Citation of Unpublished Opinions

The CAFC has previously taken a hard-line against citation of nonprecedential opinions. In one case, the court threatened sanctions for future violations of its citation rules. However, in the wake of the Supreme Court’s amendments to the Federal Rules of Appellate Procedure, the CAFC will begin to allow parties to cite the court’s nonprecedential opinions. The proposed new CAFC Rule 32.1 reads as follows:

(c) Parties’ Citation of Nonprecedential Dispositions. Parties are not prohibited or restricted from citing nonprecedential dispositions issued after January 1, 2007. This rule does not preclude assertion of claim preclusion, issue preclusion, judicial estoppel, law of the case, and the like based on a nonprecedential disposition issued before that date.

(d) Court’s Consideration of Nonprecedential Dispositions. The court may refer to a nonprecedential disposition in an opinion or order and may look to a nonprecedential disposition for guidance or persuasive reasoning, but will not give one of its own nonprecedential dispositions the effect of binding precedent. The court will not consider nonprecedential dispositions of another court as binding precedent of that court unless the rules of that court so provide.

Any comments on the proposed rule changes are due to the CAFC Clerk by August 18, 2006.

The CAFC continues to issue many nonprecedential opinions.  In my opinion, a significant number of these opinions should instead be precedential.  As an example, in today’s case of Bennett Regulator v. Canadian Meter, the CAFC issued a 13 page nonprecedential opinion that included a dissent by Judge Mayer. The case involved the difficult question of whether a pre-filing, but not-fully-enabling public disclosure can invalidate a patent.  This one should be precedential. 

Prior Discussion:

• Patently-O April 2004
• Patently-O November 2004
• Patently-O September 2005
• Patently-0 April 2006
• Welch (TTAB blog) April 2006

Comments

[Joe Smith]

Courts should not restrict the use of non-precedential decisions. The whole point of being able to cite prior decisions is to keep courts intellectually honest and consistent. They should expect that any decision they make is going to be cited back to them and take appropriate care with every decision. If there is a decision they are ashamed of and do not want to be reminded of the answer is that they should not have made such a decision in the first place.

[steve]

I agree with Joe.

Recent arguments that unpublished opinions are written by clerks or staff attorneys and therefore are not citable seems to beg the question as to what kind of justice do some litigants get if they are given a second rate opinion.

[Nate Levin]

I feel that the whole concept of a nonprecedential or "unpublished" decision is the kind of thing that gives law and lawyers a bad name. All court decisions should be public and should mean what they say. Every opinion should be part of the body of law, to be followed if correct and to be overruled if incorrect. How can it be proper for a court to say, in effect, "We just did this, but we don't really mean it, it doesn't count." Judges, at least as much as anyone else, should stand behind their work product.

[jim hawes]

I agree with many of the already posted comments. All court opinions should be fully citable and fully binding. This cockeyed practice of labelling some decisions as "non-precedential" is not why judges sit. They are there to decide cases. They are also there to explain their decisions, so others can be better advised in their future actions. Since similar cases should be decided similarly, having to explain decisions also helps to ensure that we are under the rule of law, not under the whims of whatever judge is doing the deciding. Accepting the non-precedential opinion practice seems to me a big step into the swamp of rule by judges, not law. So as far as I'm concerned, ALL decisions of the Supreme Court, the CAFC and other Courts of Appeal, the BPAI and PTO Director, etc. should always be published and fully citable. I'm very disappointed that our profession has tolerated non-precedential decisions as long as we have. Jim Hawes

[Phil Eppi]

I agree with the other comments. More often than not, the logical point for which you want support is usually in an unpublished decision. If the logic is good, why discount it because its in an unpublished opinion?

[SF]

Jim states, "All court opinions should be fully citable and fully binding."

I disagree with respect to "fully binding."

As the saying goes, bad facts make for bad law. Non-precedential opinions allow for courts to reach a reasonable result under the facts of the case without creating a rule that would cause bad results if applied to the facts of other cases.

[DCclerk]

All of these points have been made many times before. This link has a collection of the comments submitted for and against proposed FRAP 32.1

http://www.uscourts.gov/rules/2003_Appellate_Rules_Comments_Chart.htm

Of particular interest might be the comments of several federal appellate judges... particular w/r/t this crowd, I note that the page includes submissions from CAFC judges Dyk, Mayer, and Michel, as well as from the Fed. Cir. Bar Association and from the CAFC advisory council.

Read some of this stuff and see if you still feel the same way. There's a bit more to the question than transparency in the judiciary and the rule of law.

[Nate Levin]

In response to the post from DCclerk, I did try to find some "pro-unpublished" comments on the 2003 Rules comment. There was a lot of chaff there, but I sifted out one argument from some Fed.Cir. judges. Their point is that it would take more work to get the unpublished decisions up to snuff. Not too compelling argument to my way of thinking.