1
ADMINISTRATIVE OFFICES OF THE
U.S. COURTS
ADVISORY COMMITTEE ON
APPELLATE RULES
Tuesday, April 13,
2004
One Columbus Circle, N.E.
Washington, D.C.
20544
2
PARTICIPANTS
HONORABLE SAMUEL A. ALITO, JR., Chairman
PROFESSOR PATRICK J. SCHILTZ
HONORABLE CARL E. STEWART
MARK I. LEVY, ESQ.
PROFESSOR CAROL ANN MOONEY
DOUGLAS LETTER, ESQ.
Representative of Solicitor General
SANFORD SVETCOV, ESQ.
MARCIA W. WALDRON
Circuit Court
MARIE LEARY
Federal Judicial Center
PROFESSOR DANIEL R. COQUILLETTE
PETER G. McCABE
Secretary, Commission on Rules of
Practice and
Procedure
HONORABLE JOHN G. ROBERTS, JR.
HONORABLE T.S. ELLIS, III
W. THOMAS McGOUGH, JR., ESQ.
JOHN K. RABIEJ
Chief, Rules Committees Support Office
HONORABLE DAVID F. LEVI
HONORABLE J. GARVIN MURTHA
3
C O N T E N T S
TESTIMONY OF: PAGE
Hon. Myron H. Bright, United States 6
Circuit Court of Appeals for the Eighth
Circuit, Fargo, ND
Honorable Diane P. Wood, United
States 24
Court of Appeals for the Seventh
Circuit,
Chicago, IL
Richard Frankel, Goldberg-Deitzler
Fellow, 66
Trial Lawyers for Public Justice,
Washington, D.C.
Judah Best of Debevoise & Plimpton,
on 86
behalf of the Section of Litigation,
American Bar Association, Washington,
D.C.
Professor Stephen R. Barnett,
Elizabeth 101
J. Boalt Professor of Law, Emeritus,
University of California, Berkeley
(Boalt School of Law), Berkeley, CA
Honorable Haldane Robert Mayer,
Chief 126
Judge, United States Court of Appeals
for the Federal Circuit, Washington,
D.C.
Honorable John M. Walker, Jr., Chief
Judge, 182
United States Court of Appeals for the
Second Circuit, New Haven, CT
Carter G. Phillips of Sidley Austin
Brown 200
& Wood, LLP, chair of the Federal
Circuit
Advisory Committee, Washington, D.C.
William T. Hangley of Hangley
Aronchick 210
Segal & Pudlin, on behalf of the
American College of Trial Lawyers,
Philadelphia, PA, and James Morris,
President-Elect, American College of
Trial
Lawyers, Richmond, VA
Honorable Edward R. Becker, United
States 235
Court of Appeals for the Third Circuit,
Philadelphia, PA
4
C O N T E N T S
(Continued)
TESTIMONY OF: PAGE
Jessie Allen, Associate Counsel, Brennan 257
Center for Justice, New York University
School of Law, New York, NY
John A. Taylor, Jr. of Horvitz &
Levy LLP, 274
chair of the California State Bar
Association Appellate Courts Committee,
Encino, CA
Steven R. Wallach of Morrison Cohen Singer 314
& Weinstein, LLP, New York, NY
Brian Wolfman, Director, Public
Citizens 325
Litigation Group, Washington, D.C.
5
1 P R O C E E D I N G S
2 JUDGE ALITO:
Can we come to order? We're
3
here this morning to hear statements concerning a
4
number of rules that we have published for comment.
5
We've received over 500 comments.
Most of them
6
have been about a rule concerning unpublished
7
opinion or our rule concerning the counting of
8
votes for rehearing en banc.
We've also had
9
comments on a new proposed rule regarding briefing
10
in cross-appeals, not very many comments on our
11
proposal to change the reference to President's Day
12
to Washington's Birthday, but maybe one of the
13
witnesses this morning will want to comment on
14
that.
15 We appreciate the tremendous line-up of
16
witnesses that we have this morning representing a
17
broad array of views and a great deal of
18
experience. The first witness on
our list is the
19
Honorable Myron H. Bright, United States Court of
20
Appeals for the Eighth Circuit.
Judge Bright?
21 STATEMENT OF THE HON. MYRON H. BRIGHT
22 JUDGE BRIGHT:
Good morning, Mr. Chairman
6
1
and members of the committee, staff, and guests. I
2
am the first hitter, lead-off, so I don't expect to
3
be like Casey and strike out but I'll do the best I
4
can.
5 I'm really very pleased to be here to
6
discuss Rule 32.1, as proposed, and to tell you why
7 I
oppose it. I do so on the basis of my
8
experience. I've been a federal
appellate judge 35
9
plus years and I've sat with many of the courts and
10
I've been a senior judge now for almost 19 years.
11
And I might mention that as a senior judge I've
12
served frequently not only in my own circuit, which
13
is the Eighth, but I've served with the Second, the
14
Third, the Sixth, the Ninth, and the Eleventh
15
Circuits and somewhat less consistently with the
16
Fifth, the Seventh and the Tenth Circuits. So I've
17
been around a while.
18 I'm at the stage of life, incidentally,
19
known as the fourth stage. The
first stage is
20
young. The second stage is
middle-aged, as some of
21
you are. The third stage is a
little older, as
22
maybe one or two may be around here.
And the
7
1
fourth stage is "You're looking good." In point of
2 time
and seniority, I'm the ninth in point of
3
service of all of the appellate judges in this
4
country.
5 Now I know you've had hundreds of comments
6
on Rule 32.1, some for, some against, and Dean
7
Schiltz--you know, I always mispronounce that,
8
Dean. I should know it because
my daughter married
9 a
guy by the name of Schultz, which is not too far
10
different. And I know you've
given the committee
11
and those of us who are testifying and others
12
really a very good summary and a conclusion, which
13 I
may not agree with in all events but you have
14
your views and I certainly respect them.
15 I'm speaking here for the Eighth Circuit.
16
As you know, Jim Loken, our chief judge, has
17
written a letter pointing out that 10 of 13 judges
18
on our court who responded opposed the rule and
19
three approved the proposed rule.
I also speak on
20
my own behalf and most of the remarks are really my
21
own views.
22 While I'm going to speak on my experience,
8
1 I
want to mention four letters, three of which you
2
have and the fourth one you'll have because it was
3
written to me. Those letters are
really quite
4
significant to me because they represent a spectrum
5
of people that I know and respect and their views
6
are pretty important.
7 On one side of the coin is Ken Starr.
8 Now, as you know, he was an appellate judge. He's
9
now an appellate attorney and soon, Patrick, he's
10
going to be a dean. On the other
side of the coin
11
is a person who's been an appellate practitioner
12
and I've done programs with him and is now an
13
appellate judge, and that's Tim Dyk of the Federal
14
Circuit. I also have a great
deal of regard for a
15
letter which I have from Gerald Tjoflat of the
16
Eleventh Circuit. He and I go
back a long time.
17
We've served on committees together.
We've been
18
great friends. And I have a copy
of that letter,
19
which I'll see that you get. And
the fourth is
20
from the Attorney General when I became a judge,
21
and that's Ramsey Clark.
22
Let me go back a little
bit in appellate
9
1
history. If there were a perfect
appellate world,
2
when I became a member of the court it was almost
3
perfect. We heard arguments in
every case unless
4
it was a pro se appeal, no lawyer, or unless it was
5
just frivolous and dismissed. We
gave each case
6
full treatment, published an opinion unless it had
7
been dismissed earlier.
8 Well, we soon had to change. The Eighth
9
Circuit adopted the nonpublication rule in 1973 and
10
we followed the leading circuit, and that was a big
11
Fifth Circuit which just had so many cases that
12
they had to do something, so they developed a
13
program of screening the cases, putting them on a
14
fast track with no argument if they didn't seem to
15
justify full treatment and writing a very short
16
opinion, really for the parties and giving their
17
reasons therefore.
18 In the '70s and '80s, with the litigation
19
explosion and, of course, the increase in appeals
20
in the federal courts, that nonpublication rule
21
really became a judicial necessity.
The language
22
"unpublished" simply means, to me, that we judges
10
1
have not had the time to carefully write an opinion
2
to worry about precedent and we really concentrate
3
only on is the result right? And
lots of times the
4
work on opinions, maybe most of the time, is not
5
our own.
6 Let's turn for a moment though to compare
7
how I as an appellate judge and I think many of the
8
appellate judges look at a case as compared to the
9
lawyers, and there are a number of lawyers who are
10
here and are in favor of the proposed rule and part
11
of it, I think, is because the perspective on which
12
we're on.
13 Now with the appellate lawyer, and many of
14
you have or are appellate lawyers, the appellate
15
lawyer really puts the sources together, puts the
16
cases together and serves it out to us on a plate.
17
Not too much of it is original except how it's
18
arranged. On the other hand,
when we have to write
19
an opinion for precedent, we are really an author.
20
We're a creative writer. When I
was first a judge
21
and it just scared the living you-know-what out of
22
me and I'd done a lot of appellate work but it was
11
1
different. And, as you know,
writing an opinion is
2
different. So
there's a difference of
3
perspective there, members of the committee.
4 Listen, I've written on cases, and many of
5
you have, and I've worked weeks, sometimes months
6
on a case and it takes very thoughtful, careful
7
writing and editing to write an opinion which you
8
know is going to be precedent.
It requires
9
extensive work and very careful writing. I try to
10
make every phrase, every sentence, even every
11
paragraph really meaningful and right to the point.
12 Now I want to remind you that to change
13
the no-citation rule to allow all opinions to be
14
cited puts into the inventory of cases each year
15
about 20,000 of the 27,000 cases decided by the
16
appellate courts. About 80
percent of the cases,
17
as you know, are nonpublished opinions.
18 Sometimes I think there's too much law out
19
there, you know? The Federal
Reporter Second was
20
391 when my name appeared as a judge and now it's
21
at 370 Federal Third, 969 volumes later, and the
22
volumes are thicker now, you know?
Estimating at
12
1
1,500 pages per volume and that's not a bad
2
estimate, I don't think, we have between 1.3 and
3
1.4 million pages of legal writing.
4 I make two other comments. I know you've
5
been exposed to the argument that if unpublished
6
opinions are citable, judges will take time away
7
from the important cases that they want to write a
8
publication opinion on and will not be able to
9
spend that much time. I think
that argument is
10
well taken. Adding so much law
in over 20,000
11
opinions published each year will really mean from
12 a
research standpoint the cup runneth over.
13 I'm a firm believer, having sat with many
14
circuits, that while the way we sit and the way we
15
decide cases is pretty much the same, the
16
procedures vary and I believe that the circuits
17
should have the right and prerogative to handle
18
their own caseload in the best way possible. As
19
you know, some courts don't allow any citation of
20
unpublished opinion except in narrow areas, like
21
res judicata, law of the case, and so forth, and
22
others allow it in limited circumstances.
13
1 Now I want to mention a couple of circuits
2
and I know that Judge Walker's going to be here
3
from the Second Circuit but I've sat there many
4
times and I love that court because they hear
5
arguments on almost everything and I love to hear
6
oral argument. But in those
cases we hear the oral
7
argument, we've done our preparation, we really on
8
the bench ordinarily say, "Is there anything to
9
write?" "Well, we're
going to affirm." The judge
10
writes a short opinion, usually the presiding
11
judge. The other two judges take
a quick look and
12
concur and the next day there's an order going out,
13
which usually affirms. Very few
unpublished
14
opinions reverse that I've seen and they shouldn't.
15 Now I see no reason in the Second Circuit,
16
for example, to make those opinions published and
17
citable without a lot more work on the part of the
18
judges.
19 Now the Ninth Circuit has its own special
20
problems. They hear about 5,300
cases a year.
21
They've got 28 active judges and--I don't know--I
22
think about 17 senior judges and a lot of the
14
1
publication of those opinions really would create a
2
problem and I think most of the judges have written
3
to you about them. And I'm not going
to mention
4
anything special except that I think the criticism
5
of its nonpublication rule is really not well
6
taken.
7 I'm going to put the Third, the Sixth, and
8
the Eight Circuits together because all three of
9
those circuits allow publication under certain
10
circumstances. As a matter of
fact, I think in the
11
Third Circuit there really are no bars to it but to
12
tell you the truth, I have rarely if ever--well, I
13
have but I've rarely seen an unpublished opinion
14
brought to the attention of the court.
The one
15
case that I do recall once in a while, and we do
16
get them once in a while, would be sentencing
17
guideline cases because many of those are
18
unpublished and probably should not be published,
19
except in the few instances where there's a new
20
twist to some of the guidelines.
21 In our circuit we had an absolute
22
no-publication rule except for limited exceptions,
15
1
like res judicata, and so forth, until 1994 and
2
then we put in this so-called persuasive rule. If
3
there's no case otherwise citable, you can cite an
4
unpublished opinion. Well, it
hasn't caused any
5
problems and I haven't seen really, as I've told
6
you, much in the way of unpublished opinions. I
7
know there was one mentioned in the famous or
8
infamous Anatasoff case, and I won't go into that.
9 Well, I suppose you could say what's the
10
beef? What's the big deal? It's not causing any
11
problems. Well, let me tell
you: Rule 32.1 trumps
12
the advice that we give not to cite unpublished
13
opinions. It really puts on the
same level to the
14
appellate lawyer that he or she can cite an
15
unpublished opinion and it makes a difference to
16
us. Really while the argument
made in an
17
unpublished opinion may always be repeated in a
18
brief, what the lawyers want is the imprint of
19
three judges on that opinion.
And let's face it.
20
If we know that our so-called unpublished
21
nonprecedential opinion can come back, we've got to
22
take more care in writing. We've
got to look over
16
1
it a lot more carefully. And I
think the rule of
2
unintended circumstances may well apply, with the
3
result being that unpublished opinions will be
4
treated by lawyers, publishers and the academia as
5
part of the necessary research for making an
6
appellate argument and writing a brief, and I think
7
that's going to be more work for everybody.
8 Moreover, it forces the courts to change
9
their operations without their consent.
And you
10
can bet the lawyers will seek out the unpublished
11
opinion that may contain language supporting their
12
views affecting briefing in appeals courts, as well
13
as trial courts.
14 Now listen. If
all of the lawyers who are
15
going to appear in this committee were the quality
16
of the lawyers that appear before us, I wouldn't
17
worry about it because there wouldn't be an
18
unpublished opinion that would be cited unless it
19
was the rare case, but that's not true.
The
20
quality of lawyers who appear in appeals varies in
21
sections, in circuits, and otherwise.
22 Now I really think that the adoption of
17
1
this Rule 32 and the opening up of four to five
2
times more cases possibly being cited than now is a
3
mistake and it's going to probably mean an
4
unintended circumstance, at least for me and I
5
don't want to do it because I like to say something
6
in my unpublished opinions. You
know, we can say
7
just affirmed or enforced under our rule, I never
8
do that except in an unusual case.
I try to give
9
the parties some reason and I think it could go the
10
other way. I would hope not but
unless you're
11
going to increase judge power, law clerk power to
12
take care of the new problems that may well surface
13
under 32.1, I think we've got something that should
14
not be enacted.
15 I've served on this committee for a time
16
and I know that it's the tradition not to press for
17 a
rule unless it has near unanimity for its
18
adoption. That's not so here. Almost all the
19
federal judges oppose the rule. In addition to the
20
judges, I know you have a lot of letters from
21
lawyers and I've sort of surveyed the appellate
22
lawyers in my circuit. Many of
them would like to
18
1
have the rule or at least say well, I'd like a
2
national rule, just like we have it in the Eighth
3
Circuit, but recognizing the problems that it may
4
make for judges and for lawyers, there are many who
5
have said we don't think you need a national rule.
6
And let's face it. Most lawyers
don't practice in
7
more than one circuit and there's no problem in
8
learning the rules of the circuit.
9
Well, what do I think? Let me give you my
10
views from a practical standpoint.
Number one, if
11
it ain't broke, don't fix it.
Number two, don't
12
open the door to a new rule unless you can clearly
13
see what's on the other side. And
number three, I
14
echo Dean Patrick because soon and even now under
15
the E-Government Act of 2002, all written opinions
16
of the court will be on line.
17 Therefore, I think the proposed Rule 32.1
18
should be dropped and let each circuit deal with
19
this new E-Government Act and decide whether
20
changes in procedure are to be made in light of the
21
computer age and the E-Government Act.
Anyway,
22
speaking of the computer age, I just came back from
19
1
computer school at age 85 and I wasn't the only
2
older judge there.
3 So anyway, Mr. Chairman and members of the
4
committee, thanks for your time and it's been a
5
pleasure. If there are any
questions I'd be glad
6
to answer them and I'm going to give John a copy of
7
my extended remarks that yo can have in case you
8
want to refer to them. Thanks,
John.
9 JUDGE ALITO:
Thank you very much, Judge
10
Bright. Let me ask you a question to start out that
11
draws on your unique experience of having sat with
12
so many different circuits. I
don't think any of
13
our other witnesses has had that experience.
14
You've sat with circuits that prohibit the citation
15
of unpublished opinions, circuits that have no
16
prohibition, circuits that limit the citation to
17
certain circumstances, I guess including your own
18
circuit.
19
I wondered if you have noticed
any effect
20
that these local rules have had on either the work
21
of the lawyers or the work of the judges. We've
22
had conflicting comments from a variety of
20
1
commenters. We've had those
who've predicted that
2
if Rule 32.1 is adopted many very serious adverse
3
consequences will occur. We've
had others who've
4
said that if you look to the experiences of the
5 circuits
that do not prohibit the citation of
6
unpublished opinions, there's really very little
7
evidence, if any, that this has had any major
8
effect either on the work of the lawyers or on the
9
work of the courts.
10
And I wondered whether you have
noticed
11
that in the circuits where the citation of
12
unpublished opinions is allowed that when you are
13
preparing for an argument you have been burdened
14
with a great many citations to unpublished opinions
15
that don't seem to be well written or well reasoned
16
and whether this has materially, the knowledge that
17
the opinion will be citable when you're writing an
18
unpublished opinion, has made the process of
19
producing the opinion much more burdensome than it
20
is in the circuits that prohibit their citation.
21 JUDGE BRIGHT:
I'm glad to answer that
22
question. I'm going to focus it
right on your
21
1
circuit because I've been sitting there for a long
2
time, even before Judge Becker was chief, and he
3
and I have been close friends.
4 I have to say in all honesty there really
5
doesn't seem to be any difference.
I've sat on the
6
Third Circuit. There may have
been some
7
unpublished opinions that have been cited. I can't
8
remember them and I didn't pay any attention to
9
them if I could. And the same
goes in every one of
10
the circuits--even the Eighth Circuit, the same.
11 But there's a difference and the big
12
difference is this. Right now
every one of the
13
circuits has a warning--we don't want to hear
14
unpublished opinions but you can cite it if really
15
it's persuasive, something like the Eighth Circuit.
16
That's true, I think, in almost all the circuits.
17
It's certainly true in the circuits where I've sat
18
and they allow publication.
19 But if you're going to make it a level
20
playing field with this new rule, there's no longer
21
to be the deterrence. Sure, the
court can say we
22
don't like you to cite them but the rule says you
22
1
can, but the main rule is going to put nonpublished
2
and published opinions as far as being in the
3
briefs on the same level. And if
I were sure that
4
it wouldn't make any difference I'd say go ahead,
5
but I am not sure. I really
think if you open the
6
doors, you're going to cause a problem.
And if it
7
isn't a problem today, let's not change it.
8 Anything else?
9 MR. SVETCOV:
Can I say you look terrific,
10
Judge?
11 JUDGE BRIGHT:
Thank you. I tell you, I
12
stopped in to see the chief.
We've been friends
13
for a long time. As a matter of
fact, I always say
14 I
was his token Democrat who went to his swearing
15
in as chief and also went to his party that evening
16
and I said to him, "You're looking good" and he
17
said to me, "You're looking good." Thank you.
18
Thank you very much. It's been a
real pleasure.
19 JUDGE ALITO:
Thank you very much.
20 JUDGE BRIGHT: By the way, John has a copy
21
of my extended remarks. Thank
you.
22 JUDGE ALITO:
Thank you. The Honorable
23
1
Diane P. Wood, United States Court of Appeals for
2
the Seventh Circuit.
3 STATEMENT OF THE HON. DIANE P. WOOD
4 JUDGE WOOD:
Well, good morning to
5
everyone. I really do appreciate
the opportunity
6
to be here to offer my thoughts on proposed Rule
7
32.1. The Seventh Circuit, as
you know, is one of
8
the stricter circuits.
9 Both for the reasons explained in the
10
letter that a majority of judges of our court
11
submitted and for some additional reasons I'd like
12
to highlight this morning, I and most of my
13
colleagues oppose this proposed rule.
On top of
14
that, I think the flaws are deep enough that I
15
don't think they would be cured by a further study
16
of this particular solution to the set of problems
17
the committee has been thinking about.
So I urge
18
the committee to table this proposal indefinitely
19
and to continue to entrust the manner in which
20
legally binding precedent is developed to the
21
discretion of each circuit.
22 Now while it is an undeniable fact that
24
1
thousands of dispositions in the Federal Courts of
2
Appeals fall under the noncitation rules and I'm
3
going to try to call this a noncitation rule, some
4
80 percent of the matters terminated most recently,
5
the year ending 2003, it's far less clear that this
6
constitutes a serious problem.
The committee note,
7
as I observed, and I looked at most of the comments
8
that had been filed, offers several reasons for
9
taking this action but I think each one can be
10
challenged.
11 One reason is that there's a need for
12
national uniformity with respect to citation
13
practices and that uniformity should be achieved in
14
the direction of liberalizing citation practices
15
instead of the opposite direction.
16 Second is a reason that I'm thinking of as
17
something like a truth in labeling requirement.
18
The present orders, memoranda, and so forth are out
19
there. They're produced by the
circuits. Why
20
pretend they aren't out there?
You know, it seems
21
that if they are out there and they're real
22
decisions of real courts, we ought to treat them
25
1
that way.
2 A third reason is that we ought to prefer
3 a
more open system in which there are no limits on
4
materials that counsel or the parties can call to
5
the court's attention--I suppose if it were a pro
6
se case--at least when, as is asserted to be the
7
case, there's very little cost to doing so.
8
And the fourth was a
comment that this
9
rule change would lighten the burden on attorneys,
10
who have to decipher every circuit's citation
11
rules.
12 Let me address these points one at a time
13
but I want to begin with something that seems to me
14
like a dog that's not barking.
No one I think
15
anymore is seriously arguing that proposed Rule
16
32.1 is necessary to counter an impression that
17
there's some secret law of the circuit hidden away
18
in so-called unpublished orders.
That story simply
19
cannot hold water in the 21st Century court system.
20 As Judge Bright just commented, as you
21
certainly are well aware, whatever discrepancies
22
there may have been in that regard are soon to be
26
1
cured by the E-Government Act, which assures that
2
every court of appeals will put everything on its
3
website. In fact, in the Seventh
Circuit we've
4
been doing that for years. That
means that with
5
free Internet access--maybe you'll go to the public
6
library or whatever--every last word coming out of
7
the Courts of Appeals is available to anyone with
8
the skill and the access to navigate these free
9
websites, both inside and outside the judiciary.
10
For those with the resources to use Westlaw or
11
Lexis, access is even easier. So
we're not talking
12
about a secret law problem.
13
The discussion we're having
today deals
14
solely with the question whether each and every
15
publicly available decision of the courts may be
16
raised in submissions to those courts in support of
17
the litigant's position. So let me
turn to these
18
arguments and just run through them briefly.
19 What about the hardship point? Well, it
20
was first quote notable to me that quite a few
21
distinguished members of the bar who submitted
22
comments to this committee flatly disagreed with
27
1
that prediction. They pointed
out the circuit
2
rules aren't really that hard to find.
They're on
3
the websites, too. All you have
to do is click
4
over to the website and you can see everybody's
5
local rules. And no responsible
appellate lawyer
6
is going to omit checking out the local rules just
7
because of publication versus nonpublication.
8
There are too many others rules you have to look
9
at.
10 Most importantly, I think, just as we
11
suggested in our comments from the Seventh Circuit
12
judges, attorneys from private firms, from public
13
interest groups, and others think that the true
14
hardship is going to come from the need to deal
15
with this enormous body of decisions that are
16
presently designated for nonpublication.
17 It reminds me a little bit of one of my
18
favorite scenes from a movie.
I'm a big Indiana
19
Jones fan and as you may remember, the very last
20
scene of "Raiders of the Lost Ark" deals with the
21
question where are they going to hide the ark?
22
Where are they going to keep it where it's
28
1
absolutely safe? And you see
some men trundling it
2
down on a hand cart in an enormous warehouse in
3
some--I always think of Suitland out here in
4
Maryland, but they're hiding it in the midst of
5
this giant mass of boxes and I have a feeling that
6
the worthwhile things are going to be hidden in a
7
similarly huge mass of cases.
8 This 80 percent number is a worthwhile
9
number to think about. By adding
these noncitable
10
dispositions to the body of law a competent lawyer
11
will want to look at, the research load for the
12
lawyer will increase some fourfold.
If clients are
13
paying for the hour their bills will go up. It
14
will hit the poor and the middle class and I think
15
it's hardly the direction we want to take when
16
we're really worried about the spiraling cost of
17
litigation. So it
would be worth it if
18
there were some marginal benefit but I suggest
19
there is very little marginal benefit.
20 If you're having trouble sleeping some
21
night let me recommend that you sit down and read
22
two or three weeks worth of the Seventh Circuit's
29
1
unpublished and noncitable orders, the orders that
2
say "Do not cite; see Circuit Rule 53," every one
3
of which I assure you I read.
You will find
4
prisoner cases where the prisoner failed to allege
5
that a prison official acted with the necessary
6
malice to make out an Eighth Amendment violation.
7
You'll find Social Security cases where we say,
8
"Yeah, the administrative law judge had substantial
9
evidence to rely on, so we're affirming the
10
disposition." You'll find
immigration cases where
11
we say the same thing.
12 You'll find employment cases where the
13
plaintiff failed to make out one element of the
14
McDonnell-Douglas prima facie case, adding to the
15
mountain of McDonnell-Douglas cases that are out
16
there. And you'll find Anders
brief after Anders
17
brief after Anders brief where the order rehearses
18
why counsel has correctly concluded that this
19
appeal is absolutely without merit and so we grant
20
the motion to dismiss the appeal.
21 Each of these orders typically includes a
22
discussion of some basic standards of law. It
30
1
might be the standard of review.
