US Supreme Court Approves the Citation of “Unpublished” Opinions

On April 12, 2006, the US Supreme Court approved a rule that will permit lawyers to cite so-called “unpublished” opinions in federal courts, starting with opinions rendered in January 2007. Federal Rule of Appellate Procedure 32.1 is a noteworthy shift in procedure, as several US circuits currently prohibit citing unpublished opinions and other circuits discourage citing them, yet the majority of opinions issued by federal appeals courts are unpublished. The rule, however, does not stipulate the degree of precedent to be afforded to unpublished opinions, but simply allows attorneys to use the opinions. Where the unpublished opinion is not available in a publicly accessible electronic database, Rule 32.1 requires that the party citing an unpublished opinion furnish a copy of that decision to the court of appeals and to the other parties. Congress has until December 1, 2006 to overrule Rule 32.1.

Unpublished opinions have historically been issued exclusively for the involved parties, with no binding effect on other litigants. The text can be sparse and contain minimal recitation of the facts and analysis, but such opinions are, arguably, unavoidable, given growing caseloads and limited judicial resources. The shortcomings of unpublished opinions are acknowledged in some circuits via outright prohibition of citing the opinions. Other circuits allow unpublished opinions to be cited as persuasive—but not binding—authority, and at least one circuit deems unpublished opinions to be binding precedent. The new Rule 32.1 is an effort to bring inter-circuit consistency on the issue of citing unpublished opinions. While the new rule provides consistency by designating unpublished opinions as citable in all circuits, failing to dictate the degree of persuasive authority due an unpublished decision allows for inconsistency, both between and within the circuits, regarding the actual effect of citing unpublished opinions. In this respect, it would appear that uniformity in treatment of unpublished opinions by the circuits would be better achieved with a stated precedential value for unpublished opinions, whether prohibiting citation of unpublished opinions, making unpublished opinions binding, or something in between. Perhaps Rule 32.1 will serve as a stepping stone to allow the courts and practitioners to become comfortable with the use of unpublished opinions before the implementation of a universal precedential value for unpublished opinions.