If You Can't Beat `em, Join `em: a Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts

• Publication year: 2021

86 Nebraska L. Rev. 895. If You Can't Beat `Em, Join `Em: A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts

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Amy E. Sloan(fn*)

If You Can't Beat `Em, Join `Em: A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts

TABLE OF CONTENTS

I. Introduction ....................................................... 896
II. The History of FRAP 32. 1 ......................................... 901
III. FRAP 32.1 and Local Circuit Rules Governing
Nonprecedential Opinions ......................................... 905
A. FRAP 32.1 Implicitly Endorses Nonprecedential
Opinions ...................................................... 906
B. FRAP 32.1 Preserves Inconsistent Local Rules
Governing Issuance of Nonprecedential Opinions ................ 909
1. The presumptions favoring or disfavoring
issuance of nonprecedential opinions ....................... 909
2. The effect of content ...................................... 910
3. The necessity of a unanimous decision in the
case ....................................................... 911
4. The effect of the nature of the disposition ................ 912
5. The process for deciding the status of an
opinion .................................................... 912
6. The procedures for reissuing a nonprecedential
opinion as precedential .................................... 913
C. FRAP 32.1 Perpetuates Confusion Regarding the
Authoritative Value of Nonprecedential Opinions ............... 916

IV. Next Steps For FRAP 32.1 .......................................... 927
A. Authorizing Issuance of and Establishing Uniform
Procedures for Nonprecedential Opinions ........................ 927

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B. Formalizing the Role of Nonprecedential Opinions in
the Hierarchy of Precedent ..................................... 929
V. Conclusion ......................................................... 951
Appendix A: Variations in Local Circuit Rules Regarding
Nonprecedential Opinions .............................................. 952

I. INTRODUCTION

For some number of years, judges and academics have debated the pros and cons of "unpublished," or "nonprecedential,"(fn1) judicial opinions in the federal appellate courts. Academics largely, although not unanimously, decry the practice of issuing opinions that the courts designate, by rule, as nonbinding.(fn2) They argue that issuing nonprecedential opinions runs counter to the rule of law by permitting arbitrary decisionmaking,(fn3) violating the Due Process and Equal Pro

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tection Clauses,(fn4) and rendering meaningless the principles of stare decisis that presumably constrain judicial decisionmaking.(fn5)

Judges largely, although not unanimously, defend the use of nonprecedential opinions,(fn6) primarily on the ground that they are essential for docket management.(fn7) Judges say that the number of cases on their dockets makes it impossible to draft precedential opinions in every case while still resolving cases within a reasonable time.(fn8) Further, they say that limiting the number of precedential opinions is necessary for doctrinal coherence and consistency,(fn9) as well as to keep the number of precedents litigants must research to a manageable quantity.(fn10) Finally, they say that most cases are routine and do not break new legal ground, thus making their disposition with short, unofficial opinions both efficient and appropriate.(fn11)

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This is not an abstract legal debate. Nonprecedential opinions have become the dominant mode of disposition for cases resolved on the merits in the federal appellate courts. The numbers vary somewhat by circuit, but overall 84% of opinions issued by the federal courts of appeals are nonprecedential.(fn12) Although frequently referred to as unpublished opinions, nonprecedential opinions are, in fact, published in any meaningful sense of the word.(fn13) Accordingly, they exist

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as statements of law whose status is indeterminate. Do these opinions bind the conduct of actors in society? Can or should lawyers use them to advise clients?(fn14) When, if ever, should courts feel constrained by nonprecedential opinions? The bottom line is that the federal appellate courts have created a new substratum of precedent that does not fit neatly within the recognized hierarchy of federal decisional law but into which the majority of federal appellate opinions fall.(fn15) As one commentator recently stated: "Anyone who states that lawyers and judges have a common understanding of how to handle unpublished decisions is either misinformed or less than candid."(fn16)

Although the utility, necessity, and advisability of nonprecedential opinions remain interesting issues to debate, at this point they are somewhat beside the point. Academics have lost the debate on nonprecedential opinions. Judges feel like nonprecedential opinions are necessary for the very survival of the federal appellate judiciary.(fn17) Judges control whether nonprecedential opinions are permissible, ei

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ther by adjudicating challenges brought through litigation or through changes to existing procedural rules.(fn18) And judges are not going to give up nonprecedential opinions.