It might be basic
2
principles of administrative law if it's a Social
3
Security case or an immigration case.
It might be
4
basic principles about employment discrimination
5
cases, whatever it may be. In
the Anders briefs we
6
might have a little section explaining why a Fourth
7
Amendment challenge would be an utter frivolity, so
8
you talk about that.
9 These are principles of law that would
10
apply in a meritorious case but they're just
11
rehearsed for the benefit of the parties in these
12
orders, as we call them. So I
think they would do
13
nothing but clutter up the research of someone
14 faced
with a genuine issue in one of these areas.
15 All right, so that gets me to the point
16
that I think it would be a fallacy to think that
17
this rule would be cost-free from the standpoint of
18
courts. I know a lot of commentators
have pointed
19
out to you that the effort in the rule to draw a
20
distinction between something that's citable and
21
something that's precedential is perhaps based on
22
unrealistic hopes and I think that that's quite
31
1
right.
2 If the cited order is the work product of
3
our court, if we have to study the facts to see if
4
they're distinguishable from the case presently
5
before us, if we should either follow the precise
6
formulation of the rule of law or explain why we're
7
not doing so, in sort, if we really have to treat
8
this thing as a full-fledged precedential opinion
9
of the court, then it is a full-fledged
10
precedential opinion of the court.
You know the
11
old saying--if it walks like a duck and quacks like
12 a
duck, and so forth.
13 It is and it's hard for me to see how if I
14
was looking at one of these endless
15
McDonnell-Douglas unpublished orders, which by the
16
way in our court come when it's a pro se appellant
17
because we give oral argument and publish in every
18
single case where there's a lawyer on both sides,
19
then it's just not something
that's going to be a
20
very fruitful process for us.
21 So I also would point out with this vastly
22
increased pool of cases, the chances of both
32
1
intracircuit conflicts are magnified and
2
intercircuit conflicts.
Intracircuit conflicts
3
will place an extra burden on the en banc courts.
4
Intercircuit conflicts may have the undesirable
5
effect of bloating the Supreme Court's certiorari
6
docket.
7 Now as Judge Bright certainly pointed out,
8 I
think there can be no denying the fact that the
9
workload on judges will increase.
I don't think
10
any of us around this table thinks judges are being
11
lazy right now or underworked, so that's something
12
to be concerned about, as well.
Resources are
13
shrinking for the judiciary, not expanding, and I
14
think that's a point to remember.
15 Recall--actually, this is way back in the
16
day when I was a law clerk in the Fifth Circuit.
17
Judge Griffin Bell at that time was taking the lead
18
on the Fifth Circuit, which in those days was the
19
old Fifth Circuit, all the way over to Florida, in
20 creating
the innovations, then innovation in the
21
mid-'70s to which Judge Bright referred--case
22
screening, decisions whether oral argument should
33
1
be given in various cases or not, and this was
2
because the caseloads were really starting to
3
explode around the country.
4 We thought it was bad then. I compared
5
the number of cases my judge, Irving Goldberg of
6
the Fifth Circuit had decided the year I clerked
7
for him with the cases I had the first year I was
8
an appellate judge on the Seventh Circuit and it
9
was more than doubled. I
thought, "Boy, I thought
10 I
was working hard." That would be
the reason.
11
There's just more out there.
12 So I don't think the need for effective
13
docket management has decreased since Judge Bell's
14
day; it has only become more severe.
15 Now let me quickly move--I know the
16
committee has lots of people to hear.
I think
17
truth in labeling sounds like a good idea but in
18
some sense no one is pretending that those opinions
19
aren't out there. What we're
saying instead is
20
these opinions, these orders, unpublished,
21
uncitable documents, are routine applications of
22
routine principles of law with explanation for the
34
1
benefit of the parties. That's a
good thing to do.
2 The parties deserve to hear from us, the judges,
3
why they win or why they lose.
We are not arbitral
4
tribunals and indeed arbitral tribunals sometimes
5
explain, as well. We're public
courts and we
6
should tell the parties why they win or lose.
7
Otherwise, as my Chief Judge Joel Flaum likes to
8
say, we're going to look like the Emperor Nero
9
going out with a thumb's up or a thumb's down and
10
seeming just as arbitrary as I guess we all assume
11
that particular emperor was. So
I'm going to come
12
back to another point in a minute.
13 Let me spend just an extra minute on the
14
uniformity point. This is a very
serious issue.
15
Sometimes uniformity is a good thing but sometimes
16
it can be used to stifle local experimentation. I
17
think of the Supreme Court's constant praise for
18
using the states as laboratories for innovation.
19
The same thing is true of the circuits in many
20
ways. Note it was a circuit--it
was the Fifth
21
Circuit that began to develop the tools on which we
22
all rely today.
35
1 On top of that, a superficial uniform rule
2
superimposed on extremely different circumstances
3
is not going to produce uniform results. It's
4
going to produce dissimilar results because, as it
5
were, the data that feeds into it is going to be so
6
different.
7 Now a lot of people have already commented
8
and everybody here knows that the 13 circuits vary
9
tremendously. They vary in
geography, caseload.
10
We have one specialized circuit, the Federal
11
Circuit. The D.C. Circuit has
its own unique
12 aspects. And they differ in myriad other ways.
13
That's obviously true. That
alone is enough to
14
counsel caution, I think, in assuming that we have
15 a
one-size-fits-all situation.
16 But there are some other ways that I think
17
we also want to pay attention to variations in the
18
circuits. These include
allocation of cases to the
19
oral argument docket versus the nonargued docket,
20
the percentage of cases that are resolved by a
21
published, fully precedential opinion, and the use
22
of various summary disposition techniques. These
36
1
are incredibly different among the circuits.
2 Let's deconstruct this 80 percent number I
3
referred to a minute ago. The AO
says that out of
4
some 27,000 opinions or orders filed in cases
5
terminated on the merits, and these statistics weed
6
out very routine jurisdictional dismissals for the
7
people who waited 120 days to file their notice of
8
appeal or something like that, it's about 80
9
percent unpublished. Then they
divide it up into
10
other categories--written signed dispositions,
11
written reasoned and unsigned, and written reasoned
12
and no comment. Then within each
of those
13
categories they say, "How many are published? How
14
many are unpublished?"
15 The variations among the circuits are
16
enormous. The Second Circuit,
for example, had a
17
total of almost 2,000 opinions or orders of all
18
kinds. The published 438 written
signed opinions.
19
1,451 were unpublished, written and signed opinions
20
and 45 were published, written and unsigned. Now
21
they don't use written and unsigned without comment
22
at all.
37
1 In the Seventh Circuit, as I mentioned a
2
minute ago, our practice is completely different.
3
In our case a written, signed opinion is a synonym
4
for a published opinion. We
don't do it the other
5
way. Zero of our written and
signed opinions were
6
unpublished. And out of our
total of 1,404 cases,
7
581 were published, written and signed, zero
8
unpublished, written and signed.
And in the
9
unsigned opinion group, which is our orders, 22
10
were published written explanations and 765 were
11
unpublished.
12 You could go through--you'll have the
13 statistics
available to you with the charts and
14
there are enormous differences among the circuits.
15
The same differences show up when you look at the
16
total percentage of unpublished opinions by a
17
circuit. And here, of course,
we're using
18
unpublished in the specialized way we're talking
19
about it.
20 In 2003 the Fourth Circuit had the highest
21
percentage at 91 percent. The
lowest percentage
22
was the First Circuit at 39 percent, a difference
38
1
exceeding 100 percent. So the
instinctive reaction
2
of somebody who practices in the First Circuit
3
might be, "What's the big deal?" The pool of
4
precedential published opinions in that circuit is
5
vastly larger than the pool.
6 So I think in answer to the question that
7
Judge Alito posed to Judge Bright, what's the
8
difference among the circuits, I think part of it
9
is that underlying practice of how much is out
10
there to be looked at may be linked--in fact, I'm
11
certain it is linked in some ways to that circuit's
12
rule about the use of noncitable dispositions.
13 The Seventh and the D.C. Circuit, as it
14
happens, were the same on this.
We each had 57
15
percent of our opinions unpublished--quote-unquote.
16
The Eleventh and the Fifth Circuits were up at the
17
87 percent level. These are big
differences.
18 So while on the one hand the Seventh
19
Circuit has one of the more restrictive rules
20
regarding citation, on the other hand, a far
21
smaller percentage of our docket is being put in
22
the order category and thus noncitable.
Even
39
1
though we're a small circuit and I'm sure one can
2
speculate about why this is true, in absolute
3
numbers we had the third largest number of written,
4
signed and published opinions int
country. The
5
Ninth Circuit had 777. Not
surprising that they
6
would have the most. The Eighth
Circuit had 648
7
and we had 581. No one else
exceeded 500 in the
8
statistical year ending September 30, 2003.
9 So I think you need to look at the
full
10
picture in each circuit. In
other words, you can't
11
just sort of pluck out the published opinion rule
12
and say let's do something with that without
13
realizing that it's a function itself of the
14
circuit's practices and cultures on oral argument,
15
on publication, on other matters that lead into
16
this.
17 My point, I stress, is not that I think
18
there's any magic percentage of publication for any
19
circuit. I think it's up to each
circuit to decide
20
what it wants to do. I'm very happy in our circuit
21
that we do give oral argument in every case where
22
there's a lawyer on both sides.
I think that's a
40
1
useful practice. And in cases
where there is no
2
lawyer if one judge thinks that the case deserves
3
fuller treatment, we importune or appoint or in any
4
other way, hijack a lawyer into representing the
5
party. Sometimes it hash to be
an amicus.
6 So let me suggest a different strategy
7
that might address the rare situation where a panel
8
has erred in designating something for
9
noncitability. Most
circuits--maybe not every
10
circuit, but I found similar rules in most
11
circuits--have rules that address that problem,
12
rules that allow someone to change the designation
13
of a particular order from unpublished and
14
uncitable to published. In the
Seventh Circuit,
15
which has an extremely liberal rule, local rule
16
53(d)(3) provides that any person may request by
17
motion that a decision by unpublished order be
18
issued as a published opinion.
The First Circuit
19
local rule 36 is similar, although it refers to any
20
party or other interested person, so it's a little
21
more restrictive than ours and it does specify that
22
good cause must be shown. The
Fourth Circuit has
41
1
an even stricter rule, giving the right to make
2
such a motion to counsel, and the Fifth Circuit
3
allows any judge of the court or any party to make
4
such a request.
5
My suggestion is that if
there's serious
6
concern that the occasional noncitable order was
7
misclassified as something that merely applies
8
existing law and instead it really does advance the
9
law somehow, then maybe we ought to look at this
10
error correction device that's a much more targeted
11
device. I can't even remember
sitting on panels of
12
the Seventh Circuit when we have denied such a
13
motion. We grant them with
extraordinary
14
liberality.
15 Now I'm sure if CNN came in and said we're
16
hereby filing a motion to publish everything, we
17
wouldn't--I mean that's not the point of this rule.
18
That would take us right back to proposed Rule
19
32.1. But that's not how it
happens and if a
20
lawyer who is preparing a brief in a case runs
21
across an unpublished disposition that seems to
22
fall in this category, they can make a motion. You
42
1
don't have to be linked to the case.
You don't
2
have to be anything. You can
just be a concerned
3
citizen.
4 Maybe you're a person who practices a lot
5
in the Social Security area.
That was one such
6 case
I remember, where we thought we had done
7
something extremely routine, we issued it as an
8
unpublished order. We got a
motion from somebody
9
who I know has an active Social Security practice
10
in Chicago, not a lawyer in the case, who said
11
you've actually said something that nobody's really
12
said before; would you please publish it? We said
13
sure. We reissued it as a
published opinion and
14
now it's out there.
15 So that, I think, is the better way to go
16
if there is a concern that in this vast ocean of
17
orders floating out there, most of which, as I
18
said, are quite routine and not really worthy of
19
citation, let's do that instead.
I think proposed
20
Rule 32.1 goes the wrong way. I
urge the committee
21
to abandon this route and leave things as they are
22
for now. Thank you.
43
1 JUDGE ALITO:
Thank you, Judge Wood.
2 Any questions?
3 MR. LETTER: I
found your comments very
4
thoughtful and you've obviously given this a lot of
5
consideration and, as I say, very thoughtful. I
6
had a couple of questions for you.
7
From a practitioner
perspective I had a
8
situation not long ago in one of the circuits that
9
doesn't allow citation of unpublished orders. I
10
found about four or five unpublished orders
11
dismissing a particular kind of interlocutory
12
appeal. These orders were all
issued within about
13 a
two-year period. There were no
published
14
opinions on point, which is sort of not surprising.
15
This was simply a procedural issue on an
16
interlocutory appeal.
17 As I was looking at that, were I a judge,
18 I
would very much want an attorney to be able to
19
give me that information and tell me that by the
20
way, in the last several years your same court has
21
dismissed four or five of these.
Does that worry
22
you? Aren't you frustrated that
you cannot get
44
1
that kind of information from the attorneys? Or is
2
the answer your law clerks will find it and you
3
don't need the attorneys, anyway?
4 JUDGE WOOD:
Well actually, my answer is a
5
third one, which is that certainly in the Seventh
6
Circuit if you found those, all you'd have to do is
7
file a motion to make the best one or a couple of
8
them published and that would be a way of calling
9
it to our attention.
10 MR. LETTER:
Although I often find I
11
discover these probably about a week before the
12
brief was due. I think that's
probably very
13
standard among attorneys. You
don't find these
14
things six months in advance.
15 JUDGE WOOD:
Right. Maybe you practice in
16
circuits where the bar doesn't use the opportunity
17
to file supplemental authority requests as often as
18
we see them. I see them on the
morning of oral
19
argument not uncommonly, so I really question
20
whether if you found it a week before you wouldn't
21
have any way of getting it to our attention.
22
We, in fact, in that kind
of situation,
45
1
even if we're doing an interlocutory order, if it's
2
something like that--suppose we don't think
3
mandamus is the right vehicle or something like
4
that--we're as likely as not to publish that
5
opinion. That's the first thing
we talk about--is
6
this anything that's out there?
And if we've made
7 a
mistake, in our circuit you should call it to our
8 attention and I think
that would solve your problem
9
altogether.
10 The other thing is in terms of that, I
11
think the judges probably do know what their
12
practice is on interlocutory orders but if they
13
don't, there are ways without opening Pandora's box
14
to address the particular situation you're talking
15
about. Make a motion to publish.
16 MR. LETTER:
The second is are you
17
troubled by the fact that--and here I understand
18 your
practice--your meaning the Seventh Circuit's
19
practice--may be different from the other three
20
circuits that have similar rules--are you troubled
21
by the fact that your unpublished decisions
22
actually are citable and cited in almost every
46
1
other federal court in the United States? Most of
2
the circuits and virtually every district court,
3
your unpublished opinions can and are cited. I see
4
district court briefs all the time and they
5
routinely cite unpublished court of appeals
6
opinions.
7 So, as I say, does it trouble you that
8
your court is in this tiny, tiny minority when
9
actually these opinions are widely cited and
10
citable, perfectly proper within the rules? Does
11
that give you concern?
12 JUDGE WOOD:
Well, I guess my reaction to
13
that--actually, the approach we take to citation of
14
other circuits' opinions in our court is to follow
15
what that other circuit's rule is.
So if it's a
16
circuit that has a very liberal citation rule,
17
fine. In a way it's like res
judicata. You know,
18
you give the same weight that the issuing court is
19
going to give to it, so we do the same thing with
20
citation practices.
21 Our responsibility is for the development
22
of the law of the Seventh Circuit and if somebody
47
1
else is off in some other place citing an
2
unpublished order of ours, I just have to trust
3
that the readers will give it what weight they wish
4
to give it. It's not the law of
the circuit and it
5
could be misleading. That's not
a good thing and
6
that's what we're trying to signal by having
7
emblazoned across the top of the page, "Not to be
8
cited, unpublished order," but I don't have any
9
power to tell the other circuits what they want to
10
have or not. So I regret that
it's misleading but
11 I
can't really do anything about it.
12 MR. LETTER:
And the last question is do
13
you have concerns that, for instance, in this
14
current term of the Supreme Court, there are at
15
least five that I found and there may be more of
16
the Supreme Court's docket are reviewing
17
unpublished court of appeals decisions?
So these
18
are decisions that in particular courts could not
19
even be cited to those courts and yet they are the
20
subject of Supreme Court review.
And, in fact, one
21
of them, I think, took up 50 pages in the printed
22
appendix that was filed with the cert petition.
48
1 So the Supreme Court has at least five and
2
maybe more of those this term. I
was wondering
3
does that trouble you at all?
4 JUDGE WOOD:
You're talking about
5
something very near and dear to my experience. I
6
don't know if you remember a few terms ago the Kilo
7
case having to do with whether thermal imaging is a
8
search, but that was a petition for cert granted
9
from an unpublished order of the Seventh Circuit,
10
on which I happened to be on the panel.
11 Now why did we decide that--in fact, they
12
reversed. The reason our order
was unpublished was
13
because we had had exactly the same issue in the
14
Seventh Circuit not two years before; we had issued
15 a
fully reasoned published opinion saying that we
16
thought that thermal imaging was not a search.
17
That opinion is cited throughout the unpublished
18
order. In fact, the only thing
the unpublished
19
order really says is, "Here are the facts. We
20
think this is squarely governed by this earlier
21
case," because nobody on the en banc court wanted
22
to hear the earlier case back when it was issued.
49
1
It was the law of the circuit and we were bound to
2
it.
3 So the Supreme Court, for whatever
4
reason--as we know, they have many reasons for
5
taking cases or not taking cases at the time
6
petitions for cert are presented--the Supreme Court
7
didn't take the earlier case. So
anyone who wanted
8
to know the position of our circuit had only to
9
read the unpublished order, see what was the
10
published precedential opinion on which it relied,
11
and they were fully aware of what it was.
12 The Supreme Court chose to take the later
13
case. They reversed. They said no, actually
14
thermal imaging is a search, it's not just
15
something that's out there. And
it didn't bother
16
me at all, to tell you the truth, because in
17
keeping with my obligation to follow the law of the
18
circuit, to have to keep publishing the same thing
19
over and over again when it's really just governed
20
by this thing is crazy.
21 MR. LETTER:
I'm not talking about
22
publishing. The question is
citation.
50
1 JUDGE WOOD:
But I don't buy that there's
2 a
difference. I think citability and
precedential
3
value are inseparably linked.
And, as I said, in
4
the Seventh Circuit for certainly as long as I've
5
been on the court there has never been any such
6
thing as an actual unpublished opinion.
We've
7
never had a situation where somebody had to march
8
into the clerk's office and pick up a copy of it.
9
We've had a very active website for a very long
10
time, so it was all available, a least for people
11
with computers it was available, and Westlaw has
12
picked them up--I can't even remember, but
13
certainly for a very long time.
14 MR. LETTER:
Thank you.
15 MR. LEVY: Let
me follow up briefly, if I
16 might, on Doug's first set of questions. Do I
17
understand correctly that motions to publish a
18
previously unpublished decision can be made years
19
after the issuance of the opinion?
And about how
20
long would it take the court to act on such a
21
motion?
22 JUDGE WOOD: I
think there's no time
51
1
limit. I'm trying to think what
the times have
2
been when I've been faced with those things and
3
certainly I can remember a year in one case. It's
4
not like within the time for a petition for cert or
5
any such thing. I suppose at
some point it's not
6
really very interesting anymore because the court's
7
probably moved on in whatever the area is but
8
there's no specific time limit on it.
We generally
9
act on it pretty quickly.
10 When I get a motion like that obviously it
11
goes to the panel but the authoring judge will have
12 the
leading oar on that. I'll consult my
panel.
13
I'll go back and take a look at it because if I'm
14
going to turn it into a published opinion, I want
15
to make sure it's right. You
know, I go through
16
that extra process that Judge Bright was talking
17
about just to make sure that I haven't
18
inadvertently misstated the McDonnell-Douglas test
19
or done something silly, you know, that I shouldn't
20
have done.
21 So I don't think there is. I've never
22
seen one that was like five years late but I think
52
1
within a fairly reasonable range there's no time
2
limit.
3 JUDGE ROBERTS:
First of all, Judge Wood,
4
thank you very much for coming and visiting with us
5
and I want to second your point that judges are not
6
lazy and underworked. I think
there's no dispute
7
about that.
8 JUDGE WOOD:
None of at the table, right?
9 JUDGE ROBERTS:
But I want to focus a
10
little bit on a tension that I see in the arguments
11
against the proposed rule that on the one hand,
12
these--I don't really know what to call them--the
13
unpublished, the noncitable, whatever, opinions are
14
not worth very much; they just sort of apply
15
existing law to the specific parties.
And then the
16
other argument that well, if you allow the citation
17
of them, lawyers are going to have this extra
18 burden
of going and looking at them and judges are
19
going to have to look at them.
20 Traditionally I think in our adversary
21
system we allow disputes about the value of citable
22
materials to be resolved by the lawyers in the
53
1
exercise of their professional judgment in the
2
interest of their client and let the judges decide
3
whether we think that's worth anything, whether
4
it's an opinion from another circuit, a district
5
court opinion, a student comment in a law review.
6
And a lot of the arguments seem to focus on the
7
quality, the merit, the worth of the noncitable
8
precedents but not so much on the solution of not
9
allowing them to be cited and I wondered if you
10
could address why that is the best solution, as
11
opposed to, for example, many of the circuits have
12
discouraging language saying you should realize we
13
don't take these very seriously.
14 You know, my experience over the last 10
15
months, I think I've seen non--whatever we call
16
them--nonprecedential memoranda, whatever, probably
17
twice. Two different times I've
seen that cited,
18
even though it's freely citable in our circuit,
19
because the lawyers know the judges aren't terribly
20
impressed by it.
21 On the other hand, as a lawyer I've had
22
situations where that is the exact case. It's a
54
1
year ago. Maybe two of the
judges are on the same
2
panel. However basic the
proposition, in my
3
professional judgment this is what I want that
4
court to know on my client's behalf and I found it
5
frustrating to have a rule saying you can't do
6
that.
7 So it's a long wind-up but focus on the
8
problem that the rule's addressed to, which is the
9
noncitability, even agreeing whatever you want to
10
postulate as to how valuable or invaluable all of
11
that body of law is.
12 JUDGE WOOD:
Well, I have a couple of
13
reactions. I don't want to sit
here and say that
14
there's absolutely no wheat among this chaff
15
because there probably is and, as I said, I think
16
that our device for catching it is one that works
17
pretty well. There is a sorting
process for the
18
lawyers to find that one case, wading through all
19
of those on the whole, as I said, to be quite
20
honest, incredibly boring unpublished noncitable
21
orders that we issue--boring only in the sense that
22
they're so repetitive after a while, not, of
55
1
course, to the parties whose case it is.
2 So I worry from the point of view of the
3
lawyer who is trying to persuade the court to do
4
something feeling an ethical obligation to conduct
5
that sorting process. Lawyers,
as you know, as
6
Judge Bright said, are of vastly different
7
abilities and some lawyers are not going to be as
8
discriminating as you would be, I am confident. We
9
read briefs like this all the time.
10 In fact, sometimes that factual match is
11
so misleading. You know, it's
not really the legal
12
principle that's at issue in the case.
Maybe the
13
case is in a different posture.
Maybe it's a
14
somewhat different set of problems that are before
15
us.
16 And I think what we're touching on is
17
actually a very delicate area for the federal
18
judiciary, which is the fact that in a case--for
19
courts like the intermediate courts of appeals in
20
the federal judiciary, just as for most state
21
intermediate courts of appeals, we perform two
22
functions. We're usually
performing the function
56
1
in our compulsory jurisdiction of error review
2
where we're looking at a particular case to make
3
sure the district judge got it right.
District
4
judges usually do get it right, number one.
5 And number two, when we're doing that
6
there's real law out there. We
all apply it the
7
same. I tell people you can pick
any random panel
8
you want of the Seventh Circuit and we will agree
9
on 90 percent of the cases. It's
just that clear.
10 So that's our error correction function
11
and I think there's a pretty close correlation
12
between the things that wind up as these noncitable
13
orders and at least a subset of the cases that are
14
applying that. Somebody said how
many times do you
15
need to read the proposition that when a criminal
16
defendant calls up a witness and threatens him
17
before the trial, that an obstruction of justice
18
enhancement is appropriate under the sentencing
19
guidelines? We know that. This is not a
20
proposition that is subject to serious debate. And
21
lots of appeals, given the draconian sentences that
22
people get, are of that nature.
57
1 Or did the district court clearly err when
2
the court decided not to give an acceptance of
3
responsibility adjustment? It's
a pretty
4
straightforward thing.
5 So again yes, there's a little bit of
6
wheat. How do we find it? How do we solve this
7
problem? If you really feel that
to represent your
8
client properly you need to call that to the
9
court's attention I think jettisoning the ability
10
of courts to separate out that second group of
11
cases, the group of cases for the real development
12
of the law, is a vastly over-inclusive solution to
13
the problem.
14 JUDGE ALITO: I
wondered if I could get
15
your reaction to a comment that was made by one of
16
your colleagues who submitted a comment in support
17
of the proposed rule, and that is that this is
18
basically an empirical question.
Even given the
19
variations in the circuits that you pointed out,
20
would it not still be possible to do a systematic
21
study of the effect of no-citation rules or the
22
absence of no-citation rules in the various
58
1
circuits?
2 And if it would be possible to do such a
3
study and if such a study were to show that the
4
adverse consequences that have been predicted have
5
not materialized in the circuits that permit
6
citation, do you think that you and your colleagues
7
who have written in opposition to this proposed
8
rule would feel that that merited reconsideration
9
of their position?
10 JUDGE WOOD:
Well, I'm certainly familiar
11
with the colleague in the letter to which you refer
12
and in a world of unlimited resources, how could I
13
be opposed to one more empirical study?
I think a
14
study would have to be constructed very carefully
15
to adjust for the differences I was talking about
16
because if the circuit, in fact, just to use rough
17
numbers, has as fully precedential published
18
opinions fully half of its output, it's doing
19
something different than a circuit that has only 20
20
percent of its output that way.
And I think some
21
very sophisticated techniques would need to be
22
brought to bear to make sure that one was not, in
59
1
fact--you know, if you ask the wrong question
2
you'll get the wrong answer and that's a risk that
3 I
think is a serious one in such a study.
4 Now having said that, I think that I also
5
want to throw into the hopper the fact that the
6
states have vast experience with this, as well.
