Nonprecedential Dispositions at the Federal Circuit

Under new Federal Circuit Rule 32.1, parties are not prohibited or restricted from citing nonprecedential dispositions issued after January 1, 2007. An opinion or order which is designated as nonprecedential "is one determined by the panel issuing it as not adding significantly to the body of law." However, this rule does not preclude assertion of claim preclusion, issue preclusion, judicial estoppel, law of the case, and the like based on a nonprecedential disposition issued before that date. The new rule became effetive in January of 2007 and recites

(d) Court’s Consideration of Nonprecedential Dispositions.

The court may refer to a nonprecedential disposition in an opinion or order and may look to a nonprecedential disposition for guidance or persuasive reasoning, but will not give one of its own nonprecedential dispositions the effect of binding precedent. The court will not consider nonprecedential dispositions of another court as binding precedent of that court unless the rules of that court so provide.

(e) Request to Make an Opinion or Order Precedential; Time for Filing.

Within 60 days after any nonprecedential opinion or order is issued, any person may request, with accompanying reasons, that the opinion or order be reissued as precedential. An original and 6 copies of the request must be filed with the court. The request will be considered by the panel that rendered the disposition. The requester must notify the court and the parties of any case that person knows to be pending that would be determined or affected by reissuance as precedential. Parties to pending cases who have a stake in the outcome of a decision to make precedential must be given an opportunity to respond. If the request is granted, the opinion or order may be revised as appropriate.