For those attorneys practicing before the Seventh Circuit, that circuit’s historical bar against the citation of unpublished opinions has given way to new Federal Rule of Appellate Procedure 32.1, for decisions issued from and after Jan. 1, 2007.
Rule 32.1(a) provides:
“(a) Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been:
(i) designated as ‘unpublished’, ‘not for publication,’ ‘non-precedential,’ ‘not precedent,’ or the like; and
(ii) issued on or after January 1, 2007.”
If such document is not available in a “publicly accessible electronic database,” the citing attorney must file and serve a copy with the attorney’s brief (or other paper in which it is cited). Rule 32.1(b).
The new Rule, which the U.S. Supreme Court approved April 12, 2006, became effective Dec. 1, 2006, when the time for Congress to countermand it expired. The Rule applies to matters cited in federal appellate courts, and governs “in all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending.” See Order, Federal Rules of Appellate Procedure, Chief Justice’s Report, April 12, 2006, www.supremecourtus.gov/orders/courtorders/frap06p.pdf.
The rule will affect Seventh Circuit Rule 53(b)(2)(iv). That rule prohibits, except for res judicata, collateral estoppel or law of the case purposes, citation or use as precedent of the circuit’s unpublished orders, by the circuit or in a federal court in the circuit. No unpublished opinion or order of any court may otherwise be cited in the Seventh Circuit if citation is prohibited in the rendering court.
According to Andy Kohn, Seventh Circuit Chief Deputy Clerk, the Seventh Circuit Rules Committee will meet to address the potential modification of Circuit Rule 53(b)(2)(iv). The Circuit will follow Rule 32.1 and not Circuit Rule 53(b)(2)(iv), from Jan. 1, 2007 until the Circuit decides whether and to what extent to modify the Circuit Rule, according to Kohn. Unless and until it is modified, Rule 53 will still apply to opinions issued before January 1, 2007.
Rule 32.1, which was over two years in the making, was hotly contested among federal judges and practitioners. See, for example, the discussion in “Judicial Conference Group Backs citing of Unpublished Opinions,” LAW.COM, April 15, 2004, www.law.com/jsp/article.jsp?id =1081792928522. Supreme Court Chief Justice John Roberts and Justice Samuel Alito (then members of the D.C. and Third Circuits, respectively) served on the Advisory Committee.
Proponents claim that Rule 32.1 reflects the facts that unpublished opinions represent the courts’ judgments, constitute the majority of issued decisions, are generally already available online and may be a jurisdiction’s only or most analogous authority.
Opponents argue that unpublished opinions, which were initially so designated to ease the overburdened courts’ backlogs, are often cursory and written by staff attorneys, and that the rule will lead to an increase in judges’ drafting caseloads. This, they claim, will yield more one-line decisions, which will destroy the decisional “transparency” which is one of the rule’s goals.
While practitioners will understandably review Rule 32.1 to determine what federal authorities they can cite, it is important to understand what the Rule does not do. The rule does not apply to state court decisions. It does not apply to decisions issued before Jan. 1, 2007, to which Seventh Circuit Rule 53 will continue to apply in this circuit.
The rule deals only with opinions designated as unpublished, non-precedential or the like. It neither requires nor prohibits a court from issuing unpublished opinions in the first place. It does not regulate how or why decisions are designed as unpublished, and does not dictate the effects of unpublished decisions. Rule 32.1 only forbids courts from prohibiting or restricting their citation. See Committee Note, U.S. Supreme Court, Amendments to Federal Rules of Appellate Procedure, Chief Justice’s Report, April 12, 2006, www.supremecourtus.gov/orders/courtorders/frap06p.pdf; Federal Judicial Center, Advisory Notes Approval, www.uscourts.gov/rules/Reports/AP10-2005.pdf.
Because Rule 32.1 does not alter the precedential or persuasive effect of opinions, practitioners are best advised to continue primarily relying on published federal authority. This is especially true within the Seventh Circuit, which has shown its distaste for the citation of unpublished decisions in its Rule 53(b)(2)(iv).
Citing an unpublished decision may be most appropriate where it represents the only authority in a jurisdiction on a specific issue, is factually square with the litigation at hand, or contains a particularly expansive and well-reasoned analysis of critical legal issues. The courts, however, especially the Seventh Circuit, likely will not welcome unpublished opinions which are cited merely as “extra” authority and lack appropriate substantive analysis.
Diane Slomowitz is a partner at Fox, O’Neill & Shannon, S.C. in Milwaukee. Slomowitz can be reached at dslomowitz@ foslaw.com.
This column is a contribution by members of the Association for Women Lawyers, but does not necessarily represent the opinions of that organization.