7
Most of the states--I think it's still a numerical
8
majority of the states have restrictions on
9
publication of opinions of their intermediate
10
appellate courts. I know I
checked in our circuit
11
and all three of the states in our circuit do.
12
They each have particular criteria for their
13
intermediate appellate courts to publish opinions.
14
Some states may have no restrictions whatsoever and
15
if you're thinking of a study, maybe that's
16
actually a better way to control for these
17
differences than looking at the various Courts of
18
Appeals would be. I'm not sure.
19 I doubt actually in the final analysis
20
that if I were to be told that a complete free
21
market for citability was out there I would still
22 think it was worth having a fourfold increase
in
60
1
the number of potentially citable things out there
2
on a nationwide basis but, as I said, I think it
3
really depends. It's a resource
question and it's
4
also a question of whether this is the most burning
5
problem on your docket or whether there are other
6
things that you might wish to put those resources
7
to. But any such study would
have to be very
8
carefully constructed.
9 JUDGE STEWART:
Just as a follow-up,
10
doesn't your answer suggest, though, that--I mean
11
assuming the study's done and it unquestionably
12
shows a lot of these workload burden notions that
13
have been put out here don't prove out, that the
14
opposition to the rule still really boils down to
15
sort of the way you've characterized it, as
16
citability and precedential are linked?
I think
17
that's an interesting term of art and in reading
18
all the comments, I don't see that as a predominant
19
viewpoint but that's another issue.
20 Isn't it really more the self-governance
21
notion? In other words, saying
if a ton of
22
evidence from the study came to show that all these
61
1
workload notions just don't prove out, don't you
2
allow for the fact that you and perhaps your
3
circuit would be opposed to the rule simply because
4
it cuts into the self-governance and this merging
5
of citability? Because you cite
in support of the
6
position you take about potentially increasing the
7
Supreme Court's cert docket and intracircuit--I
8
mean with all due respect, I don't see how that's
9
quantified or there's any data to really back that
10
up.
11 So I mean at bottom, isn't there really
12
sort of a philosophical disagreement with this rule
13
based on the premise of citability and precedential
14
merged together and kind of a notion of
15
self-governance?
16 JUDGE WOOD:
Well, I certainly think that
17 I
and my colleagues do think that a certain amount
18
of self-governance in each circuit is appropriate
19
since the circuits are, in fact, so different and
20
there are so many things--just to give you an
21
example, the Seventh Circuit never sits a week at a
22
time. We have a different panel
every day. I sit
62
1
every week of every month. We're
very
2
geographically compact. Somebody
hops on the train
3
in South Bend or Milwaukee, travels 90 miles and
4
they're in Chicago. That doesn't
look at all like
5
the Ninth Circuit.
6 The reason, actually just for the record,
7
that I said what I did about intracircuit
8
conflicts, I actually do think we have a certain
9
empirical base for because the larger circuit, such
10
as the Ninth Circuit with a vastly greater number
11
of dispositions of any type each year, do have the
12
risk of more intracircuit conflicts.
13 We all try, of course, to avoid those but
14
when there are that many more cases out there, are
15
you really going to remember every last thing,
16
every last nuance of every panel?
I think it's
17
humanly very difficult to do.
18 So my sense is just if you quadruple or
19
quintuple the number of dispositions out there this
20
is, in fact, a serious risk, both within circuits
21
and for the country as a whole.
22 So it does partly get down to what you
63
1
think we're doing, whether you think we're
2
focussing on self-governance and the like, and how
3
we want to develop the law.
We're responsible for
4
the development of the law at the circuit level
5
until the Supreme Court tells us we're wrong, of
6
course, and if we think that focussing on the
7
opinions that receive that full process that Judge
8
Bright was talking about are the ones where we want
9
to develop it, then maybe we should do that. I
10
think that's certainly been my position.
11 One thing I didn't stress in my oral
12
remarks but certainly was in the letter that the
13
rest of us on the Seventh Circuit submitted to this
14
committee is the fact that in our circuit the
15
process that yields a published precedential
16
opinion is considerably more elaborate than the
17
process that yields an unpublished noncitable
18
order. A published opinion is
almost invariably
19
the result of oral argument and everything that
20
that entails--you know, public discussion with the
21
lawyers, an opportunity to explore whatever the
22
issues may be, the ability to deliberate with one's
64
1
colleagues--whereas our unpublished orders are
2
those where we decide in conference, obviously
3
still panels of three judges, with the assistance
4
of the staff attorneys. I don't
want to be here
5
saying that I think our staff attorneys do a bad
6
job because I don't think so.
Actually I think
7
they do an excellent job and we're responsible,
8
anyway. I don't want to be in a
position of saying
9
that here's this second-class work product. But it
10
is not as elaborate a procedure.
It's a devil's
11
deal that we've all made for the last 30 years
12
because of the incredible workload.
13 If you don't get oral argument--we
14
probably have all had the experience in oral
15
argument that somebody every so often says
16
something that you really didn't realize was in the
17
case, that makes you understand that the issue is a
18
narrower issue or a broader issue or the facts were
19
not really adequately portrayed in the person's
20
brief, and we pick up all that in our published
21
opinions and we don't necessarily--obviously
22
there's some risk of errors in these pro se
65
1
rambling, disjointed things that are presented to
2
us and we make the best of it that we can and come
3
out with an unpublished order.
So they really do
4
strike me as two different kinds of things, in the
5
end.
6 JUDGE ALITO:
Any other questions?
7 Judge Wood, thank you very much. We
8
appreciate your coming very much.
9 JUDGE WOOD:
Thank you.
10 JUDGE ALITO:
Richard Frankel.
11 We're running quite a bit late and I would
12
appreciate it if the witnesses would try to keep
13
their prepared remarks to about 10 minutes, to no
14
more than 10 minutes, so that we have ample time to
15
follow up with questions from the members of the
16
committee.
17 Mr. Frankel, thank you for coming.
18 MR. FRANKEL:
My remarks run a little bit
19
longer so feel free to tell me to stop.
20 JUDGE ALITO:
Okay.
21 STATEMENT OF RICHARD FRANKEL
22 MR. FRANKEL:
My name is Richard Frankel
66
1
and I'm here on behalf of Trial Lawyers for Public
2
Justice and my testimony relates to proposed
3
Federal Rule of Appellate Procedure 32.1 concerning
4
the citation of unpublished opinions.
5 Generally speaking we wholeheartedly
6
endorse the committee's proposed rule for many of
7
the same reasons stated in the Advisory Committee
8
note accompanying the proposed rule and we believe
9
that the committee should approve it.
At the same
10
time however, we believe that the proposed rule
11
does not go far enough and we would urge the
12
committee to consider issuing a new proposed rule,
13
one that would require all appellate decisions to
14
be given the weight of binding precedent.
15 And in support of that position, I wish to
16
stress three points this morning:
one, that
17
allowing courts to issue unpublished decisions
18
which do not make law is contrary to our rule-based
19
system of lawmaking; two, issuing decisions that do
20
not make law creates both the perception and
21
unfortunately the reality that courts issue
22
nonrule-based and inconsistent decisions; and
67
1
three, the fact that requiring all decisions to be
2
given the weight of binding precedent will increase
3
judicial workload cannot justify an approach that
4
violates the basic principles of the American
5
judicial system.
6 Our first point is that unpublished
7
opinions are contrary to rule-based decisionmaking.
8 Our legal system is predicated on the idea that
9
society should be governed by the rule of law and
10
not the rule of men and women.
Courts preserve the
11
rule of law by issuing decisions that both apply
12
the law and create law.
13 As the Honorable Judge Wood just recently
14
stated very succinctly, our courts are public
15
courts and they exist not merely to arbitrate
16
dispute or just to decide cases.
However, when
17
courts issue unpublished or nonprecedential
18
decisions, they undermine both of those facets of
19
the rule of law system because they neither
20
articulate a lasting principle of law through their
21
decisions; nor do they require future courts to
22
apply the law that was used in their previous
68
1
unpublished decisions. Without a
system that binds
2
future courts to follow its own past decisions,
3
nothing ensures that courts will act according to
4
principle rather than personal opinion.
5 This, in turn, erodes another basic
6
principle of our judicial system, the notion of
7
fundamental fairness, that like litigants should be
8
treated alike. Every litigant
who walks into
9
court should be able to have the expectation that
10
he or she will be treated no differently than any
11
other litigant. However, when
courts can issue
12
unpublished decisions in which they can decide an
13
issue one way one day and another way the next day,
14
not only are courts telling those litigants that
15
they are not entitled to have that expectation but
16
additionally, that it is perfectly reasonable and
17
proper for courts to actually treat those litigants
18
differently even though they face almost identical
19
situations.
20 We believe the only way to truly preserve
21 a
rule of law system is to require that all
22
appellate decisions actually be given the force of
69
1
law, both present and future, by giving them
2
binding precedential weight.
3 Our second major point is that the
4
practice of issuing unpublished decisions creates
5
both the perception and sadly, the reality of a
6
two-tiered system of justice in which courts are
7
not engaging in rule-based decisionmaking.
8 First in terms of perception, whether or
9 not it is actually true, unpublished
decisions send
10 a
message that courts are engaging in
11
results-oriented decisionmaking.
When a court
12
announces a result in a case but says that the
13
principle underlying that result in the case need
14
not be followed, it sends the message that courts
15
are more interested in getting the result that they
16
want than in the principle underlying that result.
17 Whereas with published opinions the court
18
shows faithful adherence to the rule of law by
19
starting out by identifying an appropriate legal
20
principle and then applying that principle to see
21
which result follows, with unpublished opinions it
22
appears that the court starts out with the result
70
1
and then expressly disclaims the lasting value of
2
any reasoning used to reach it.
As a result, the
3
system creates two different levels of justice
4 being
administered, one for published decisions and
5
another for unpublished decisions.
6 And this perception of results-oriented
7
decisionmaking is, in fact, reinforced by many of
8
the statements that judges have themselves made in
9
their comments to this committee in which they
10
state that in many unpublished decisions the only
11
thing that a panel will agree upon is the result in
12
the case and not necessarily the reasoning used to
13
reach it and moreover, that lawyers in lower courts
14
would actually be affirmatively misled if they were
15
to rely on reasoning that is while printed and
16
stated in the decision, doesn't actually reflect
17
the collective agreement of the panel.
This also
18
exacerbates public perceptions that judges may be
19
motivated more by results than they are by
20
principle.
21 Now in terms of reality, it's also true
22
that unpublished decisions have resulted in a
71
1
reality where inconsistent decisions result. In
2
our written comments we have highlighted a number
3
of examples of inconsistent decisionmaking within a
4
circuit on identical issues that have been caused
5
by the use of unpublished decisions.
In one
6
notable example, the case of United States versus
7
Rivera-Sanchez, which was a published decision of
8
the Ninth Circuit, that panel noted 20 previous
9
unpublished decisions all addressing the same issue
10
but resolving that issue in three different ways.
11 This shows that this problem actually is
12
real and occurring within circuits and it's not
13
something that should be dismissed as merely
14
abstract or theoretical and we believe that the
15
only way that this problem truly can be rectified
16
is to make all decisions binding and precedential.
17 Our third and final point is that the fact
18
that judicial workload will increase as a result of
19
making all decisions binding and precedential
20
cannot justify a radical departure from a
21
rule-based legal system.
22 Now of course, as almost all commenters
72
1
have conceded, it's inevitable, given that judges
2
spend more time on published opinions than they do
3
on unpublished ones, if you require publication of
4
all decisions as precedent, judicial workload is
5
going to increase. And under our
proposed rule,
6
judges are going to face very difficult choices
7
about how to allocate their time.
They may either
8
decide to issue more summary one-line or even
9
one-word dispositions or to spend less time on
10
opinions that they currently designate as published
11
and we recognize this is going to happen. However,
12
this framework is preferable to allowing the
13
continued use of unpublished decisions, we think,
14
for several reasons.
15 The first is that as we have already
16
expressed, mandatory publication as binding
17
precedent is the only way to truly preserve notions
18
of rule-based law-making and fundamental fairness
19
and these principles represent the heart of the
20
judicial function and should not at the drop of a
21
hat, we think, be readily sacrificed at the alter
22
of time savings for appellate judges.
73
1 Second, it may be that the use of summary
2
dispositions, while certainly not ideal, could be
3
preferable to the use of unpublished opinions in
4
many cases. Given that judges have
already stated
5
that a lot of cases they agree on a result but they
6
may not agree on the reasoning, it may not make
7
sense to issue an unpublished decision that
8
contains reasoning that does not reflect the
9
opinion of the panel but to also issue a result
10
that they do agree upon but that is not binding.
11
It may make more sense to make that result binding
12
but then to exclude the reasoning that creates the
13
possibility of lawyers and lower court judges being
14
misled.
15 Third, while judicial workload, we admit,
16
will increase, we believe that the amount that it
17
will increase or the concerns that have been
18
addressed by critics of this rule are somewhat
19
exaggerated and we have several reasons why we
20
think this is so.
21 The first, as the committee is well aware,
22
nine of 13 federal circuits already permit citation
74
1
of unpublished opinions in some form for their
2
persuasive value. And while
there may not be a lot
3
of data already out there, there's no indication
4
that the opinions in those circuits have fallen in
5
quality as judges devote more time to their
6
unpublished decisions or that lawyers and lower
7
court judges are being misled by erroneously
8
relying on unpublished decisions.
9 Second, while certainly not exclusively,
10
an overwhelming number of commenters who have
11
expressed this workload concern are lawyers and
12
judges that practice within the jurisdiction of the
13
Ninth Circuit, which suggests
that while it may
14
not be a problem unique to the Ninth Circuit,
15 perhaps it's a problem certainly much more
16
pronounced in the Ninth Circuit.
And this is not
17
to say that it is not a real problem but a problem
18
of limited geographical scope certainly should not
19
be the driving force behind national policy-making
20
and should not be a reason to reject either the
21
proposed rule or the idea of making all decisions
22
binding and precedential.
75
1 Third, the available statistics that are
2
out there do not support the contention that
3
judicial workload will radically increase. One
4
study by Dean Robel of Indiana University Law
5
School shows no correlation between a circuit's
6
per-judge workload and the percentage of opinions
7
that that circuit chooses to publish.
8 There was another study cited in Law and
9
Contemporary Problems in 1998 which shows a wide
10
disparity in the number of opinions published by
11
individual judges. It studied a
two-year span and
12
showed that within that span a number of active
13
judges published as many as 120 opinions while
14
other judges, also active judges, published as few
15
as 20, which suggests that it's possible that there
16
may be ample room for judges to significantly
17
increase the number of opinions that they publish
18
without detracting from the quality of judicial
19
decisionmaking.
20 And finally, while it's true that judicial
21
workload will increase in the short run, we think
22
there's a possibility that requiring all decisions
76
1
to be binding and precedential could actually
2
reduce judicial workload and the workload of
3
lawyers in the long run by stopping repetitive
4
litigation, by establishing a firm rule of
5
precedent and filling in ambiguities in existing
6
precedent so that you don't have a case like United
7
States versus Rivera-Sanchez that must be decided
8
21 times rather than a single time, and also by
9
providing greater guidance to lower court judges
10
and to lawyers about what the state of the law is
11
so that they have a better idea of whether appeals
12
can and should be filed, and this could ultimately
13
reduce the number of appeals that ultimately will
14
be filed.
15 Our final conclusion would be that as many
16 commenters
have stated this morning and in their
17
comments, both for and against the rule, they seem
18
to acknowledge that unpublished opinions are a bit
19
of an unfortunate practice in that in an ideal
20
world every judicial opinion would give the time
21
and attention that it deserves and whatever path
22
the committee decides to take with respect to
77
1
unpublished opinions, we think it makes little
2 sense to acknowledge the lamentability of the
3
practice of issuing unpublished opinions and then
4
to adopt a rule structure that both enshrines and
5
perpetuates that practice. If
they truly are
6
flawed and imperfect, then they should not be
7
condoned but they should be eliminated.
8 JUDGE ALITO:
Thank you, Mr. Frankel.
9 Any questions?
10 MR. LETTER: I
just had one question for
11
you. The statute that sets up
this process, 20 USC
12 I
think it's 207.1, says specifically that the
13
Supreme Court can promulgate rules of practice and
14
procedure but those rules cannot affect substantive
15
rights.
16 The proposal that you're making, at least
17
to me, raises the question that we would be
18
recommending and the Supreme Court would be
19
adopting a rule that is not practice and procedure
20
but would be substantive. It
would be telling the
21
courts, setting a rule for them that certain
22
opinions bear precedential weight, meaning have
78
1
substance, and isn't that beyond the statutory
2
power of the Supreme Court and therefore this
3
committee?
4 MR. FRANKEL:
Well, I would say that to
5
the extent that it would be, I would think that the
6
rule that allows courts to establish their own
7
rules regarding unpublished opinions would do the
8
same thing by allowing courts to deprive--
9 MR. LETTER:
But that rule just says what
10
you can cite in your brief. It
doesn't say
11
anything about whether that opinion is or is not to
12
govern the substantive rule of law in the case.
13 MR. FRANKEL: Well, I understood, at least
14
from reading Professor Schiltz's summary of the
15
comments, and I may have misunderstood it or
16
misinterpreted it, that originally there was some
17
rule passed in the early '60s or the 1970s that
18
allowed this practice of unpublished opinions.
19
Before there was a practice of issuing unpublished
20
opinions all decisions were published and given
21
precedential weight and there was some shift that
22
allowed the use of unpublished opinions in a way
79
1
that therefore allowed courts to deprive those
2
decisions of having any precedential weight.
3 MR. LETTER: I
may be wrong but I think
4
those were decisions or rules by the courts
5
themselves, either in opinions or in their own
6
rules, which may or may not be valid.
But again
7
this committee and the Supreme Court are bound by
8
the statute, which says we cannot set
9
substantive--we cannot affect substantive rights.
10 MR. FRANKEL: I
don't know whether that
11
rule would be substantive or procedural in the
12
sense that you're not--you're only saying what
13
decisions should be given the force of law but
14
you're not saying what that law would be and I
15
don't know whether that would be classified as
16
substantive or procedural.
17 JUDGE ALITO:
Do you really think that
18
court of appeals judges could write 100 or 150
19
opinions a year, precedential opinions a year,
20
without experiencing an enormous decrease in the
21
quality of the opinions?
22 MR. FRANKEL: I
mean I obviously don't
80
1
have the experience of being a federal judge, so
2
certainly I would show some deference to the
3
opinions of judges who have expressed that some
4
degree in quality would occur.
5 Judicial workload increases all the time
6
and judges seem to find ways to continue to fulfill
7
their judicial duties without sacrificing quality.
8 I
mean the number of appeals, even though more and
9
more are being issued as unpublished opinions,
10
increases every year and this increases a judge's
11
workload and I think that like I said, they may
12
have to find ways of reallocating their time
13
between published--between how they allocate time
14 on
opinions.
15 It may be that some opinions can be issued
16
without spending as much time that is currently
17
spent on them. They could be
written in more
18
narrow ways. It could be that
summary dispositions
19
could be used in certain cases, as I mentioned in
20
my comments.
21 I think there's no question that a
22
judicial workload is going to increase but judicial
81
1
workload always increases and that doesn't mean
2
that we always take steps that deny litigants their
3
opportunities to have fundamental fairness
4
protected, so I think there are ways that judges
5
can do it.
6 MR. SVETCOV: I'm
from San Francisco. I
7
practice in the Ninth Circuit.
So now you want me
8
to read not only the 777 published opinions in my
9
circuit but the other 4,800 that are not published,
10
even though once a panel in my circuit in a
11 published opinion sets the law of the circuit, that
12
is the law of the circuit and everything else is
13
merely an application of that principle to various
14
sets of facts, many of which are very much like the
15
one in the first panel opinion?
16 Why are you asking me to digest 5,000
17
extra opinions each year in my practice? I mean
18
you're forgiving the judges.
They could write
19
summary--you say they can write summary judgments.
20
Why do I have to learn that much more law? What is
21
it about uniformity that makes that a worthwhile
22
principle for me, practicing in the Ninth Circuit?
82
1 MR. FRANKEL:
Well, I would answer that
2
question in several ways. The
first is that
3
available studies that I've seen, particularly the
4
one conducted by Dean Robel, shows that most
5
lawyers practicing within circuits, including the
6
Ninth Circuit, already regularly read, rely and
7
cite to unpublished decisions.
8 Secondly--
9 MR. SVETCOV:
Trust me; I never do.
10 MR. FRANKEL:
Then I guess there are
11
exceptions to every rule.
12
Secondly, many times
unpublished cases are
13
cited because there are holes in existing precedent
14
and if you made those decisions precedential,
15
instead of when you now do research and you
16
initially find the case most on point is an
17
unpublished case but you have to continue doing
18
research because that case cannot be cited, if that
19
was the first case that you found, this would
20
substantially save your research time.
21 MR. SVETCOV:
In my circuit we can find
22
cases on both sides that are already published.
83
1 MR. FRANKEL:
Well, if they're already
2
published, truly if the cases are truly repetitive
3
and they're not going to add anything to your
4
research time, then there's no need to continue to
5
read them. But to the extent
that they do add
6
persuasive reasoning that is not contained in
7
current published opinions, then whether those
8
opinions are citable or not, lawyers have a duty to
9
find that reasoning and to use that reasoning,
10
whether or not they cite the case in their
11
arguments to the court and whether the case is
12
ultimately citable or not or persuasive or
13
precedential doesn't change that.
14 MR. SVETCOV:
Why doesn't Judge Wood's
15
proposal, which I think is true in many circuits,
16
that a motion to publish would resolve that
17
situation in those rare cases?
18 MR. FRANKEL: I
would have two answers to
19
that question. One is that
although, at least it
20
seems in the Seventh Circuit and in many other
21
circuits, any interested member of the public can
22
move to publish a case, those who are going to be
84
1
most aware of it are the lawyers in the case and
2
you're leaving it up to the lawyers in those cases
3
to decide whether or not they think that case
4
merits publication.
5 Second, if the case does not get
6
published, then you still have the risk of
7
inconsistent results occurring and the risk that
8
litigants who walk into court will not be treated
9
equally and in our mind that is the most important
10
concern and the one that must be protected, whether
11
or not a motion to publish is made.
12 Third, it may be that you only want to
13
publish--you find out that you want to publish a
14
case--the case might be useful to you several years
15
after the decision is published and I guess there
16
are procedures to decide how to publish a case, but
17
if the original author of the opinion perhaps is no
18
longer on the court, it may be difficult for a
19
court to decide whether they think that opinion
20
merits publication or not.
21 JUDGE ALITO:
Any other questions?
22 Thank you, Mr. Frankel. We appreciate
85
1
your comments very much.
2 Mr. Judah Best of Debevoise & Plimpton on
3
behalf of the ABA Section of Litigation.
4 STATEMENT OF JUDAH BEST
5 MR. BEST: Good
morning. My name is Judah
6
Best. I wrote it down so that I
couldn't forget
7
it. I'm of counsel to the law
firm of Debevoise &
8
Plimpton. I'm a former chair of
the Section of
9
Litigation of the American Bar Association.
10 Some of you know me in one of my other
11
capacities. I was chair of the
Standing Committee
12
on the Judiciary and prior to that I had been on
13
the committee for a number of years.
I see at
14 least one face that's familiar to me in that
15
context.
16 I'm also a Litigation Section delegate to
17
the House of Delegates of the American Bar
18
Association. By the way, the
Litigation Sectoin is
19
composed of 70,000 trial lawyers.
20 In the capacity as a member of the House
21
of Delegates, in the summer of 2001 I presented to
22
that house a resolution urging that the American
86
1
Bar Association oppose the practice of various
2
federal Courts of Appeals in prohibiting citation
3
to or reliance upon their unpublished opinions as
4
contrary to the best interest of the public,
5
contrary to the best interest of the legal
6
profession. The resolution was
passed by the House
7
of Delegates and is the official policy of the
8
American Bar Association. A copy
of the resolution
9
and the accompanying report are attached to my
10
testimony, which has been presented to this
11
committee.
12 Now in the interest of the committee's
13
time, I will limit my remarks today to two topics.
14
First, that all opinions, whether binding precedent
15
or not, should be published, as provided by the
16
Advisory Committee in proposed Rule 32.1. Second,
17
that the new rule should be uniform.
That is to
18
say the rule should not allow for opt-outs but
19
should govern all circuits. I
think it's sort of
20 higgly-piggly, as I will explore later in my
21
remarks, to see the differences in the circuits.
22 Approximately 80 percent of the opinions
87
1
published by circuit courts today are noncircuit
2
binding. In most circuits today
the opinions are
3
released to publication in the most widely used
4
database services, Lexis and Westlaw.
5
However--it's a big however--it was only recently
6
that the First and Third Circuits began releasing
7
their decisions and the Fifth and Eleventh Circuits
8
still withhold them. And, by the
way, that is true
9
of many state appellate courts, as well.
10 One huge problem is the so-called
11
institutional litigants, the ones who have the
12
opinions--the United States Attorneys, the
13
government agencies, insurance companies, and the
14
like. They're far more likely
than others to have
15
access to the unpublished opinions.
After all,
16
they have a continuing, focussed interest and they
17
set up a library of relevant decisions and I think
18
that gives an unfair advantage to one side.
19 I had personal experience with this.
20
Several years ago I was engaged to counsel a
21
defendant in a criminal appeal.
I went through the
22
familiar process of reviewing the record, sorting
88
1
out the issues, choosing those that seemed most
2
promising and abandoning those that did not. I
3
found an important issue on which there was a split
4
among the circuits and no published opinion in the
5
circuit where the matter was situated.
I said
6
published opinion, so that's the caveat. I
7
counseled that the issue was one of first
8
impression in that circuit.
9 To my chagrin, the United States Attorneys
10
Office produced an unpublished opinion that was
11
contrary to my stated position.
Actually they
12
presented it in the circuit in which it was
13
inappropriate to present it, but they did so.
14
Frankly, I felt that I had been had.
The U.S.
15
Attorneys Office simply had more access to the law
16
than my client did and he and I were at an unfair
17
disadvantage.
18 And this is not an isolated instance. I
19
believe it happens constantly in jurisdictions
20
where opinions are not published but are available
21
and accessible to the institutional litigant.
22 You have developed what I would call the
89
1
homer situation. Indeed,
Professor Lauren Robel,
2
an acknowledged authority in this area, has
3
conducted survey research demonstrating that
4
institutional litigants do, in fact, collect,
5
catalogue and use unpublished opinions in ways not
6
available to other litigants.
