A modest proposal for regulating unpublished, non-precedential federal appellate opinions while courts and litigants adapt to Federal Rule of Appellate Procedure 32.1.

• Author: Ricks, Sarah E.

1. INTRODUCTION

   Federal appellate courts are overworked. To handle their overloaded dockets, appellate judges have adopted a wide variety of measures intended to promote efficiency, including deciding approximately eighty percent of appeals in non-precedential opinions. Courts and litigants currently are adapting to new Federal Rule of Appellate Procedure 32.1, which prohibits courts from restricting the citation of non-precedential opinions. Whether it is constitutional for federal appellate courts to issue non-precedential opinions is outside the scope of this essay. Putting the constitutional question aside, as a practical matter, at least for now non-precedential opinions should not be eliminated in favor of universal publication of opinions as precedent. That would be a dramatic break from several decades of federal appellate court practice. Moreover, universal publication as precedent would risk repetitive rulings and increased need for en banc overruling of inconsistent circuit precedent. However, as an interim measure, and without ruling out future structural reforms, this essay proposes that federal appellate courts modify their internal operating procedures or local rules. Circuit courts should expressly confer persuasive value on non-precedential opinions, provide specific criteria to guide the publication decision, and permit anyone--not just parties--to move the court to reissue a non-precedential opinion as a precedential opinion. The proposed modifications would help to better ensure that non-precedential opinions are consistent with precedential opinions from the same circuit, that like cases are treated alike, that issues resolved at the appellate level need not be relitigated before district courts, and that non-precedential opinions truly are limited to repetitive applications of settled law.

2. FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND CONFORMING RULE CHANGES

   There were 66,618 appeals filed in the federal appellate courts in the twelve-month period ending June 30, 2006, compared to 40,893 during a comparable period in 1990. (1) The number of judges has not kept pace with the docket increase, (2) and each judge now handles more work than an individual judge did twenty or thirty years ago. (3)

   Federal appellate courts have adopted a wide range of administrative remedies to more efficiently dispose of their dockets, remedies which have been well documented by others. (4) Federal appellate courts have increased the number of law clerks assisting each judge and created a new category of attorneys who work for the entire court (rather than for an individual judge). Federal appellate courts have reduced the frequency of oral argument and the time allotted for argument. They have invited district court judges to sit on appellate panels by designation and invited senior appellate judges to continue sitting on panels. (5) Most significantly for this essay, as an experiment beginning in the 1970s, federal appellate courts began issuing some dispositions in "unpublished," non-precedential opinions. (6) Currently, non-precedential dispositions represent the way federal appellate courts decide about 80% of their docket. (7)

   The Second Circuit's recent explanation for its reliance on non-precedential opinions succinctly states the prevailing, docket-driven justification of the practice. The Second Circuit's new local rule governing non-precedential opinions explains that "[t]he demands of contemporary case loads require the court to be conscious of the need to utilize judicial time effectively," (8) and therefore, the court will issue non-precedential opinions in cases where "a precedential opinion would serve no jurisprudential purpose because the result is dictated by preexisting precedent," (9) in order "to devote more time to opinions whose publication will be jurisprudentially valuable." (10) The Second Circuit elaborated in a sentence what most lawyers would have thought self-evident: "Denying summary orders precedential effect does not mean that the court considers itself free to rule differently in similar cases." (11)

   New Rule 32.1 prohibits appellate courts from restricting the citation of "unpublished," non-precedential opinions issued after January 1, 2007. (12) It took more than fifteen years to enact the rule (13) because opposition was vehement, (14) for reasons that are well documented elsewhere. (15) Briefly, opponents argued that permitting citation of non-precedential opinions would result in judges spending time improving the quality of non-precedential opinions, time better spent on law-making, precedential opinions; would result in attorneys spending time researching and distinguishing non-precedential opinions; and might result in treatment of non-precedential opinions as binding. Opponents of citation of non-precedential opinions also argued that unpublished opinions are useless because they are produced quickly, often by staff attorneys without careful judicial oversight, and are too brief and shorn of factual context to adequately explain the rationale, and therefore they are likely to be misinterpreted by strangers to the litigation. These arguments did not prevail, and Rule 32.1 eventually was enacted.

