JANUARY 18, 2007
Uncovering Unpublished Opinions
By Laura M. Wilson
Lawyers practicing in federal court, particularly
in the 9th
Circuit, need to be aware of a recent change to the Federal Rules of
Appellate Procedure. Starting Jan. 1, lawyers may cite all opinions
issued by the federal circuit courts of appeal after 2006. Cases
marked "not for publication" may be cited now in party briefs as
persuasive authority in circuits that previously had threatened
sanctions for such references. Following years of heated debate among
the circuits, the controversial new rule will affect how many lawyers
research and draft federal-court briefs.
In reviewing lower-court decisions, appellate
courts perform two
primary functions: error correction and law clarification/creation.
But because appeals may be taken as a matter of right, not every case
requires a new statement on the law. Most decisions are drafted for
the more-limited purpose of explaining the outcome to the parties.
However, when a case requires the creation of new law, the decision
also must clarify the law for future litigants. Writing opinions for
this audience can be time-consuming; decisions often comprise 20 pages
of carefully crafted language.
In the 1960s, federal courts faced an increasing
caseload. As a
timesaving measure, the Judicial Conference recommended that the
circuit courts publish only cases with precedential value. Decisions
involving routine cases and error correction would be entered, but
only those with precedential value would be certified for publication.
Because error-correcting decisions would be limited to the parties
involved and could not be relied on by future litigants, judicial
resources could be conserved to focus on published decisions.
Each appellate court developed its own local rule
extent to which unpublished opinions could be relied on by parties in
their briefs. Before the current rule change, nine of 13 circuits
allowed litigants to cite unpublished opinions in their briefs as
persuasive authority. The District of Columbia Circuit permitted
parties to reference unpublished opinions as binding authority, while
the 3rd and 5th Circuits allowed such citations of unpublished cases
issued after 1996 and 2002, respectively, as permissive authority. In
general, the 1st, 4th, 6th, 8th, 10th and 11th Circuits allowed
citation to unpublished opinions as permissive authority only where no
published opinion had resolved the relevant issue.
In contrast, the 2nd, 7th, 9th and Federal Circuits
local rules prohibiting the citation of unpublished opinions to the
court except in limited circumstances. Unpublished opinions could be
referenced only for their factual relevance, such as to show double
jeopardy, notice or entitlement to attorney fees, not for persuasive
effect. Violation of the local rule could result in sanctions.
Sorchini v. City of Covina, 250 F.3d 706 (9th Cir. 2001).
The inconsistency across the circuits prompted the
Committee on Appellate Rules to consider a uniform rule. Rule 32.1 of
the Federal Rules of Appellate Practice, first formally proposed in
2003, then adopted by the Judicial Conference, Congress and the
Supreme Court, now allows practitioners to refer to unpublished
opinions in briefs. Under the new rule, judges will have discretion to
determine what weight, if any, to give these unpublished citations.
Proponents of the change support Rule 32.1 for
First, common-law systems are premised on the notion that judicial
decisions serve as precedent for future opinions. Attorneys should be
able to use a court's reasoning to persuade another court,
particularly where the reasoning is pronounced on the appellate level.
As noted by U.S. Chief Justice John Roberts Jr., a former Advisory
Committee member, "[a] lawyer ought to be able to tell a court what it
has done." Despite this, 80 percent of federal appellate decisions are
unpublished, amounting to tens of thousands of noncitable decisions
under the old rules.
Second, the variation in citation rules across
a hardship for attorneys who practice in more than one circuit.
Creating a uniform citation rule is a step toward eliminating myriad
local rules. The inconsistent citations rules across circuits also
lead to the perplexing result that an unpublished Federal Circuit
opinion, for example, may not be cited in the Federal Circuit, but it
can be relied on as persuasive authority in the 3rd Circuit.
Third, noncitation rules may undermine judicial
because they enable judges to make a decision in one case but not be
bound by it in future litigation. However, although judges should be
able to change course in future decisions, they arguably should not be
able to forbid parties from mentioning past holdings.
Fourth, noncitation rules that prohibit any
unpublished decision are difficult to justify, given that attorneys
may cite any other resource, such as law review articles, treatises,
Shakespearian sonnets and advertising jingles.
Finally, and most compellingly, Rule 32.1 does not
judges must treat unpublished opinions. The rule imposes no duty on
judges to follow or even consider unpublished decisions cited by
parties. The rule does not mandate that judges must consider these
opinions if cited in briefs. It merely prohibits circuits from
proscribing the citation of unpublished decisions altogether. The rule
allows circuits to require in their local rules that parties indicate
when they are citing an unpublished opinion, so that the judge can be
sure to treat the opinion differently.
Nevertheless, many believe the rule change is a
step in the
wrong direction. According to 9th Circuit Judge Alex Kozinski, "[w]hen
the people making the sausage tell you it's not safe for human
consumption, it seems strange indeed to have a committee in Washington
tell people to go ahead and eat it, anyway."
Not surprisingly, the rule change has generated
more comment to
the Advisory Committee on Appellate Rules recently than any other
issue has. The committee received 500 public comments - many from 9th
Circuit judges and most in opposition to the change.
Opponents of Rule 32.1 rely primarily on the
for unpublished opinions. Knowing that unpublished opinions may not be
referenced beyond the initial judgment, judges can explain their
reasoning briefly to the parties without discussing every fact. By
saving time on unpublished opinions, judges may focus their attention
on carefully considering and crafting lengthy precedential decisions.
Additionally, the change could advantage large law
government attorneys and disadvantage parties with fewer resources.
Rule 32.1 likely requires attorneys to research more case law,
straining smaller firms and potentially driving up client bills.
Attorneys without access to expensive research databases could be
hard-pressed to find unpublished opinions. However, this latter
argument carries little weight, given the passage of the E-Government
Act of 2002, which requires federal courts to publish all opinions on
their Web sites.
Uniformity, although easing the burden on national
practitioners, could be inconsistent with local differences among
circuits. Judges from the 2nd and 9th Circuits in particular contend
that the new rule is not suitable for circuits with voluminous case
loads, because a high percentage of cases require only summary
dispositions. They assert that judicial economy would be served best
through summary orders that provide a minimal explanation intended
only for the current litigants.
Consequently, opponents argue that the current
system, in which
parties are given a brief overview of the court's reasoning, will be
supplanted by one with one-line judgments offering a holding but
nothing else. Such a shift will occur because judges no longer can
shield their decisions through nonpublication. But in such a system,
neither the parties involved nor the district courts will have any
basis for understanding the holding or why the lower-court decision
was affirmed or reversed.
This scenario has not been borne out in practice.
that allow citation to unpublished decisions contend that their
lenient rules have not resulted in a landslide of one-line judgments.
Despite weighty opposition to Rule 32.1, it went
Jan. 1. As to whether judges in the 2nd, 7th, 9th and Federal Circuits
will rely on unpublished opinions, only time will tell. Litigators
practicing in those circuits should be cautious as they begin to cite
unpublished opinions. They likely will be best served by approaching
the issue mindful of the varying circuits' histories and philosophies
on unpublished opinions.
Laura M. Wilson is an associate at the Los Angeles
Hogan & Hartson.