Professor Robel has
7 also pointed out that institutional litigants have
8
every incentive to, and I quote, "stack the
9
precedential deck by moving for reporter
10
publication (and therefore circuit-bindingness) of
11
unpublished cases with outcomes that they favor,
12
while allowing the unfavorable decisions to remain
13
unpublished and occult."
And I cite her quotation
14
in my prepared remarks.
15 It's no answer to suggest that
16
anti-citation rules can solve this sort of problem.
17 I
don't think they can. As the chief
judge of one
18
circuit has put it, and I quote, "Commentators have
19
argued that the no-citation rule may work to
20
increase rather than decrease the unfairness to the
21
uninitiated lawyer. If the
sophisticated attorney
22
uses arguments or language drawn from the
90
1
unreported case without citing it, his uninitiated
2
opponent is unlikely to learn of its existence. In
3
sum, if unreported opinions are cited, the
4
uninitiated lawyer can remedy his deficiency; if
5
they cannot be cited, he may not even know a
6
deficiency exists."
7 Now there's another concern and that is
8
that if none of the lawyers know about the occult
9
opinion, the court or its law clerks will know
10
about it. Judges acknowledge
that they read the
11
unpublished opinions and it is impossible to
12
believe they do not consider the reasoning of those
13
opinions when faced with similar fact patterns or
14
arguments, so I think you have to read those 4,000
15
unpublished opinions because the judges are reading
16
them.
17 But the lawyer who cannot research the
18
day-to-day rulings of the appellate bench in a
19
particular area will be that much less prepared to
20
counsel his or her clients.
Binding or not, the
21
unpublished opinions are a pretty good indicator of
22
what a judge thinks on a particular issue in a
91
1
particular context and a faithful recordation of
2
what she or he does in 80 percent of her cases.
3 If one lawyer can get that information and
4
the other cannot, that is not fair.
If the judge
5
has that information and the lawyer does not, that
6
is also not fair.
7 Now there's a deeper problem that must
8
also be dealt with. Although the
circuit rules may
9
rationalize the nonbindingness of some opinions on
10
the theory that they have nothing new to say, the
11
inescapable fact discussed by William Hangley, who
12
is sitting behind me and will be speaking soon, in
13 a
wonderful article published in Federal Rules
14
Decisions, is that they often do break new legal
15
ground. The widely felt
suspicion is that there
16
are important decisions out there but they cannot
17
be accessed. Now that cannot be
good for the law
18
as an institution. In fact, we
believe it is
19
destructive to law and is not respectful to law.
20 Let's talk about uniformity for a minute.
21 I
am aware that the Advisory Committee has
22
consciously decided not to include a local opt-out
92
1
provision in the proposed rule.
We congratulate
2
the committee on that judgment and we urge that you
3
hold to it. I believe that a
local opt-out would
4
leave us with essentially the same Babel of
5
inconsistent rules and practices--I think I used
6
the term higgly-piggly before--in this area that
7
face us today.
8 The circuits have adopted a bewildering
9
variety of inconsistent rules for the handling of
10
unbinding opinions. Some
circuits publish. Some
11
do not. Some circuits allow you
to cite them
12
subject to various tests. Others
prohibit you from
13
citing them in almost all circumstances. One
14
circuit seems to be saying that you may cite them
15
but the court will either ignore them or refrain
16
from mentioning them.
17 In Mr. Hangley's article he summarizes the
18
views of the various circuits as follows. One, you
19
cannot read our nonbinding opinion, A, First
20
Circuit until recently, you must not talk about
21
them. B, Eleventh and Fifth
Circuits in some
22
cases, you may talk about them but first you have
93
1
to find them. Fifth Circuit in
other cases, we
2
discourage you from talking about them even if you
3
find them; however, they are binding and we will
4
apply them against your client.
D, Third Circuit
5
until very recently, you are welcome to talk about
6
them if you can find them; however, we'll not pay
7
any attention. Alice in
Wonderland, ladies and
8
gentlemen?
9 You can read our nonbinding opinions
10
but--Fourth, Sixth, Eighth, Tenth and for some
11
cases District of Columbia Circuit--we prefer that
12
you not talk about them. Second,
Seventh, Ninth
13
Federal and for other cases District of Columbia
14
Circuits, as well as recently First Circuit, you
15
must not talk about them. Third
Circuit very
16
recently, we still will not pay any attention to
17
them.
18 I don't mean to make a comedy of it but I
19
think it's sort of revealing to place it in this
20
context.
21 To make matters worse, several of the
22
circuits, including my own District of Columbia
94
1
Circuit, have a sort of comity rule that prohibits
2
citation of out-of-circuit opinions that could not
3
be cited in the courts which wrote them. That
4
means that every appellate lawyer must become
5
expert in the local rules of every circuit before
6
he can cite and out-of-circuit case.
7 I heard one commentator say well, these
8
are really not problems because some lawyers or
9
many lawyers only argue in their own circuit. That
10
is an answer but in my case I'm a member--I don't
11
collect membership in circuits but I'm a member of
12
the First, Second, Fourth, Fifth, Eleventh, Eighth,
13
and Ninth Circuits and I've appeared in all of
14
those circuits. There is
something known as planes
15
and trains, so lawyers do get around these days.
16 There's simply no need for all this
17
complexity. Traditionally
lawyers and judges have
18
not hesitated to cite the words of novelists,
19
comedians, athletes and cartoon characters, not as
20
binding precedent but simply for whatever
21
persuasive value they may have.
There is no good
22
reason for judges to treat their own words or the
95
1
words of their colleagues any differently a priori
2
and to set up artificial barriers to their
3
citation.
4 In conclusion, I again congratulate the
5
committee upon its promulgations and
6
recommendations of Rule 32.1 and it is my view and
7
that of the Litigation Sectoin that the new rule is
8
badly needed. Thank you very
much.
9 JUDGE ALITO:
Thank you.
10 Questions?
Carol?
11 MS. MOONEY: I
have two questions. You
12 talked first about the unfair advantage to
13
institutional litigants or even judges knowing
14
about opinions that a lawyer does not.
Will that
15
unfair advantage not disappear with the
16
E-Government Act?
17 MR. BEST: I
don't know that it will or it
18
won't. We discussed that as we
heard the reliance
19
on the E-Government Act. I can't
predict that. I
20
know that it's a jungle now. I
don't know that the
21
act is going to clarify that jungle and I think it
22
would be better if you do it the old-fashioned way
96
1
and publish the opinions.
2 MS. MOONEY:
Secondly, you seem to be
3
making the distinction that the first two witnesses
4
were not making; that is, separating citability
5
from an opinion's binding or precedential value.
6
At least a couple of our witnesses collapsed those
7
two things. Could you explain
how you believe--
8 MR. BEST: I'm
not sure that I believe
9
there's any significance. I
think citability and
10
precedential value, of course, is very important.
11 I
don't think I'm distinguishing between those two
12
concepts. I may be mentioning
them in different
13
aspects of the same problem.
14 MS. MOONEY: I
thought you had. Thank
15
you.
16 MR. SVETCOV:
Mr. Best, thank you very
17
much. Let me ask you a question.
18 MR. BEST: You're
going to have to read
19
those 4,000 opinions.
20 MR. SVETCOV:
Well, let me ask you a
21
question. If the unpublished
opinion begins with
22
the following sentence, "The parties are familiar
97
1
with the facts," and then goes on to discuss four
2
or five different contentions let's say in a
3
criminal case or a summary judgment case, how does
4
one go about citing that?
5 JUDGE LEVI: I
think there's something
6
known as footnotes.
7 MR. SVETCOV:
If "The parties are familiar
8
with the facts" is the first sentence of the mem
9
dispo, many of the Ninth Circuit decisions that are
10
unpublished begin with that sentence and then go on
11
over three or four pages to discuss contentions of
12
law and answer the question and give the parties a
13
disposition on the contentions raised without any
14
explication of the facts, how do I as a subsequent
15
practitioner looking at that disposition use it in
16
my practice?
17 MR. BEST: It's
a question of whether or
18
not--I understand what you meant.
I didn't
19
understand what you were saying before.
I think I
20
would use it in seeing if it's generally a state of
21
facts that requires further elaboration by me and I
22
suppose I would try to get the record on appeal and
98
1
see what the case is all about.
2 MR. SVETCOV:
You would do that?
3 MR. BEST: I
wouldn't do it in 4,000 and
4
you wouldn't do it in 4,000 cases.
5 MR. SVETCOV:
Exactly.
6 MR. BEST: But
if something in the case is
7
arresting in that circumstances, I might very well
8
want to see the record on appeal.
It's a rule of
9
reason, like everything else.
10 MR. SVETCOV:
You listened to Judge Wood's
11
testimony about the fact that circumstances are
12
different in different circuits.
Not only the
13
number of published versus unpublished opinions but
14
the fact that in the Fourth Circuit 10 percent of
15
the cases are published and in the Seventh Circuit
16
43 percent of the cases are published.
17 Doesn't that suggest that a
18
one-size-fits-all uniform rule may not be the best
19
answer for this particular problem but rather, that
20
diversity is the better answer, rather than
21
uniformity? And you were able to
figure out--you
22
and Mr. Hangley were able to figure out all the
99
1
various nuances in the various circuits on rules of
2
publication. They're not
difficult to figure out.
3
Why is uniformity better than diversity here?
4 MR. BEST: I
think there should be a
5
presumption toward uniformity and to the extent
6
that you want to deviate from that, there must be
7
exceptional circumstances that require it. I doubt
8
that there are. I think
uniformity is good. I
9
think that--
10 MR. SVETCOV:
I've spent my whole life
11
fighting for diversity. I'm not
about to change--
12 MR. BEST:
You're using it in a different
13
context.
14 It's a homer concept.
You know all of the
15
problems in your circuit. You
know how to deal,
16
just as I know cases like Smith v. Pollan and very
17
arcane ways of doing things in the District of
18
Columbia Circuit, but we're trying to have a
19
uniform application and I think that's important.
20 MR. SVETCOV: I
go down to the Fifth
21
Circuit all the time. I can
figure out the rules.
22 MR. BEST: I
congratulate you.
100
1 JUDGE ALITO:
Any other questions of Mr.
2
Best?
3 Thank you very much.
We appreciate it.
4 Professor Stephen R. Barnett of Boalt Hall
5
Law School.
6 STATEMENT OF STEPHEN R. BARNETT
7 MR. BARNETT:
Good morning. My name is
8
Stephen Barnett. I'm an emeritus
professor of law
9
at Boalt Hall in Berkeley. I
thank the chair and
10
the committee for allowing me to testify today on
11
the proposed FRAP Rule 32.1, which I strongly
12
support.
13 This committee has been hit by an
14
avalanche of public comments and I confess to
15
having contributed my share. In
addition to this
16
morning's statement, I earlier submitted comments
17
in reply, in part, to Judge Kozinski's comments.
18
In the spirit of expiation then, I thought I might
19
be most useful to the committee this morning by
20
offering some analysis of what's in that daunting
21
pile of 500 plus comments, so that's what I propose
22
to do briefly this morning.
101
1 That great legal realist, Holmes--that's
2
Sherlock, not Wendell--famously solved a case by
3
pointing to the dog that did not bark.
What I find
4
most telling in the comments here is a whole
5
kennelful of dogs that did not bark.
The proposed
6
rule, after all, would require four federal
7
circuits to do essentially what the other nine
8
federal circuits already do--allow their
9
unpublished dispositions to be cited.
That's also
10
what a growing number of states, now 22 of them,
11
already do. We thus have actual contemporaneous
12
experience in both the federal and state courts
13
with what rules that are equivalent to 32.1, in
14
fact, do.
15 What we have in almost all of the 500
16
comments meanwhile are predictions about bad things
17
that will happen if the rule is adopted. If those
18
predictions are accurate, we would expect to see
19
some evidence of such bad things in jurisdictions
20
where equivalents of Rule 32.1 have been adopted.
21
We would expect judges and lawyers from the nine
22
circuits that allow citation of their unpublished
102
1
opinions, the citable circuits if you will, to have
2
filed comments saying to this committee don't do
3
it; we did it and look what happened to us. We'd
4
expect those comments to lay out in painful detail
5
all the adverse consequences that have been
6
suffered in those circuits as a result of making
7
opinions citable and we'd expect to get the same
8
kind of reports from judges and lawyers in the 22
9
states where unpublished opinions are now citable.
10 What we get, however, in the entire stack
11
of comments is virtually no such reports. This is
12
the number one dog that did not bark.
In their
13
silence on this point the comments validate what
14
Judge Frank Easterbrook wrote in his comment.
15
"What would matter are adverse effects and adverse
16
reactions from the bar or judges of the nine
17
circuits and 21 states that now allow citation to
18
unpublished orders and from that quarter no protest
19
has been heard," says Judge Easterbrook.
20 Specifically I will report briefly on
21
three groups of lawyers or judges in the citable
22
circuits from whom one would have expected to hear
103
1
of such adverse effects if they existed. These are
2
circuit judges, lawyers, and federal public
3
defenders. Then I'll report on
three additional
4
groups--first, additional public defenders in the
5 citable circuits whom I
surveyed myself, then
6
lawyers in the Ninth Circuit, and federal circuit
7
judges in the four no-citation circuits.
8 First, federal circuit judges in the nine
9
citable circuits. The comments
received from
10
federal circuits judges in the nine circuits where
11
citation to unpublished orders is now allowed are
12
striking in three respects--first, their paucity;
13
second, their failure to report adverse reactions
14
or effects from such citability; and third, their
15
failure to refer to, let alone criticize, their own
16
circuit's pro-citation rules.
17 In the first place, the number of comments
18
from circuit judges in the citable circuits is only
19
eight. In my written statement I
said six but two
20
came in subsequent to that.
These two letters from
21
Judge Burch of the Eleventh Circuit and Chief Judge
22
Loken of the Eighth Circuit are puzzling. They
104
1
oppose the proposed rule and they report that other
2
judges in their circuit are opposed without
3
mentioning that their own circuits both have rules
4
allowing citation of unpublished opinions--that is,
5
the Eighth and the Eleventh--rules comparable to
6
FRAP 32.1. Neither of these
letters refers to the
7
existing rule in the writer's own circuit, let
8
alone criticizes it and says it's terrible.
9 And one of all eight letters point to
10
adverse effects from the current regimes of
11
citability in the writer's own circuits. To the
12
extent that they refer at all to the citation rules
13
of their circuits, these letters mostly praise
14
those rules. And I would call
your attention to
15
Judge Ebel's letter from the Tenth Circuit, Judge
16
Michael from the Fourth Circuit, Judge Martin from
17
the Sixth.
18 And Judge Bright this morning was eloquent
19 on
the point. He's a wonderful natural
experiment,
20
if you will, since he's sat in all these circuits
21
with all these different citation rules and he said
22
he sees no difference. He's
afraid there would be
105
1 a
difference under FRAP 32.1 because it would bar
2
what I call discouraging words.
Well, as I've
3
argued in my comments, I don't think it would bar
4
them, so I think the one difference Judge Bright
5
sees would not, in fact, be there.
6 So that's judges from the citable
7
circuits. With respect to
lawyers from the nine
8
citable circuits, if you rule out Washington
9
lawyers who, with the exception of Mr. Best and
10
some others, may not focus particularly on the D.C.
11
Circuit and its citation rule, the letters from
12
lawyers are almost equally sparse.
And while
13
almost all of these comments oppose the proposed
14
rule, their opposition only rarely is based on any
15
harms that they claim to result from the citation
16
that is now allowed in the writer's jurisdiction.
17
Again the dog doesn't bark.
18 With respect to federal public defenders
19
in the nine citable circuits, here, too, you would
20
expect that if they were chaffing under the
21
citation rules in those circuits that they would be
22
saying so now to warn and protect their colleagues
106
1
in the four no-citation circuits.
When one looks
2
for comments from federal public defenders in the
3
circuits that now allow citation, however, I count
4
only four and while these comments oppose the rule,
5 they again don't
mention, let alone criticize, the
6
citability rule under which they, in fact,
7
practice.
8 Given the paucity of comments from federal
9
public defenders in circuits allowing citation, I
10
conducted my own little fact-finding inquiry. I
11
interviewed by telephone eight randomly selected
12
federal public defender attorneys in the Fourth,
13
Fifth, Eleventh and D.C. Circuits and I have their
14
names and my notes of the conversations and am
15
willing to make them available to anyone who wants
16
to see them.
17 Asked whether they thought the citability
18
of unpublished opinions in their circuit added to
19
their research time, the attorneys unanimously said
20
essentially no. They said
"Not a bit" or it
21
doesn't add any burden at all, or perhaps a little
22
bit, such as 2.5 percent.
107
1 In the Fifth Circuit, whose unpublished
2
opinions only recently have been put no line and
3
hence there should be no substantial factor of
4
custom or habit, the appellate chief in Houston
5
reported that there was "no added burden."
6 More than one of the attorneys I
7
questioned expressed surprise and some even
8
derision that their colleagues in the Ninth Circuit
9
were opposed to a rule allowing use of unpublished
10
opinions. Public defenders in
the Ninth Circuit
11
"must be scared of computer research," said one
12
attorney.
13 "No one complains about citability," said
14
the public defender in Dallas.
"This is the kind
15
of research that lawyers do," said more than one
16
attorney. More than one also
noted that an
17
unpublished opinion "can be helpful when it's right
18
on point on the facts."
19 Does citability of unpublished opinions
20
entail a financial burden for public defenders
21
offices? The attorneys
unanimously said no. Lexis
22
is provided to those offices completely free and
108
1
Westlaw is provided at the special rate of $150 a
2
month, the same rate judges get, I'm told.
3 It was acknowledged, however, that
4
litigants who are pro se or had no right to counsel
5
already are hurt by the cost of Lexis and Westlaw
6
and would be marginally more hurt if unpublished
7
opinions were included in the database.
But, said
8
one attorney, "You go on the merits. If an opinion
9
is there, it's there." So
my survey gives quite a
10
different picture from that produced by the
11
comments from public defenders in the Ninth
12
Circuit.
13 Let me look now quickly at Ninth Circuit
14
lawyers. Another notably quiet
kennel in this
15
proceeding has been the offices of lawyers within
16
the Ninth Circuit who support the proposed rule.
17
There must be some such lawyers but you wouldn't
18
know it from looking at these comments.
I count
19
more than 100 comments from Ninth Circuit lawyers
20
opposing FRAP 32.1 while the comments from Ninth
21
Circuit lawyers supporting the proposed rules can
22
be counted on one's figures. How
can this be, one
109
1
may wonder?
2 Judge Tashima reports that there was a
3
letter-writing campaign among lawyers in the Ninth
4
Circuit to oppose the new rule, but lawyers are no
5
more herdable than cats. No mere
letter-writing
6
campaign would produce this kind of a landscape.
7
So what did? How is it that
Ninth Circuit
8
lawyers, so famous for their independence, their
9
fractiousness, their readiness to take on
10
motherhood, apple pie, or recently God, have
11
suddenly found an important legal issue that's
12
highly controversial elsewhere but on which
13 virtually
all Ninth Circuit lawyers agree. How
has
14
this committee become such a powerful builder of
15
consensus?
16 The answer lies, of course, not in the
17
fairly counted views of Ninth Circuit lawyers but
18
in the dynamic of self-selection.
The majority of
19
Ninth Circuit judges are known to be strongly
20
opposed to the proposed rule.
Given that fact,
21
lawyers who practice in the Ninth Circuit and who
22
also oppose the rule have every reason to say so,
110
1
and may it please the court.
Lawyers who support
2
the rule, meanwhile, have no need to vote against
3
the judges before whom they practice.
These
4
lawyers just take a walk. They
don't submit
5
comments. Thus, we get the
one-sided results
6
displayed here.
7 With respect to federal circuit judges in
8
the no-citation circuits, we can count the votes
9
pretty much from their comments filed here. As I
10
have said, the circuits that allow citation have
11
produced only eight comments from circuit judges
12
but what about the four circuits that ban
13
citation--the Second, Seventh, Ninth and Federal?
14 From
those quarters there's plenty of opposition to
15
the proposed rule. It's worth
looking closer,
16
however, at the vote counts in these circuits,
17
starting with the Ninth.
18 While the vote count in the Ninth Circuit
19 seems monolithic, 38 judges opposing the rule
and
20
only Judge Tashima expressly supporting it, but
21
that may not be the whole story.
Judge Tashima
22
reports that there was a letter-writing campaign
111
1
among both lawyers and judges to oppose the rule.
2
He and Judge Thomas also report that the Ninth
3
Circuit was closely split on the proposed rule.
4
Well, the eventual comments certainly are not
5 closely split but it may be that like Judge
Thomas,
6
other Ninth Circuit judges sacrificed their own
7
views on the alter of circuit solidarity.
8 And even so the Ninth Circuit's vote was
9
far from unanimous. Six active
judges did not
10
vote. There may be a question
whether you consider
11
that votes against the majority or not.
The vote
12
among active judges was 23 to seven in the Ninth
13
Circuit--one-sided but not overwhelming. It's only
14
when you add the senior judges and 15 senior judges
15
oppose the rule while three didn't vote, that the
16
margin became 38 to 10.
17 One may wonder, of course, as with the
18
Ninth Circuit lawyers, how is it that Ninth Circuit
19 judges, so famously independent and ready for
20
dissent, in this case produced only one expressed
21
dissent from 48 judges. I have
no answer to that
22
question.
112
1 Turning to the Federal Circuit, it
2
out-does the Ninth, producing unanimity against the
3
proposed rule. But the other two
no-citation
4
circuits, the Seventh and Second, are split. In
5
the Seventh Circuit the vote among all judges was
6
nine to six. Among active judges
alone it was
7
eight to three. I guess those
are the figures that
8
Judge Wood reported this morning.
Among the three
9
dissenters, Judges Easterbrook and Ripple both
10
wrote forceful comments supporting the proposed
11
rule. As Judge Wood indicated,
the majority also
12
suggested a fallback compromise based on routinely
13
granting motions for publication.
14 Then in the Second Circuit the vote among
15
all judges was 19 to four opposing the rule. The
16
19, however, included all 11 of the circuit's
17
senior judges. Among active
judges alone the vote
18
was eight to four. As in the
Seventh Circuit, the
19
Second Circuit majority made a significant
20
compromise suggestion. This was
that if the rule
21
goes forward, it operate only prospectively.
22 Then there's a special fact about the
113
1 Second Circuit that should be noted. While there
2
was apparently no statement from any dissenting
3
circuit judge in the Second Circuit, there exists a
4
mutiny among the district judges of the Second
5
Circuit. As I relayed in my statement
at page 13,
6
several district judges in the Second Circuit have
7
been citing summary orders of the Second Circuit,
8
in defiance of that court's no-citation rule. See
9
the Harris case, which is cited in my statement,
10 where Judge Lynch describes the Second
Circuit as
11
pretending that this decision never happened.
12 Well, the action of these district judges
13
perhaps suggests the depth of the disagreement in
14
the Second Circuit. It may also
suggest that
15
citability is becoming a de facto norm in the
16
Second Circuit.
17 In sum, the rather close splits in the
18
Seventh and Second Circuits, combined with the
19
suggested fallback compromises by the majority in
20
each case, may indicate that those circuits, the
21
Second and Seventh, do not strongly oppose
22
citability. That may be
particularly so for the
114
1
Second Circuit in which the states of New York,
2
Connecticut and Vermont all allow citation, and it
3
may become so for the Seventh Circuit if Illinois
4
switches to citability and the Rules Committee of
5
the Illinois Supreme Court, I'm told, is meeting
6
later this month on a proposal to switch to
7
citability with respect to at least some orders of
8
the Illinois Courts of Appeal.
9 The bottom line then, the bottom line of
10
the vote count is that of the four no-citation
11
circuits, the Second and Seventh and perhaps even
12
the Ninth are split on the proposed rule. Only the
13
Federal Circuit is monolithic.
14 In contrast, the nine circuits that permit
15
citation appear to be quite satisfied with the rule
16
that they have. Not a single
judge from a circuit
17
that allows citation and virtually no one else from
18
such a circuit has filed a comment complaining
19
about that rule of citability. This is a remarkable
20
record, it seems to me. It may
not bark but it
21
speaks volumes. Thank you.
22 JUDGE ALITO:
Thank you, Professor
115
1
Barnett.
2 Questions?
3 MR. SVETCOV:
Professor Barnett, I have to
4
confess that I graduated from Boalt Hall four years
5
ago and I guess--
6 MR. BARNETT:
One of our most
7
distinguished graduates.
8 MR. SVETCOV: Except
that I probably am
9
getting an F in your class on publication. But
10
don't you account for the Hound of the Baskervilles
11
in your presentation in Judge Wood's description of
12
the different ways in which circuits treat
13 unpublished
opinions, the various percentages of
14
cases that are not published, and in particular,
15
the ways in which unpublished opinions are crafted.
16 Namely, as I mentioned to Mr. Best a few
17
minutes ago, in the Ninth Circuit the great
18
majority of unpublished opinions begin with the
19
words, "The parties are familiar with the facts."
20
Then the discussion that follows is a discussion of
21
the legal issues that were raised by the appellant
22
and are disposed of for the benefit of the parties
116
1
who are familiar with the facts.
As a practicing
2
lawyer in the Ninth Circuit, I don't see how I
3
could make very much use of that type of opinion.
4 I contrast that with cases that are
5
sometimes published in the State of California in
6
which the judges will spend 30 pages laying out all
7
of the facts and addressing all of the legal issues
8
fully, but they don't publish because California,
9
as you know, has a rule that says once there's a
10
principle of law in place in a court of appeal
11
decision, that applications of that rule are not to
12
be published.
13 So you do have these different types
of
14
opinions. Doesn't that mitigate
in favor of
15
diversity rather than uniformity?
16 MR. BARNETT:
Well, I have my own
17
arguments with the state judges in California about
18
this, too. I think you have to
ask whether it's
19
underlying essential differences that make the
20
difference or whether it's practices that the
21
judges have acquired perhaps for reasons that are
22
not congruent with the best interest of the
117
1
judiciary and the litigants.
2 For example, if you compare these
3
California state decisions with state decisions in
4
New York, you find it's roughly the same number of
5
cases decided each year, about 12,000.
In New York
6
all published, all with opinions, all citable. In
7
California, 93 percent not citable.
And you may
8
say isn't that just a difference in cultures? I
9
say yes, but maybe it shows that California ought
10
to be doing something differently.
11 MR. SVETCOV:
I'm from New York
12
originally.
13 MR. BARNETT:
So am I.
14 MR. SVETCOV: I
want to also disabuse you
15
of the notion that those of us who oppose this rule
16
do it because we want to kiss our circuit's behind.