   Rule 32.1 governs only the citation of unpublished opinions. Justice Samuel A. Alito, who as a circuit judge chaired the Advisory Committee on Appellate Rules, explained then that the Rule does not take a position on "whether refusing to treat an unpublished opinion of a federal court as binding precedent is constitutional," nor does it require the federal circuits to assign a particular value to the circuit's own unpublished opinions, or to set criteria that appellate panels must weigh in determining whether to assign precedential value to a particular opinion. (16)

   To comply with Rule 32.1, twelve of the federal circuits enacted new local rules or procedures concerning citation of unpublished, non-precedential opinions. (17) The Sixth Circuit simply permitted citation of unpublished opinions without speaking to what value the unpublished opinions will carry. (18) The Second, (19) Fifth, (20) Seventh (21) and Ninth (22) Circuits adopted local rules expressly stating that unpublished opinions are not precedential, without mentioning potential persuasive value.

   By contrast, the First, (23) Eighth (24), Tenth, (25) Eleventh, (26) and Federal (27) Circuits each expressly confer "persuasive" value on the circuit's own non-precedential opinions issued since January 1, 2007. Further, the First and Tenth Circuits give retroactive effect to the rule, according persuasive value to all of their non-precedential opinions, regardless of the issue date. (28)

   Only the District of Columbia Circuit expressly permits citation of its own current non-precedential opinions as precedent. (29) That is not an oxymoron. In a local rule that predates the new national rule, and only slightly amended since, the District of Columbia Circuit states that "[a]ll unpublished orders or judgments of this court ... entered on or after January 1, 2002, may be cited as precedent," (30) but also cautions that "[w]hile unpublished dispositions may be cited to the court in accordance with FRAP 32.1 and Circuit Rule 32.1(b)(1) [the latter permitting citation as precedent], a panel's decision to issue an unpublished disposition means that the panel sees no precedential value in that disposition." (31) The District of Columbia Circuit rule implicitly recognizes that the precedential significance of an opinion should not be determined solely at the time it is issued and solely by the appellate panel that authored it, as is the usual practice of the federal appellate courts. Instead, the opinion's precedential significance should be reassessed by the court or litigant seeking to apply the opinion--as is more consistent with the common law tradition. (32)

3. AN INTERIM PROPOSAL FOR REGULATING NONPRECEDENTIAL OPINIONS

   A national rule prescribing uniform criteria for deciding whether an opinion should be issued as precedent and permitting non-precedential opinions to be cited as precedent (as the District of Columbia Circuit now does), would reduce confusion caused by divergent rules of the circuits, and thus serve a goal of Rule 32.1. However, Professor Stephen Barnett contends that, as a practical matter, "the considerable variation in circuit practice probably makes it too soon to impose a uniform rule" ascribing particular weight to non-precedential opinions. (33) Moreover, given the controversy that preceded adoption of the rule permitting citation of non-precedential opinions, (34) there likely is little will for the adoption of such a rule. Supporters of Rule 32.1 built consensus for the new rule in part by promising that it did not regulate the value of opinions or determine when a precedential opinion should issue, promises that the circuits would remain free to determine both independently. (35) Courts and litigants need time to adapt to new Rule 32.1, even though the new rule likely is not a permanent solution. While courts and litigants adapt to the new rule, as an interim measure--and without ruling out future structural reforms--federal appellate courts should modify their internal procedures in the following ways.

   Following the lead of the First, (36) Eighth, (37) Tenth, (38) Eleventh, (39) and Federal Circuits, (40) each of which gives express permission to cite non-precedential opinions for their "persuasive" value, the other federal circuit courts should expressly confer persuasive value on non-precedential opinions, without being compelled to do so by uniform federal rule. Attorneys, district courts, and future appellate panels find non-precedential opinions helpful in predicting how settled law will apply to novel facts, (41) in assessing how settled a particular rule of law is, (42) in thinking through the legal issues, (43) and in assessing settlement values. (44) As Seventh Circuit Judge...