This article addresses three important developments in the continuing battle over the precedential status of unpublished federal appellate court opinions.

First, effective January 1, 2002, the U.S. Court of Appeals for the Third Circuit began offering Internet access to its unpublished opinions at its Web site, http://www.ca3.uscourts.gov/. Second, the U.S. Court of Appeals for the District of Columbia Circuit earlier this month adopted a local rule providing that all of its decisions issued during or after 2002, whether published or unpublished, will be binding precedent in that circuit. Third, and in marked contrast with these first two developments, the Ninth Circuit last year rebuffed two challenges to the lawfulness of its local rule that denies precedential status to its unpublished opinions and bars any citation to them.

The Third Circuit deserves praise for making its unpublished opinions available over the Internet and on Westlaw and Lexis. The first installment of this column, published in December 2000, beseeched the Third Circuit to make its unpublished opinions more readily available. Until this month, the Third Circuit was one of just a few federal appellate courts that failed to post its unpublished opinions on the Internet and failed to release its unpublished opinions to Westlaw and Lexis for inclusion in their electronic databases.

By providing easy access to its unpublished opinions, the Third Circuit allows the public to determine for itself whether these opinions, which the court designates as "non-precedential," in fact break no new legal ground. Decisions that break no new legal ground generally exhibit three characteristics. First, the legal rules applied come directly from earlier, precedential opinions of the issuing court, the U.S. Supreme Court, or (in a diversity case) the highest state appellate court. Second, reasonable minds cannot disagree that these legal rules apply to the facts and circumstances of the current appeal. Third, reasonable minds cannot disagree over the results produced by applying these legal rules to the facts and circumstances presented.

Before the end of 2002, this column will examine whether the Third Circuit's unpublished opinions issued this year truly would qualify as "non-precedential" even had the court failed to designate them as such. For present purposes, it is noteworthy that the first two "non-precedential" opinions to appear on the Third Circuit's Web site in 2002 both involved reversals of district court rulings.

While the Third Circuit continues to classify its unpublished opinions as non-precedential, several years ago it withdrew a rule that had prohibited lawyers from citing to its unpublished opinions in briefs and at oral argument. Many other federal appellate courts continue to prohibit citation to and reliance on their unpublished decisions, even while making those decisions available over the Internet and on Westlaw and Lexis. Although the Third Circuit lets advocates cite to its unpublished decisions, the court has expressed its intention to adhere to the policy that the court will not cite to its non-precedential opinions as authority. If such a policy were tenable, appellate advocates would have little reason to devote precious briefing space or oral argument time to refer to non-precedential decisions that the Third Circuit in the past has usually chosen to ignore.

Soon, however, the Third Circuit will discover that it is impossible to ignore supposedly non-precedential decisions that have indeed broken new legal ground. How should the Third Circuit respond when that day inevitably arrives? It should follow the path recently charted by the D.C. Circuit. That court's Rule 28(c)(1)(B), which took effect January 1, 2002, provides: "All unpublished orders or judgments of this court, including explanatory memoranda (but not including sealed opinions), entered on or after January 1, 2002, may be cited as precedent."

Simultaneously, the D.C. Circuit adopted Circuit Rule 36(c)(2), which explains: "While unpublished orders and judgments may be cited to the court in accordance with Circuit Rule 28(c)(1)(B), a panel's decision to issue an unpublished disposition means that the panel sees no precedential value in that disposition."

By means of these two new rules, the D.C. Circuit has arrived at the right answer to the dilemma surrounding the precedential value of unpublished appellate opinions. The court will continue to use unpublished opinions to decide cases that, in the court's view, lack precedential value, but if the court has erred in its prediction of no precedential value, the court and litigants can rely on the unpublished decision as binding precedent.

Contrastingly, the Ninth Circuit in 2001 twice rejected challenges to the legality of its local rule prohibiting citation to that court's unpublished decisions. First, in Sorchini v. City of Covina, 250 F.3d 706 (9th Cir. 2001) (per curiam), a three-judge panel consisting of Circuit Judges Alex Kozinski, Richard C. Tallman and District Judge Frank R. Zapata ruled, over Judge Tallman's unexplained dissent, that the Ninth Circuit would thereafter impose discipline against lawyers who cited unpublished Ninth Circuit decisions to the court. "Unpublished dispositions are neither persuasive nor controlling authority," the majority wrote. Later events suggest that Judge Tallman dissented from the court's refusal to impose discipline, rather than from the court's decision upholding the legality of the no-citation rule.