17 MR. BARNETT: I
didn't say that.
18 MR. SVETCOV: I
testified in front of the
19
White Commission in favor of some sort of
20
divisional operation of my circuit and there was no
21
repercussions one way or the other from that and I
22
don't think any of us who have a position on this
118
1
rule or any other do so because we think we're
2
going to gain anything from the judges in our
3
circuit. We have a lot more
respect for them and
4
they have for us.
5 MR. BARNETT: I
do, too, and I didn't say
6
that. I said lawyers who oppose
the rule will say
7
so. I didn't say that lawyers
would take that
8
position for any reason other than the merits.
9 MR. SVETCOV:
And trust me; lawyers who
10
favor the rule say so and I was in a meeting just
11
this past week in which the chair of the Advisory
12
Committee to the Ninth Circuit Rules Committee, Les
13
Weatherhead, took the exact opposite position I did
14
and he didn't write in but his views are there and
15
we know how the lawyers feel about this. There are
16
lawyers--
17 MR. BARNETT:
How do you explain, then,
18
that there are perhaps no more than half a dozen
19
letters here from California lawyers supporting the
20
rule?
21 MR. SVETCOV: I
think, Professor Barnett,
22
you have to recognize that there are different
119
1
cultures, there are different bodies of law. In
2
the Fourth Circuit there may not be cases on all
3
the issues. In our circuit there
are cases all
4
over the ballpark and they are already published.
5 You know, you've heard of the term junk
6
science?
7
MR. BARNETT: Yes.
8 MR. SVETCOV:
In the Ninth Circuit these
9
cases come under the heading of junk law.
10 MR. BARNETT:
So your answer is that there
11
are no lawyers out there who support the rule?
12
MR. SVETCOV: I didn't say that.
13 MR. BARNETT:
I'm sorry.
14 MR. SVETCOV:
I'm just saying that a lot
15
of these cases are not worth pursuit as precedent
16
or for citation as mock precedent.
17 JUDGE ELLIS:
Don't you think it's just as
18
disrespectful to assume that lawyers who don't
19
complain are afraid of judges as it is to say that
20
lawyers who oppose it want to kiss the butts of
21
judges? It's just as
disrespectful of the lawyers.
22
If they didn't write in, we can only assume they
120
1
don't have feelings strong enough to move them to
2
put pen to paper, just as we assume that you're
3 very
passionate about it. You have articles,
you
4
have letters, you've analyzed it in great depth, so
5 I
understand you have passion. We must
assume, I
6
suppose, that the others don't have passion, not
7
that they're afraid of judges.
8 MR. BARNETT: I
don't want to attack
9
California lawyers in any way but these are all
10
California lawyers presumably with similar
11
attitudes about when they think it's worth it to
12
write a letter on a matter like this and when they
13
don't and we have this astonishing record that
14
there are 100 or more letters on one side and less
15
than half a dozen on the other and I'm trying to
16
find an explanation for that.
17 JUDGE ELLIS: Why
isn't the explanation
18
that some care enough about the merits to write;
19
others don't think it makes a hill of beans and
20
they don't write? Not that
they're afraid of
21
judges or that they want to kiss judges' butts.
22
JUDGE ALITO: Judge Levi?
121
1 JUDGE LEVI:
Just one point. It's quite
2
typical in these rules matters that the
3
overwhelming letters, particularly on a
4 controversial matter,
will be opposed. There's
5
almost a tradition of that.
6 MR. BARNETT: I
understand.
7 JUDGE LEVI:
But I want to point you to
8
the form of the rule. You
brought up the
9
suggestion in the Second Circuit that the rule not
10
apply retroactively and then I think in your own
11
submission you also have some suggestions on the
12
form of the rule.
13 What would you like the language of the
14
rule to be?
15 MR. BARNETT:
Well, in my statement, which
16 I
don't have here, I think it reads any disposition
17
by any federal court may be cited to or by any
18
court, period, in contrast to the committee's
19
present proposal, which is there shall be no
20
restrictions on opinions that are labeled
21
unpublished or not citable or not precedential or
22
whatever.
122
1 JUDGE LEVI: Do
you have a view on whether
2
it should be going forward or--
3 MR. BARNETT:
No, I would agree with
4
making it prospective only.
That's what a number
5
of jurisdictions have done in moving to citability
6
and I think that's perfectly appropriate, to make
7
only decisions issued henceforth citable.
8 JUDGE ALITO:
Judge Ellis?
9 JUDGE ELLIS:
You said the Fourth Circuit
10
was citable. What is your
criticism of that
11
circuit rule?
12 MR. BARNETT: I have no criticism of any
13
really of the circuit rules that allow citability.
14
They're different. It might be
better to make the
15
uniform but I wouldn't even insist on that. And I
16
defend--I disagree with Pat Schiltz on this but I
17
defend what I call the discouraging words, the
18
statement that you should only cite an unpublished
19
opinion if there's no published opinion on point,
20
or the statement that citation of unpublished
21 opinions
is disfavored. I think that's all okay.
22 JUDGE ELLIS:
So a dichotomy between
123
1
published and nonpublished is all right provided
2
that the unpublished decisions are fully accessible
3
and citable.
4 MR. BARNETT:
Yes, that's my view, so long
5
as they're citable. And I would
go further,
6
though, in one respect. The
Third Circuit had the
7
last time I looked a practice whereby lawyers may
8
cite the unpublished orders but the court has a
9
tradition of not doing so. I
would not allow that
10
tradition to persist. I explain
in a footnote how
11 I
would deal with that.
12 MR. LEVY: Professor
Barnett, just so I'm
13
clear on the next-to-the-last point you made, would
14
you favor the rule that allows citations without
15
restrictions or the rule that favors them with
16
restrictions, or would you favor a nonuniform rule
17
that allows it?
18 MR. BARNETT: I
myself would prefer the
19
rule that allows them only for persuasive value,
20
not for precedential--
21 MR. LEVY: No,
that's not my point. The
22
rules, like the Eighth Circuit, we got a letter
124
1
from our Chief Judge Hodeen saying the First
2
Circuit recently has adapted the rule and they all
3
say they're not precedential, that they're
4
persuasive only, but some allow them only when
5
there is no public decision on point or kind of a
6
second tier. Other circuits,
like the D.C.
7
Circuit, allow them without restriction.
8 So the question is would you favor a D.C.
9
Circuit-type rule that says you can cite them
10
without regard to anything else or the Eighth
11
Circuit-type rule that says you can cite them but
12
only if, and then certain circumstances? Or would
13
you allow the circuits to choose between those two
14
so that we don't have a national rule in the end at
15
all?
16 MR. BARNETT: I
would allow the circuits
17
to choose and I myself would prefer the
18
restriction, the persuasive value only, but that's
19
really for political purposes to make a uniform
20
rule more palatable for the various circuits and
21
indeed the various states. I
would expect that
22
over time that would move toward a precedent rule.
125
1 JUDGE ALITO:
Any other questions?
2 Thank you, Professor Barnett.
3 Chief Judge Mayer of the Federal Circuit.
4 Just as a procedural matter I think that
5
we are running quite late and I expect after we
6
hear from Chief Judge Mayer we will take a very
7
short recess and then continue until 12:30.
8 Chief Judge Mayer?
9
STATEMENT OF THE HON. HALDANE ROBERT MAYER
10 JUDGE MAYER:
Thank you, Mr. Chairman.
11
Thank you for the opportunity to address the
12
committee on behalf of the United States Court of
13
Appeals for the Federal Circuit.
With me today in
14
case there are questions that I can't answer are my
15
colleagues Judge William C. Bryson, our Circuit
16
Executive and our Clerk of Court, January Horbaly,
17
and our senior members of the Central Legal Office,
18
Melvin Halpern and Ellie Thayer.
19
In a letter dated January
6, 2004 I wrote
20
to the express the unanimous opposition of the
21
judges of the Federal Circuit to three of the
22
proposed amendments to the Federal Rules of
126
1
Appellate Procedure. I'd like to
address in
2
further detail our objections to two of those
3
proposed amendments--the adoption of a proposed
4
Rule 32.1 regarding citation of nonprecedential
5
dispositions and the adoption of proposed Rule
6
35(a) concerning the determination of the majority
7
in en banc cases.
8 The Federal Circuit is similar to its
9
sister courts of appeals in many ways.
You will
10
undoubtedly hear and have heard from
11
representatives of other circuits why the proposed
12
amendment regarding unpublished dispositions or, as
13
we say, nonprecedential opinions, should not be
14
adopted and how such a rule would affect the other
15
circuits. To the extent possible
I'll try not to
16
repeat the objections and concerns of my colleagues
17
and their respective courts, although we share most
18
of them. Instead, I will focus
my remarks today on
19
the unique procedures and decision-making processes
20
of the Federal Circuit and how the proposed rule
21
will adversely affect the judicial process in the
22
way the Federal Circuit decides its cases.
127
1 To focus on why our court objects to
2
proposed Rule 32.1 regarding the citation of
3
nonprecedential dispositions, let me first offer a
4
little background on the Federal Circuit. Our
5
court was created by statute in 1982. This was
6
longer after the Judicial Conference of the United
7
States, in response to an ever-increasing appellate
8
court caseload, an increasing number of
9
precedential opinions, and the concern for the
10
ability of libraries to maintain the increased
11
materials, requested that the courts of appeals
12
begin issuing unpublished, nonprecedential
13
opinions.
14 In 1964 the Judicial Conference adopted a
15
resolution that requested the courts of appeals to
16
"authorize the publication of only those opinions
17
which are of general precedential value and that
18
opinions authorized to be published be succinct."
19
Thereafter, in 1972 the Judicial Conference
20
requested that all circuits develop a publication
21
plan for opinions.
22 By the date of our court's creation, all
128
1
courts of appeals were issuing both precedential
2
and nonprecedential opinions in response to the
3
Judicial Conference's suggestion.
Thus, in
4
drafting every opinion, our court has had in its
5
collective mind whether that opinion should be
6
issued as precedential or, if the issues raised by
7
the case were not likely to be relevant to the
8
development of the law in general, issued as
9
nonprecedential.
10 In this regard we created our local rule,
11
Federal Circuit Rule 47.6(b), which provides that
12
if a panel wishes a nonprecedential opinion, "Any
13
opinion or order so designated must not be employed
14
or cited as precedent. This rule
does not preclude
15
assertion of claim preclusion, issue preclusion,
16
judicial estoppel, law of the case, or the like
17
based on a decision of the court designated as
18
nonprecedential."
19 We further developed a set of criteria to
20
determine when an opinion should be issued as
21
precedential. These criteria are
published in our
22
Internal Operating Procedures, OP Number 10. That
129
1
procedure states that the "purpose of a
2
precedential disposition is to inform the bar and
3
interested persons other than the parties. The
4
parties can be sufficiently informed of the court's
5
reasoning in a nonprecedential opinion." Our
6
procedure expressly states that disposition by a
7
nonprecedential opinion "does not mean that the
8
case is considered unimportant, but only that a
9
precedential opinion would not add significantly to
10
the body of law or would otherwise fail to meet a
11
criterion" for being precedential.
12 The criteria for issuing an opinion as
13
precedential are, and I'm listing the 14 of them
14
lest it be thought that they are treated cavalierly
15
in our court. Number one, the
test of a test case.
16
Number two, an issue of first impression is
17
treated. Three, a new rule of
law is established.
18
Four, an existing rule of law is criticized,
19
clarified, altered or modified.
Five, an existing
20
rule of law is applied to facts significantly
21
different from those to which that rule has
22
previously been applied.
130
1 Six, an actual or apparent conflict in or
2
with past holdings of this court or other courts is
3
created, resolved or continued.
Seven, a legal
4
issue of substantial public interest which the
5
court has not sufficiently treated recently is
6
resolved. Eight, a significantly
new factual
7
situation likely to be of interest to a wide
8
spectrum of persons other than parties to a case is
9
set forth. Nine, a new
interpretation of a Supreme
10
Court decision or of a statute is set forth.
11 Ten, a new constitutional or statutory
12
issue is treated. Eleven, a
previously overlooked
13
rule of law is treated. Twelve,
procedural errors
14
or errors in the conduct of the judicial process
15
are corrected, whether by remand with instructions
16
or otherwise. Thirteen, the case
has been returned
17
by the United States Supreme Court for disposition
18
by the action of this court other than ministerial
19
obedience to directions of the court.
Fourteen, a
20
panel desires to adopt as precedent in this court
21
an opinion of a lower tribunal in whole or in part.
22 These criteria are applied by a panel of
131
1
three judges each time an opinion is issued. Is it
2
possible that we might decide that an opinion
3
should be nonprecedential but that members of the
4
bar might disagree, given their perspectives? Yes,
5
and our rules recognize this possibility, allowing
6
any person to request that an opinion or order be
7 reissued as precedential.
8 The members of the bar who frequently
9
practice before our court peruse our opinions
10
carefully and they keep us on our toes.
Thus we do
11
receive such requests, even from persons that were
12
not parties to the pertinent appeal.
Requests to
13
reissue as precedential are granted when
14
appropriate and, if granted, the panel may choose
15
to revise the language of the earlier opinion to
16
make it more acceptable as a precedential opinion.
17 Thus, we have rules and procedures that we
18
believe best serve our court in its decision-making
19
process. It has been suggested
that the rulemaking
20
authority of the Rules Committee does not permit a
21
rule that directly affects the decision-making
22
processes of the court. Even
assuming such
132
1
authority, which is not altogether clear, the
2
proposed rule should be reconsidered by the
3
committee and it should not be adopted.
4 Turning back to our court's procedures,
5
if the earlier-mentioned criteria are not met, a
6
panel prepares a nonprecedential opinion or enters
7
judgment without opinion. In the
past eight
8
statistical years, from 1996 to 2003, 33 percent of
9
our merits panel cases have issued as precedential
10
opinions, 47 percent have issued as nonprecedential
11
opinions, and 20 percent have issued as judgments
12
without opportunity.
13 It is my understanding that our rate of
14
issuing precedential opinions is well above the
15
national average. Perhaps
because our jurisdiction
16
is limited to discrete areas of the law, we are
17
particularly aware when a case involves an issue
18
that might add something of relevance to the law
19
and we strive to publish those opinions.
20 Nonetheless, nearly half of our opinions
21
are nonprecedential. They were
not prepared with
22
less care with respect to arriving at the proper
133
1
result. Indeed the panel must
follow established
2
precedent. But they were not
written with the
3
extra care or concern for language that would be
4
used if they were to be extended or relied upon by
5
those who were not parties to the case.
In other
6
words, nearly half of our cases were written with
7
one audience in mind--the parties only.
8 Although members of this committee surely
9
understand, some people may not appreciate the
10
different type of writing, editing and procedure
11
that is entailed when preparing a precedential
12
opinion. It is by all means more
time-consuming
13
than the preparation of a nonprecedential opinion.
14 The Federal Circuit may also be unique in
15
some of the procedures that it's adopted in this
16
regard, which I will brief explain.
If an opinion
17
is to be issued as precedential, the authoring
18
judge prepares the opinion and obtains the votes
19
and comments from the other panel members. This is
20
the same initial procedure that is used in the
21 preparation of a nonprecedential opinion, but
that
22
is where the similarities end.
After the panel
134
1
approves the language of a proposed precedential
2
opinion, that opinion is circulated to the other
3
judges and to the court's Central Legal Office.
4
During the period of circulation, nonpanel judges
5
may comment or make suggestions.
Thus, each judge
6
reads each circulated precedential opinion before
7
it is issued. This is in
addition to his or her
8
duties regarding the cases to which that judge is
9
assigned.
10 At any one time, many precedential
11
opinions are circulated. The
Central Legal Office
12
also reviews the circulating opinions and informs
13
the court of any apparent conflicts or confusion
14
with existing precedent or Supreme Court law.
15
Comments from nonpanel judges or the staff may
16
result in changes to the opinion or even a sua
17
sponte poll by the judges to determine whether the
18
case should be heard en banc.
After such comments
19
and considerations are made, the opinion is issued
20
as precedential.
21 This procedure is time-consuming and
22
labor-intensive but well worth the effort. Thus,
135
1
when our court determines that an opinion adds
2
something to the law, it receives the attention of
3
the full court before the opinion's issuance.
4 In contrast, a nonprecedential opinion is
5
written to inform parties why their arguments were
6
accepted or rejected. Such
opinions refer to the
7
relevant precedent or simply apply the pertinent
8
standard of review. The aim of
more conversational
9
nonprecedential opinions is only to briefly
10
explain. A nonprecedential
opinion is not written
11
to be a pronouncement on the law or to have
12
far-reaching effect. Before
issuance, it is not
13
reviewed by nonpanel judges or by the Central Legal
14
Office. When written, it is not
intended to be
15
considered for any purpose by a future merits panel
16
in a different case.
17 However, under proposed Rule 32.1, these
18
opinions will be cited and, as some comments have
19
suggested, an attorney might have the ethical duty
20
to search for and cite such cases.
The citable
21
body of case law within our circuit would more than
22
double, and in some circuits it might increase
136
1
tenfold. Appellants and
appellees will proceed to
2
argue the value to be ascribed to such
3
nonprecedential opinions, with hen we have already
4
determined that they should have none--that's why
5
we wrote them that way.
6 In all areas of the law our court
7
sees--intellectual property, government contracts,
8
veterans appeals, federal personnel cases,
9
international trade, Indian claims, inverse
10
condemnation, tax appeals, Vaccine Act cases, et
11
cetera--words and word choices are very important.
12
Nonprecedential opinions would be scoured for that
13
unintended turn of phrase. Now,
with the advent of
14
web-based research, an attorney could search for a
15
snippet of language in a nonprecedential opinion
16
and latch ont it.
17 When we write precedential opinions, we
18 craft those snippets, phrases, and holdings in a
19
manner that reflects, limits or expands on the
20
nature of the issue, as appropriate.
When we write
21
nonprecedential opinions, we are merely giving the
22
parties what they sought--an answer to the
137
1
questions raised in their particular case.
2 Another factor that distinguishes our
3
court is that every decision on the merits, whether
4 precedential or nonprecedential, is written
in
5
chambers and not by the central legal staff. Our
6
staff attorneys are primarily concerned with the
7
court's motions practice and providing comments on
8
circulating precedential opinions.
9 We have a great desire to maintain this
10
practice, whereby every litigant knows that a
11
merits decision was reached in chambers and not by
12
the court's legal staff. But if
we must devote
13
more time and effort to fine-tuning the language of
14
nonprecedential opinions because they may be cited
15
by the parties in future cases, then our circuit's
16
practice of having all cases decided in chambers
17
must change. I would imagine
that the proposed
18
rule would have a decided and adverse effect in our
19
court, even to the point of considering personnel
20
changes.
21 The committee notes state, rather
22
unconvincingly, that Rule 32.1 is "extremely
138
1
limited" and would not require changes to the
2
circumstances in which a court may choose to
3
designate an opinion as unpublished, changes to the
4
procedure that a court must use, or changes in
5
effect the court must give to one of its
6
unpublished opinions.
7 In practice, the effects of the rule would
8
not be so limited. It would
change the way we
9
write nonprecedential opinions.
Our mindset would
10
be that, for whatever value, the language used in a
11
nonprecedential opinion would be used by parties to
12
argue for something likely never intended by the
13
opinion. Perhaps perversely we
would issue fewer
14
nonprecedential opinions and more judgments without
15
opinion. Perhaps, because we
would spend more time
16
refining the language in nonprecedential opinions,
17
the time that we have to issue precedential
18
opinions will be more limited.
19
Certainly our workload
would increase,
20
both because of the time expended to write
21
nonprecedential opinions and because of the time
22
expended reading and researching previous
139
1
nonprecedential opinions cited by the parties in
2
their briefs. It is not
difficult to foresee,
3
because of the way our circuit circulates and
4
prepares its precedential opinions and because we
5
do not use staff attorneys to prepare opinions,
6
that the increased time it would take to write
7
nonprecedential opinions would detrimentally affect
8
the amount of time it takes to issue our decisions.
9
Decisions would be delayed. The
rule would serve
10
only to add to the cacophony of the law.
11 I also disagree that the proposed rule is
12
"extremely limited" as the committee notes state
13
because the proposed rule not only contradicts our
14
local rule; it is contrary to our case law.
15
Perhaps the committee believes that the restriction
16
against citing nonprecedential opinions exists only
17
in courts' local rules. This is
suggested by the
18
statement in the committee's notes that there is a
19
"hardship" on counsel that practice in more than
20
one circuit because different courts' rules of
21
practice give different weight to or prohibit the
22
citation to nonprecedential opinions.
140
1 I find it hard to believe that learned
2
counsel would be confused by easily ascertainable
3
rules or standards. Indeed, if
counsel has the
4
wherewithal to locate a nonprecedential opinion
5 that
he believes addresses an issue not covered by
6
any precedential opinion, that attorney should have
7
the ability to find a local rule or read the
8
heading on the nonprecedential opinion that
9
explains its nonprecedential status.
10 In any event, it is not just the local
11
rule that governs the relevance of or weight that
12
we give to nonprecedential opinions.
As our court
13
explained in Hamilton v. Brown, a 1994 case,
14
"Nonprecedential opinions and orders are not
15
citable to this court, they do not represent the
16
considered view of the Federal Circuit regarding
17
aspects of a particular case beyond the decision
18
itself, and they are not intended to convey this
19
court's view of law applicable in other cases.
20
Nonprecedential orders and opinions are used in
21
summary dispositions of cases in which a full
22
precedential opinion is not considered necessary,
141
1
but something more than a one-sentence affirmance
2
is warranted or needed.
3 "They are nonprecedential for a
4
reason--while the decision itself receives due
5
care, as do all cases before us, the explanation
6
given in the summary disposition does not
7
necessarily contain a full recitation of all the
8
relevant facts and legal authorities.
The opinion
9
or order is primarily for the benefit of the
10
parties. It is error to assume
that a
11
nonprecedential order or opinion provides support
12
for a particular proposition or reflects a new or
13
changed view held by this court."
14 Before I turn to the rule regarding en
15
banc voting, I would like to respond directly to a
16
committee comment in its notes and a similar
17
comment submitted by a bar association about a
18
specific Federal Circuit case.
19 First, the notes of the committee state
20
that even nonprecedential opinions can be reviewed
21
by the Supreme Court, noting that in 2002 the
22
Supreme Court reviewed our nonprecedential decision
142
1
in Holmes Group, Incorporated v. Vornado Air
2
Circulation Systems, Incorporated.
It is true that
3
our decision--actually in that case it was not an
4
opinion; it was a short order--was issued as
5
nonprecedential.
6 However, the Supreme Court's review was
7
directed to a jurisdictional issue that had been
8
decided in an earlier en banc case.
In Holmes we
9
did not even address the issue that the Supreme
10
Court was reviewing. Holmes
itself was not
11
ground-breaking law. The jurisdictional
issue was
12
so longstanding in our jurisprudence that we didn't
13
address it in our nonprecedential order, which
14
instead simply remanded the case to the district
15
court to consider intervening Supreme Court case
16 law on the merits.
17 Even under the proposed rule, no party
18
would have cited the nonprecedential order to us
19
concerning the issue of jurisdiction because our
20
nonprecedential order didn't even address the
21
issue. It is strange for the
committee to use that
22
case as an example of a case that warranted Supreme
143
1
Court review although issued as nonprecedential.
2
It does not to any degree support the notion that
3
the case should have been citable for the issue on
4
which the Supreme Court granted review.
But the
5
committee's notes themselves show the kind of
6
mischief that this proposal can lead to.
7
According to the summary
prepared by the
8
committee's reporter, some comments argue that
9
local rules prohibiting citation to nonprecedential
10
opinions suggests that "wealthy parties represented
11
by big law firms" receive "high-quality justice"
12
because their cases are resolved by published
13
decisions but that "no-name appellants represented
14
by no-name attorneys" receive "low-quality justice"
15
involving only a quick review of their briefs, no
16
oral argument, and an unpublished decision.
17 This is simply not the case in the Federal
18
Circuit. The Federal Circuit
holds oral argument
19
in every counseled case, whether the parties are
20
represented by a big firm or a small one. In pro
21
se cases a party may move for oral argument.
22
Whether we choose to make an opinion precedential
144
1
has nothing to do with whether the parties are
2 represented
by big or small firms or even whether
3
the appellant is pro se.
4 Indeed, a large number of our cases
5
involve federal employees who are seeking review of
6
Merit Systems Protection Board decisions or
7
veterans who are seeking review of decisions of the
8
Court of Appeals for Veterans Claims.
Many of the
9
appellants or petitioners in those cases proceed
10
pro se. Necessarily, our
precedential cases
11
include the cases, counseled or not, that raise
12
issues of importance to the development of the law.
13 It may be that in some cases a
14
well-seasoned attorney can find and raise an issue
15
that would not be raised by a less talented
16
attorney or by a pro se litigation, but again we
17
don't choose to make it precedential because of the
18
identity of the attorney or client.
It is
19
precedential because the issue should be addressed
20
and because it adds to the law.
21 Another comment that I would like to
22
address, submitted by the Association of the Bar of
145
1
the City of New York, argues in support of the
2
proposed rule that "there are many unpublished
3
opinions that address cases of first impression, or
4
are of constitutional dimension."
This cite as an
5
example our November 1999 nonprecedential opinion
6
in O'Connell v. Secretary of Health and Human
7
Services. That comment states
that a dissenting
8
judge in that case argues that a sectoin of the
9
Vaccine Act violates the Presentment Clause of the
10
Constitution, suggesting that the opinion should
11
not have been nonprecedential because it concerned
12
such a momentous issue.
13 The Bar Association's citation of that
14
nonprecedential opinion is a perfect example of why
15
the proposed rule is ill-advised and how the rule
16
will be abused by litigants. It
does not appear
17
that the authors of the comment read our decision,
18
in which it is expressly stated that the
19
constitutional issue was addressed in a
20
precedential opinion, Terran v. Secretary of Health
21
and Human Services, also a 1999 case.
The
22
O'Connell dissenting judge merely states that, as
146
1
he stated in his dissent in the Terran case, he
2
would hold the section of the Vaccine Act to be
3
unconstitutional. There is
nothing new in that
4
nonprecedential opinion that was not addressed
5
fully by the court in the precedential Terran
6
opinion. Learned counsel would
have cited the
7
precedential opinion.
8
We have fewer but no less
important
9
objections to the proposed change to Rule 35(a)
10
concerning determinations of a majority in en banc
11
cases. We are not convinced that
this is a rule
12
that needs to be uniform among the circuits. Each
13
court is different. What
possible concern can it
14
be to the parties how we vote in comparison to how,
15
say, the Fourth Circuit votes?
