Local rules in the wake of Federal Rule of Appellate Procedure 32.1.

AuthorCleveland, David R.
  1. INTRODUCTION

    Any significant change in the Federal Rules of Appellate Procedure is likely to have a ripple effect throughout the local roles of the federal courts of appeals. This is especially true of a role as fundamentally important and widely debated as Federal Rule of Appellate Procedure 32.1, (1) which was created to permit citation of unpublished opinions issued on or after January 1, 2007. (2) It was intended to create uniformity regarding citation of unpublished opinions in the federal circuits. It has failed to do so, however, in two respects. First, by inserting a provision applying the rule only prospectively, (3) the Judicial Conference undercut the very uniformity that the representatives of the bench and bar involved in the rulemaking process had intended to create. (4) Second, as the comment to the rule makes clear, the rule takes no position regarding the precedential value of unpublished opinions, (50 which leaves unresolved the most critical (6) and least well-justified aspect of the practice of issuing unpublished opinions. (7)

    In the wake of Rule 32.1, some circuits have changed their local rules to comply with the new requirements. Others have gone beyond the requirements of Rule 32.1 to expand citation even further, by, for example, removing the prospectivity limitation. (8) In addition, circuits continue to answer the question of precedential status of unpublished opinions left open by Rule 32.1 in various ways. (9) The local rules regarding publication, citation, and precedent will be examined in this article to demonstrate the lack of uniformity in the treatment of unpublished opinions that continues to plague the federal courts. This article proposes ending this unjustified discrimination between the decisions of the federal courts of appeals, removal of the prospectivity requirement, and adoption of an amendment to Rule 32.1 granting precedential status to all opinions.

  2. PUBLICATION, CITATION, PRECEDENT, AND LOCAL RULES

    Publication, citation, and precedent are three different aspects of common law opinions. They are related, but not necessarily dependent upon one another. The degree to which common law opinions have possessed these characteristics has varied throughout the history of the common law. Early decisions were rarely published, and were precedent only in the aggregate, but were always citable to the court. (10) Later, as decisions became more commonly published, the power of precedent increased, and, of course, litigants remained free to urge upon the court an action it had previously taken by citing past decisions. (11) This trend of increasingly common publication and increasingly strong precedent was a feature of both colonial America and England in that period. (12) By the end of the nineteenth century, the entrepreneur John West had created a system of comprehensive publication of all federal appellate opinions, an effort that was of great interest to the bench and bar. (13) While other, less comprehensive, reporters and even summaries of the law like the early Restatements existed, "[l]awyers chose the comprehensive style of reporting, preferring that all precedent be available." (14) From the dawn of the twentieth century until the mid-1970s, that was the state of the federal judiciary as a whole: full publication, strong precedent, and unfettered citation. (15)

    In the 1970s, a committee of the Federal Judicial Council, the Advisory Council on Applellate Justice's Committee on Use of Appellate Court Energies, (16) drafted its report proposing that courts issue some decisions as unpublished and uncitable. (17) When faced with the question of whether this new class of decisions would be precedent, that committee chose not to examine the issue, its constitutionality, or its practicality, calling it a "morass of jurisprudence." (18) This proposal altered the characteristics of common law opinions in a manner previously unknown to the common law. Suddenly, decisions would be divided into two categories: 1) decisions that were published, citable, and precedential and 2) decisions that were unpublished, not citable, and of questionable precedential value. It was essentially a declaration that some appellate opinions were not binding upon the issuing courts or the lower courts and that a gag rule would prevent the bar from urging these cases upon the courts in the future. (19) In addition, cases were increasingly placed on one of these two tracks shortly after filing, often by judicial staff rather than judges themselves. (20)

    The local rules that followed the 1973 Committee's recommendation adopted its denial of both publication and citation to a subset of federal appellate decisions, and increasingly took a more definitive stance on denying precedent to these opinions. Some circuits' local rules did so quite blatantly, while others allowed for the possibility that such a decision may be precedential despite the appellate panel's determination on that issue. (21) Within a few years, the courts of appeals had a variety of rules giving guidelines for (non)publication, restrictions or prohibitions on citation, and some statement on the precedent of these opinions.

    This tripartite system has largely fallen apart--crushed under the inexorable turn of the wheels' progress, which themselves are driven by the inherent demand for readily accessible precedent among lawyers, litigants, and judges. The restrictions on publication have been undone by changes in technology and by persistent practices of the federal bar and federal judiciary. (22) Though still labeled "unpublished opinions," these opinions are published, not only online but also in printed volumes such as the West's Federal Appendix. This is in large part due to the continuous use of these opinions by practitioners and judges--despite the opinions' citation or precedential status. (23) Second, new Rule 32.1 allows citations of all opinions presently being issued by the federal courts of appeals. (24) This was good news for the large number of judges and lawyers already using these opinions despite the citation ban. (25) These opinions are now effectively published and plainly citable. What remains is the same ambiguity inherent in the system since the first local rules on the subject following the 1973 Committee's recommendation: What is the precedential value of these opinions? New Rule 32.1 did not resolve this issue, and the local rules in its wake have continued to come to different answers in different circuits.

  3. NEW RULE 32.1

    Federal Rule of Appellate Procedure 32.1 represents the culmination of a nearly twenty-year process of removing the unpublished-opinion gag rule from the federal bar. Though this practice was subject to immediate critique, (26) it was conflicts in the local rules that brought this issue to the Federal Judicial Conference's attention in 1990. (27) The Local Rules Project, started in 1984 by the Judicial Conference to examine areas of inconsistency in the local rules of the circuits, found that one of the areas of greatest inconsistency was in the treatment of unpublished opinions. (28) The Local Rules Project recommended resolution of this issue by a uniform national rule in the form of amendments to the Federal Rules of Appellate Procedure. (29)

    From there the rule moved through an arduous rulemaking process. (30) In 2006, the rule was approved by the Judicial Conference, the Supreme Court, and Congress. Rule 32.1 states, in pertinent part:

    (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.

    The effect of this rule was to eliminate the variety of local rules that were then in effect treating unpublished opinions in a variety of ways. (31) As previously noted, this rule contains an express prospectivity limitation in (a)(ii), and the comment expressly abstains on the issue of precedent:

    Rule 32.1 is extremely limited.... It says nothing about what effect a court must give to one of its unpublished opinions or to the unpublished opinions of another court. 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. (32) Neither the prospectivity limitation nor the perpetuation of the uncertainty regarding precedential value is a beneficial development in federal jurisprudence. The circuits' enactment of local rules demonstrates a continued lack of uniformity on these critical issues.

    Rule 32.1 represents the only Federal Rule of Appellate Procedure on the citation of unpublished opinions. There is no similar rule governing how the courts of appeals should determine which opinions are suitable for non-publication, only the 1973 Committee's recommended rule, which has been the template for some, but not all, circuit rules:

    1. Standard for Publication

      An opinion of the [court] shall not be designated for publication unless:

      a. The opinion established a new rule or law or alters or modified an existing rule; or

      b. The opinion involves a legal issue of continuing public interest; or

      c. The opinion criticizes existing law; or

      d. The opinion resolves an apparent conflict of authority.

    2. All opinions that are not found to satisfy a standard for publication as prescribed by section (1) of this rule shall be marked, Not Designated for Publication. (33)

      And there is no national rule regarding what precedential value should be accorded these opinions. (34) Some circuits lack a local rule on one or more of these three characteristics as well, but most have set forth some rule on each, and they are far from consistent.

  4. LOCAL RULES IN THE WAKE OF NEW...

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