An archive of Howard J. Bashman's monthly columns about appellate litigation, with other of his writings thrown in for good measure
In 2002, Small But Important Gains Were Achieved In The Battle To Abolish Non-Precedential Federal Appellate Opinions
By Howard J. Bashman
Monday, January 13, 2003
In the year just concluded, a number of incremental yet significant developments occurred in the effort to eliminate the once all-but-hidden body of law known as "unpublished" or "non-precedential" federal appellate opinions.
Longtime readers of this column know that I have consistently argued in favor of abolishing federal appellate opinions designated as non-precedential. As the name implies, non-precedential appellate opinions are opinions that an appellate court issues to explain the reasons for a decision that, in the court's view, involves the straightforward application of existing law. When federal appellate courts use them properly, non-precedential opinions are useless not simply because a federal appellate court so designates, but because they add nothing to the existing body of precedent.
Of course, because humans are fallible, especially when it comes to predicting the future, there are instances when a three-judge federal appellate court panel's belief that an opinion creates no new law turns out to be incorrect. Yet in some federal appellate courts, most notably the U.S. Court of Appeals for the Ninth Circuit, a lawyer is prohibited from citing in her brief a non-precedential Ninth Circuit opinion that resolves the very question presented in her appeal, even if that non-precedential opinion is the only Ninth Circuit decision on point.
You see, while non-precedential federal appellate decisions bind the parties to an appeal that produces such a ruling, the decision does not bind the issuing court. So, if yesterday the Ninth Circuit for whatever reason used a non-precedential opinion to announce as a matter of first impression that two plus two equals four, one year from now a different Ninth Circuit panel would be entirely free to rule that two plus two equals five. Even worse, the litigants in the second case would be prohibited from drawing to the second panel's attention, before the second panel issued its ruling, how the first panel had decided the identical question.
Non-precedential opinions exist because federal appellate judges do not have the time or resources to prepare full-blown, law review quality opinions in every single case that has been appealed. And the lack of judicial resources that has led courts to designate certain opinions as non-precedential or unpublished is unlikely to disappear.
I agree that not every federal appellate opinion contains a precedential holding. My view is simply that whether a ruling is or is not precedential should not be the function of a label that the issuing judges assign to the ruling; rather, the determination of whether an opinion is precedential or not must depend only on what the opinion contains within its margins.
Even when dealing with published opinions, of course, the existence of an on-point earlier ruling by the court in which the current appeal is pending does not mean that the holding in that earlier case is set in stone for all time. Rather, unpublished opinions that reach an unsound result can be set aside using the same procedures that apply to unsound published opinions.
The single most important development last year in the continuing controversy over non-precedential federal appellate opinions occurred in November 2002 when the Advisory Committee on Appellate Rules of the Judicial Conference of the United States approved in concept a rule that would allow the citation of non-precedential federal appellate court rulings in all U.S. Courts of Appeals. Gone would be the current crazy quilt of regulations that now govern if and when unpublished opinions can be cited to this Nation's various federal appellate courts.
The proposed nationwide rule, however, is still only at the early stages of the rulemaking process. The text of the proposed rule must be revised, approved by the committee, and then sent through the arduous rule amendment process, which probably makes December 2005 the earliest date by which such a nationwide rule could go into effect. The Appellate Rules Committee is next due to revisit the proposed amendment at a meeting scheduled for May 15, 2003.
While the Appellate Rules Committee's proposal would not eliminate the designation "non-precedential," by allowing such opinions to be cited to the appellate courts that have issued them, the rule certainly recognizes that "non-precedential" is not always synonymous with "entirely useless." And, as a practical matter, I predict that if and when the proposed rule takes effect, federal appellate courts will find it exceedingly difficult if not impossible to deny precedential effect to supposedly "non-precedential" rulings that have in fact established new law.
Although a nationwide rule may be at least a few years away, individual federal appellate courts can in the interim adopt local rules that either eliminate non-precedential opinions altogether, as the D.C. Circuit did going forward from January 1, 2002, or allow the court's own supposedly non-precedential opinions to be cited back to the court, as the First Circuit did effective December 16, 2002.