16 In the Federal Circuit we presently have
17
12 active judges. Under our
current and
18
longstanding local ruler we require the votes of a
19
majority, in this case seven, of the active judges
20
to take a case en banc. Often en
banc cases are in
21
the area of patent law, government contracts and
22 some
others that due to the complex issues raised
147
1
in those cases, call for en banc disposition.
2
Those cases often involved major corporations or
3
even multiple corporate entities, thus increasing
4
the possibility that judges may be recused from
5
voting on an en banc petition.
6 Nonetheless, we believe it is important
7
that a decision to take a case en banc require the
8
assent of a majority of the active judges. In this
9
way, every en banc cases carries the same weight,
10
in our view. If the proposed
rule were in effect,
11
the votes of four judges, only one more than a
12
regular panel, could grant en banc review and
13
indeed, decide a controversial issue binding the
14
whole court.
15 In fact, in my letter I noted that in a
16
recent case five judges were recused, leaving only
17
seven voting members. If four of
those seven, a
18
majority, granted en banc review, and the same
19
number of judges signed onto the en banc opinion,
20
the court could be bound by what in other
21
circumstances is considered a minority view.
22 If a majority of the recused judges
148
1
disagreed with the outcome of that en banc
2
decision, their only recourse would be to force
3
another en banc in a later case in which fewer
4
judges were recused. In that
situation the initial
5
en banc would not provide the permanent resolution
6
of the issue that is the justification for holding
7
an en banc proceeding and the court and counsel
8
would have been put to the considerable expense and
9
trouble of two en bancs where one would have
10
sufficed or even where an en banc review would not
11
have been necessary in the first place.
12 The committee states that the need for
13
national uniformity is the rationale for the
14
proposed en banc rule, citing 28 U.S.Code Section
15
2073, which requires that the Standing Committee on
16
Rules recommend to the Judicial Conference rules
17
that are "necessary to maintain consistency and
18 otherwise
promote the interest of justice."
19 The committee notes that the circuits are
20
split, that both of the primary approaches to
21
determining en banc status are "reasonable
22
interpretations," and then decides to follow the
149
1
approach of a minority of the circuits.
This, in
2
our view, is representative of our objection to the
3
proposed rule. A recognized
minority view is
4
imposed on the whole.
5 With this proposed rule I must again raise
6
my concern that the committee may be overstepping
7
its authority here when it attempts to tell the
8
courts how to interpret a statute, 28 U.S. Code
9
Section 46(c). That matter,
going to a statutory
10
interpretation, could be decided by a court of
11
appeals or the Supreme Court in case law. The
12
committee should not, under the guise of
13
consistency, attempt to intervene in the circuits'
14
disagreement concerning the interpretation of a
15
statutory provision.
16 In closing, the judges of the Federal
17
Circuit do not believe that the proposed rules
18
concerning citation of nonprecedential opinions or
19
the determination of an en banc majority should be
20
adopted. The proposed rules are
ill-advised. They
21
are not in the best interest of the administration
22
of justice in the Federal Circuit.
They do not
150
1
involve areas in which consistency is necessary.
2
The reason that the circuits vary on these issues
3
is in great part due to their history and because
4
of the determinations made by the judges regarding
5
what works best for each circuit.
Consistency
6
should not be sued to erase the historical
7
development of the law and procedures of the
8
individual circuits.
9 Mark Twain once said, "I am persuaded that
10
the world has been tricked into adopting some false
11
and most pernicious notion about consistency--and
12
to such a degree that the average man has turned
13
the rights and wrongs of things entirely around and
14
is proud to be 'consistent,' unchanging, immovable,
15
fossilized, where it should be his humiliation." I
16
cannot think of a better way to end.
Thank you for
17
your attention and I'm sorry for reading so fast
18
but I know it's been a long morning and I wanted to
19
get through it.
20 JUDGE ALITO:
We appreciate that.
21 May I ask a question about Rule 35(a)?
22
Congress provided in 28 U.S.C. Section 46(c) that
151
1
rehearing en banc may be ordered by "a majority of
2
the circuit judges who are in regular active
3
service." Now must that not
mean the same thing
4
everywhere in the country? How
can it be argued
5
that this concept of a majority of circuit judges
6
who are in regular active service can mean one
7
thing in one circuit and one thing in another
8
circuit? It's a unitary
statutory standard.
9 JUDGE MAYER:
It is. It's a statute that
10
is subject to interpretation and our court has
11
interpreted it to mean the majority of the active
12
judges, not the majority of the active judges who
13
are not recused. So if we have
12 judges that has
14
to be seven. That's how we have interpreted it. In
15
our view it seems like the interpretation that
16
should prevail but apparently it doesn't.
17 JUDGE ALITO:
If we were to recommend that
18
as the uniform national standard would you have an
19 objection
to that?
20 JUDGE MAYER:
Ours?
21 JUDGE ALITO:
Yes.
22 JUDGE MAYER: I
have an objection--well, I
152
1
don't want to get in too deep on this topic
2
because, as I said, it's something that could very
3
well be a matter in litigation.
I would say that
4
the prudent thing to do is not to have a rule, that
5
this committee should withdraw the proposal and
6
leave it alone. If it becomes
important enough to
7
somebody someday--I can't imagine why it would--it
8
could be a matter in litigation that could be
9
decided by the circuit or the court.
10 JUDGE ALITO: I
can give you an example of
11
why it could become important and this was when the
12
rule first struck me. I know
your court does not
13
have death penalty cases but we do and many of the
14
other circuits do. When we had
the absolute
15
majority rule in our circuit we had a case in which
16
rehearing en banc was denied under the absolute
17
majority rule, even though a majority of the judges
18
who were not recused voted in favor of rehearing
19
the decision affirming the denial of a habeas
20
petition by a capital defendant.
21 It just struck me, although I was not one
22
of the judges who voted for rehearing in the case,
153
1
it just struck me that the outcome of a case like
2
that should not depend on whether this individual
3
was prosecuted in the Third Circuit as opposed to
4
some other circuit that had the case majority rule.
5 Now in a case like that where it is the
6
outcome of the particular case that is so critical,
7
doesn't that argue very strongly in favor of
8
national uniformity?
9 JUDGE MAYER:
Well, when you start talking
10
about death penalty, and it is true that we don't
11
have death penalty cases, that makes it sound more
12
severe, but my view is that the interpretation that
13
we've adopted is correct. It
could be, as I say,
14
challenged in litigation some other time.
15 My point is the rulemaking procedure is
16
not the way to take care of this.
There's a
17
statute out there and the Rules Committee and the
18
Judicial Conference are not empowered, in my view,
19
to make these interpretations.
20 MR. McGOUGH:
Judge Mayer, it's always
21
dangerous, I think, to try to compartmentalize or
22
group like with like and this is going back to the
154
1
citation rule. But using Professor
Barnett's
2
paradigm or his groupings, he seems to say there
3
are nine circuits that allow citation of some form
4
or another and four that don't.
And the four that
5
he identifies are the Second, the Seventh, the
6
Ninth and the Federal Circuit.
7 There's a difference, though, that I see
8
in the rules between, on the one hand, the Second
9
Circuit and the Ninth Circuit and the rules, on the
10
other hand, of the Seventh Circuit and your
11 circuit. Second Circuit and the Ninth Circuit, at
12
least the edited versions I've seen seem to say you
13
may not cite them, period, nonprecedential
14
opinions.
15 JUDGE MAYER:
That's right.
16 MR. McGOUGH:
The Seventh Circuit and your
17
circuit seem to say you may not cite them as
18
precedent, which it seems to me is maybe far closer
19
to the circuits that say these aren't precedent but
20
you can cite them for persuasive value.
21
JUDGE MAYER: Well, you may be confusing
22
our court with the D.C. Circuit, maybe.
I don't
155
1
know. Our court says you may not
cite
2
nonprecedential opinions and indeed, you might get
3
sanctioned if you do. The only
time you can cite
4
them, and I've read the rule here, is if it's res
5
judicata or collateral estoppel or something and
6
that would usually arise in the same transaction,
7
anyway. It's another court
you're referring to,
8
not ours.
9 MR. McGOUGH:
Well, I was just looking at
10
Rule 47.6(b), which I think is cited, as well, in
11
your letter to the court. Maybe
not. At least the
12
footnote in Professor Mayer's article seemed to say
13
that an opinion order designated not to be cited as
14
precedent must not be employed or cited as
15
precedent, which seems sort of circular.
16 MR. LETTER: In
your letter that's quoted.
17
It says may not be cited as precedent, it says.
18 MR. McGOUGH:
Which seems to be wholly
19
circular and doesn't move your circuit that far
20
from the circuits that say these things aren't
21
precedent but may be cited for persuasive value.
22 My question is this.
Do you see cases
156
1
cited for persuasive value, nonprecedential
2
opinions cited in your court for persuasive value,
3
as opposed to for their precedential value?
4 JUDGE MAYER:
No, unless they've made a
5
mistake, and they're called on it frequently. It
6
doesn't happen very often but most of the time
7
they'll be called on it in the course of oral
8
argument. But you can use it for
precedential
9
value if it's a collateral estoppel--
10 MR. McGOUGH: I
understand the exceptions
11
but you also quoted a case which seemed much more
12
absolute in its language, that said may not be
13
cited, essentially, period.
14 JUDGE MAYER:
Right.
15 MR. McGOUGH: I
practice in the Third
16
Circuit mostly. I have an
occasional matter in the
17
Federal Circuit. I could find the
rule that says,
18
and I'm very likely to find the rule that says may
19
not be cited as precedent. I'm
unlikely to find a
20
rule or the case that says may not be cited,
21
period.
22 And I wonder if it wouldn't be confusing
157
1
to someone in my position to think I could say in
2
my brief I recognize that this is not precedent but
3
this is a nice turn of phrase or an interesting way
4 of
looking at the problem. I'm not citing
it as
5
precedent but I find it persuasive and the court
6
may find it persuasive. It seems
to me I would not
7
be in violation of the rule but I might be in
8
violation of this case.
9 JUDGE MAYER: Well, I believe you would be
10
in violation of the rule, as well, if it's being
11
read that way. Maybe our use of
the language is a
12
little looser than it should haven been. But as a
13
matter of practice I think it's very rarely that
14
people make the mistake of citing a nonprecedential
15
opinion because they understand what it is.
16 I think the solution to that problem, if
17
it is one, would be for our rules committee to take
18 a
look at it and to adjust it, send it out to our
19
advisory council for public comment and so forth,
20
because that is how we do it and there really
21
hasn't been a problem with it over the years.
22 MR. LETTER:
Chief Judge Mayer, I very
158
1
much welcome the assistance of you and your
2
colleague, my friend Judge Bryson, on trying to
3
understand this and I have a question for you.
4
Before I ask the question I have two observations.
5 One, on the uniformity point, remember
6
this committee has no authority whatsoever. All we
7
do is--
8 JUDGE MAYER:
Mr. Chairman, would you mind
9
if Judge Bryson joined me?
10 JUDGE ALITO:
No, not at all.
11 MR. LETTER:
Can I object?
12 MR. LEVY: This
is your chance to ask him
13 a
question.
14 MR. LETTER:
Remember that this committee
15
does nothing other than make recommendations. The
16
Supreme Court is the one that would actually set
17
any rule. So, for instance, on
the en banc, if it
18
decides to do that it would be the Supreme Court
19
that would do that after it having sat before
20
Congress. So all we do is make
recommendations to
21
the Supreme Court.
22 And second, I think Judge Wood, who I
159
1
think has left, made the same point, I had to say a
2
little derisively, saying look, if you lawyers can
3
find cases, you can find our rules.
Of course, I
4
can find your rules but I practice in every single
5
circuit. I practice in a lot of
district courts.
6 And it seems to me
saying I can find your rules is
7
justification for your saying in the Federal
8
Circuit opening briefs will be orange, whereas in
9
the Seventh Circuit they'll blue or the Ninth
10
Circuit they'll be green, et cetera.
So I think
11
there is massive value in uniformity, even if I can
12
find your rules.
13 The question that I'm really hoping that
14
you and Judge Bryson can help on is one that I'm
15
struggling with. From talking
with practitioners
16
and judges in the circuits that allow free
17
citation, my very strong impression is this is a
18
nonproblem, that the cases are very rarely cited.
19 I
disagree with my fellow Boalt alum, Sandy, that
20
this suddenly massively increases the job of the
21
lawyers doing research.
22 So it really doesn't seem to be a massive
160
1
burden on the attorneys. When I
do a case in the
2
Federal Circuit or the D.C. Circuit, I don't work
3
on them any differently. I
research them the exact
4
same, even though you have completely different
5
rules about citation.
6 So what is it that you view as a serious
7
problem to pick up on what Tom McGough was saying,
8
if all I do is say to you here's an interesting law
9
review article--here's your precedent, judges, your
10
published precedent, but by the way, here's a law
11
review article that I think is interesting, here's
12 a
district court opinion that you might find
13
useful, and here's a nonprecedential unpublished
14
opinion that was issued by your court a year and a
15
half ago?
16 I know it's not precedent. I know it's
17
not binding on you. You know
it's not. So what is
18
the problem with me pointing that out to you, as
19
well as pointing out the law review article, the
20
clever Shakespearian quote I toss in, et cetera?
21
Why does that trouble, since all you need to do is
22
say that's not precedent, it's not binding on us,
161
1
just like the law review article, just like the
2
Ninth Circuit opinion, the D.C.
Circuit opinion?
3
What am I missing? What's the
problem that's
4
caused for you by my putting that citation in the
5
brief?
6 JUDGE MAYER:
Let me just start. First of
7
all, your first point about treating this matter as
8
the same as what color the brief covers should be,
9
that is a purely ministerial topic.
I see no
10
problem with that.
11 This goes to the heart of the judicial
12
process and I believe it's questionable that the
13
rulemaking process, whether it's the Supreme Court
14
or anybody else, the rulemaking process can dictate
15
it.
16 Now I did explain and I read it fast, I
17
know, at some length as to the process we use,
18 anyway,
and of course I talked limited to our court
19
now and other courts are coming in with their own
20
perspectives, and we prepare these things entirely
21
differently. You're going to be
citing it in the
22
hopes that we're going to sign onto it.
I mean
162
1
it's not true that people are asking for permission
2
to cite something to be ignored.
3 And the final point, you said what's the
4 difference between our case and
Shakespeare. Well,
5
we know that Shakespeare is not legal, is not case
6
law in our circuit.
7 MR. LETTER: If
I cite a D.C. Circuit
8
opinion to you, you know that's not--I know that's
9 not binding on you and you know that's not binding
10
on you. You read it for interest
to decide whether
11
you want to go in conflict with it or go the same
12
with it. I assume pay close
attention to it.
13
Again why is it okay for me to cite it?
Does it
14
not cause you problems for me to cite a D.C.
15
Circuit opinion to you but I can't tell you about
16
something that your court did, again knowing I know
17
full well that it's not binding on you?
You know
18
that and I know that, just like the D.C. Circuit
19
opinion is not binding on you.
20 JUDGE BRYSON:
Well, it's not binding but
21 I
think we're specifically advised that we are to
22
pay very close attention to other circuit opinions
163
1
that may be in conflict with a position that are
2
inclined to take. I think that's
actually
3
established law.
4 What troubles me about this is perhaps
5
illustrated by this distinction that has come up a
6
couple of times, I think, between persuasive value
7
and precedent. I don't really
see that there's a
8
difference between persuasive value and precedent
9
in the sense that when you're talking about
10
opinions. Opinions, that's the
nature of
11
precedent, that they have persuasive value. Either
12
they bind you or they strongly indicate where you
13
should go.
14 And what worries me about beginning to
15
cite nonprecedential opinions for their persuasive
16
value or other purposes is that you get this kind
17
of creeping precedentialism. You
get this notion
18
that this is precedent that's perhaps not entitled
19
to the same degree of attention but it's entitled
20
to some degree of attention because it has
21
persuasive value, and that is going to have, I
22
think, down the line perhaps not cataclysmic
164
1
consequences but it will have the marginal effect,
2
increasing I'm concerned over time, of forcing us
3
to feel that we have to be more attentive to
4
precisely what we say, how we say it, as the Chief
5
Judge was saying, in our "nonprecedential
6
opinions," which becomes these kinds of
7
quasi-precedents.
8 The other concern that I have is, and this
9
is peculiar perhaps in many respects to our court,
10
but there are areas of our practice, and I think
11
the chief judge mentioned, for example, the
12
typically pro se federal employee cases, a pretty
13
substantial chunk of our cases, typically not
14
briefed very well, either on the appellants' side,
15
the federal employees pro se, or candidly and with
16
apologies to the Department of Justice--
17 MR. LETTER:
You're not going to say that,
18
are you?
19 JUDGE BRYSON:
Let me say charitably that
20
sometimes the Department of Justice doesn't feel
21
challenged as much as they do in other cases and
22
sometimes we don't get the kinds of thorough and
165
1
careful briefing that we do in other counseled
2
cases in that area.
3 Our concern is that it's much easier in
4
those kinds of cases than in the case in which
5
counsel are on both sides of the case and when the
6
case is vigorously disputed, it's much easier for
7
us to miss things because the counsel don't call
8
them to our attention, for us to have opinions that
9
just flat out miss things that are out there. And
10
if we have to confront those cases and deal with
11
them, even as persuasive authority, it, I think,
12
makes our task a lot harder.
13 It does happen that we have cases when an
14
issue will ultimately arise in the federal employee
15
area when an issue just hasn't been previously
16
briefed, that it's been in the case but it hasn't
17
really been presented well enough to call itself to
18
our attention, and that's a concern.
19 JUDGE STEWART:
To follow up on Doug's
20
question, because I'm trying to understand the
21
argument, as well, and I opposed the question to
22
Judge Wood because it strikes me that much of the
166
1
opposition and viewpoints really are merging the
2
noncitation and the precedential issues, which one
3
could argue are two separate questions very
4
adroitly avoided by the proposed rule, but it seems
5
in the eyes of many they are read and Judge Wood
6
acknowledged that she viewed those as intertwined.
7 So trying to understand your answer
8
collectively to Doug's question, I'm trying to
9
understand because we get cited to district court
10
opinions all the time on matters which obviously
11
aren't binding to me as a circuit judge but the
12
cognitive processes just don't find it difficult to
13
discern it in that plane--you know, read it as
14
persuasive, dismiss it or something.
But it just
15
seems collectively in some of the answers that
16 because
it's a circuit unpublished opinion, somehow
17
the demarcation of what you described as creeping
18
"precedentialism," which I thought was an
19
interesting term, is that really the core of the
20
opposition, this foot in the door kind of notion of
21
creeping precedentialism? Not
these other issues
22
of parade of horribles about all the workload.
167
1 People can differ about those and there
2 isn't any evidence on
the table about on that but
3
is the core of it really the question of to the
4
extent you have to look at it, it therefore may
5
become binding in sort of a jail with no bars
6
notion? Is that really the core
because if so,
7
perhaps that's a powerful argument not to. All
8
these other arguments, the way they're labeled,
9
that seems to be a theme in a lot of instances that
10
yes, the rule is proposed as nonprecedential but
11
really at the core of it is it's the first step
12
toward should all circuits publish all opinions for
13
precedential value? Is that the
way I should be
14
understanding the opposition?
15 JUDGE BRYSON:
No. Just for myself and I
16
think there are a variety of different views as to
17
the potential mischief among the opponents of the
18
rule, but I think for myself and I think I speak in
19
this respect for a number of others, I think that
20
is the real concern. And it's
not just the foot in
21
the door as such, although it's interesting that
22
many of the proponents of the rule see it as
168
1
ultimately leading to what is the most favored
2
consequence, which is to have all opinions
3
precedential.
4 But setting that aside for a moment
5
because that's not what this rule would do, at
6
least not in its present form, I do think that
7
there's a problem that if you say you may cite this
8
and people cite it, well, why are they citing it?
9
They're citing it because they want you to follow
10
it. They want you to do pretty
much the same thing
11
as you did in this case that they have found.
12 Now you may not be "bound" to do it but
13
the whole purpose of the exercise of putting that
14
citation in is to try to push you in the direction
15
of doing what was done in that case, which is what
16 I
mean when I say creeping precedentialism.
It's
17
that you are asking a court to give some weight to
18
something that that court feels very uncomfortable
19
giving weight to and either one of two things is
20
going to happen. Either you will
break the promise
21
implicit in the citation rule by saying we aren't
22
going to pay any attention to this and to heck with
169
1
the Appellate Rules Committee; we're just going to
2
allow you to cite it but we will never, never pay
3
attention to it, or you will end up giving it up
4
weight, which is contrary to what we think the
5
right approach to nonprecedential--
6 JUDGE STEWART:
Short follow-up. But why
7
is that repugnant? Why is that
repugnant, though?
8
Yes, when they cite the district court opinion to
9
me from the Southern District of New York or an
10
area in which we have no law.
Well, I'm not
11
offended as a circuit judge that some district
12
court judge doing the real work in the trenches has
13
confronted this problem--we have no law on it--as
14
part of the calculus of me deciding how to come out
15
on this case.
16 So I just can't quite follow the notion
17
that because another panel in an unpublished
18
opinion approached this and came out bare facts as
19
outlined, but as at as one piece of 1,000 pieces in
20
the calculus of decision-making, why is that
21
repugnant to the decision-making process because
22
it's a circuit opinion versus Shakespeare or
170
1
something else that's cited as persuasive? As
2
judges I'm sure you do; we ignore, don't read,
3
reject a whole warehouse of information that's put
4
forth, and I'm totally separating out the pro se
5
issues because those are issues unto themselves but
6
even from lawyers.
7 So I guess the bottom line is why is it
8
more difficult to ignore, don't follow, don't read,
9
et cetera, that opinion cited, more so than it is
10
for me to ignore the Southern District of New York
11
district judge's opinion? I
guess simplified, why
12
is that more difficult or is it qualitatively so
13
that as a member of this committee I really ought
14
to put more weight on that perhaps than some other
15
points?
16 JUDGE MAYER:
Well, we know that the
17
Southern District of New York opinions or any
18
district court opinion is not binding precedent.
19
It's not binding precedent on the district court
20
itself. They could decide issue,
if it thought
21
better, it could decide the issue the opposite way.
22
But in our case we have applied our precedent.
171
1 I mentioned in the hearing this cacophony
2
of the law. We have in our court
anyway, discrete
3 areas of
jurisdiction. We have a multitude of
4
cases interpreting, and it's mostly statutory,
5
statutory provisions. What we
then see is multiple
6
cases coming along with slightly different fact
7
patterns that we feel is redundant and not helpful
8
to be throwing out there for lawyers to try to look
9
for some nuance, some word choice that some overly
10
ambitious judge wrote to try to sound a little bit
11
different from the other opinion when he didn't
12
mean it to be different.
13 So we're basically just saying now here's
14
the principle and we've decided that in a number of
15
cases you win or you lose for that reason.
16 The other thing is, you know, you're going
17
to have a lot of these nonprecedential opinions
18
that have no development. They
have no factual
19
development. They're very thin,
very thinly
20
argued. They're going to be
cited to us for the
21
nice language that's in there. I
think that it
22
would be incumbent upon counsel, if they're going
172
1
to use nice language, to go out and find out first
2
whether the fact pattern of that case has anything
3
to do with what we're deciding in the case that
4
it's being cited for. If not,
then I think you
5
should be concerned about sanctionable conduct to
6
be citing things as judicial precedent or citable
7
precedent, persuasive precedent, for something that
8
has absolutely nothing to do with our case.
9 JUDGE BRYSON:
If I could just add--I
10
agree with that but if I could just add two quick
11
points in perhaps partial response.
12 One is as has been said before and I think
13
there's truth to this, if you say that these things
14
can be cited, just internally I know what effect it
15
will have on me personally, which is I'm going to
16
spend more time on the nonprecedential opinions.
17
There's a limited amount of time available to us
18
and you know, as do all of the appellate judges, we
19
are pretty hard pressed and it's going to come out
20
of somebody else's hide. The
question is an
21
allocation of resources. Do you
want it to come
22
out of the hide of the precedential opinions? Do
173
1
you want it to come out of the hide of preparation
2
for oral argument, and so forth?
That's the first
3
point. It's just a natural human
response to this
4
will be to be more cautious about the
5
nonprecedential and that translates into time.
6 The other factor is one that's been
7
mentioned here a little bit and I think perhaps not
8
enough. That is and I think even
some of the
9
proponents of the rule and the proponents of an
10
even broader rule of having all opinions fully
11
citable and fully entitled to precedential weight,
12
is that the way we could deal with the time problem
13
is simply to have more judgment orders, those
14
wonderful one-line orders that just say "Affirmed,"
15
in our case "See Rule 36."
16 Now I didn't like those when I was
17
practicing. At least I liked
them when they were
18
in my favor. I didn't like them
when they came out
19
against me. I don't think any
lawyer who's out
20
there who gets a nonprecedential judgment order
21
would prefer that to getting a nonprecedential
22
opinion that explains the reasons why the lawyer
174
1
lost, gives the lawyer a basis on which, for
2
example, to petition for cert if there's a cert
3
issue in there.
4 I think it's a good thing that we have
5
nonprecedential opinions, as opposed to judgment
6
orders. It forces us to confront
the questions in
7
the case and just do what the opinion-writing
8
process is partly intended to do, which is to force
9
us to actually confront the questions in a writing
10
format that sometimes leads us to draw different
11
conclusions about the case. That
just doesn't
12
happen in a nonprecedential order.
13 MR. LETTER:
Judge Bryson, just one
14
follow-up from that. Don't you
already have that
15
concern, though, because your decision, your
16
nonprecedential unpublished decisions are already
17
citable in 90 something percent of the federal
18
courts in the United States because the district
19
courts, I think either none or almost none have
20
rules against citing unpublished court of appeals
21
opinions. And my colleagues who
practice in the
22 district courts routinely cite unpublished court of
175
1
appeals opinions and the district judges routinely
2
refer to them.
3 So one, you already should know that your
4
unpublished opinions are picked up, cited and
5
relied on. And second, I
inadvertently discovered
6
the other day a Ninth Circuit opinion that cites
7
approvingly on the merits, not for res judicata or
8
anything, an unpublished Second Circuit opinion.
9
So here we have two circuits with rules against
10
publication and yet the Ninth Circuit actually
11
cited this unpublished Second Circuit opinion,
12
which again shows me that if you were, as you sit
13
and work on those unpublished opinions, you have to
14
understand that in almost every federal court in
15
the United States those are citable.
