Howard J. Bashman's appellate columns, etc.

An archive of Howard J. Bashman's monthly columns about appellate litigation, with other of his writings thrown in for good measure

Monday, May 09, 2005

Objections To Allowing Non–Precedential Decisions To Be Cited On Appeal Lack Empirical Support, Two Recent Federal Court Studies Reveal

By Howard J. Bashman
Monday, May 9, 2005

Proposed Federal Rule of Appellate Procedure 32.1 would allow all federal court opinions, even those designated as unpublished or non-precedential, to be cited in the U.S. Courts of Appeals. This proposed new rule is, without a doubt, the most controversial change to the Federal Rules of Appellate Procedure ever contemplated.

In April 2004, the Advisory Committee on Appellate Rules of the U.S. Courts voted 7-2 to approve the proposed new rule. But in June 2004, however, the Standing Committee on Rules of Practice and Procedure unanimously agreed to postpone action on the proposed rule to give the Federal Judicial Center time to research the validity of concerns raised by the rule’s opponents.

During the past ten months or so, both the Federal Judicial Center and the Administrative Office of the United States Courts have undertaken studies to test whether the concerns raised by Rule 32.1's opponents have empirical support.

On April 14, 2005, the Federal Judicial Center issued a 134–page preliminary report titled "Citations to Unpublished Opinions in the Federal Courts of Appeals." The report can be viewed online, free of charge, via the Federal Judicial Center's web site. The Administrative Office's research does not yet exist in a stand–alone report, but it is summarized in the draft minutes of the Appellate Rules Advisory Committee’s April 2005 meeting (a copy of which I posted to the internet on May 5, 2005 at my "How Appealing" web log).

Both studies appear to contain only good news for those, such as myself, who strongly support the adoption of proposed Rule 32.1.

At present, the Nation's federal appellate courts take differing approaches to the citation of non–precedential decisions. A total of nine circuits permit the citation of non–precedential decisions, although six of those circuits discourage such citation while three freely permit it. The remaining four circuits severely restrict the citation of non–precedential decisions. These divergent approaches allowed objections to proposed Rule 32.1 raised by judges and attorneys in the "restrictive" circuits to be tested against the experiences of judges and attorneys who practice in the "permissive" circuits.

The Federal Judicial Center tested whether allowing non–precedential opinions to be cited has caused judges to spend more time drafting such opinions and also whether allowing those decisions to be cited has changed their length (either by making them appreciably longer or shorter). The empirical evidence revealed that in circuits where local rules allow non–precedential opinions to be cited, the vast majority of appellate judges responded that allowing citation created only "a very small amount" or "a small amount" of additional work for the judges.

A large minority of appellate judges in the nine circuits that permit non–precedential opinions to be cited responded that they found such citations helpful "occasionally," "often," or "very often." Only a small minority of judges in those permissive circuits responded that citations to non–precedential opinions are "never" helpful.

On the question of whether allowing non–precedential opinions to be cited would affect the length of such rulings, a substantial majority of appellate judges in the six discouraging circuits responded that a permissive approach to citation would not change opinion length. Meanwhile, a large majority of appellate judges in the restrictive circuits predicted a change, but they were nearly evenly divided over whether the change would result in longer or shorter non–precedential opinions.

Opponents of proposed Rule 32.1 have also theorized that allowing non–precedential opinions to be cited would appreciably increase the effort required to brief and argue appeals. This argument posits that at present in the so–called "restrictive" circuits, attorneys are free to ignore all non–precedential rulings. But, once non–precedential opinions become citable, attorneys will need to scour such opinions looking for the proverbial needle in the haystack in order to provide competent representation on appeal.

Once again, the empirical evidence did not support Rule 32.1's opponents. The average response from all attorneys was that adopting Rule 32.1 would have no appreciable impact on the attorneys' appellate workload. Moreover, a significant number of attorneys in the survey reported that they had wanted to cite one or more helpful non–precedential rulings but had been prevented from doing so due to restrictive citation rules. Interestingly, the only place where attorneys predicted a negative impact from the adoption of Rule 32.1 was in the Ninth Circuit, which the Appellate Advisory Committee's draft minutes correctly describe as "the epicenter of opposition to Rule 32.1."

The Administrative Office of the United States Courts' research into the likely impact of proposed Rule 32.1 focused on two other important concerns -- whether a switch from a restrictive approach to a permissive approach had changed either the median disposition times for appeals or the number of appeals disposed of by one–line judgment orders. According to the draft minutes of the April 2005 Appellate Rules Advisory Committee meeting, "the AO found little or no evidence that liberalizing a citation rule affects median case disposition times or the frequency of summary dispositions."

Because empirical testing failed to prove the validity of the objections raised by Rule 32.1's opponents, at last month's Appellate Rules Advisory Committee meeting the two committee members who voted against the rule one year ago softened their opposition and were willing to support a proposal that gave circuits the option of discouraging (but not preventing) citation to non–precedential opinions. The remainder of the committee, however, remained strongly in support of the original proposed rule, which would adopt the permissive approach to citation for all federal appellate courts.

Accordingly, last month the Appellate Rules Advisory Committee again voted 7-2 in favor of proposed Rule 32.1, which remains identical in substance to the rule the committee approved one year earlier. Next month, proposed Rule 32.1 will again be presented to the Judicial Conference's Standing Committee on Rules of Practice and Procedure for consideration. That committee is responsible for examining and approving changes to all of the federal rules of procedure and evidence.

If, as expected, the Standing Committee is now prepared to approve this proposed amendment, Rule 32.1 will next be considered by the Judicial Conference of the United States. The Judicial Conference consists of the Chief Justice of the United States, the chief judge of each federal court of appeals and of the Court of International Trade, and one district judge from each circuit.

Following approval from the Judicial Conference, rule amendments are transmitted to the Supreme Court of the United States, which officially promulgates the rules governing procedure and evidence in federal courts. If the Supreme Court approves of the rule amendments as submitted, they are transmitted to Congress. Congress then has seven months in which to reject, modify or defer the proposed amendments. In the absence of such action, the rule amendments go into effect.

Rule 32.1's opponents have in the past proved resourceful and energetic, but in the absence of empirical support for their vociferous objections, the day when non–precedential federal court opinions can be cited in all federal appellate courts now appears much closer than ever before. Had Eighth Circuit Judge Richard S. Arnold lived to see this day, I'm sure he would have been quite pleased that all his efforts in this regard are now closer than ever to achieving fruition.

This article is reprinted with permission from the May 9, 2005 issue of The Legal Intelligencer © 2005 NLP IP Company.

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