DATE: May 22, 2003
TO: Judge Anthony J. Scirica, Chair
Standing Committee on Rules of Practice and Procedure
FROM: Judge Samuel A. Alito, Jr., Chair
Advisory Committee on Appellate Rules
RE: Report of Advisory Committee on Appellate Rules
The Advisory Committee on Appellate Rules met on May 15, 2003, in Washington, D.C. At its meeting, the Advisory Committee approved three proposed amendments, removed two proposals from its study agenda, and agreed to continue to study several other proposals. Detailed information about the Advisory Committee’s activities can be found in the minutes of the May 15 meeting and in the Advisory Committee’s study agenda, both of which are attached to this report.
II. Action Items
Pursuant to the request of the Standing Committee, the Advisory Committee has not forwarded proposed amendments to the Standing Committee in a piecemeal fashion, but instead has collected proposed amendments to present to the Standing Committee at one time. The last group of proposed amendments to the Appellate Rules were published in August 2000 and took effect in December 2002. The Advisory Committee now seeks the Standing Committee’s approval to publish another group of proposed amendments in August 2003.
(Items not related to New Rule 32.1 omitted)
E. New Rule 32.1
The Advisory Committee proposes to add a new Rule 32.1 that would require courts to permit the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated as “unpublished,” non‑precedential,” or the like. New Rule 32.1 would also require parties who cite “unpublished” or “non-precedential” opinions that are not available in a publicly accessible electronic database (such as Westlaw) to provide copies of those opinions to the court and to the other parties. The Advisory Committee makes this proposal for two reasons:
First, the local rules of the circuits differ dramatically in their treatment of the citation of “unpublished” or “non-precedential” opinions for their persuasive value. Some circuits freely permit such citation, some circuits disfavor such citation but permit it in limited circumstances, and some circuits do not permit such citation under any circumstances. These conflicting rules create a hardship for practitioners, especially those who practice in more than one circuit.
Second, the Advisory Committee believes that restrictions on the citation of “unpublished” or “non-precedential” opinions the violation of which can lead to sanctions or to formal charges of unethical conduct C are wrong as a policy matter. The Advisory Committee defends its position at length in the Committee Note, so I will say no more about it here.
Needless to say, this is a controversial matter. Many attorneys and bar organizations are strongly opposed to no-citation rules; indeed, Dean Schiltz tells me that no issue has generated more correspondence to the Advisory Committee over the past six years. Although many judges have also expressed their opposition to no-citation rules in fact, several circuits do not have such rules other judges are passionate in defending such rules. If the Standing Committee approves proposed Rule 32.1 for publication, we will undoubtedly receive a substantial number of comments.
I want to stress here as I have stressed in prior communications to the Standing Committee that proposed Rule 32.1 is extremely limited. It takes no position on whether designating opinions as “unpublished” or “non-precedential” is constitutional. It does not require any court to issue an “unpublished” or “non-precedential” opinion, nor does it forbid any court from doing so. It does not dictate the circumstances under which a court may choose to designate an opinion as “unpublished” or Anon-precedential.” Most importantly, it says nothing whatsoever about the effect that a court must give to one of its own “unpublished” or “non-precedential” opinions or to the “unpublished” or “non-precedential” opinions of another court. The one and only issue addressed by proposed Rule 32.1 is the ability of parties to cite opinions designated as “unpublished” or Anon-precedential.”
The Advisory Committee approved proposed Rule 32.1 at our May 2003 meeting by vote of 7 to 1, with one abstention.
Rule 32.1. Citation of Judicial Dispositions
(a) Citation Permitted. No prohibition or restriction may be imposed upon the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like, unless that prohibition or restriction is generally imposed upon the citation of all judicial opinions, orders, judgments, or other written dispositions.
(b) Copies Required. A party who cites a judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database must file and serve a copy of that opinion, order, judgment, or other written disposition with the brief or other paper in which it is cited.
Rule 32.1 is a new rule addressing the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated as “unpublished,” “not for publication,” Anon-precedential,” “not precedent,” or the like. This Note will refer to these dispositions collectively as “unpublished” opinions. This is a term of art that, while not always literally true (as many “unpublished” opinions are in fact published), is commonly understood to refer to the entire group of judicial dispositions addressed by Rule 32.1.
The citation of “unpublished” opinions is an important issue. The thirteen courts of appeals have cumulatively issued tens of thousands of “unpublished” opinions, and about 80% of the opinions issued by the courts of appeals in recent years have been designated as “unpublished.” 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 “unpublished” opinions, most agree that an “unpublished” opinion of a circuit does not bind panels of that circuit or district courts within that circuit (or any other court).
State courts have also issued countless “unpublished” opinions in recent years. And, again, although state courts differ in their treatment of “unpublished” opinions, they generally agree that “unpublished” opinions do not establish precedent that is binding upon the courts of the state (or any other court).
Rule 32.1 is extremely limited. It takes no position on whether refusing to treat an “unpublished” opinion as binding precedent is constitutional. See Symbol Tech., Inc. v. Lemelson Med., Educ. & Research Found., 277 F.3d 1361, 1366-68 (Fed. Cir. 2002); Hart v. Massanari, 266 F.3d 1155, 1159-80 (9th Cir. 2001); Williams v. Dallas Area Rapid Transit, 256 F.3d 260 (5th Cir. 2001) (Smith, J., dissenting from denial of reh'g en banc); 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 an “unpublished” 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 “unpublished” 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 “unpublished” opinions or to the “unpublished” opinions of another court. The one and only issue addressed by Rule 32.1 is the citation of judicial dispositions that have been designated as “unpublished” or “non-precedential” by a federal or state court whether or not those dispositions have been published in some way or are precedential in some sense.
