions. And because non-precedential opinions will continue to lack precedential value even after FRAP 32.1 takes effect, savvy advocates will only cite to unpublished or non-precedential rulings in the absence of any equally relevant published and precedential decisions.
After advocates begin citing to unpublished or non-precedential opinions in reliance on FRAP 32.1, there will still be additional delay until the cases are either argued or submitted on the briefs for decision. Thus, it could be rather late in 2007 before we first begin to see how those federal appellate courts that had previously prohibited any citation to their own unpublished and non-precedential rulings are reacting to appellate briefs that permissibly cite to such decisions in reliance on FRAP 32.1.
The other change to the Federal Rules of Appellate Procedure that will take effect next month is an amendment to FRAP 25(a)(2)(D), a rule that addresses electronic filing on appeal. The amendment authorizes federal appellate courts to require that pleadings, briefs, and other papers be filed electronically, but the amendment also states that "[a] local rule may require filing by electronic means only if reasonable exceptions are allowed." This so-called "hardship exception" is undefined, allowing the federal appellate courts that will require electronic filing on appeal to experiment with different formulations. The most obvious form of a hardship exception will apply to pro se litigants who do not have access to the technology necessary to prepare and file documents in electronic form. Presumably any lawyers who lack Internet access or who cannot afford the software necessary to file electronically would likewise be able to qualify under that exception.
Although these changes constitute only two amendments to the Federal Rules of Appellate Procedure, their long-term impact is likely to be quite significant for appellate litigation, especially given that electronic filing is the wave of the future for appellate cases. And the battle over citation to unpublished and non-precedential decisions was especially spirited. Soon we shall see whether the consequences of that rule change merited the effort expended by supporters and opponents of the new rule.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.
Law.com's ongoing LEGAL MINDS article series highlights opinion and analysis from our site's contributors and writers across the ALM network of publications.