1. FRAP 32.1 and the Rise of Unpublished Opinions Karen Breda Boston College Law Library September 26, 2007

2. New FRAP 32.1 In 2006, Supreme Court adopted FRAP 32.1 which permits citation of unpublished judicial opinions issued by federal courts on or after January 1, 2007.

3. FRAP 32.1 & Unpublished Opinions What are unpublished opinions? Evolution of new FRAP 32.1 A closer look at FRAP 32.1 Federal local rules Ramifications of FRAP 32.1 Citing unpublished opinions in state courts

4. What are “unpublished opinions”? In the federal judicial system, an opinion is “unpublished” when it has not been selected for publication in the West Federal Reporter series. See e.g. 1st Cir. R. 32.1.0 In state judicial systems, an opinion is “unpublished” when it has not been selected for publication in the state’s official case reporter.

5. What is an “unpublished opinion”? Generally, an appellate court may designate a decision “not for publication” where the decision is not meant to serve as legal precedent to guide future litigants but is written primarily for the parties to the case. Today, an opinion’s designation as “unpublished” refers to its non-precedential status.

6. What is an “unpublished opinion”? In today’s legal culture, the term “unpublished opinion” is a misnomer: -- West’s Federal Appendix publishes “unpublished” federal opinions. -- Section 205 of the E-Government Act of 2002 requires online access to all written federal court opinions, including the “unpublished” ones.

7. What is an “unpublished opinion”? “Unpublished” is misnomer, cont. -- Westlaw, Lexis and now LoisLaw publish “unpublished” opinions -- Legal periodicals, legal looseleaf services and internet sites sometimes publish “unpublished” cases.

8. Evolution of FRAP 32.1 1964Judicial Conference of the United States resolves that only opinions of “general precedential value” should be published. 1972Judicial Conference directs Circuit Courts to develop plans for selective publication of opinions.

9. Evolution of FRAP 32.1 1970sFederal Circuits limit number of published opinions and develop guidelines for designation of opinions “not for publication”. Each circuit develops citation rules for unpublished opinions.

10. Evolution of FRAP 32.1 By 1974, the federal judicial system has thirteen different sets of citation rules for unpublished federal opinions. Treatment of unpublished opinions varies by circuit. Some circuits permit citation, some disfavor citation, some prohibit citation of unpublished opinions.

11. Evolution of FRAP 32.1 Scope of citation rules for unpublished opinions varies by circuit. Some circuits regulate citation of a circuit’s unpublished opinions within that circuit; some circuits regulate citation of a circuit’s unpublished opinions in other courts as well. Some circuits regulate citation of unpublished opinions issued by other courts; some circuits defer to issuing court’s citation rules.

12. Evolution of FRAP 32.1 1990sJudicial Conference conducts Federal Courts Study concerning development of uniform set of rules for access, publication and citation of appellate opinions. 2000Eighth Circuit holds “no citation” rules for unpublished opinions violate Art. 3 of the Constitution. Opinion is vacated as moot. 2001Department of Justice requests that FRAPs be amended to establish uniform procedures permitting citation of unpublished opinions.

13. Evolution of FRAP 32.1 2003Advisory Committee on Appellate Rules publishes proposed FRAP 32.1 for comment; 4 circuits oppose proposed changes; many national bar organizations support proposed changes.

14. Evolution of FRAP 32.1 2004Federal Judicial Center and Administrative Office of U.S. Courts conduct impact studies. Results of both studies fail to support arguments against new rule. 2006More than 80% of federal opinions are unpublished; U.S. Supreme Court adopts FRAP 32.1, effective December 2006.

15. A closer look at FRCP 32.1 New FRAP 32.1 provides uniform treatment in Circuit Courts of unpublished federal opinions issued after January 1, 2007. Compromise rule, resulting from controversy and debate; leaves many questions unanswered.

16. A closer look at FRAP 32.1 Abrogates “no citation” rules only for decisions issued after January 1, 2007; leaves treatment of pre-2007 unpublished decisions to the Circuits’ local rules. Does not address the weight to be given an unpublished opinion. Does not address citation of state unpublished opinions in federal circuits.

17. A closer look at FRAP 32.1 FRAP 32.1(b) requires copy of any unpublished opinion that is “not available in a publicly accessible electronic database” be filed and served with the brief in which it is cited. What is “publicly accessible”? When in doubt, file and serve copy of case. FRAP 32.1(b) applies to all unpublished decisions, regardless of issue date.

18. Summary of Circuit Court Local Rules All circuits permit citation of unpublished opinions to establish 1) Res Judiciata, 2) Collateral Estoppel, 3) Law of the Case or 4) Double Jeopardy. Seven “permissive” circuits -- 1 st, 3 rd, 5 th, 6 th 10 th, 11 th and D.C., do not restrict citation of unpublished opinions.

19. Summary of Circuit Court Local Rules Three “discouraging” circuits – 4 th, 8 th and Federal expressly discourage citation of unpublished opinions but will permit citation when there is no published authority on point. Three “restrictive” circuits – 2 nd, 7 th and 9 th prohibit citation of pre-2007 unpublished opinions (except to establish res judicata and the like).

20. Summary of Circuit Court Local Rules Treatment of unpublished decisions still varies substantially between Circuits. Be sure to research the most recent version of local rules before citing unpublished opinion issued before 2007.

21. Ramifications of FRAP 32.1 What will Circuits do regarding 1) citation of pre-2007 unpublished cases and 2) weight accorded unpublished opinions? Circuits have already started addressing those issues. See e.g. 1 st Cir. R. 32.1.0 and 36.0.

22. Ramifications of FRAP 32.1 What effect will FRAP 32.1 have upon practice of designating opinions “not for publication”? 1 st Cir. R. 36.0 may foreshadow new trend. How will FRAP 32.1 effect citation standards? Bluebook (18 th ed.) BT.2 and Rules 10.8, 16, 18.2.2 and 19.

23. Ramifications of FRAP 32.1 Does FRAP 32.1 apply to citation of unpublished opinions in U.S. District Courts and federal agency hearings? Will state jurisdictions abrogate their “no citation rules” for unpublished opinions?

24. Further Readings on Unpublished Opinions A list of 103 law review articles on unpublished opinions, with many links to electronic articles, is found at: www.nonpublication.com/ARTICLES.html www.nonpublication.com/ARTICLES.html Excerpts from the Judicial Conference report on proposed FRAP 32.1 is found at: www.uscourts.gov/rules/ www.uscourts.gov/rules/