Subdivision (a). Every court of appeals has allowed “unpublished” opinions to be cited in some circumstances, such as 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 an “unpublished” opinion under these circumstances.
By contrast, the circuits have differed dramatically with respect to the restrictions that they have placed upon the citation of “unpublished” 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 by virtue of the thoroughness of its research or the persuasiveness of its reasoning.
Some circuits have freely permitted the citation of “unpublished” opinions for their persuasive value, some circuits have disfavored such citation but permitted it in limited circumstances, and some circuits have not permitted such citation under any circumstances. These conflicting rules have created a hardship for practitioners, especially those who practice in more than one circuit. Rule 32.1(a) is intended to replace these conflicting practices with one uniform rule.
Under Rule 32.1(a), a court of appeals may not prohibit a party from citing an “unpublished” opinion for its persuasive value or for any other reason. In addition, under Rule 32.1(a), a court of appeals may not place any restriction upon the citation of “unpublished” opinions, unless that restriction is generally imposed upon the citation of all judicial opinions “published” and “unpublished.”
It is difficult to justify prohibiting or restricting the citation of “unpublished” opinions. Parties have long been able to cite in the courts of appeals an infinite variety of sources solely for their persuasive value. These sources include 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 on the citation of these 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 treat “unpublished” opinions differently. It is difficult to justify a system under which the “unpublished” opinions of the D.C. Circuit can be cited to the Seventh Circuit, but the “unpublished” opinions of the Seventh Circuit cannot be cited to the Seventh Circuit. D.C. Cir. R. 28(c)(1)(B); 7th Cir. R. 53(b)(2)(iv) & (e). And, more broadly, it is difficult to justify a system that permits parties to bring to a court’s attention virtually every written or spoken word in existence except those contained in the court’s own “unpublished” opinions.
Some have argued that permitting citation of “unpublished” opinions would lead judges to spend more time on them, defeating their purpose. This argument would have great force if Rule 32.1(a) required a court of appeals to treat all of its opinions as precedent that binds all panels of the court and all district courts within the circuit. The process of drafting a precedential opinion is much more time consuming than the process of drafting an opinion that serves only to provide the parties with a basic explanation of the reasons for the decision. As noted, however, Rule 32.1(a) does not require a court of appeals to treat its “unpublished” opinions as binding precedent. Nor does the rule require a court of appeals to increase the length or formality of any “unpublished” opinions that it issues.
It should also be noted, in response to the concern that permitting citation of “unpublished” opinions will increase the time that judges devote to writing them, that “unpublished” opinions are already widely available to the public, and soon every court of appeals will be required by law to post all of its decisions including “unpublished” decisions on its website. See E-Government Act of 2002, Pub. L. 107-347, ' 205(a)(5), 116 Stat. 2899, 2913. Moreover, “unpublished” opinions are often discussed in the media and not infrequently reviewed by the United States Supreme Court. See, e.g., Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826 (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 “unpublished” opinions, it is difficult to believe that permitting a court’s “unpublished” opinions to be cited to the court itself will have that effect. The majority of the courts of appeals already permit their own “unpublished” opinions to be cited 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 “unpublished” 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 “unpublished” opinions on Westlaw and Lexis, on free Internet sites, and now in the Federal Appendix. In almost all of the circuits, “unpublished” opinions are as readily available as “published” opinions. Barring citation to “unpublished” opinions is no longer necessary to level the playing field.
Unlike many of the local rules of the courts of appeals, Rule 32.1(a) does not provide that citing “unpublished” opinions is “disfavored” or limited to particular circumstances (such as when no “published” opinion adequately addresses an issue). Again, it is difficult to understand why “unpublished” opinions should be subject to restrictions that do not apply to other sources. Moreover, given that citing an “unpublished” opinion is usually tantamount to admitting that no “published” opinion supports a contention, parties already have an incentive not to cite “unpublished” opinions. Not surprisingly, those courts that have liberally permitted the citation of “unpublished” opinions have not been overwhelmed with such citations. Finally, restricting the citation of “unpublished” opinions may spawn satellite litigation over whether a party’s citation of a particular “unpublished” opinion was appropriate. This satellite litigation would serve little purpose, other than further to burden the already overburdened courts of appeals.
Rule 32.1(a) will further the administration of justice by expanding the sources of insight and information that can be brought to the attention of judges and making the entire process more transparent to attorneys, parties, and the general public. At the same time, Rule 32.1(a) 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, nor worry about being sanctioned or accused of unethical conduct for improperly citing an “unpublished” opinion. 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 of 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. Finally, game-playing should be reduced, as attorneys who in the past might have been tempted to find a way to hint to a court that it has addressed an issue in an “unpublished” opinion can now directly bring that “unpublished” opinion to the court’s attention, and the court can do whatever it wishes with that opinion.
Subdivision (b). Under Rule 32.1(b), a party who cites an “unpublished” opinion must provide a copy of that opinion to the court and to the other parties, unless the “unpublished” opinion is available in a publicly accessible electronic database such as in Westlaw or on a court’s website. A party who is required under Rule 32.1(b) to provide a copy of an “unpublished” opinion must file and serve the copy with the brief or other paper in which the opinion is cited.
It should be noted that, under Rule 32.1(a), a court of appeals may not require parties to file or serve copies of all of the “unpublished” opinions cited in their briefs or other papers (unless the court generally requires parties to file or serve copies of all of the judicial opinions that they cite). “unpublished” opinions are widely available on free websites (such as those maintained by federal and state courts), on commercial websites (such as those maintained by Westlaw and Lexis), and even in published compilations (such as the Federal Appendix). Given the widespread availability of “unpublished” opinions, parties should be required to file and serve copies of such opinions only in the circumstances described in Rule 32.1(b).