64 Geo. Wash. L. Rev. 815 George Washington Law Review June-August, 1996 The D.C. Circuit Review September 1994-August 1995 *815 SOME THOUGHTS ON UNPUBLISHED DECISIONS David S. Tatel [FNa] Copyright (c) 1996 George Washington Law Review; David S. Tatel Rare are the times when federal judges may properly express our personal opinions about the work that we do. Rarer still are the times when someone actually seeks our advice on such matters. A Senate Judiciary subcommittee did so recently, however, when it sent a survey on the workings of the federal court system to federal judges. As part of that survey, the subcommittee asked the following question: Some have suggested that court policies regarding the publication of opinions . . . foster a number of problems, including an unfairness to litigants, a loss of accountability, and an uncertainty about precedential status and actual judicial economy . . . . What is your view on these suggestions? [FN1] While primarily addressing the publication of decisions, this question actually raises three distinct issues: whether federal appellate courts should publish all of their decisions, what form those decisions should take, and whether courts should allow every decision to be cited as precedent. In my view, the first issue--whether courts should send their decisions to West Publishing Company for publication in the Federal Reporter--is neither difficult nor important. Availability of all decisions on electronic databases makes this question essentially moot. The latter two issues--regarding the form and precedential value of the court's decisions--are worth careful consideration. Because such issues go to the very heart of how federal appellate courts dispense justice, they are central to the debate over the judiciary's ability both to regulate itself and to preserve its independence. In cases decided after full briefing, the United States Court of Appeals for the District of Columbia Circuit issues decisions in two basic formats: as opinions, either signed or per curiam; or as judgments, either with or without accompanying memoranda. Generally speaking, opinions contain a full description of the relevant facts and a detailed analysis applying the law to the facts. Judgments vary: some deliver the court's decision in a sentence or two with a bare-bones explanation of its reasoning, others are accompanied by memoranda explaining the court's holding in some depth and detail. A panel usually decides during conference whether to issue an opinion or judgment. During the 1994-95 term, the D.C. Circuit issued opinions in 275, or 69%, of the 396 cases decided after full briefing and oral argument. This ratio of two *816 opinions for every judgment has remained relatively constant throughout the 1990s. Some critics contend that courts decide too many cases through judgments. Claiming that reliance on judgments gives short shrift to litigants and issues, these critics believe that cases decided by judgment deserve the more thorough and thoughtful treatment of opinions. In my view, however, judgments are frequently the most appropriate way of deciding cases. Because many cases do not present novel questions of law, the court can resolve them by applying clear, well-established precedent. Writing opinions in these relatively routine cases is not necessary and would take time from cases that do raise novel or difficult issues. I think that the D.C. Circuit has struck a generally appropriate balance between judgments and opinions. Under D.C. Circuit Rule 36(a)(2), the court publishes opinions in cases meeting one or more of the following criteria: (A) with regard to a substantial issue it resolves, it is a case of first impression or the first case to present the issue in this court; (B) it alters, modifies, or significantly clarifies a rule of law previously announced by the court; (C) it calls attention to an existing rule of law that appears to have been generally overlooked; (D) it criticizes or questions existing law; (E) it resolves an apparent conflict in decisions within the circuit or creates a conflict with another circuit; (F) it reverses a published agency or district court decision, or affirms a decision of the district court upon grounds different from those set forth in the district court's published opinion; (G) it warrants publication in light of other factors that give it general public interest. The rule has it just about right, requiring opinions in cases that change the law or are otherwise significant, while reserving for judgments those cases only applying established law. Admittedly, the rule is ambiguous regarding whether to issue an opinion or judgment in a case where the legal principle itself is clear but the facts so differ from prior cases that the case comes close to "significantly clarif[ying] a rule of law previously announced by the court" or to being "the first case to present the issue in this court." The Court should write opinions in such cases, and it usually does. A more difficult question is whether the court should allow the citation of judgments and memoranda as precedent. According to D.C. Circuit Rule 28(c), "[u]npublished . . . judgments of this court, including explanatory memoranda . . ., are not to be cited as precedent." Underlying this rule is a concern that, because judgments and memoranda may not be as carefully considered as full opinions, they should not bind future panels. This concern is understandable. Because the opinion-writing process requires a level of discipline