The Evolving Role of “Unpublished Opinions”—Some History

By: Donald L Swanson

U.S. Courts of Appeals frequently issue opinions designated “Not for Publication” or “Non-Precedential” or something similar (let’s call them “unpublished opinions”).

Question: What, precisely, do such designations mean?

Starting Places for Answers:  The starting place for answering the question is Fed.R.App.P. 32.1(a), which provides:

• “A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and (ii) issued on or after January 1, 2007.”

The next place is in the local rules for each circuit court.  The Eighth Circuit Court of Appeals, for instance, has Rule 32.1A, which provides:

• “Unpublished opinions . . . are not precedent”;
• “Unpublished opinions issued on or after January 1, 2007, may be cited in accordance with FRAP 32.1”;
• “Unpublished opinions issued before January 1, 2007, generally should not be cited”;
• “When relevant to establishing the doctrines of res judicata, collateral estoppel, or the law of the case, however, the parties may cite an unpublished opinion”;
• “Parties may also cite an unpublished opinion of this court if the opinion has persuasive value on a material issue and no published opinion of this court or another court would serve as well”; and
• “. . . When citing an unpublished opinion, a party must indicate the opinion’s unpublished status.”

Some History

Before Fed.R.App.P. 32.1(a) came into effect (in 2007), many commentators and circuits contended that unpublished opinions should not be cited.  This part of the Eighth Circuit’s local rule quoted above is a hold-over from that view:

• “Unpublished opinions issued before January 1, 2007, generally should not be cited.”

But that contention lost-out over time.  Here is an article, from back in 1999, that illustrates the analysis and arguments leading up to the Rule 32.1 change:

• Douglas A. Berman & Jeffrey O. Cooper, In Defense of Less Precedential Opinions: A Reply to Chief Judge Martin, 60 Ohio St.L.J. 2025, 2040 (1999).

What follows is a summary of that 1999 article.

Article’s Overview—from 1999

Many commentators argue that:

• unpublished opinions are a necessary tool for federal appellate courts to manage their caseload and to avoid confusion in the creation of legal doctrine; and
• for this tool to operate effectively, citations to unpublished opinions must be strictly prohibited.

The authors of “In Defense of Less Precedential Opinion” disagree, arguing that unpublished opinions from federal courts of appeals should play an important role in the development of legal doctrine by:

• allowing appellate judges to engage in an intra-court dialogue, through unpublished opinions, before reaching a firm resolution of difficult legal issues; and
• allowing practitioners to cite to the unpublished opinions for such purpose.

In support, the authors cite the unique institutional structure of the federal courts of appeals, observing that:

• federal appeals courts must render a decision on every case brought before them;
• because the Supreme Court rarely grants certiorari, the decision of such courts will usually be final;
• most court of appeals cases are decided by a three-judge panel, whose decision is considered binding upon all judges in that circuit for all future cases; and
• the federal appeals courts are in a difficult position when new or unsettled legal issues are raised.

Article’s Introduction

Commentators urging that unpublished opinions have no precedential value posit that, if unpublished opinions could be cited as precedent, the federal appellate courts would be hindered in managing their caseloads, which could muddy the development of legal doctrine.

To the contrary, the authors of the article insist that, when used properly, unpublished opinions:

• can facilitate both, (i) the resolution of individual cases, and (ii) the sound development of circuit law over time; but
• for the development of law function to work, (i) circuit judges must appreciate the special value of unpublished opinions within the federal appellate system, and (ii) lawyers must be able to cite these opinions in subsequent cases.

Rather than an absolute prohibition on citing unpublished opinions, the better rule is to permit such citations but with limited precedential value—this would best balance the competing pressures on courts of appeals to:

• resolve cases that litigants place before them; and
• develop and maintain a coherent body of law.

“In the end,” the article’s authors say, “unpublished opinions, if properly conceived and utilized, need not be merely tolerated as a necessary evil, but rather can and should be viewed as a key mechanism for effective and appropriate decisionmaking by the federal courts of appeals.”

Four Characteristics of Federal Courts of Appeals

Federal courts of appeals face a variety of institutional challenges.  Here are four distinguishing characteristics.

1. Mandatory Jurisdiction

By law, any and every litigant dissatisfied with a judgment at the district court level has an appeal as of right to a federal court of appeals.  And the court of appeals must render an on-the-record disposition in every case before it. 

The U.S. Supreme Court, by contrast, is able to limit its caseload through the certiorari power.

2. Courts of Last Resort

The combination of mandatory jurisdiction for circuit courts and discretionary jurisdiction for the Supreme Court means that, for nearly all appellate litigants, their cases will end with a disposition by the court of appeals as the court of last resort.

To illustrate, in 1998 the federal courts of appeals resolved nearly 25,000 cases on the merits, while the Supreme Court gave full review to <70 cases from the federal circuit courts.

