FRAP 32.1 and the Rise
of Unpublished Opinions
Karen Breda
Boston College Law Library
September 26, 2007
New FRAP 32.1
In 2006, Supreme Court
adopted FRAP 32.1 which
permits citation of unpublished
judicial opinions issued by
federal courts on or after
January 1, 2007.
FRAP 32.1 & Unpublished Opinions
 What are unpublished opinions?
 Evolution of new FRAP 32.1
 A closer look at FRAP 32.1
 Federal local rules
 Ramifications of FRAP 32.1
 Citing unpublished opinions in state
courts
What are “unpublished opinions”?
 In the federal judicial system, an opinion is
“unpublished” when it has not been selected
for publication in the West Federal Reporter
series. See e.g. 1st Cir. R. 32.1.0
 In state judicial systems, an opinion is
“unpublished” when it has not been selected
for publication in the state’s official case
reporter.
What is an “unpublished opinion”?
 Generally, an appellate court may designate a
decision “not for publication” where the
decision is not meant to serve as legal
precedent to guide future litigants but is
written primarily for the parties to the case.
 Today, an opinion’s designation as
“unpublished” refers to its non-precedential
status.
What is an “unpublished opinion”?
 In today’s legal culture, the term “unpublished
opinion” is a misnomer:
-- West’s Federal Appendix publishes
“unpublished” federal opinions.
-- Section 205 of the E-Government Act of
2002 requires online access to all written
federal court opinions, including the
“unpublished” ones.
What is an “unpublished opinion”?
“Unpublished” is misnomer, cont.
-- Westlaw, Lexis and now LoisLaw
publish “unpublished” opinions
-- Legal periodicals, legal looseleaf
services and internet sites sometimes publish
“unpublished” cases.
Evolution of FRAP 32.1
 1964
Judicial Conference of the United
States resolves that only opinions
of “general precedential value”
should be published.
 1972
Judicial Conference directs Circuit
Courts to develop plans for
selective publication of opinions.
Evolution of FRAP 32.1
 1970s
Federal Circuits limit number of
published opinions and develop
guidelines for designation of
opinions “not for publication”.
Each circuit develops citation
rules for unpublished opinions.
Evolution of FRAP 32.1
 By 1974, the federal judicial system has
thirteen different sets of citation rules for
unpublished federal opinions.
 Treatment of unpublished opinions varies by
circuit. Some circuits permit citation, some
disfavor citation, some prohibit citation of
unpublished opinions.
Evolution of FRAP 32.1
 Scope of citation rules for unpublished
opinions varies by circuit. Some circuits
regulate citation of a circuit’s unpublished
opinions within that circuit; some circuits
regulate citation of a circuit’s unpublished
opinions in other courts as well.
Some circuits regulate citation of unpublished
opinions issued by other courts; some circuits
defer to issuing court’s citation rules.
Evolution of FRAP 32.1
 1990s
Judicial Conference conducts
Federal Courts Study concerning
development of uniform set of rules
for access, publication and citation
of appellate opinions.
 2000
Eighth Circuit holds “no citation” rules for
unpublished opinions violate Art. 3 of the
Constitution. Opinion is vacated as moot.
 2001
Department of Justice requests that
FRAPs be amended to establish
uniform procedures permitting
citation of unpublished opinions.
Evolution of FRAP 32.1
 2003
Advisory Committee on Appellate
Rules publishes proposed FRAP
32.1 for comment; 4 circuits oppose
proposed changes; many national
bar organizations support
proposed changes.
Evolution of FRAP 32.1
 2004
 2006
Federal Judicial Center and
Administrative Office of U.S. Courts
conduct impact studies. Results of
both studies fail to support
arguments against new rule.
More than 80% of federal opinions
are unpublished; U.S. Supreme
Court adopts FRAP 32.1, effective
December 2006.
A closer look at FRCP 32.1
 New FRAP 32.1 provides uniform
treatment in Circuit Courts of
unpublished federal opinions issued
after January 1, 2007.
 Compromise rule, resulting from
controversy and debate; leaves many
questions unanswered.
A closer look at FRAP 32.1
 Abrogates “no citation” rules only for
decisions issued after January 1, 2007;
leaves treatment of pre-2007 unpublished
decisions to the Circuits’ local rules.
 Does not address the weight to be given an
unpublished opinion.
 Does not address citation of state
unpublished opinions in federal circuits.
A closer look at FRAP 32.1
 FRAP 32.1(b) requires copy of any
unpublished opinion that is “not available in a
publicly accessible electronic database” be
filed and served with the brief in which it is
cited. What is “publicly accessible”? When in
doubt, file and serve copy of case.
 FRAP 32.1(b) applies to all unpublished
decisions, regardless of issue date.
Summary of Circuit Court Local Rules
 All circuits permit citation of unpublished
opinions to establish 1) Res Judiciata, 2)
Collateral Estoppel, 3) Law of the Case or 4)
Double Jeopardy.
 Seven “permissive” circuits -- 1st, 3rd, 5th, 6th
10th, 11th and D.C., do not restrict citation of
unpublished opinions.
Summary of Circuit Court Local Rules
 Three “discouraging” circuits – 4th, 8th and
Federal expressly discourage citation of
unpublished opinions but will permit citation
when there is no published authority on point.
 Three “restrictive” circuits – 2nd, 7th and 9th
prohibit citation of pre-2007 unpublished
opinions (except to establish res judicata and
the like).
Summary of Circuit Court Local Rules
 Treatment of unpublished decisions still
varies substantially between Circuits.
 Be sure to research the most recent version
of local rules before citing unpublished
opinion issued before 2007.
Ramifications of FRAP 32.1
 What will Circuits do regarding 1) citation of
pre-2007 unpublished cases and 2) weight
accorded unpublished opinions?
Circuits have already started addressing
those issues. See e.g. 1st Cir. R. 32.1.0 and
36.0.
Ramifications of FRAP 32.1
 What effect will FRAP 32.1 have upon
practice of designating opinions “not for
publication”? 1st Cir. R. 36.0 may foreshadow
new trend.
 How will FRAP 32.1 effect citation standards?
Bluebook (18th ed.) BT.2 and Rules 10.8, 16,
18.2.2 and 19.
Ramifications of FRAP 32.1
 Does FRAP 32.1 apply to citation of
unpublished opinions in U.S. District Courts
and federal agency hearings?
 Will state jurisdictions abrogate their “no
citation rules” for unpublished opinions?
Further Readings on Unpublished
Opinions
 A list of 103 law review articles on
unpublished opinions, with many links to
electronic articles, is found at:
www.nonpublication.com/ARTICLES.html
 Excerpts from the Judicial Conference report
on proposed FRAP 32.1 is found at:
www.uscourts.gov/rules/