Citation of Unpublished Opinions

Litigants in appellate courts may soon be citing unpublished opinions if the Federal Rules of Appellate Procedure are amended to conform to a recent advisory committee recommendation. (article). Federal Circuit Chief Judge Robert Mayer has a problem with citing unpublished opinions because they are generally “not written with the extra care and concern for language” evident in published opinions. Federal Circuit Judge William Bryson also indicated that he would write opinions differently if he knew they could be cited. The Federal Circuit Judges have unanimously voiced their opposition (pdf) to the proposed changes.

In the view of the judges of the Federal Circuit, the adoption of Rule 32.1, which will override our local rule, may adversely affect the administration of justice by skewing the allocation of judicial resources, delaying issuance of precedential opinions, increasing the issuance of judgments without an accompanying opinion, and harming litigants.

J. Craig Williams’ opinion is that “citing an unpublished opinion is something like citing part of the law. It just doesn’t work.”