Howard J. Bashman's appellate columns, etc.

Opponents Of Rule Allowing Non–Precedential U.S. Court Of Appeals
Decisions To Be Cited Manage To Insert A Fly In The Ointment

By Howard J. Bashman
Monday, December 12, 2005
A little over two months ago, the Judicial Conference of the United States approved a proposed Federal Rule of Appellate Procedure that will allow attorneys to cite to non–precedential federal appellate rulings in all federal appellate courts. Currently, some federal appellate courts permit their non–precedential rulings to be cited in briefs, other federal appellate courts disfavor the practice but permit it when no on–point precedential decision exists, while a third group of federal appellate courts almost entirely prohibits any citation to their own non–precedential rulings.

Although the Judicial Conference's approval of proposed Federal Rule of Appellate Procedure 32.1 is excellent news, the approval came at a price. The rule as presented to the Judicial Conference for approval stated: "A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been designated as 'unpublished,' 'not for publication,' 'non–precedential,' 'not precedent,' or the like."

Unfortunately, in order to agree to approval of the rule, the Chief Judge of one of the U.S. Courts of Appeals where the citation to that court's own non–precedential decisions is now almost entirely prohibited demanded that proposed Rule 32.1 apply only to federal court rulings issued on or after January 1, 2007. The Judicial Conference agreed to the change and approved a version of proposed Rule 32.1 which specifies that the rule will apply only to opinions issued "on or after January 1, 2007."

The Advisory Committee's note has been updated as follows to reflect this belated amendment to Rule 32.1: "Rule 32.1(a) applies only to unpublished opinions issued on or after January 1, 2007. The citation of unpublished opinions issued before January 1, 2007, will continue to be governed by the local rules of the circuits."

On November 29, 2005, the Judicial Conference forwarded amended proposed Federal Rule of Appellate Procedure 32.1 to the U.S. Supreme Court with the recommendation that the rule be approved and promulgated to Congress by May 1, 2006. If the Supreme Court sends the rule along to Congress by that date, and if Congress thereafter takes no action to derail the rule, proposed Federal Rule of Appellate Procedure 32.1 will go into effect on December 1, 2006 (even though the rule, by its own terms, will only apply to decisions issued on or after January 1, 2007).

In considering proposed Federal Rule of Appellate Procedure 32.1, the Supreme Court has the power to eliminate the belated amendment making the rule applicable only to decisions issued on or after January 1, 2007. For the reasons that follow, the Supreme Court should remove the Judicial Conference's last–minute, prospective–only amendment and return Rule 32.1 to the form in which the Appellate Rules Advisory Committee approved it, making the rule applicable to all unpublished and non–precedential federal court rulings, regardless of when issued.

There are two persuasive reasons why the Supreme Court should remove the temporal limitation added via the Judicial Conference's belated amendment to Federal Rule of Appellate Procedure 32.1: the amendment is guaranteed to sow unnecessary confusion, and the amendment serves no logical purpose in distinguishing between non–precedential decisions based on date of issuance.

One of the major purposes of proposed Rule 32.1 was to eliminate the lack of uniformity in the local rules of the U.S. Courts of Appeals governing when non–precedential rulings may be cited. Unfortunately, the Judicial Conference's belated amendment to the rule appears to grandfather–in the lack of uniformity that currently exists with respect to non–precedential federal appellate court rulings issued before January 1, 2007.

I fear that, in practice, the new version of proposed Federal Rule of Appellate Procedure 32.1 threatens to add much additional, not heretofore encountered uncertainty. At present, most federal appellate courts either by local rule or case law have announced whether and under what circumstances those courts' own non–precedential decisions may be cited in briefs filed in those courts. Yet those local rules and that case law speak to the present. Thus, for example, an advocate filing an appellate brief today in the U.S. Court of Appeals for the Ninth Circuit knows that she risks discipline from the court if she cites a non–precedential Ninth Circuit ruling as authority.

As of December 1, 2006, if proposed Rule 32.1 goes into effect as planned on that date, the Ninth Circuit's local rule will be deprived of any effect, at least with respect to Ninth Circuit non–precedential rulings issued on or after January 1, 2007. But the question will then arise whether the preexisting local rule, consisting of a currently–applicable blanket prohibition on the citation of any Ninth Circuit non–precedential decisions, should be construed to continue to prohibit citation to non–precedential decisions issued before January 1, 2007.

What would make the most sense, of course, would be for every single U.S. Court of Appeals, in advance of December 1, 2006, to promulgate a new local rule specifying whether and under what circumstances (if any) litigants will be permitted to cite to those courts' own non–precedential rulings issued before January 1, 2007. But the promulgation of such new local rules by federal appellate courts across the Nation is not guaranteed to happen, and nothing in proposed Rule 32.1 requires it to occur. Absent such newly promulgated local rules, litigants in most circuits will be at a loss to figure out whether local rules addressing when non–precedential decisions can be cited at the present time continue, in the aftermath of Rule 32.1's effective date, to govern the circumstances under which non–precedential rulings issued before January 1, 2007 can be cited.

The confusion that the Judicial Conference's amendment to Rule 32.1 is guaranteed to spawn is but one of the two reasons why the Supreme Court should nix that amendment. The second, equally important reason is that the amendment illogically draws a distinction between non–precedential opinions issued before January 1, 2007 and non–precedential opinions issued on or after January 1, 2007.

Proposed Rule 32.1 merely allows attorneys to cite a federal appellate court's non–precedential or unpublished opinions, but the rule in no way requires a federal appellate court to treat its own non–precedential or unpublished opinions as precedent. Thus, after January 1, 2007, the Ninth Circuit will be prohibited from disciplining an attorney who cites one of the Ninth Circuit's post–January 1, 2007 non–precedential rulings in a brief, but the Ninth Circuit itself remains as free to continue to ignore its own non–precedential rulings after Rule 32.1 takes effect as the Ninth Circuit believes itself to be today.

Another possibility is that a prospective–only limitation in proposed Rule 32.1 will allow those circuits that strictly prohibit citation to their non–precedential rulings either to improve the quality of such rulings after January 1, 2007 or know that such rulings should thereafter be entirely bereft of any citable content. But if that is the rationale for the rule's temporal limitation, the amendment overlooks that attorneys recognize that non–precedential rulings should only be cited in the absence of any comparable precedential authority and that federal appellate courts will remain entirely free to disregard their own non–precedential decisions as not binding and not authoritative.

There are two important reasons why I am optimistic that the U.S. Supreme Court will strike the Judicial Conference's belated temporal limitation amendment from the text of proposed Federal Rule of Appellate Procedure 32.1, and their names are Chief Justice John G. Roberts, Jr. and Associate Justice nominee Samuel A. Alito, Jr. Both served on the U.S. Courts Appellate Rules Advisory Committee, and both are on the record as opposed to any temporal limitation in proposed Rule 32.1.

Because the Judicial Conference's temporal limitation on proposed Federal Rule of Appellate Procedure 32.1's scope is guaranteed to foment confusion and is based on the illogical proposition that non–precedential rulings issued before the new rule's effective date ought to be treated differently than non–precedential rulings issued after the new rule's effective date, the Supreme Court should eliminate the Judicial Conference's prospective–only amendment from the text of proposed Rule 32.1 before forwarding the rule to Congress in the Spring of 2006.

This article is reprinted with permission from the December 12, 2005 issue of The Legal Intelligencer © 2005 NLP IP Company.