Robert Timothy Reagan Federal Judicial Center
Federal Rule of Appellate Procedure 32.1 permits attorneys to cite to federal courts of appeals their unpublished opinions issued in 2007 or later. Unpublished opinions issued before 2007 may be cited to the courts if permitted by the courts' local rules. Following is a summary table of the federal courts of appeals' local rules on citations to their unpublished opinions issued before 2007.
All federal courts of appeals permit citation to their unpublished opinions in related cases to show res judicata, law of the case, and the like. But before 2007, federal appellate courts differed on the extent to which they permitted citations to their unpublished opinions in unrelated cases.
Seven courts — courts of appeals for the First, Third, Fifth, Sixth, Tenth, Eleventh, and District of Columbia Circuits — are considered "permissive" courts, in that they do not restrict citation to their unpublished opinions. But the court of appeals for the District of Columbia Circuit only permits citations to their unpublished opinions issued in 2002 or later.
Three courts — courts of appeals for the Fourth, Eighth, and Federal Circuits — are considered "discouraging" courts, in that they permit but discourage citation to their unpublished opinions issued before 2007, generally permitting such citations only when there is no published authority on point.
Three courts — courts of appeals for the Second, Seventh, and Ninth Circuits — are considered "restrictive" courts, in that they prohibit citations to their unpublished opinions issued before 2007 in unrelated cases.
The courts' rules in the following table are arranged so that similar rules appear together.
The views expressed are those of the author and do not necessarily reflect the views of the publisher. June 2007. Citation Rules in Permissive Courts Citations to Unpublished Opinions Issued in Unrelated Citation Cases Before Circuit Rules Citation Rule Excerpts 2007 Note First 1st Cir. R. "An unpublished judicial Permitted. Formerly discouraging 32.1.0 opinion, order, judgment or courts. other written disposition of this court may be cited regardless of the date of issuance." 1st Cir. R. 32.1.0(a). Sixth 6th Cir. R. "Citation of unpublished opin- Formerly discouraging 28(g) ions is permitted." 6th Cir. R. courts. 28(g). Tenth 10th Cir. R. "Unpublished decisions are 32.1 not precedential, but may be cited for their persuasive value." 10th Cir. R. 32.1(A). Eleventh 11th Cir. R. "Unpublished opinions are 36-2 not considered binding prece- dent, but they may be cited as persuasive authority." 11th Cir. R. 36-2. Third 3d Cir. "The court by tradition does Permitted. The court's Internal I.O.P. 5.7 not cite to its not precedential Operating Procedures opinions as authority. Such discourage judges from opinions are not regarded as relying on unpublished precedents that bind the opinions. court because they do not circulate to the full court before filing." 3d Cir. I.O.P. 5.7. Fifth 5th Cir. R. "Unpublished opinions issued Unpublished opinions 47.5.3, 47.5.4 before January 1, 1996, are issued before 1996 precedent. Although every were considered prece- opinion believed to have prec- dent, but their citation edential value is published, an was discouraged. unpublished opinion may be cited pursuant to Fed.R.App.P. 32.1(a)." 5th Cir. R. 47.5.3. "Unpublished opinions issued on or after January 1, 1996, are not precedent, except under the doctrine of res judicata, collateral estoppel or law of the case (or similarly to show double jeopardy, notice, sanctionable conduct, entitlement to attorney's fees, or the like). An unpublished opinion may be cited pursuant to Fed.R.App.P. 32.1(a)." 