The First Circuit's new rule allows the citation back to that court of its unpublished opinions "only if (1) the party believes that the opinion persuasively addresses a material issue in the appeal; and (2) there is no published opinion from the court that adequately addresses the issue." The rule expresses the considerations that appellate advocates should follow, in my view, in all federal appellate courts that allow the citation of non-precedential rulings: only cite an unpublished federal appellate ruling back to the issuing court when no other adequate published opinion exists.
Recently, The Legal Times of Washington, D.C. ran an article evaluating the extent to which appellate practitioners in 2002 relied on unpublished opinions in briefs filed with the U.S. Court of Appeals for the D.C. Circuit. The answer turned out to be only on rare occasion. And this, in my view, shows that the system is working the way that it should.
Allowing unpublished opinions to be cited back to the issuing federal appellate court, and making unpublished opinions readily available to all who seek access, combine to cause federal appellate courts to act in the most disciplined way possible when determining whether a given decision should be designated as precedential or non-precedential. Back when widespread access to unpublished opinions was nearly non-existent, attorneys and the public were unable reliably to determine whether federal appellate courts were using unpublished opinions only to decide cases that added nothing to the existing body of precedent. Now that unpublished or non-precedential rulings are readily available from so many federal appellate courts, the judges who serve on those courts have become much more careful in deciding whether a given decision truly adds nothing of value to the fabric of precedent.
Thus, since the Third Circuit began posting its non-precedential rulings on its Web site in January 2002, I have seen fewer than a handful of non-precedential Third Circuit rulings that have caused me to ponder how in the world the court might think this decision contributes nothing to the existing body of precedential law. Furnishing easy access to unpublished opinions, as most every federal appellate court already does, provides an excellent method for lawyers and others to determine that the federal appellate court in question is using unpublished opinions only to decide those cases whose resolution appears to add nothing to the appellate court's existing body of precedent.
The Ninth Circuit, which as I have already explained is the most fervent in opposing the elimination of non-precedential federal appellate rulings, took action in the final days of 2002 to extend for another thirty months a local rule that allows unpublished opinions to be cited to that court as a basis for granting rehearing en banc. The Ninth Circuit's rule allowing this extraordinarily limited use of unpublished opinions nevertheless leaves me dumbfounded.
A lawyer can seek rehearing en banc if the Ninth Circuit issues a decision that is contrary to one of that court's earlier unpublished opinions, but the very same lawyer is prohibited from drawing the earlier, on-point decision to the attention of a second panel, which would have given the second panel the best opportunity to avoid creating a conflict in the first place. If unpublished opinions are entirely worthless, as the Ninth Circuit's most outspoken opponents of abolishing them seem to believe, then why does the Ninth Circuit allow an unpublished opinion to provide the basis for obtaining rehearing en banc?
The Federal Rules of Evidence Committee of the American College of Trial Lawyers issued one of 2002's most persuasive criticisms of federal appellate rulings that are inaccessible and non-citable. The ACTL's report and recommendation appears in West's Federal Rules Decisions reporter at 208 F.R.D. 645 (2002).
The report, which is both very well written and very well reasoned, argues in favor of three points. First, a uniform national rule should replace the patchwork of differing local rules governing the use of unpublished opinions. Second, all federal appellate courts should release their non-precedential rulings for electronic publication on Westlaw and Lexis, and for publication in West's Federal Appendix reporter. Third, litigants should be free to cite to non-precedential federal appellate opinions for whatever persuasive merit that they are thought to have. The ACTL's proposals are quite similar in operation to the new rule that the Federal Appellate Rules Advisory Committee is in the early process of preparing.
2002 was indeed a year of small but significant developments in the battle to eliminate the existence of federal appellate opinions designated as "non-precedential." And the seeds for quite significant positive change in the not too distant future were planted last year, when the Federal Appellate Rules Advisory Committee agreed to promulgate a national rule allowing the citation of non-precedential federal appellate opinions. For these reasons, I believe that we are closer than ever to the day when opinions designated at their issuance as "non-precedential" will cease to exist.
This article is reprinted with permission from the January 13, 2003 issue of The Legal Intelligencer © 2003 NLP IP Company.