Rule 32.1. Citation of Non-Precedential Opinions
(a) Related Cases. An opinion designated as non-precedential may be cited to support a claim of claim preclusion, issue preclusion, law of the case, double jeopardy, sanctionable conduct, abuse of the writ, notice, or entitlement to attorney’s fees, or a similar claim.
(b) Persuasive Value. An opinion designated as non-precedential may be cited for its persuasive value regarding a material issue, but only if no precedential opinion of the forum court adequately addresses that issue. Citing non-precedential opinions for their persuasive value is disfavored.
Rule 32.1 is a new rule addressing the citation of non-precedential opinions (commonly but misleading referred to as “unpublished” opinions). This is an important issue. The thirteen courts of appeals have cumulatively issued tens of thousands of non-precedential opinions, and about 80% of the opinions issued by the courts of appeals in recent years have been designated as non-precedential. Administrative Office of the United States Courts, Judicial Business of the United States Courts 2001, tbl. S-3 (2001). Although the courts of appeals differ somewhat in their treatment of non-precedential opinions, they generally agree that a non-precedential opinion of a circuit does not bind panels of that circuit or district courts within that circuit (or any other court).
Rule 32.1 is extremely limited. It takes no position on whether designating opinions as non-precedential is constitutional. See Symbol Technologies, Inc. v. Lemelson Med., Educ. & Research Found., 277 F.3d 1361, 1366-68 (Fed. Cir. 2002); Williams v. Dallas Area Rapid Transit, 256 F.3d 260 (5th Cir. 2001) (Smith, J., dissenting from denial of reh'g en banc); Hart v. Massanari, 266 F.3d 1155, 1159-80 (9th Cir. 2001); Anastasoff v. United States, 223 F.3d 898, 899-905, vacated as moot on reh’g en banc 235 F.3d 1054 (8th Cir. 2000). It does not require any court to issue a non-precedential opinion or forbid any court from doing so. It does not dictate the circumstances under which a court may choose to designate an opinion as non-precedential or specify the procedure that a court must follow in making that decision. It says nothing about what effect a court must give to one of its non-precedential opinions or to the non-precedential opinions of another court. The one and only issue addressed by Rule 32.1 is the citation of opinions designated as non-precedential.
Subdivision (a). Subdivision (a) confirms that a non-precedential opinion may be cited to support a claim of claim preclusion, issue preclusion, law of the case, double jeopardy, sanctionable conduct, abuse of the writ, notice, or entitlement to attorney’s fees. Not all of the circuits have specifically mentioned all of these claims in their local rules, but it does not appear that any circuit has ever sanctioned an attorney for citing a non-precedential opinion under these circumstances. For the most part, then, subdivision (a) simply codifies and clarifies existing practice.
Subdivision (b). Although all of the circuits appear to have permitted the citation of non-precedential opinions in the circumstances identified in subdivision (a), the circuits have differed significantly in the restrictions that they have placed upon the citation of non-precedential opinions for their persuasive value. An opinion cited for its “persuasive value” is cited not because it is binding on the court or because it is relevant under a doctrine such as claim preclusion. Rather, it is cited because the party hopes that it will influence the court as, say, a law review article might — that is, simply through the depth of its research and the persuasiveness of its reasoning.
Some circuits have permitted such citation without restriction, some circuits have disfavored such citation but permitted it in limited circumstances, and some circuits have not permitted such citation under any circumstances. These rules have created a hardship for practitioners, especially those who practice in more than one circuit. Subdivision (b) is intended to replace these conflicting practices with one uniform rule.
Subdivision (b) does not altogether bar the citation of non-precedential opinions for their persuasive value. Parties may cite to the courts of appeals an infinite variety of non-precedential sources, including the opinions of federal district courts, state courts, and foreign jurisdictions, law review articles, treatises, newspaper columns, Shakespearian sonnets, and advertising jingles. No court of appeals places any restriction upon the citation of these non-precedential sources (other than restrictions that apply generally to all citations, such as requirements relating to type styles). Parties are free to cite them for their persuasive value, and judges are free to decide whether or not to be persuaded. There is no compelling reason to completely bar the citation of non-precedential opinions.
Some have argued that permitting citation of non-precedential opinions would lead judges to spend more time on them, defeating their purpose. However, non-precedential opinions are already commonly cited in other fora, widely read and discussed, and not infrequently reviewed by the United States Supreme Court. See, e.g., Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 122 S. Ct. 1889 (2002) (reversing unpublished decision of Federal Circuit); Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (reversing unpublished decision of Second Circuit). If this widespread scrutiny does not deprive courts of the benefits of non-precedential opinions, it is difficult to believe that permitting a court’s non-precedential opinions to be cited to the court itself will have that effect. The majority of the courts of appeals already permit their own non-precedential opinions to be cited in at least some circumstances for their persuasive value, and “the sky has not fallen in those circuits.” Stephen R. Barnett, From Anastasoff to Hart to West’s Federal Appendix: The Ground Shifts Under No-Citation Rules, 4 J. App. Prac. & Process 1, 20 (2002).
In the past, some have also argued that, without no-citation rules, large institutional litigants (such as the Department of Justice) who can afford to collect and organize non-precedential opinions would have an unfair advantage. Whatever force this argument may once have had, that force has been greatly diminished by the widespread availability of non-precedential opinions on Westlaw and Lexis, on free Internet sites, and now in the Federal Appendix. In almost all of the circuits, non-precedential opinions are as readily available as precedential opinions. Barring citation to non-precedential opinions is no longer necessary to level the playing field.
Although subdivision (b) does not altogether bar the citation of non-precedential opinions, it also does not give parties an unqualified right to cite such opinions for their persuasive value. Rather, subdivision (b) expressly disfavors such citation and permits it “only if no precedential opinion of the forum court adequately addresses [a material] issue.” These limitations reflect the practice of a majority of the courts of appeals. Few courts permit the unqualified citation of non-precedential opinions for their persuasive value. Rather, the majority either bar such citation altogether or limit it to the circumstances described in subdivision (b).
Subdivision (b) will relieve attorneys of several hardships. Attorneys will no longer have to pick through the conflicting no-citation rules of the circuits in which they practice, with mistakes possibly subjecting them to sanctions or accusations of unethical conduct. See Hart, 266 F.3d at 1159 (attorney ordered to show cause why he should not be disciplined for violating no-citation rule); ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 94-386R (1995) (“It is ethically improper for a lawyer to cite to a court an unpublished opinion of that court or another court where the forum court has a specific rule prohibiting any reference in briefs to [unpublished opinions].”). In addition, attorneys will no longer be barred from bringing to the court’s attention information that might help their client’s cause; whether or not this violates the First Amendment (as some have argued), it is a regrettable position in which to put attorneys.