Four months thereafter, Judge Kozinski wrote a more fulsome defense of the Ninth Circuit's no-citation rule on behalf of the same, this time unanimous, three-judge panel in Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001). Hart quickly garnered attention because Judge Kozinski attempted therein to undermine the reasoning and conclusions of Circuit Judge Richard S. Arnold in his pathmarking decision in Anastasoff v. United States, 223 F.3d 898, vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en banc). Anastasoff had concluded that federal appellate courts act unconstitutionally when they purport to deny precedential status to unpublished opinions.

Before one decides whether Judge Arnold or Judge Kozinski has the better argument on this point, it must be noted that Judge Arnold's understanding of the role of stare decisis at the time of the Constitution's framing received support in May 2001 from Justices Antonin Scalia, John Paul Stevens and Clarence Thomas. Rogers v. Tennessee, 532 U.S. 451 (2001) (Scalia, J., dissenting). The five Justices in the majority in Rogers expressed agreement with this aspect of Justice Scalia's dissent.

Other highly-regarded federal appellate judges have stated views similar to those found in Judge Arnold's decision in Anastasoff. Then-Chief Judge William J. Holloway, Jr. of the U.S. Court of Appeals for the Tenth Circuit, in a dissent joined in by Circuit Judges James E. Barrett and Bobby R. Baldock, questioned the practice of denying precedential status to unpublished appellate opinions, In re Tenth Circuit Rules, 955 F.2d 36 (10th Cir. 1992) (Holloway, C.J., dissenting), as has retired D.C. Circuit Judge Patricia M. Wald, National Classification Comm. v. United States, 765 F.2d 164 (D.C. Cir. 1985) (Wald, J., writing separately) (remarking on "the unfortunate by-products of the overuse of this rapidly growing mode of disposition").

Even if reasonable minds can disagree over the legality of this practice (and longtime readers of this column already know that I side with Judge Arnold on this issue), the more important question remains whether it is sound policy for federal appellate courts to deny precedential status to unpublished opinions. On this point, Judge Kozinski's opinion in Hart is sorely lacking in persuasiveness. Critics of the Ninth Circuit might observe that it is not surprising that its judges refuse to be bound by that court's unpublished opinions, because Ninth Circuit judges so often flout the rule that the court's own published opinions serve as binding precedent.

If a federal appellate court is able to discharge its obligation to try to reach the proper result in every appeal, what value is served by denying precedential effect to earlier unpublished opinions that have resolved the very question that has again presented itself to the court for resolution? The only policy argument that would cause me to endorse Judge Kozinski's view would be the argument that federal appellate courts lack the resources to decide every appeal correctly, and therefore those courts must be able to distinguish the cases in which they have confidence in the correctness of their rulings (the published opinions) from the cases in which they lack confidence in the correctness of their rulings (the unpublished opinions).

The vast majority of appeals are decided by unpublished opinions. It would certainly do a disservice to the litigants therein to be told that their cases lack the importance necessary to receive a result by which the appellate court agrees to be bound in the future, and thus the result will bind only the parties but not the court. This, however, is the implicit message conveyed to litigants whose appeals are decided by means of unpublished opinions that lack precedential value.

Whether an opinion of an appellate court has or lacks precedential value should be a function of what the opinion contains rather than the label attached to it. If the opinion involves the application of a settled legal rule to circumstances that the rule clearly applies to, and the result produced by applying the rule is beyond reasonable dispute, no advocate is likely to cite to that decision if it is issued as a not-for-publication opinion. On the other hand, where a federal appellate court incorrectly predicts that a given decision lacks precedential value, and thus has erroneously issued it as an unpublished opinion, the court should afford that opinion the same precedential effect as a published opinion. Thus, a panel in a later appeal would be bound by an earlier panel's ruling contained in an unpublished opinion unless the later appeal was heard en banc and the full court overruled the earlier panel's holding.

The eight active judges on the U.S. Court of Appeals for the D.C. Circuit thought that this approach made so much sense that they have adopted it in that court's local rules effective January 1, 2002. The Third Circuit, by releasing its newly-issued unpublished opinions on its Web site and to Westlaw and Lexis, has taken an important first step in this direction. Next, and in the very near future, the Third Circuit should (and I predict will) recognize that the time has come to abolish the non-precedential status of its unpublished opinions.

This article is reprinted with permission from the January 14, 2002 issue of The Legal Intelligencer � 2002 NLP IP Company.

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