Citation to Federal Unpublished Opinions in the Circuit Courts

In April 2006, proposed Federal Rule of Appellate Procedure (FRAP) 32.1 was adopted by the U.S. Supreme Court. The rule, which went into effect on December 1, 2006, prohibits Federal Circuit Courts from disallowing citation to federal unpublished opinions issued on or after January 1, 2007.
FRAP 32.1 raises many open questions that will most likely be resolved by the courts in the months to come. For example:

While FRAP 32.1 disallows the Circuits from banning federal unpublished opinions issued on or after January 1, 2007, the Circuits still have the option of allowing citation to unpublished opinions issued prior to 2007. Which Circuits will allow these prior unpublished cases to be cited is to be determined.
While the majority of cases cited in the Circuit Courts are other Circuit Court cases, the rule speaks generally about allowing all types of federal unpublished cases. It remains to be seen how many unpublished Federal District Court and other unpublished federal trial court cases are cited, and what rules are adopted pertaining to unpublished opinions in other federal courts.

Unpublished opinions or cases are state or federal written decisions by Judges primarily
for the benefit of the parties to the case that were designated as “unpublished” or “not for
publication” and not disseminated to print publishers or published in print. Unpublished
opinions are numerous in scope and have been used by the judiciary for years as a time
saving device (i.e., unpublished opinions are normally brief and cursory and sometimes
written by clerks rather than Judges) and to spare litigants from having to sift through an
overwhelming and redundant volume of case law.

With the advent of the Internet and online legal publishing, the legal market has been
awakened to the fact that the cases that made it into the “official” print reporters do not
represent every case that has been decided by Judges. Online legal content providers have
been “publishing” state and federal unpublished opinions through the Internet, and in the
recent past attorneys have been citing them in their briefs. Until last month’s federal rule,
FRAP 32.1, it has been left entirely up to individual state and federal courts (i.e., each
Federal Circuit Court and the courts within each state) to handle unpublished opinions as
they see fit, generally in one of three ways:
• Attorneys are not allowed to cite unpublished opinions,
• Attorneys may cite unpublished opinions but those cases are not binding
precedent that the court must follow (it is within the court’s discretion on how to
apply and interpret the unpublished case, these cases are being cited in an attempt
to persuade the court), and
• Attorneys may cite unpublished opinions and those opinions are binding
precedent that the court must follow.

There will be a pervasive need throughout the legal community to gain easy access to the
multitude of Federal Circuit Court unpublished cases issued on or after January 1, 2007
pursuant to FRAP 32.1. Attorneys will need to insure that they have access to these
unpublished opinions for complete and comprehensive representation of their clients and
to be on equal footing with opposing counsel. And the legal community will need key
functionality tied to the unpublished cases, such as full Boolean search capability,
hyperlinks to cited primary law within the unpublished cases and other related features.

Author: international

Mentioned in these Entries

History of Citation Indexing.