Citation of Unpublished Opinions

Every opinion of the Federal Circuit is published in one form or another (such as on this website).  However, there are a set opinions that are classified as “unpublished” or “not citable as precedent.”  Under local rule 47.6(b), the Federal Circuit does not allow unpublished cases to be cited in briefs to the court except in certain cases such as claim preclusion.

Over the CAFC’s opposition, the Judicial Conference has endorsed a new rule of Federal Appellate Procedure (R. 32.1) that would allow citation of non-precedential or unpublished opinions but would only be applicable to decisions issued after January 1, 2007.

The proposed rule, which still must be approved by the Supreme Court and transmitted to Congress, was first published for comment in August 2003. Since then, studies have been conducted, a public hearing convened, and more than 500 comments submitted. The present practice governing citation of unpublished opinions varies among the circuits, with some permitting citation, others disfavoring citation but permitting it in certain circumstances, and others prohibiting citation. Proposed Rule 32.1 permits the citation in briefs of opinions, orders, or other judicial dispositions that have been designated “not for publication,” “non-precedential,” or the like. The rule applies only to decisions issued on or after January 1, 2007 .   

According to a Legal Times article by Tony Mauro (Link), Supreme Court nominee John Roberts has put his weight behind the change — “A lawyer ought to be able to tell a court what it has done.”

The Supreme Court must approve any change in the rules.