Judicial Conference Proposes End to Non-Precedential Opinions

The Judicial Conference has endorsed a new Rule 32.1 of the Federal Rules of Appellate Procedure that would permit the citation of judicial dispositions that have been designated "not for publication," "non-precedential," or the like. The proposed rule applies only to decisions issued on or after January 1, 2007 and must still be approved by the Supreme Court.

Section a) of the proposed rule states that "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 or other written dispositions that have been designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like." According to the 2005 Report of the Advisory Committee on Appellate Rules:

Rule 32.1 is extremely limited. It does not require any court to issue an unpublished opinion or forbid any court from doing so. It does not dictate the circumstances under which a court may choose to designate an opinion as "unpublished" or specify the procedure that a court must follow in making that determination. It says nothing about what effect a court must give to one of its unpublished opinions or to the unpublished opinions of another court. In particular, it takes no position on whether refusing to treat an unpublished opinion of a federal court as binding precedent is constitutional. Rule 32.1 addresses only the citation of federal judicial
dispositions that have been designated as "unpublished" or "non-precedential" - whether or not those dispositions have been published in some way or are precedential in some sense. . . .

[W]hether or not no-citation rules were ever justifiable as a policy matter, they are no longer justifiable today. To the contrary, they tend to undermine public confidence in the judicial system by leading some litigants - who have difficulty comprehending why they cannot tell a court that it has addressed the same issue in the past - to suspect that unpublished opinions are being used for improper purposes. They require attorneys to pick through the inconsistent formal no-citation rules and informal practices of the circuits in which they appear and risk being sanctioned or accused of unethical conduct if they make a mistake. And they forbid attorneys from bringing to the court's attention information that might help their client's cause.

Because no-citation rules harm the administration of justice, and because the justifications for those rules are unsupported or refuted by the available evidence, Rule 32.1 (a) abolishes those rules and requires courts to permit unpublished opinions to be cited.

Current practices regarding citation of unpublished opinions vary among the circuits, with some permitting citation, others disfavoring citation but permitting it in certain circumstances, and others prohibiting citation. According to Tony Mauro writing for the Legal Times on September 20, 2005, "The 2nd, 7th, 9th, and federal circuits ban citation of unpublished opinions outright, while six other circuits discourage it."

The Federal Circuit court of appeals opposed the change in a January 6, 2004 letter from Chief Judge Mayer:

. . . In the view of the judges of the Federal Circuit, the adoption of Rule 32.1, which will override our local rule, may adversely affect the administration of justice by skewing the allocation of judicial resources, delaying issuance of precedential opinions, increasing the issuance of judgments without an accompanying opinion, and harming litigants.

The proposed rule may skew the allocation of judicial resources. As the Committee is aware, the decision to designate certain opinions as nonprecedential stemmed from the ever-increasing appellate caseload of the last few decades and the impossibility of providing a precedential opinion in every case. The adoption of the practice allows the judges to concentrate their efforts on opinion writing in cases involving important and precedent-setting issues. Opinions issued as nonprecedential do not require the same amount of time or effort. The Advisory Committee opines that this allocation of judicial resources will not be affected by the proposed rule because a court, although barred from prohibiting the citation of nonprecedential dispositions, may nonetheless decide by local rule that it will not treat its nonprecedential opinions as binding precedent. We fear that this finely-drawn distinction will not forestall the need to allocate judicial resources differently. Judges will certainly feel compelled to devote more time and resources to nonprecedential opinions if counsel cite and rely on them.

Indeed, having a rule that allows a party to cite a nonprecedential opinion and a second rule that would mandate that a court ignore such citation does not seem workable. Further, if a circuit maintains a rule barring the court from treating a nonprecedential opinion as binding, there seems little point in allowing a litigant to cite such nonprecedential opinions.

It is also likely that the issuance of nonprecedential opinions in any number of routine cases will be delayed as judges devote more time to writing them. That, in turn, will either delay issuance of precedential opinions or result in less time being devoted to preparing them. On the other end of the spectrum, it is likely that there will be an increase in Federal Circuit Rule 36 judgments without opinion. In our view, both of these developments would be detrimental to the administration of justice.

Finally, although the proposed rule is intended to benefit litigants, the effect may be the opposite. First, many litigants may feel compelled to significantly expand the breadth and depth of their legal research because of the existence of the rule. However, this expanded time, effort, and cost will yield commensurately little in return. Nonprecedential opinions with abbreviated fact patterns and without new legal principles will in nearly all instances lend little clarity to the law. . . .

"So, citing an unpublished opinion is something like citing part of the law," writes J. Craig Williams at his May it Please the Court blog. "It just doesn't work."