not demanded by judgments, the process itself sometimes leads a panel to change its reasoning or even to reach a different result. *817 I nevertheless think that allowing the citation of judgments and memoranda presents little risk of binding courts to poorly reasoned decisions. The possibility of erroneous judgments is, quite frankly, not much greater than the risk of erroneous opinions. In cases decided by judgments, as in those decided by opinions, parties brief the issues and present oral arguments; the panel discusses the case at conference, and one member prepares a draft to circulate to the panel, revising it in response to comments from other panel members; judgments circulate to the full court for seven days prior to issuance; and even after issuance, parties may file motions to publish--which the court occasionally grants--as well as petitions for rehearing and suggestions for rehearing en banc. Although judgments may not be as thoroughly written as opinions, in all other respects they emerge from the same rigorous, deliberative process. Moreover, any risk of harm from citing judgments is minimal so long as the court abides by Rule 36, reserving abbreviated dispositions for cases where existing precedent dictates the result. If judgments rest on legal principles previously established through the opinion-writing process, permitting their citation would do no more than reinforce the court's obligation to follow already-established precedent. While the substantive risks of citing judgments as precedent are thus minimal, the substantive benefits of doing so are also modest. One benefit, some argue, is that citation of judgments would ensure that the court treats similarly situated litigants equally. They point out that, as the rules now stand, a court could conceivably decide one litigant's claim through a judgment, and then, because the court would not be bound by that case, reach a completely opposite result in a later case involving virtually the same facts. In my view, that scenario is unlikely to occur, particularly if we carefully apply Rule 36 to ensure that the court issues judgments only in those cases where the law is clear and the facts do not significantly differ from prior cases. In those circumstances, different panels are unlikely to reach different conclusions. Another substantive argument in favor of citing judgments as precedent is that the current practice of issuing uncitable judgments stifles the development of the law, while permitting citation of all decisions would allow the law to develop more naturally through the unfettered accumulation of precedent. Again, however, if the court abides by Rule 36, issuing judgments only in those cases where existing precedent dictates the result, permitting the citation of judgments would do little to advance the law. Although the substantive risks and benefits of citing judgments are rather negligible, other factors require consideration. One is the court's workload. If judgments count as precedent, judges may find it necessary to spend more time on them, thus increasing the court's workload at a time when the court is already working near full capacity. Of course, the court could increase its output if Congress added new judges or if judges reduced the amount of time spent writing opinions. The former is not likely to happen; the latter is a bad idea. Public confidence in the courts is another factor to consider. Respected lawyers and judges sincerely believe that the noncitation rule is inconsistent with the court's responsibility to develop a coherent body of precedent. Whether they are right or wrong, allowing citation of judgments and memoranda *818 would respond to this long-standing concern. More broadly, it would send a strong signal that the court has confidence in these decisions, eliminating any basis for believing that the court is dispensing second-class justice to some parties. I have not served long enough to be sure whether the court should retain Rule 28(c)'s prohibition against citing judgments, allow the citation of judgments as precedent, or perhaps adopt the Tenth Circuit's rule allowing parties to cite judgments and memoranda, but only for their persuasive force. [FN2] In weighing these options, we should consider not only the substantive legal risks and benefits of allowing citation of judgments, but also the possible impact of revising Rule 28(c) on the court's workload and on public confidence in the judicial system. Any changes in Rule 28(c) should, moreover, be considered in conjunction with other rules, particularly Rule 36, the primary mechanism for controlling the number and type of decisions issued as judgments in the D.C. Circuit. Our goal should be to find a way, without overburdening the court, to strengthen public confidence in the consistency and fairness of all of the court's decisions. [FNa]. Circuit Judge, United States Court of Appeals for the District of Columbia Circuit. My thanks to Suzanne Hamel, George Washington University Law School class of 1997, for her research assistance. [FN1]. Memorandum from the Subcommittee on Administrative Oversight and the Courts, United States Senate Committee on the Judiciary, to Article III Circuit and District Court Judges 2 (Jan. 26, 1996) (on file with the author). [FN2]. See In re Citation of Unpublished Opinions/Orders & Judgments, 151 F.R.D. 470, 470 (10th Cir. 1993) (suspending 10th Cir. R. App. P. 36.3 from January 1, 1994, to December 31, 1995, or until further order from the court). END OF DOCUMENT