December 1, 2006: Federal Rule of Appellate Procedure 32.1, which ends former prohibitions forbidding us to cite unpublished appeal court opinions, is now effective as of this date as the Congress made no changes in the language adopted by the U.S. Supreme Court on April 12, 2006.
The new rule reads as follows:
Rule 32.1. Citing Judicial Dispositions
(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of federal judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and (ii) issued on or after January 1, 2007.
(b) Copies Required. If a party cites a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database, the party must file and serve a copy of that opinion, order, judgment, or disposition with the brief or other paper in which it is cited.
Please see the following comments:
Please also see a Ninth Circuit Court of Appeals memo addressing amendments to the Federal Rules of Appellate Procedure for the 9th Circuit, which includes the new Rule 32.1.
Finally, please see equivalent notices and/or rules from the following Appellate Circuits:
Also, the U.S. Court of Appeals, Sixth Circuit, has voted to amend its Sixth Circuit Rule 28(g), in order to reflect the recent amendments to the Federal Rule of Civil Procedure 32.1 allowing citation of unpublished decisions decided after Jan. 1, 2007. See Proposed Rule 28(g).
April 12, 2006: The U.S. Supreme Court has agreed to allow the citation of "unpublished" opinions in all federal courts. This policy will go into effect on Dec. 1 unless Congress takes action to block the adoption of Federal Rule of Appellate Procedure 32.1. Please see articles about this development on our press clippings page.
April 11, 2006: Please see Michael Schmier's letters to Supreme Court Justices Roberts and Alito urging them to adopt Rule 32.1 without the "prospective only" limitation.
***September 20, 2005***: Today, a great victory for the cause of justice was won. The Judicial Conference of the United States voted to approve FRAP 32.1. The new rule will permit the citation to, or by federal courts all opinions, orders, or other judicial dispositions that have been designated “not for publication,” “non-precedential,” or the like -- but will apply only prospectively to decisions issued on or after January 1, 2007. Please see the Conference's press release, as well as media coverage on our Press Clippings page.
The new rule as approved is significantly altered from that which the Standing Committee and the Advisory Committee (including its member, Chief Justice John Roberts) recommended. They recommended that all prior unpublished decisions be citable regardless of date of issuance. Permitting a continued ban on citing unpublished decisions issued prior to January 1, 2007 is Judicial Conference admission that those decisions are inherently unreliable. What to do with the enormous volume of erroneous opinions is a big problem. Nobody should have to follow a large body of law the judges admit is completely untrustworthy, but hiding it under the carpet only lets its rottenness continue to fester. A new rule could remove any compulsion to follow bad opinions like California Senate Bill 1655 (Kuehl) does, but not forbid us to mention and analyze them "in the sunshine" for whatever enlightenment they may provide.
June 22, 2005: As reported here, the Federal Committee on Rules of Practice and Procedure, chaired by Chief U.S. District Judge David Levi of the Eastern District of California, recently voted to send Proposed Federal Rule of Appellate Procedure 32.1 to full the U.S. Judicial Conference.
June 1, 2005: Final Version of the Federal Judicial Center's study of the effects of no-citation rules released today. (See also entry of April 18, 2005).
May 6, 2005: Justice Samuel Alito's memo to Judge David Levi regarding 32.1 and the April 18, 2005 meeting of the Advisory Committee on Appellate Rules.
April 24, 2005: The California Supreme Court Advisory Committee on Rules For Publication of Court of Appeal Opinions is asking attorneys to complete a survey on publication rules. The committee does not acknowledge the existence of the no-citation rule, or that since all opinions are now "posted" rather than "published" on the internet, the only significance of whether or not an opinion is published is whether it can be mentioned in a court room.
The survey is at http://www.courtinfo.ca.gov/courts/supreme/comm/
The court also lists numerous criteria for publishing appellate opinions "nationwide" but does not mention that most states simply publish all opinions, or at least allow them to be cited.
April 18, 2005: The Advisory Committee on Appellate Rules approved, by a 7 to 2 vote, Proposed Federal Rule of Appellate Procedure 32.1. The Advisory Committee will transmit the proposed new rule to the Standing Committee on Rules of Practice and Procedure, with a recommendation that it be approved and transmitted to the Judicial Conference for its consideration. In deciding to approve FRAP 32.1, the advisory committee considered the Federal Judicial Center's study of the effects of no-citation rules.