5th Cir. R. 47.5.4. District of D.C. R. 32.1 "Unpublished orders or judg- Permitted if issued Unpublished opinions Columbia ments of this court, including 2002 or later and in unrelated cases is- explanatory memoranda and not sealed. sued before 2002 may sealed opinions, entered be- not be cited. fore January 1, 2002, are not to be cited as precedent. Counsel may refer to an un- published disposition, however, when the binding (i.e., the res judicata or law of the case) or preclusive effect of the disposition, rather than its quality as precedent, is relevant." D.C. R. 32.1(b)(1)(A). "All unpublished orders or judgments of this court, in- cluding explanatory memo- randa (but not including sealed opinions), entered on or after January 1, 2002, may be cited as precedent." D.C. R. 32.1(b)(1)(B). Citation Rules in Discouraging Courts Citations to Unpublished Opinions Issued in Unrelated Citation Cases Before Circuit Rules Citation Rule Excerpts 2007 Note Federal Fed. Cir. R. "Parties are not prohibited or Discouraged. Formerly a restrictive 32.1 restricted from citing nonpre- court. cedential dispositions issued after January 1, 2007. This rule does not preclude asser- tion of claim preclusion, issue preclusion, judicial estoppel, law of the case, and the like based on a nonprecedential disposition issued before that date." Fed. Cir. R. 32.1(c). "The court may refer to a nonprecedential disposition in an opinion or order and may look to a nonprecedential dis- position for guidance or per- suasive reasoning, but will not give one of its own non- precedential dispositions the effect of binding precedent." Fed. Cir. R. 32.1(d). Fourth 4th Cir. R. "Citation of this Court's un- Discouraged, but If "there is no publish- 32.1 published dispositions issued permitted if there ed opinion that would prior to January 1, 2007, in is no published serve as well." briefs and oral arguments in opinion on point. this Court and in the district courts within this Circuit is disfavored, except for the purpose of establishing res judicata, estoppel, or the law of the case. If a party be- lieves, nevertheless, that an unpublished disposition of this Court issued prior to January 1, 2007, has prece- dential value in relation to a material issue in a case and that there is no published opinion that would serve as well, such disposition may be cited if the requirements of FRAP 32.1(b) are met." 4th Cir. R. 32.1. Eighth 8th Cir. R. "Unpublished opinions are If "no published opin- 32.1A decisions which a court desig- ion of this or another nates for unpublished status. court would serve as They are not precedent. Un- well." published opinions issued on or after January 1, 2007, may be cited in accordance with FRAP 32.1. Unpublished opinions issued before Janu- ary 1, 2007, generally should not be cited. When relevant to establishing the doctrines of res judicata, collateral es- toppel, or the law of the case, however, the parties may cite any unpublished opinion. Par- ties may also cite an unpub- lished opinion of this court if the opinion has persuasive value on a material issue and no published opinion of this or another court would serve as well." 8th Cir. R. 32.1A. Ninth 9th Cir. R. "Unpublished dispositions Permitted to request 36-3 and orders of this Court is- publication or rehear- sued before January 1, 2007, ing. may not be cited to the courts of this circuit, except in the following circumstances. (i) They may be cited to this Court or to or by any other court in this circuit when rel- evant under the doctrine of law of the case or rules of claim preclusion or issue pre- clusion. (ii) They may be cited to this Court or by any other courts in this circuit for factu- al purposes, such as to show double jeopardy, sanctionable conduct, notice, entitlement to attorneys' fees, or the exis- tence of a related case. (iii) They may be cited to this Court in a request to publish a disposition or order made pursuant to Circuit Rule 36- 4, or in a petition for panel rehearing or rehearing en banc, in order to demonstrate the existence of a conflict among opinions, dispositions, or orders." 9th Cir. R. 36- 3(c). Second 2d Cir. R. "Citation to summary orders Prohibited. § 0.23(c)(2) filed prior to January 1, 2007, is not permitted in this or any other court, except in a sub- sequent stage of a case in which the summary order has been entered, in a related case, or in any case for pur- poses of estoppel or res judi- cata." 2d Cir. R. § 0.23(c)(2). Seventh 7th Cir. R. "Orders, which are unsigned, 32.1 are released in photocopied form, are not published in the Federal Reporter, and are not treated as precedents." 7th Cir. R. 32.1(b). "No order of this court issued before January 1, 2007, may be cited except to support a claim of preclusion (res judi- cata or collateral estoppel) or to establish the law of the case from an earlier appeal in the same proceeding." 7th Cir. R. 32.1(d).