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News & Developments: E-Flash for January 2007
Federal Rule of Appellate Practice 32.1 Permits Citation of Unpublished Federal Decisions
By Lawrence D. Rosenberg, Jones Day, Washington, D.C.
In a development important for all appellate practitioners (and generally for all lawyers), effective on January 1, 2007, Federal Rule of Appellate Practice 32.1(a) uniformly provides that “[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citation of federal judicial opinions, orders judgments or other written dispositions that have been (i) designated as ‘unpublished,’ ‘not for publication,’ ‘non-precedential,’ ‘not precedent,’ or the like; and (ii) issued on or after January 1, 2007.”
Previously, the federal appellate courts had taken varying and inconsistent approaches with respect to the citation of unpublished decisions. Some courts, such as the Ninth Circuit and the Federal Circuit, had prohibited any citation of unpublished decisions issued by those courts, except to assert claim preclusion, issue preclusion, judicial estoppel, law of the case, or similar doctrines. Other courts, such as the Fourth Circuit, permitted the citation of unpublished decisions from that court for their persuasive value. Still other courts, such as the D.C. Circuit, took somewhat of a middle ground, permitting citation only of that court’s unpublished decisions entered on or after January 1, 2002.
It is important to bear in mind the scope of Rule 32.1. While Rule 32.1 has uniform application so far as it goes, it applies only to decisions “issued on or after January 1, 2007.” Thus, it does not address or govern citation of unpublished opinions issued before that date, which will still be governed individually by the local rules of each federal court of appeals. Moreover, the language of Rule 32.1 does not govern merely opinions from the federal courts of appeals; rather it more broadly covers all “federal judicial opinions, orders, judgments, or other written dispositions.” Thus, it appears that, at least in federal courts of appeals, a party may cite any such order or disposition, even if unpublished or designated as non-precedential. Practitioners should also be aware of Rule 32.1(b), which provides that “[i]f a party cites a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible 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.”
In light of Rule 32.1’s scope, there are several procedural concerns that may arise. First, the federal courts of appeals still have varying rules for citation of their own unpublished decisions issued before January 1, 2007. Practitioners should be careful to consult the local rules of each federal court of appeals in which they practice to ascertain those rules (or, if those rules are not clear, to contact the clerk’s office of the court of appeals in question). Second, the federal courts of appeals may also have varying rules for citation of the unpublished decisions of other federal courts issued before January 1, 2007. Even if a court permits the citation of its own unpublished decisions issued before that date, it might not permit the citation of unpublished decisions of other courts issued before that date. For example, recently enacted D.C. Circuit Local Rule 32.1 permits citation of the D.C. Circuit’s unpublished dispositions entered on or after January 1, 2002, generally permits citation of the unpublished decisions of other federal courts of appeals issued before January 1, 2007 “only under the circumstances and for the purposes permitted by the court issuing the disposition,” and does not permit the citation of “unpublished dispositions of district courts entered before that date.” Third, it is possible that the federal courts of appeals will accord differing precedential value to unpublished decisions. While most courts will likely accord only “persuasive” value to the such decisions, there is nothing prohibiting a court of appeals from determining that its own unpublished decisions are “binding” authority.
In sum, Rule 32.1 will expand the universe of authority that may be cited in many federal appellate courts but leaves many accompanying issues to the discretion of the individual courts.