So, as the saying goes, if you can't beat 'em, join 'em. Although some people would clearly prefer to eliminate this category of authority altogether, that is simply not going to happen. The better course of action now is to find a principled way to integrate nonprecedential opinions into the judicial system, both to provide clarity regarding the weight of the opinions and to preserve the legitimacy of the federal courts.

The federal courts, with congressional approval, have begun to address this issue with the adoption of Federal Rule of Appellate Procedure (FRAP) 32.1, a new procedural rule permitting citation of all nonprecedential opinions issued on or after January 1, 2007.(fn19) FRAP 32.1 now supplants the patchwork of citation norms and practices pre-viously put in place through local circuit rules.(fn20)

Although FRAP 32.1 is a step in the right direction, it still leaves some important questions unanswered. By its language, the rule addresses only citation practices.(fn21) It can be read, however, to authorize nonprecedential opinions implicitly. Because it does not expressly authorize nonprecedential opinions, FRAP 32.1 fails to address a number of procedural questions regarding their issuance.(fn22) More importantly, the rule does not address the authoritative weight of nonprecedential opinions.(fn23) FRAP 32.1's silence on these matters adds to the uncertainty about the role of nonprecedential opinions in the federal judicial system and leaves to local circuit rules matters that would better be addressed nationally.(fn24)

This Article addresses the problems (and opportunities) that FRAP 32.1 creates in three parts. Part II discusses the history of FRAP 32.1, explaining how FRAP 32.1 came to be in its present iteration.(fn25) Part III analyzes the language of FRAP 32.1 and the interplay between the new rule and local circuit rules regarding nonprecedential opinions. FRAP 32.1 effectively formalizes a new substratum of appellate juris

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prudence but leaves, by default, important questions, including the authoritative value of these opinions, to confusing and inconsistent local circuit rules.(fn26) Part IV proposes the next step in addressing nonprecedential opinions: expressly authorizing nonprecedential opinions, establishing uniform procedures for their issuance, and clearly establishing their authoritative value.(fn27) Further, Part IV argues that the law of the circuit rule should be amended to define nonprecedential opinions as binding unless overruled by a later "published" panel decision. The courts could implement this proposal acting in their adjudicative capacity. Alternatively, FRAP 32.1 could be revised to authorize nonprecedential opinions expressly and define their authoritative value. However implemented, this proposal would allow the federal appellate courts to continue to issue nonprecedential opinions while preserving the system of precedent that they purport to follow. The Article concludes that FRAP 32.1 is an improvement over the prior situation and is perhaps the best that could be hoped for as a first step in figuring out how nonprecedential opinions fit within the federal judicial system. If the federal judiciary is unwilling to forego nonprecedential opinions, it should take further steps to institutionalize them in a way that preserves judicial legitimacy and the system of precedent.(fn28)

II. THE HISTORY OF FRAP 32.1

FRAP 32.1 provides as follows:

(a) Citation Permitted. 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.

(b) Copies Required. If a party cites a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database, the party must file and serve a copy of that opinion, order, judgment, or disposition with the brief or other paper in which it is cited.(fn29)

This rule went into effect on December 1, 2006,(fn30) in accordance with the rulemaking procedures established by the Rules Enabling Act.(fn31)

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The road to adoption for this rule has been long and arduous. The protracted history of the development of nonprecedential opinions in the federal appellate courts over the past thirty-five years has been detailed elsewhere,(fn32) and that history does not need to be repeated here. The history of this particular rule, however, is of some inter-est.(fn33) FRAP 32.1 originated from a proposal...