16 So don't you already have the problem? In
17
other words, it's only in about four courts that
18
they're not citable. And, as we
know, they're
19
citable in the Supreme Court.
There are five cases
20
this term involving unpublished court of appeals
21
decisions. So your words in your
unpublished
22
decision may end up in the Supreme Court, too.
176
1 JUDGE BRYSON:
Well, I think it's a matter
2
of degree. It would be a bigger
factor if it were
3
in the briefs that we see than in the briefs that
4
the District of Nevada court sees.
5 MR. LEVY: I
wanted to follow up on a
6
comment of Judge Bryson a moment ago.
Your court
7
may be different and that's really the question I'm
8
asking, but the judges around the country have been
9
very candida and it's been quite revealing to hear
10
their own descriptions of their unpublished
11
nonprecedential decisions. We
hear, for example,
12
that the judges don't really write those opinions.
13
They're done by staff attorneys.
They agree
14
perhaps only on the bottom line and don't agree
15
with what the staff attorneys have put down on
16
paper.
17 I wonder how much good it really does the
18
parties or the lawyers in the cases with these
19
nonprecedential opinions to be given what purport
20
to be reasons of the court that from what we've
21
been told in many instances are not reasons of the
22
court.
177
1 JUDGE BRYSON:
Well, as Chief Judge Mayer
2
mentioned, we don't have the practice of having
3
opinions drafted by staff counsel.
All of our
4
opinions, precedential and nonprecedential, are
5
written in chambers. I've got a
nonprecedential
6
opinion right here I'm working on.
7 JUDGE MAYER:
That's because I told him he
8
wouldn't have to say anything or do anything, just
9
listen.
10 JUDGE BRYSON:
But it is part of our
11
culture, and again the culture varies from court to
12
court; for instance, I think one of the reasons
13
that I think this sort of procrustean uniformity
14
principle doesn't really apply here or shouldn't.
15 But yes, our practice is for the judges to
16
exercise the same kind of supervisory role with
17
respect to the preparation of opinions whether
18
they're nonprecedential or precedential, which may
19
mean that for us, there's somewhat less of a
20
difference in the amount of judicial time spent on
21
them but I can tell you there's still some and if
22
we narrow the gap in the amount of time, the
178
1
investment of effort that goes into the
2
nonprecedentials, since there are so many of them,
3
you just increase the expenditure of time and I
4
think, on balance--this is where we ultimately come
5
down--on balance, the game is not worth the candle.
6 JUDGE ROBERTS:
I agree with Judge
7
Stewart. I think there is a need
to keep separate
8
precedential, nonprecedential and the citability
9
issues. I guess the best way to
do that is to ask
10
have either of you ever looked at nonprecedential
11
opinions in the course of preparing for argument or
12
preparing for a decision or preparing an opinion?
13 In other words, if your law clerk in to
14
you and says, "Your Eminence, I have found an
15
unpublished opinion from our court two months ago
16
that is on the exact same question; it really helps
17
resolve the case. Here, look at
it." I mean do
18
you say no; I know that not as much care went into
19
that as an opinion? I know that
that's not binding
20
precedent; I don't want to see it?
21 I assume the answer is no, that you look
22
at it and you give it whatever worth or value you
179
1
think it deserves, appreciating that you're not
2
bound by it.
3 So my question is if you actually do look
4
at these things, why won't you let the lawyers tell
5
you about them?
6
JUDGE MAYER: I don't know that the answer
7
is yes. I don't recall anyone
bringing them in to
8
me but that's because we know that they're
9
nonprecedential and we don't want to fool with
10
them. But we did look at them in
the case that was
11
written about in some of this material, the Symbol
12
Tech case, which was the question of whether
13
nonprecedential opinions are unconstitutional and I
14
wrote the opinion and I ignored prior
15
nonprecedential opinions, didn't even mention them
16
in the opinion and my colleague in dissent felt
17
compelled to go into it which, of course, is the
18
fear. And, of course, our court
as a whole did not
19
join that dissenting view or raise the question.
20
Our process was followed and the case came out but
21
that matters what might or might not happen.
22 I personally don't think that I'm not
180
1
going to look at them because I know what we
2
intended by them and if some of my colleagues
3
didn't see it otherwise, I guess I can't help it,
4
but it wouldn't be healthy.
5 JUDGE BRYSON:
My own experience is that
6
I've looked at them but no more than a handful and
7 I
think not even a very full hand. One of
them was
8
one that I had written, which went the other way
9
from the way that I thought was clearly pointed and
10
all I could say to my law clerk when he presented
11
this to me was, "What was I thinking?" And, of
12
course, I blamed it on the lawyers for not having
13
briefed the case adequately.
14 But it isn't something we regularly do,
15
partly because of the nature of our jurisprudence.
16 A
lot of these cases are either in the employee
17
area where the issues just weren't raised or in the
18
plain construction area in patent cases where each
19
case is really sui generis.
These are like
20
contract construction issues and each patent is
21
different, so you just are not likely to have very
22
similar issues arising and they just don't come up.
181
1 JUDGE ALITO:
Thank you very much. We
2
appreciate your comments.
3 I'm going to have to depart from what I
4
said earlier. I had promised
Chief Judge Walker of
5
the Second Circuit that he could testify at 10:30.
6
We're well past that now and he has to leave, so
7
I'd like to take him out of order now.
8
STATEMENT OF THE HON. JOHN M. WALKER, JR.
9 JUDGE WALKER:
Thank you very much, Mr.
10
Chairman. I want to thank the
committee for
11 permitting
me to speak in opposition to the rule,
12
proposed Rule 32.1. As has been
pointed out, 18
13
other judges on my court join in this position.
14 The focus of this brief statement is going
15
to be to highlight the major problems that are, I
16
think, posed by this effort to impose what I
17
believe is a one-size-fits-all rule on appellate
18
courts and in particular, the way the rule will
19
affect the Second Circuit. Let
me just give you a
20
little bit of background as far as we're concerned.
21 Pro se appeals constitute about 40 percent
22
of the Second Circuit's docket and insubstantial
182
1
sentencing and immigration appeals comprise a
2
significant portion of the balance.
The great
3
majority of these cases are disposed of by what we
4
call summary orders, which are usually a page or
5
two, that provide the litigant with a concise
6 outline
of the panel's reasoning in support of the
7
disposition.
8 Permitting citation of summary orders, we
9
think, promises to add considerable extra work for
10
judges and lawyers with very limited, if any,
11
benefit to the adjudicatory process.
12 First of all, I just want to say that I do
13
believe that it's not appropriate for the Rules
14
Committee to establish this kind of uniform rule in
15
this way. Each circuit has
historically been given
16
autonomy in determining how best to conduct its own
17
business and to allocate its scarce resources. And
18
this autonomy, I think, is exemplified by the
19
various no-citation rules promulgated by each
20
circuit that are out there now and also that were
21
done in response to the Judicial Conference's
22
exhortation in the late 1960s and early 1970s to
183
1
devise such rules in order to curtail the
2
burgeoning body of case law being created as a
3
result of rapidly expanding caseloads.
This
4
mandatory rule would directly, I think, interfere
5
with this autonomy.
6 While there may be satisfactory reasons to
7
encourage the circuits to revisit their rules in
8
light of technical innovations and the ready
9
availability now of unpublished decisions to
10
litigants, as several circuits have done, the
11
matter really should be left to the discretion of
12
each circuit court.
13 And in any event, I firmly believe that
14
the Judicial Conference should not go beyond
15
requesting courts to consider changes to their
16
internal practices, just as the conference did in
17
1965 and 1973 going the other way.
A request for
18
consideration is very different from a mandatory
19
rule and it preserves local court autonomy in
20
dealing with these questions.
And I can assure you
21
that we would approach any such request, if it came
22
to that, with a completely open mind.
We're
184
1
mindful of the changed dynamics that may be out
2
there now, particularly with the fact that they're
3
all published on line.
4 In any event, even if there is some merit
5
to the contention that citation should be allowed,
6
and it's a view that I disagree with, the impact of
7
adopting this rule will be different in each
8
circuit and I think that therefore each circuit
9
ought to be allowed to make its own determination.
10 Also I believe that the rulemaking process
11
really, if you look at the statutes, and I'm
12
talking about the rule's enabling acts and
13
specifically in Title 28, U.S. 2071 through 2077,
14
you'll see that those rules, the rules' enabling
15
acts, generally apply to rules that do not dictate
16
changes to the substance and legal import of
17
courts' decisions and determine how a court will
18
manage its caseload. Rule 2077,
Section 2077 makes
19
clear that there really is no role in those
20
circumstances to be played by the Judicial
21
Conference or any of its committees in promulgating
22 a
circuit court's rules for the conduct of its
185
1
business.
2 Now the fact that several circuits have
3
allowed citation to unpublished decisions, with or
4
without restrictions as to their use, in my view
5
does not justify the uniform national rule. Each
6
circuit does have different workloads.
Judge Wood
7
pointed this out. We have
different workloads,
8
different compositions of its caseloads, the types
9
of cases that it has, and different cultures,
10
different relationships with its communities.
11
Therefore I think even where no-citation rules may
12
be identical, when they're abandoned they will have
13
different impacts on the conduct of the court's
14
business in different circuits.
15 This rule, I think, will impose
16
substantial burdens on the courts.
The proponents
17
have argued that there really is no increased
18
burden on the courts because the courts can devise
19
internal rules, can manage it, manage the problem.
20 I
think that this argument, which focusses
21
primarily on the difficulties that a court may
22
encounter when litigants cite unpublished opinions
186
1
to them, is wrong for two reasons.
2 First, as the Advisory Committee itself
3
acknowledges, the reason that unpublished opinions
4
will be cited is for their persuasive value. A
5
future panel confronted with an argument that
6
relies on an unpublished opinion is placed in the
7
difficult position of determining and explaining
8
whether the unpublished opinion is persuasive,
9
whether it was intended to be persuasive by the
10
issuing panel.
11 Now this may necessitate additional work,
12
the additional work of searching out and reviewing
13
briefs and other materials related to the
14
unpublished opinion, but that burden, in my view,
15
will pale in significance to the burden on the
16
panel that is drafting these orders, summary
17
orders, in the first place. That
burden stems from
18
the necessity of trying to forecast how the
19
disposition could be interpreted by a future panel
20
to which it's cited. And I don't
think the
21
committee and the comments that I've seen have
22
really focussed on this aspect of it enough.
187
1 In the Second Circuit, summary orders, our
2
summary orders typically provide concisely reasoned
3
explanations for the court's decision but they do
4
spare much of the factual and procedural
5
elaboration that would be necessary to permit
6
application of the decision to other cases. As a
7
result, they take, on average, a matter of hours to
8
prepare whereas signed published opinions, which
9
are scrutinized for their effect in future cases,
10
usually take weeks, sometimes just days but usually
11
weeks and in some cases, major cases, obviously
12
longer. They also involve
extensive work by three
13
chambers, as opposed to the summary orders.
14 So the efficiencies that are garnered in
15
preparing summary orders, I think will be lost if
16
they become susceptible to citation in future
17
cases. The authoring judge will
no longer be
18
assured that shorthand statements of fact and law,
19
clearly understood by the parties and relevant to
20
their consideration--they're the only constituents
21
there--will not later be scrutinized for their
22
legal significance by a panel not privy to the
188
1
specifics of that case.
2 And second, the argument that the courts
3
will be able to modify the way they prepare
4
unpublished dispositions to accommodate the rule I
5
think rests on unrealistic assumptions that there
6
is homogeneity among the judges in a given circuit
7
and that is plainly not the case.
Judges who are
8
drafting these rules will approach them
9
differently.
10 We just heard from one judge who stated
11
that if they're citable, he's going to spend a lot
12
more time working on them and make them proper
13
vehicles for conveying the law of the circuit.
14
Other judges will not take that view.
Other judges
15
will resort to one-line dispositions, particularly
16
in the face of increasing caseloads, such as we
17
have in the Second Circuit, where our caseload has
18
been going up steadily and is now at about 6,000
19
cases a year. And still other
judges will change
20
nothing to what they do presently.
21 I think there's no compelling reason for
22
permitting citations that justifies implementing
189
1
this kind of a sea change, at least in the culture
2
of the Second Circuit and in the Second Circuit.
3
The argument that lawyers are going to be
4
inconvenienced by having to pick through
5
conflicting no-citation rules of the circuits I
6
think is a red herring. Lawyers
have to do this
7
kind of thing anyway with respect to the local
8
rules and every self-respecting lawyer examines the
9
local rules before appearing or filing a brief.
10
Certainly that's a minor inconvenience that cannot
11
justify, in my view, forcing courts to make such a
12
pronounced change in the way they conduct their
13
business.
14 And I don't think there can be a serious
15 contention
that there's a dearth of case law out
16
there for lawyers to review in preparing their
17
cases. The expectations of the
Judicial Conference
18
back in the early '70s have been more than
19
realized. We're now in the third
Federal Reporter
20
series at Volume 360. It's taken
us about 10 years
21
to get there. When the second
series was published
22
it took about 42 years to get to Volume 360.
190
1 Now while it's true that lawyers will no
2
longer be plagued with the herculean task of
3
picking through the conflicting no-citation rules,
4
they will be able to impose, I think, increased
5
litigation costs on their clients by picking
6
through the greatly expanded base of citable
7
opinions and examining the relevant ones with
8
greater care in preparing briefs.
9 The proponents that assert that lawyers
10
are unlikely to feel compelled to search
11
unpublished decisions for cases that support their
12
positions, particularly if they've found one that
13
supports their position, have ignored the fact that
14
lawyers will nevertheless have to, I think, waste
15
valuable time researching and devoting briefs in
16
responding to unpublished decisions that contradict
17
their position, in anticipation that such decisions
18
will be cited by their adversaries or even the
19
court.
20 Now from our perspective, the perspective
21
of the Second Circuit, the consequences of the
22
rule, I think, will disserve the appellate process
191
1
and will hurt litigants. If, in
response to this
2
rule, judges spend more time elaborating
3
unpublished decisions, the entire appellate process
4
will be delayed. It will be
delayed in preparing
5
these summary orders, in the detail and the work
6
that will have to go into them because we know that
7
they will be cited. It'll also
delay obviously the
8
fully published signed opinions that are normally
9
issued because, as has been pointed out, judges
10
have a finite amount of time within which to work.
11 In my court where about two-thirds, maybe
12
more now, of the cases are decided by summary
13
order, our disposition rate will be delayed
14
significantly, I think, to the detriment of the
15
litigants and the bar.
16 Moreover, because the bulk of our caseload
17
comprises pro se appeals, unsupported essentially,
18
broadly stated, that are often unsupported by any
19
legal basis, and rather routine sentencing and
20
immigration appeals, the considerable amount of
21
extra work that is imposed on judges and lawyers
22
will result in few, if any, valuable additions to
192
1
citable case law while, I think, generating a glut
2
of redundant and insignificant decisions to be
3
waded through for possible nuggets of value.
4 In addition, as two federal defenders in
5
New York have pointed out, Barry Leiwant and
6
Leonard Joy, who, by the way, strongly oppose this
7
proposed rule, the rule could reinstate many of the
8
inequities that prompted some no-citation rules in
9
the first place and that have been ameliorated by
10
the advent of Westlaw and Lexis and their
11
publication. Large firms and
government offices
12
will be able to devote their considerable resources
13
to ferreting out briefs and other court materials
14
pertaining to sparse unpublished decisions in order
15
to provide greater context and thereby bolster
16
their persuasiveness.
17 They won't just cite the summary order;
18
they'll cite the summary order and then they'll
19
cite the briefs and they'll cite the surrounding
20
context in order to make their argument. These
21
litigants will have a distinct and unfair advantage
22
over litigants with fewer resources and in
193
1
particular, the many indigent litigants that file
2
actions against government entities.
3 And finally, where many proponents have
4
argued that citability will result in greater
5
transparency in appellate proceedings, the exact
6
opposite is more likely in the Second Circuit where
7
faced with the choice of either providing
8
sufficiently detailed explanations of its decisions
9
to prevent distorted applications in future cases,
10
the court will either do that or will issue on-word
11
dispositions and more panels in our court, with
12
rising caseloads, I think will go that route out of
13
sheer necessity.
14 Thus, if that's the case, the most
15
poignant hardship that will result from Rule 32.1
16
is that it will deprive litigants, many litigants,
17
primarily the most vulnerable, of the explanation
18
for the court's disposition and with it, the
19
assurance that the court understood and actually
20
reckoned with the contentions that were raised on
21
appeal. Thus, whether the rule
forces us to issue
22
longer, more elaborate unpublished decisions with
194
1
consequent delay and misallocation of judicial
2
resources, or to do away with giving explanations
3
altogether, leaving parties bewildered and
4
short-changed, the appellate process will be the
5
worse for it.
6 So in conclusion, I ask the committee to
7
reject proposed Rule 32.1 and to adhere to the
8
principle of local autonomy in matters affecting
9
how a court conducts its own business.
Thank you.
10 JUDGE ALITO:
Thank you.
11 Questions?
12 If I could just ask you briefly
13
essentially the same question I asked Judge Wood,
14
would you see any value in a study about what
15
effect the elimination of no-citation rules has had
16
in the circuits that have eliminated no-citation
17
rules or never had them? Do you
think that that
18
might cause your court to reconsider its position
19
on this?
20 JUDGE WALKER:
I can see no harm in a
21
study and if the committee adopts in principle
22
local autonomy and exhortation as opposed to
195
1
command decisions, I can assure you that we would
2
examine the study carefully to revisit the
3
question. I'm not saying how we
would come out but
4
we have an open mind on this subject and I would
5
hope that if such a study were done and it was done
6
carefully and persuasively, that then I see no
7
reason why our court wouldn't look at it very
8
seriously. But we would, in the
last analysis,
9
like to be able to make that decision ourselves.
10 MR. LETTER:
Judge Walker, just one
11
question. Given that there are
clearly widely
12
varying and strong views on this, wouldn't it make
13
sense for us as a committee--and your answer may be
14
no but I'm phrasing it--wouldn't it make sense for
15
us as a committee to send this up the line so that
16
frankly the Supreme Court is the one who makes the
17
decision, rather than us?
Because it may very well
18
be that many of us agree with you on local option
19
but nevertheless understand that many disagree.
20 So again shouldn't this be passed up so
21
that this,since this is so controversial and
22
apparently difficult, shouldn't the Supreme Court
196
1
make that decision rather than this committee?
2 JUDGE WALKER:
This is really how you want
3
to conduct your business and how you see your role.
4
I'm not in a position to really advise you on that.
5 I
mean it would seem to me that your
6
recommendation, if it's going to have merit, should
7
be what you honestly and sincerely think the rule
8
ought to be, not some situation that other people
9
can throw stones at if it's not an honestly held
10
position on your part.
11 I would expect this committee to vote its
12
conscience and to reach a decision that they
13
believe in, as if they had the final
14
decision-making authority. It's
your best
15
recommendation and you've been tasked with this job
16
as experts in this area.
17 MR. LETTER:
But if we recommend against,
18
it doesn't go to the Supreme Court.
I think the
19
way the system is set up, it doesn't go to the
20
Supreme Court, so even if the Supreme Court
21
disagreed with us, it would never get to them. The
22
only way, as I understand it, that it would get to
197
1
them is if we passed it along, maybe saying there's
2
significant disagreement here and that's why we
3
think the Supreme Court, you ought to decide it.
4 JUDGE WALKER:
That's a course you could
5
take. Another course you could
take would be if a
6
majority of you felt that the rule was worthwhile
7
or the idea anyway of citing unpublished opinions
8
was worthwhile, that you would propose a rule, as
9
was done in the late '60s and early '70s, strongly
10
encouraging courts to consider this and in light of
11
the fact that it's a practice in other circuits,
12
although not a uniform one, and although with
13
restrictions. And under those
circumstances it
14
seems to me every court would be mindful of that
15
and would also not be as bipolarized, if you will,
16
on this issue.
17 If your thinking was that this would make
18
sense, then why not just encourage courts? That's
19
something also that I think just flatly as a member
20
of the Judicial Conference would be viewed very
21
differently by the Judicial Conference than a
22
mandatory rule, which is, in my view, intruding
198
1
into the way courts conduct their own business and
2
how they manage their own unique caseloads.
3 JUDGE ALITO:
Judge Levi?
4 JUDGE LEVI: I
recall that your rule is
5
one of the stricter ones.
6 JUDGE WALKER:
It is.
7 JUDGE LEVI: My
question is this. One
8
reason that attorneys want to cite unpublished
9
opinions, as I understand it, isn't only for
10
persuasive value but as a fact.
This is the way a
11
rule is being applied. This is
where a rule is
12
being applied. This is a fact
piece of evidence
13
that might be argued in a qualified immunity case
14
as to whether law is clearly established or not.
15 Would your rule permit a lawyer to argue
16
not that you should follow these cases but that
17
these cases are there and therefore certain
18
inferences could be drawn in the current case? For
19
example, if I want to say to the panel we need a
20
clearer rule in this area because look what's
21
happening in some of these unpublished opinions,
22
I'm not relying on them for authority but simply as
199
1
facts. Can I do that?
2 JUDGE WALKER:
That issue has not come up.
3
My court has not ruled on that particular question.
4
We do permit it, obviously, for any case-related
5
determination--res judicata, collateral estoppel,
6
law of the case, that kind of thing.
And as far as
7
drawing a distinction between persuasive and fact,
8 I
think that if they were to--given the ingenuity
9
of the New York bar, they'd start citing these
10
things for their factual value and not for their
11
persuasiveness and we'd be in the same situation
12
we're opposed to.
13 JUDGE ALITO:
Any other questions?
14 Thank you very much, Judge Walker. We
15
apologize for the delay.
16 JUDGE WALKER:
Not at all.
17 JUDGE ALITO:
We'll hear from Carter G.
18
Phillips of Sidley Austin Brown & Wood.
19 STATEMENT OF CARTER G. PHILLIPS
20 MR. PHILLIPS:
I appreciate the
21
committee's indulgence. I've
promised to be very
22
brief, in large part because most of the
200
1
observations that I would make as chairman of the
2
Advisory Council of the United States Court of
3
Appeals for the Federal Circuit have already been
4
made by the two judges who have ably expressed
5
their viewpoints in opposition to Rule 32.1.
6 I think I would just like to say two
7
things. One, the Advisory
Council is comprised of
8
lawyers, both government and nongovernment, large
9
firms, small firms. We were
asked to develop a
10
position if the council was in agreement about what
11
position to take with respect to Rule 32.1. I was
12
quite stunned, frankly, by the unanimity in
13
opposition to it and I think it's a testament,
14
frankly, to the way the Federal Circuit basically
15
decides cases and the general consensus that it's a
16
process that, on whole, seems to be quite fair and
17
that any significant departure from that process
18
would be one that would be of grave concern to
19
practicing lawyers, which leads me to the only two
20
points I really want to make, which is what will
21
the effect of the rule be for those of us who
22
practice before a court like the Federal Circuit?
201
1 I think you have to take Judge Bryson's
2
assessment here at face value and I believe it's
3
two. One of two things will
happen. Either more
4
time will be devoted to nonprecedential opinions,
5
which will, I don't think detract from the time
6
that's devoted to precedential opinions because all
7
judges place far too much significance on the work
8
product that they put out under their own name. So
9
the only way that it can make a difference is the
10
way Judge Walker described, which is that it will
11
delay the outcome of these cases.
12 And I can tell you as a practicing lawyer
13
in a lot of courts of appeals who has a lot of
14
clients, there is nothing more frustrating and more
15
difficult to explain away than delay.
Now
16
fortunately in my own practice, most of it's in the
17
United States Supreme Court and the one thing in
18
know to a moral certainty is when we get to the end
19
of June of a term we're going to get all the
20
opinions that that court has to hand out.
21 That's not true with the courts of
22
appeals, obviously, and there are lots of cases
202
1
that stay pending for a long time.
They get lots
2
of phone calls to lawyers from their clients about
3
what's going on when the second, third, fourth,
4
fifth month goes on. And to the
extent that any
5
change in the rules is going to delay this process
6
any greater, I think it's a profound mistake.
7 The flip side is the only way then to
8
avoid greater delay, it seems to me, is going to be
9
the issuance of the one-word orders and that is
10
even more difficult to explain away to a client.
11 Now blissfully in my own practice, most of
12
my clients have issues that if they come to me and
13
ask for an appeal, it usually is the kind of thing
14
that will, in fact, generate an opinion, but we do
15
an awful lot of pro bono work for individuals in a
16
lot of different circumstances and a lot of those
17
cases do not involve significant issues and there's
18
nothing that a practitioner appreciates more than
19
even a two- or three-page explication of what the
20
panel was thinking about because then you can go
21
back to that individual and explain that the
22
process worked, that this assessment of the
203
1 situation
is a legitimate one.
2 When you get a one-word affirmance then
3
it's very difficult to explain that the system, in
4
fact, worked, so to the extent that you adopt a
5
rule that's going to increase the instances in
6 which courts of appeals
are likely to follow that
7
process, I would urge you strongly not to do so in
8
the absence of clear and compelling reasons to
9
adopt a uniform rule. And at
least from my
10
perspective, I haven't seen reason to adopt a
11
uniform rule.
12 Those are the only two points I wanted to
13
make. I don't want to indulge
any more delay in
14
this process.
15 JUDGE ALITO:
Any questions?
16 JUDGE ROBERTS:
Mr. Phillips, I assume you
17
do what I used to do when you get a one-word order,
18
which is tell your client there's no way they could
19
have written an opinion that would have come out
20
against us.
21 MR. PHILLIPS:
I assume your clients
22
reacted the same way mine do, with some
204
1
incredulity.
2 JUDGE ROBERTS:
Don't you, though--I don't
3
know what the right word is but if you're in the
4
situation where you think for whatever evocative
5
value it has that you want to cite an unpublished
6
opinion to a court that doesn't allow it, I mean it
7
may be any number of reasons--it is the most recent
8
articulation of the rule; it is a panel that is
9
identical to the panel that you're appearing
10
before; there's a particular factual nuance that is
11
identical. In other words, not
that it's binding
12
precedent but you think it will help you convince
13
the judges to come out your way.
14 So how do you reconcile the noncitation
15
rule with your professional judgment about how to
16
present your client's case?
