The most controversial change ever proposed to the Federal Rules of Appellate Procedure is scheduled to take effect later this year. If approved by the U.S. Supreme Court and Congress, Federal Rule of Appellate Procedure 32.1, which authorizes citation to non–precedential federal appellate court rulings in briefs filed in all of the U.S. Courts of Appeals, will become law.
At present, some federal appellate courts permit their non–precedential rulings to be cited in briefs; other federal appellate courts disfavor such citations but permit them when no on–point precedential decision exists; while a third group of federal appellate courts almost entirely prohibits the practice.
Back in the early 1990s when I began practicing law, the federal appellate court before which I practice most frequently -- the 3rd U.S. Circuit Court of Appeals -- was among the federal appellate courts that did not allow its non–precedential (then called "unpublished") decisions to be cited. More recently, however, the 3rd Circuit reversed course, becoming one of the federal appellate courts that freely permits citation to its non–precedential rulings. Samuel A. Alito Jr., then a 3rd Circuit judge, was a strong proponent of the change.
After the 3rd Circuit allowed its non–precedential rulings to be cited, the sky did not fall, mass hysteria did not ensue, and I and my appellate practitioner colleagues within the circuit have grown to strongly favor that approach.
But the opponents of Rule 32.1 are a powerful group, and they were afforded one last opportunity to derail the provision when the Judicial Conference of the United States met on Sept. 20, 2005 to give final approval to the rule before sending it on to the U.S. Supreme Court for consideration. The rule then stated: "A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been designated as 'unpublished,' 'not for publication,' 'non–precedential,' 'not precedent,' or the like."
Regrettably, at the behest of the chief judge of one of the U.S. Courts of Appeals where the citation to non–precedential decisions is now almost entirely prohibited, the Judicial Conference agreed to insert additional language that will cause Rule 32.1 to apply only to federal court rulings issued on or after Jan. 1, 2007. The Advisory Committee's note has been updated to reflect this last–minute alteration: "Rule 32.1(a) applies only to unpublished opinions issued on or after Jan. 1, 2007. The citation of unpublished opinions issued before Jan. 1, 2007, will continue to be governed by the local rules of the circuits."
After adding that prospective–only limitation, the Judicial Conference forwarded Rule 32.1 to the U.S. Supreme Court with the recommendation that the rule be approved and promulgated to Congress by May 1. If the Supreme Court sends the rule along to Congress by that date, and if Congress thereafter takes no adverse action, Rule 32.1 will go into effect on Dec. 1 (even though, by its own terms, the rule will only apply to decisions issued on or after Jan. 1, 2007).
For two reasons, the Supreme Court should eliminate the last–minute, prospective–only limitation from Rule 32.1 and return the rule to the form in which the Appellate Rules Advisory Committee approved it, making the rule applicable to all unpublished and non–precedential federal court rulings, regardless of when issued. First, the prospective–only limitation is guaranteed to sow unnecessary confusion. And second, the limitation serves no logical purpose in distinguishing between non–precedential decisions based on date of issuance.
A central purpose of Rule 32.1 was to eliminate the lack of uniformity in the local rules of the U.S. Courts of Appeals governing when non–precedential rulings may be cited. Unfortunately, the Judicial Conference's prospective–only limitation all but guarantees to preserve that lack of uniformity with regard to non–precedential federal appellate court rulings that issued before January 1, 2007.
At present, the federal appellate courts, either by local rule or case law, have announced whether and under what circumstances those courts' own non–precedential decisions may be cited in briefs filed in those courts. Thus, an advocate who files an appellate brief today in the 9th U.S. Circuit Court of Appeals knows that she risks discipline from the court if she cites a non–precedential 9th Circuit ruling as authority.
As of Dec. 1, if Rule 32.1 goes into effect as planned on that date, local rules that prohibit citation to a federal appellate court's non–precedential rulings will be deprived of any effect, at least with respect to non–precedential rulings issued on or after Jan. 1, 2007. This is because the Federal Rules of Appellate Procedure take precedence over conflicting local rules. So the question will be, in those many federal appellate courts that now prohibit or restrict citation to their non–precedential rulings, whether Rule 32.1 entirely abrogates those courts' local rules or allows them to survive in part to prohibit citation to non–precedential decisions issued before Jan. 1, 2007.
What would make the most sense, of course, would be for all federal appellate courts, in advance of Dec. 1, to update their local rules to specify whether and under what circumstances (if any) litigants will be permitted to cite to those courts' non–precedential rulings issued before Jan. 1, 2007. But that is not guaranteed to happen, and nothing in Rule 32.1 requires it to occur.
Absent such updated local rules, litigants in most circuits will lack clear guidance on whether local rules now governing the citation of non–precedential decisions will continue, following Rule 32.1's effective date, to control the circumstances under which non–precedential rulings issued before Jan. 1, 2007 can be cited.
The confusion that the Judicial Conference's amendment to Rule 32.1 is guaranteed to spawn is but one of the two reasons why the Supreme Court should eliminate that amendment. The second, perhaps even more persuasive reason is that there is no logical basis to draw a distinction between non–precedential opinions issued before Jan. 1, 2007 and non–precedential opinions issued on or after that date.
Rule 32.1 will merely allow attorneys to cite a federal appellate court's non–precedential or unpublished opinions, but the rule in no way requires a federal appellate court to treat its own non–precedential or unpublished opinions as precedent. Thus, after Jan. 1, 2007, the 9th Circuit will be prohibited from disciplining an attorney who cites one of that court's post–Jan. 1, 2007 non–precedential rulings in a brief, but the 9th Circuit itself will remain as free as ever to continue to ignore its own non–precedential rulings.
Another possibility is that the prospective–only limitation in Rule 32.1 will allow those circuits that now strictly prohibit citation to their non–precedential rulings either to improve the quality of such rulings after Jan. 1, 2007 or ensure that such rulings will thereafter be entirely bereft of any citable content. But if that is the rationale for the rule's temporal limitation, the amendment overlooks that attorneys realize both that non–precedential rulings should only be cited in the absence of any comparable precedential authority and that federal appellate courts will remain entirely free to disregard their own non–precedential decisions as neither binding nor authoritative.
My hope that the Supreme Court will remove the last-minute, prospective–only limitation from Rule 32.1 is bolstered by the fact that both Chief Justice John G. Roberts Jr. and Associate Justice Samuel A. Alito Jr. served on the U.S. Courts Appellate Rules Advisory Committee, from which Rule 32.1 originated, and both are on record as opposed to any prospective–only limitation in the rule.
Because the Judicial Conference's temporal limitation in Federal Rule of Appellate Procedure 32.1 is guaranteed to spawn confusion and is based on the illogical proposition that non–precedential rulings issued before the new rule's effective date ought to be treated differently than non–precedential rulings issued after the new rule's effective date, the Supreme Court should eliminate the prospective–only limitation from the text of Rule 32.1 before forwarding the rule to Congress on May 1.
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://appellateblog.com/.