Judge Alex Kozinki's January 16, 2004 letter to 3d Circuit Judge Samuel Alito, Jr. in opposition to Proposed Federal Rule of Appellate Procedure 32.1. (Index of Attachments.) Professor Stephen Barnett responded to Judge Kozinki's letter in this letter to Judge Alito. Also see Ken Schmier's comment on Proposed FRAP 32.1 and the addendum to his comment.
Judge Tashima's letter in support of Proposed FRAP 32.1 suggests little opposition by lawyers and Ninth Circuit judges.
The Standing Committee on Rules of the U.S. Judicial Conference will meet in Washington D.C. June 17-18, 2004 to decide whether to advance FRAP 32.1 to the entire Judicial Conference and then to the U.S. Supreme Court. Meeting agenda available here.
April 14, 2004: The U.S. Judicial Conference advisory committee voted 7-1 to endorse proposed FRAP 32.1. A transcript of their meeting is available HERE. Or download the transcript in Microsoft Word format (1.2 MB) by "right-clicking" HERE and then selecting "Save Target As." Read the recent articles on the Press Clippings page. See also the following prepared statements:
The Social Security Administration, a major participant in Federal Court litigation supports the adoption of proposed FRAP 32.1.
Please see Patrick J. Shiltz's summary of the comments regarding proposed FRAP 32.1 in a memo to the Advisory Committee on Appellate Rules.
Boalt Law School professor Steve Barnett's review of the comments received by the Federal Appellate Rules Committee.
February 6, 2004 Daily Journal Article on 9th Circuit opposition to Proposed FRAP 32.1.
Interview with Senior Circuit Judge Richard S. Arnold of the U.S. Court of Appeals for the Eighth Circuit re Proposed FRAP 32.1.
Other appellate information at Howard Bashman's blog: "How Appealing".
Howard J. Bashman, of Buchanan Ingersoll, P.C., co-chair of the Philadelphia Bar Association's Appellate Courts Committee, has written two articles on Proposed FRAP 32.1. (#1, #2)
The Standing Committee approved our request to publish new Rule 32.1 for comment. The rule will be published sometime in August; the bench and bar will have until sometime in February to submit comments. Those comments will be considered by the Advisory Committee at its spring 2004 meeting. If the Advisory Committee decides to approve the rule -- with or without modifications -- the rule will go back to the Standing Committee at its June 2004 meeting. If the Standing Committee approves the rule, it will go to the Judicial Conference in September 2004. If the Judicial Conference approves the rule, it will go to the Supreme Court, which will have until May 1, 2005 to decide whether to adopt it. If the Supreme Court adopts it, the rule will go to Congress. The rule will take effect on December 1, 2005, unless Congress passes legislation blocking it.
It will be important for those who support the rule to submit comments during the comment period. The more judges, lawyers, and state and local bar associations that line up behind the rule, the better the chances that the rule will be approved.
Here are the draft minutes from the May 15, 2003 Advisory Committee on Appellate Rules meeting and the report that the Advisory Committee submitted to the Standing Committee in preparation for the Standing Committee's June meeting.
Now, the Advisory Committee and Standing Committee have published a new rule. Here is Tony Mauro's Article, and here is the Proposed Rule 32.1.
A draft of the minutes from the 2002 meeting of the Appellate Rules Committee is now available.
The Appellate Rules Committee is poised to do in no-citation rules on a national basis. The committee met on November 18-19, 2002 in San Francisco. They voted, with one abstention, for the creation of a uniform policy in federal circuits nationwide permiting lawyers to cite unpublished decisions for "persuasive value."
Read the Daily Journal and Recorder articles about the meeting.
The agenda which included three alternative rules to that affect is available here. Read Patrick J. Schiltz's introduction and committee alternatives 'A', 'B', and 'C', as well as the Rule of Law Alternative.
This meeting took place in the wake of hearings by the US Congress Subcommittee on the Courts, Intellectual property and the Internet. The complete record of that hearing is here. The statement of Committee for the Rule of Law Chairman, Ken Schmier, is available here.