17 MR. PHILLIPS:
Judge Roberts, maybe you've
18
had a vastly different experience than what I've
19
had in my 23 years of appellate practice, but I can
20
literally count on one hand the number of instances
21
in which I really felt as if a nonbinding,
22
nonprecedential order of some sort would make any
205
1
material difference under any circumstances. And
2
if you compare that with what I--I don't want to be
3
demeaning about it but the truth is there is a vast
4
wasteland of unpublished material out there and to
5
compare the two, it seems to me, it's much easier
6
to say I'd rather be in a position where I don't
7
have to worry about culling through all of those
8
materials, or more relevant today, I don't have to
9
send out all of the assocaites in the office to go
10
chase down all of those things through the methods
11
of Lexis and Westlaw and computer research.
12 So on balance, it seems to me it's not
13
much of a problem at all.
14 MR. LETTER:
Carter, I did want to focus,
15
since you and I have worked both with and against
16
each other on various Supreme Court matters, isn't
17
the fact that the Supreme Court
has this term at
18
least five cases involving unpublished opinions,
19
doesn't that really change things?
Because I
20
wonder how many judges now are saying to themselves
21
it's okay to either pay not much attention to these
22
or let staff counsel write them.
No problem. They
206
1
can't be cited here. They can be
cited in all the
2
district courts in the United States and I don't
3
really care that an opinion with my name on it,
4
along with two other judges, might get to the
5
Supreme Court.
6 I mean I just wonder about given this what
7 I
thought was quite surprising fact that so many of
8
these cases can end up in the Supreme Court,
9
whether that changes things.
10 MR. PHILLIPS:
Well, I don't know the
11
specifics of all of these cases.
I do know that
12
the example that Chief Judge Mayer identified was
13
the one that I've sort of seen in my own practice,
14
which is a rule has become so settled that there's
15
no reason to publish it but the rule nevertheless
16
either conflicts with the rule in another court or
17
frankly it's just wrong, or at least at some stage
18
it gets to the point where you say there's no
19
reason to allow that issue to percolate any
20
further.
21 In that situation it seems to me it's
22
irrelevant. That is the best use
of not publishing
207
1
because all you're doing is announcing a principle
2
that's already out there. It
just tells you what
3
the circuit's law is.
4 Indeed there are a lot of cases that I
5
seek cert in where the opponent says well, the law
6
is not all that clear at this stage, and it's
7
actually quite helpful to have unpublished orders
8
that say the rule in that circuit is so settled at
9
this stage that they don't even bother to publish
10
opinions on it anymore, so there's no reason to
11
allow this to percolate. The
judicial process has
12
essentially been turned off.
They've stopped
13
thinking about it anymore, at least in those
14
circuits that have announced a rule and therefore
15
the court should take this particular vehicle for
16
resolving it.
17 MR. LETTER:
I'm not talking about
18
publishing these opinions.
Remember all this rule
19
would do is say can people cite them?
And again it
20
just seems very odd that people can't even tell
21
courts of appeals about opinions that at least five
22
times in one term are going up to the Supreme
208
1
Court.
2 MR. PHILLIPS:
I can only think of one
3
case in my entire experience where I thought that
4
there was an instance of an abuse of the
5
nonpublication rule and the court did grant cert in
6 that
particular instance. It was a dissent
and it
7
struck me at the time that that was just simply a
8
mistake that had been made by a particular panel.
9 I
don't think it was anything more than that.
I
10
don't think it's a reason to change the basis rule
11
in terms of how you approach these issues.
12 JUDGE ALITO:
Any other questions?
13 Thank you very much, Mr. Phillips.
14 All right, we're going to take a very
15
short break. If we can be back
here by 12:35 on
16
the dot we'll try to continue.
17 [Recess.]
18 JUDGE ALITO:
I'll ask everybody to take
19
their seats and we can get started again.
20 Mr. Hangley?
Thank you for coming and for
21
your comments and once again my apologies for the
22
delay but we've had quite a few questions.
209
1 STATEMENT OF WILLIAM T. HANGLEY
2 MR. HANGLEY:
Well, I have enjoyed it, I
3
have learned from it and I thank you for the honor
4
of being allowed to attend and testify today.
5 I would like to introduce my co-counsel,
6
Jimmy Morris, the president-elect of the American
7
College of Trial Lawyers, who is with me to make
8
sure that I don't stray from the college's agenda
9
today. As you know, the college,
founded in 1950,
10
is widely considered to be the premier lawyer's
11
professional organization in America.
12 I personally am a trial and appellate
13
lawyer practicing in Philadelphia.
I am chair of a
14
medium-sized firm that I founded 10 years ago,
15
Hangley, Aronchick, Segal & Pudlin.
16 In 2001 and 2002 I had the honor of being
17
asked to examine and then prepare a report which
18
ultimately became the college's report and
19
recommendations on the phenomenon known as
20
unpublished opinions. And let me
say that I hate
21 the terminology unpublished opinion and I hate the
22
terminology that's been bandied about today,
210
1
precedential, because they both, in my view, are
2
kind of meaningless terms.
Unpublished opinions
3
are, in fact, published for the most part on the
4
Internet. They are
accessible. To my way of
5
thinking as a lawyer, district court decisions are
6
precedent, state court decisions are precedent.
7
That which can be used for persuasive purpose is
8
precedent.
9 The big question is what is binding within
10 a
circuit and I use the awkward term
11
circuit-binding precedence or circuit-binding cases
12
when I talk about these things.
I think that might
13
help clear up some of the confusion surrounding
14
this question of does precedential equate to
15
citability. I don't think in
terms of binding
16
precedence it need necessarily do so.
I do think,
17
as you know and the college believes strongly, that
18
all opinions should be citable for whatever
19
persuasive value they may have to the listener.
20 My report, the college's report on the
21
subject has been passed out to you during the
22
recess. I sneaked it up on
you. It's called
211
1
"Opinions Hidden, Citations Forbidden: a Report and
2
Recommendations of the American College of Trial
3
Lawyers on the Publication and Citation of
4
Nonbinding Federal Circuit Court Opinions." It
5
appears in 208 FRD 645, September of 2002 if I
6
remember correctly.
7 We make the following recommendations.
8
One, that the rules and procedures governing the
9
publication of and resort to nonbinding opinions
10
should be uniform; B, that the noncircuit-binding
11
opinions should all be published; and C, that
12
litigants must be free to cite nonbinding circuit
13
court opinions.
14 We of the college are delighted that the
15
Advisory Committee has recommended the adoption of
16
proposed Appellate Rule 32.1. We
followed the
17
debates closely and, as you know, we have not
18
hesitated to pester your able reporter, Patrick
19
Schiltz, with our own comments as your good work
20
went forward.
21 I will concentrate today on the third
22
point made by the college and contemplated by the
212
1
rules, that lawyers must be free to cite
2
noncircuit-binding opinions when they consider them
3
persuasive, just as they are free to cite fiction,
4
doggerel, beer commercials and stand-up comics when
5
they consider these "precedence-persuasive."
6 I have heard my friend and college Judd
7
Best, also a fellow of the college, discuss the
8
need for publication and the need for uniformity in
9 his
separate testimony offered here today on behalf
10
of the Section of Litigation of the ABA, but I
11
would like to add one small voice on the question
12
of uniformity because I've heard a lot about local
13
option and how the courts should be left to their
14
own local circuit devices and I'd like to depart
15
from my prepared testimony for that purpose.
16 It must be remembered that what we have
17
gotten from local option in the years since
18
unpublished opinions and anticipation rules came
19
into existence is a Tower of Babel.
There are
20
rules in the various circuits that collide with one
21
another, that are consistent with one another, and
22
that create a nightmare. It is
not as easy as you
213
1
may think to know that you're following the rules,
2
largely because you need not only look at whether
3
or not your particular circuit where you're
4
appearing allows citation; you must also look at
5
the rules of the other circuits to see whether they
6
forbid citation or, as the Second Circuit says,
7
using it for any purpose anywhere.
8 And you must then determine whether your
9
local circuit has a rule that, on a kind of comity
10
basis, embraces or honors the rules of the other
11
circuit, and they do that. An
example, of course,
12
is the D.C. Circuit where a couple of years ago
13
they changed from being an anti-citation to a
14
citation-permitted jurisdiction, but only
15
prospectively. So you have to
know what cases you
16
can cite and what cases you can't cite.
The Fifth
17
Circuit changed from being a case where the
18
unpublished, and they were literally unpublished
19
opinions, were binding precedent to one in which
20
the still unpublished opinions are not binding
21
precedent. You could and still
can in cases
22
decided before 1991 be bound by a precedent that
214
1
you can't read.
2 If you are arguing in the District of
3
Columbia Circuit, just as one example, where they
4
do have a comity rule, you will find yourself in a
5
situation where--in my article I talk about this
6
and I envisage a lawyer instructing his associate
7
on how to write a brief form in a Section 1983
8
case. He tells her that you can
cite the D.C.
9
Circuit's own cases but only if they were decided
10
after 2001. The other ones go on
the pantomime
11
pile where you can talk about them but you can't
12
mention their names. I don't
know what the
13
difference is between the pre- and post-2002
14 decisions
but there is one.
15 You can cite opinions from the Fourth,
16
Sixth, Eighth and Tenth Circuits if you have to.
17
You could cite cases from the Fifth and the
18
Eleventh Circuit but there aren't any; that is, you
19 won't be able to find them. I don't know why that
20
is, either. You'll find some
Third Circuit
21
unpublished cases lately but they're all very
22
recent. You can cite them in a
pinch, I think.
215
1
You'll also find a few such cases in the First
2
Circuit but, as of the time of this writing you
3
can't cite them or mention the actual cases in the
4
brief.
5 There are lots of cases from the Seventh,
6
Ninth and Federal Circuits but you can't mention
7
their names, either, in the D.C. Circuit because of
8
the D.C. Circuit rule. And
although the Second
9
Circuit cases are all over the Internet, you're not
10
even allowed to think about them, much less talk
11
about them. It's probably best
that you not read
12
them at all. Why do they publish
them? I have no
13
idea.
14 That's where local option gets you in
15
these rules. That gets you, as I
said before, into
16 a
Tower of Babel and it really, from the
17
standpoint of the litigant who is served by
18
clients, not a constructive environment in which to
19
have to practice law or to depend on your lawyer to
20
practice it for you.
21 I should observe that like the Advisory
22
Committee, the American College of Trial Lawyers
216
1
does not take any position on the question whether
2
courts can or cannot constitutionally take the
3
position that all cases must be binding precedent
4
in the deciding circuit. The
Anatasoff, Hart v.
5
Massanari debate is one we think that is
6
appropriately left to courts. We
agree that it is
7
not the work of this committee or of the Supreme
8
Court, in the rulemaking context at least.
9 As a practicing lawyer, too, I can't help
10
observing that we are not much troubled much of the
11
time by the question whether a decision is or is
12
not a "binding" precedent within the circuit where
13
we're arguing, and that's simply because most cases
14
are not squarely governed by the circuit-binding
15
precedent. Most of the time
cases are there to be
16
distinguished. If a case is
controlled by a
17
precedent, from the standpoint of the lawyer in
18
private practice, that is not the case that is
19
going to pay the rent because that is not a case
20
that is going to go very far.
21 What lawyers do find troubling and what
22
their client litigants finding troubling and
217
1
personally threatening is a universe in which some
2 decisions are off-base, taboo, not to be discussed.
3
There should be no restriction, in our view, upon
4
litigant citations to nonbinding opinions for
5
whatever persuasive merit they are thought to have.
6 Assuming that a circuit court can decide
7
that a given holding will not be a binding
8
precedent in a future case, that court or any court
9
can surely decide what weight it wishes to give to
10
that persuasive point. I think,
Judge Stewart,
11
that was exactly the point that you were touching
12
on in your questions earlier today.
And the courts
13
should not be attempting because they're really not
14
terribly good a it so far as I can tell, at making
15
the a priori judgment that nothing in today's
16
holding could possibly be pertinent to an argument
17
in some future case.
18 Courts signal a lack of confidence in
19
their own decisions when they prohibit the public's
20
representatives from even discussing what the
21
courts themselves have said and that can't be
22
healthy for the growth of the law.
The limited
218
1
available information also demonstrates not
2
surprisingly that appellate judges are sometimes
3
fallible in their decision that a case adds nothing
4
to the law or is not precedent.
5 Let me mention here a case that Chief
6
Judge Mayer mentioned in his own remarks today.
7
That was the Symbol Technology case in the Federal
8
Circuit. That case involved the
arcane issue of
9
prosecution estoppel of patents.
It means not much
10
to me but it was at one time a very important issue
11
in patent law and the Supreme Court in the '20s had
12
held in various contexts that there was such a
13
doctrine, an equitable doctrine of prosecution
14
estoppel, that would stop someone from claiming
15
patent infringement in certain circumstances where
16
he had been guilty of delay in raising his rights,
17
deliberate delay.
18 There came some amendments to the Patent
19
Act, actually a new Patent Act, and in the 1980s
20
the Federal Circuit decided that the doctrine no
21
longer had any vitality and in effect, that the
22
Supreme Court's decisions had been overruled since
219
1
Silentio by Congress's failure to mention this
2
doctrine in enacting the Patent Act.
3 Now those two cases, one called Bott and
4
one called Ricoh, were on the electronic books for
5
some 14 years. They were cases
that were widely
6
discussed by lawyers. They were
cases that you
7 would
find described as setting the law in Chisum
8
on Patents and other tomes involving patent rights
9
and patent infringement. They
were generally
10
considered to be the law although they were not
11
published in F.2d or F.3d.
12 Importantly, those are cases which
by the
13
standards of the Federal Circuit itself
14
respectfully, should have been--one at least of
15
them should have been a published circuit-binding
16
opinion if you followed their standards, that it
17
established new law that hadn't been decided
18
before. There are six or seven
different of their
19
standards that were not followed in that case.
20 Fourteen years later in the Symbol
21
Technology case the Federal Circuit decided just
22
the opposite. They decided that
without ever
220
1
mentioning the Bott and the Ricoh decision, they
2
decided that the law was not at all changed after
3
the enactment of the Patent Act, there had been no
4
mistake, and since Silentio that these two
5
unpublished opinions were wrong.
Interestingly,
6
there is not a mention of those two well publicized
7
if not published opinions in the Symbol Technology
8
case.
9 Interestingly, too, the attorneys on one
10
side or the other--I forget which--moved the court
11
for an exception. This will be
contrary to what we
12
heard from Judge Wood this morning about what
13
happens in the Seventh Circuit.
They moved for an
14
exception to the general doctrine and said please
15
let us cite these two cases because they are
16
important cases and they are squarely on all fours
17
with the issue that you have before you.
18 The Federal Circuit did not mention the
19
two cases. The Federal Circuit
simply said that
20
the request to cite unpublished opinions of this
21
court is denied. We know only
because Judge Newman
22
wrote a scholarly and vehement dissent in that case
221
1
that, in fact, it was the Bott and Ricoh cases that
2
these people wanted to cite and she took the court
3
to task for not at least dealing with authorities,
4
whether circuit-binding or not, that were out there
5
and deserved to be discussed after all of these
6
years.
7 That's the kind of thing that can happen
8
with a priori judgments that a case is or is not to
9
be accorded the honor of being published in F. 3d
10
and that therefore citation will or will not depend
11
on its being published on paper instead of merely
12
electronically.
13 For a court to blind itself in advance to
14
the persuasive power of its own reasoning to the
15
college makes no sense. It
undermines the process
16
of stare decisis and it corrodes, we think, the
17
crucial public perception that cases are decided by
18
the rule of law and not arbitrarily.
19 I was impressed today by the fact that no
20
one mentioned the First Amendment.
There is a
21
serious question as to whether a court can prohibit
22
parties and their lawyers from telling them about
222
1
the court's decisions. As
committee members are
2
all too aware, there's discussed in the article
3
that many reputable judges and scholars have raised
4
serious questions about whether anti-citation rules
5
can pass muster under the speech and petition
6
clauses of the First Amendment, separation of
7
powers, whether they are within the scope of an
8
Article III courts' powers in the first place, or
9
whether they are a denial of equal protection or
10
due process.
11 Stated as an abstract proposition, a rule
12
that lawyers can't cite judicial statements they
13
consider persuasive or criticize the ones they
14
consider erroneous is just unthinkable.
Imposing
15
prior restraints on citizen references to the
16
public words or acts of any public official--a
17
judge, a mayor, a crossing guard--seems undeniably
18
contrary to our treasured notions of freedom of
19
speech and of the compact between citizens and
20
their government.
21 The common law on stare decisis more
22
narrowly are built on the premise that lawyers will
223
1
use one judge's reasoning to persuade the next
2
judge not that his case is controlled by an earlier
3
decision but that its reasoning lights the path
4
that the court should consider in addressing the
5
present dispute. To tell lawyers
and the public
6
that they must disregard some 80 percent of the
7
available reasoning--and let's remember that most
8
of the time the judges do get it right in these
9
unpublished opinions--must foreswear 80 percent of
10
the available reasoning is really a radical step in
11
itself. Changing that rule is
not what's radical.
12
That we have the rule in the first place in some
13
circuits is the radical thing.
14 It becomes even more radical, as others
15
have noted today, when we consider that judges all
16
over the country regularly cite the
17
noncircuit-binding opinions of state courts,
18
district courts, and other courts, even if in the
19
mother courts, the issuing courts themselves, the
20
court could not do that. The
thinking can't be
21
that the less than optimally vetted analyses are to
22
be avoided completely but that the rulemaking
224
1
tribunal doesn't want to show less than its very
2
best work, but that work is already shown because
3
it is released to the Internet and it is available
4
and it is, in the final analysis, a paltry excuse
5
for gagging lawyers and their clients.
6 Second, contrary to the rationale of the
7
anti-citation rule, the record demonstrates
8
compellingly that the nonbinding opinions are not
9
uniformly redundant. They do say
something new on
10
certain occasions. Sometimes
they are important
11
building blocks of the corpus juris.
12 In the article I discuss the A pile cases
13
that are marked as binding precedent and the B pile
14
cases that are easy and redundant or automatic or
15
nothing new but as several of you have mentioned,
16
the Supreme Court regularly considers those cases
17
and you wouldn't expect that of a redundant
18
decision. Nor would you expect
to see dissents
19
from redundant or automatic decisions but dissents
20
are not uncommon in noncircuit-binding
21
dispositions.
22 Third, with all due respect to the good
225
1
faith of the appellate bench and its attempts to
2
follow its own rules, it's impossible to avoid
3
concluding that some cases go into the nonbinding
4
pile because they have not been given enough
5
attention for the judges to be comfortable with
6
them. We discuss in the article
several instances
7
where it should have been obvious from the start
8
that a particular decision should never have gone
9
onto the uncitable pile in the first place because
10
it was not at all redundant.
11 We discussed already the Symbol
12
Technologies case but the Anatasoff case by Judge
13
Arnold relies on a case called Christie that was a
14
case of first impression in the Eighth Circuit, one
15
which should have been published under the Eighth
16
Circuit's own rules.
17 The Fifth Circuit's nonbinding decision in
18 a
case called Anderson versus Dallas Area Rapid
19
Transit was a case of first impression.
It
20
addressed the Eleventh Amendment immunity of a
21
metropolitan transit authority.
A later published
22
decision of that Fifth Circuit came out with a
226
1
different ruling and there was a strong dissent
2
from one of the panel members, who participated in
3
the ruling but dissented from the petition for
4
rehearing because he said having these two opinions
5
on the books, we should at least have discussed the
6
earlier opinion in the first place.
7 There's a case called Barry Sterling
8
versus Pescor Plastics, again in the Federal
9
Circuit. It was an unpublished
opinion but it was
10 a
good and sensible attempt to resolve an obvious
11
conflict between two published opinions of the same
12
circuit that had reasonably come down.
Yet it was
13 a
decision that tried to harmonize them, one
14
resolving an intracircuit conflict, another stated
15
reason in most of these local rules for publishing
16
opinions and making them circuit-binding, in fact.
17
Yet that case could not be cited and it was a case
18
where I personally, my client suffered badly
19
because the district court refused to allow the
20
citation of the federal circuit opinion harmonizing
21
the two precedents.
22 The Ninth Circuit's decision in a case
227
1
called Kish v. City of Santa Monica was at odds
2
with a decision of another circuit.
The case had
3
to do with a Section 1983 claim of a fugitive who
4
was bitten by a police dog and the question was
5
one, of course, of excessive force and the Ninth
6
Circuit's decision was squarely at odds with a
7
decision of, I believe, the Seventh Circuit but I'm
8
not entirely sure that I've got the circuit right.
9 That case was not published and indeed in
10 a
case called Sorchina v. City of Covina, an
11
attorney who dared to cite the Kish case, the
12
unpublished Kish case, in another Sectoin 1983
13
fugitive dog bite case, if you can believe they get
14
two in the same circuit, the lawyer who had cited
15
that opinion was made to come before the Ninth
16
Circuit and show cause why she should not be
17
subjected to sanctions for having the temerity to
18
tell the court about its own decision in the
19
earlier Kish case. That is very
troubling. That
20
suggests that the sorting mechanism isn't a perfect
21
mechanism.
22 The anti-citation rules finally do not
228
1
help the courts. So far as one
can tell from
2
reading the cases, it cannot fairly be said what
3
I've heard people say today, that the quality of
4
justice will change if the anti-citation rules are
5
overruled by the proposed Rule 32.1.
6 Someone mentioned doing a study. Study
7
after study has already been done.
The work of,
8
for example, Professor Lauren Robel from the
9
University of Indiana, I believe, with regard to
10
what cases judges consider, with regard to what
11
judges do in this, that or the other circuit,
12
anti-citation and non-anti-citation circuits, has
13
led to the conclusion that you cannot say that
14
Ninth Circuit judges have to work harder than Tenth
15
Circuit judges or that the quality of the published
16
opinions in the Sixth Circuit is demonstrably lower
17
than the quality of published opinions in the Ninth
18
Circuit, comparing anti-citation to
19
citation-available courts across the board. You
20
simply cannot say that. There is
no evidence to
21
suggest that the anti-citation rules have led to a
22
quality of circuit-binding case law in one circuit
229
1
that is markedly superior to that in another
2
circuit or that the absence of such a rule has led
3
to a pronounced inferiority in the others.
4 In sum, parties and the lawyers they hire
5
must be allowed to pursue justice by every ethical
6
means and use every weapon in their arsenal and
7
that includes citing opinions that lawyers find
8
persuasive or that they hope the tribunal will find
9
persuasive for their persuasive purposes. The
10
American College of Trial Lawyers supports the
11
proposed new rule, congratulates the committee on
12
drafting it and putting it forth, and we strongly
13
urge its adoption. Thank you
very much.
14 JUDGE ALITO:
Thank you.
15 Any questions?
16 MR. SVETCOV:
Mr. Hangley, why can't you
17
use the persuasive value of the arguments made in
18
an unpublished opinion in your briefs without
19
citing to the case itself? And I
ask that because
20
it's my impression that the principal reason for
21
citing to the case itself is to give the perhaps
22
misleading impression that three judges have signed
230
1
onto that reasoning when, in fact, we've been
2
hearing testimony that they may not, in fact,l have
3
signed onto it but only to the bottom line; that is
4
to say, the result in the case.
They haven't
5
looked at the nuances of the language of the
6
opinion.
7 So go ahead and make the argument if you
8
think it's persuasive but why suggest that three
9
judges have signed onto it?
10 MR. HANGLEY:
Because one
11
persuasive--first of all, let me begin with the
12
proposition, and I certainly fervently believe and
13
we hope that this is true, that when judges write
14
noncircuit-binding opinions, just as when district
15
judges write opinions and even when district judges
16
write opinions that aren't going to be published in
17 F. Sup., that all of those judges are really trying
18
to get it right.
19 Likewise let me indulge in another thing
20
in which I firmly believe, that in the great
21
majority of instances they do get it right, that
22
they are thoughtful, honest scholars who, while
231
1
they are not publishing what Judge Kozinski would
2
call a law review article, are certainly turning in
3
an honest day's work or an honest hour's work on
4
this opinion.
5 It makes sense not to have to do a
6
pantomime act. You shouldn't
have to say well, one
7
could have a hypothetical in which this, this and
8
this happens and one might come out this way. I
9
think it's far better to say that in such-and-such
10 a
case, which of course is not a binding precedent
11
in this court, either because it's from a district
12
court or because it's from another circuit or
13
because it's from your court but you have chosen
14
noncircuit-binding status for it, you decided the
15
following and let the court decide how persuasive
16
it considers that argument to be.
17 The wonderful thing about the common law
18
and the wonderful thing about our adversarial
19
system is that what we say is let's have a lawyer
20
on each side to make the most persuasive case that
21
he can for the litigants and then the judge will
22
decide how persuasive he is.
It's an excellent
232
1
system, it serves us well but someone is changing
2
it by saying you can't mention the fact that I said
3
this.
4 And frankly, most of us who are out there
5
plowing in the fields consider that proposition
6
just incomprehensible. What's
that old Mark Twain
7
line that Justice Jackson quoted in the Chettery
8
case? "The more you explain
it the more I don't
9
understand it."
10 MR. SVETCOV:
Well, do you draw a
11
distinction between getting it right and how they
12
got there to get it right?
13 MR. HANGLEY:
You know, you asked some
14
questions earlier about how much of the facts they
15
tell you and that the parties know the facts. We
16
both know as practicing lawyers that it is very
17
difficult to write anything without putting a fact
18
into it. We also know that in
the course of laying
19 things
out a court will tell you something, once
20
you get past the judgment order idea, a court will
21
tell you something about its thinking processes.
22
And I may not care terribly about the facts; on the
233
1
other hand, I might. But in the
cases where I
2
don't much care about the facts, I may only cite to
3 a
proposition of law that a judge utters in a
4
particularly felicitous way that I think will lend
5
itself well to my facts and there's nothing
6
dishonest about saying that.
7 In another case, as Judd Best suggested to
8
you earlier, you might want to go back and look at
9
the record and see what the facts were and say this
10
judge of this court or these three judges of this
11
court were persuaded by this particular argument
12
and here is what the facts were.
Now is that
13
heretical? No. I have done exactly the same thing
14
with respect to published opinions and, as you
15
know, there are many, many published opinions out
16
there where sometimes, as a result of conscious
17
decision by the court or sometimes I think despite
18
the court's best efforts, you can't find in the
19
published circuit-binding opinion the critical fact
20
that you need to know in order to determine whether
21
that particular precedent is or is not going to be
22 a
persuasive precedent for you to bring to the
234
1
court and therefore you have to go to the briefs
2
or, better yet, you have to go into the decision of
3
the trial court or the record of the court below.