Consequently, the circuit courts are almost always the first appellate voice on the panoply of legal issues that occupy the federal courts—and on many issues, the only appellate voice.

3. Three-Judge Panels

Although the U.S. Supreme Court frequently speaks with a fractured voice, almost all of its decisions are rendered by a full court of nine Justices.

The courts of appeals, by contrast, do most of their work in panels of randomly selected three judges who purport to speak for the entire court. Moreover, because panels often include a outside judge (e.g., a senior judge or a district court judge sitting by designation), only two or even one active judge from the circuit may participate in resolving a case.

So, it is common for only a small minority of a circuit’s active judges to directly participate in the adjudication of a particular case.

4. Binding Precedents

A decision of a federal district judge speaks in the name of the district court but does not bind any other judge (or even the deciding judge) in future cases.

Decisions of the U.S. Supreme Court bind all courts of appeals and all district courts in future cases, but the Supreme Court itself remains free to change its course.

Federal courts of appeals, by contrast, consider themselves bound in all future cases by the decision of a prior three-judge panel, and the panel’s decision can be overturned only by the entire court sitting en banc—a procedure employed as rarely as the U.S. Supreme Court accepting certiorari.

Rethinking the Role and Value of Unpublished Opinions

The article’s authors insist that an absolute prohibition on citing unpublished opinions fails to acknowledge certain realities.

–Focus

Prior discussions on the use of unpublished opinions tend to focus on the first (mandatory jurisdiction) or second (courts of last resort) of the four characteristics discussed above.  The focus is on the need for circuit courts to resolve cases expeditiously and soundly.

Instead, there should be a greater focus on these characteristics, each of which profoundly impacts the development of appellate jurisprudence:

• the lack of control that courts of appeals have over their dockets;
• the use of three-judge panels; and
• the firm precedential value of published appellate decisions.

–Dual Obligations

Appellate judges have the dual obligations of “error correction” and “lawmaking,” within their role as the de facto court of last resort: this presents an “especially weighty” obligation.

Because of the courts’ mandatory jurisdiction, litigants ultimately determine both when and how cases are presented to the courts of appeals, within the courts’ error-correction function.  This means that circuit judges will often confront a novel or important legal issue within atypical or poorly developed cases.

Since early decisions in such imperfect settings may establish how all future cases with the same legal issue are decided, panel judges are justifiably reluctant to issue a firm and conclusive legal decision that might harmfully “petrify” the precedential framework for future cases.

–Institutional Dialogue

Another function of the federal courts of appeals is to promote institutional dialogues:

• though a panel confronted with a poorly presented legal issue may sensibly seek to avoid handcuffing subsequent considerations of the issue, circuit judges should embrace and utilize these cases to begin a dialogue among the judges of the court by issuing opinions that will aid the future consideration of the legal issue in question; and
• such a dialogue has the potential to advance and improve the functioning of the courts of appeals.

At present (in 1999), judges in the federal courts of appeals have few real options for avoiding definitive judgments while still facilitating a dialogue on a particular issue.  The only options are: (i) published opinions that create binding precedent, and (ii) unpublished opinions may not be cited at all or only in limited circumstance.

–Reconception of Unpublished Opinions

The article’s authors propose a “reconception” to gain a better utilization of unpublished opinions:

• for the truly routine cases, publication rules are largely inconsequential, and noncitation rules are superfluous; and
• if a case genuinely calls only for a straightforward application of well-settled law, then it is likely to receive summary treatment whether or not the opinion is subject to publication.

But for cases where the law is novel or underdeveloped, an unpublished opinion (lacking full precedential weight) would:

• permit a panel to resolve each case, as it must, without tying the entire court to a particular analysis for future cases;
• provide the potential for guiding the court in future determinations by allowing members of the court to engage in a dialogue with each other across cases and across panels—with citations to unpublished opinions being allowed; and
• facilitate development of the law better than the present system.

Allowing unpublished opinions to be cited, with their unpublished status and limited precedential value acknowledged, provides a vehicle for communication among panels and allows litigants to be the catalysts for such communication.

Article’s Summary

The article’s authors summarize their view like this:

• unpublished opinions have their greatest value as a mechanism to help courts of appeals navigate institutional challenges to develop legal doctrine in the soundest and most effective manner;
• though unpublished opinions clearly have value and importance as time-savers, it is their ability to serve as “precedentsavers” that makes the case for them compelling;
• the model that we propose is familiar because district courts routinely issue unpublished opinions that may be cited in subsequent cases (many well reasoned opinions do not find their way into the Federal Supplement but are easily accessible) but have no precedential value beyond their persuasive power; and
• so it should be with unpublished appellate opinions as well.

Conclusion

History is always fascinating!

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