Two Justices of the U.S. Supreme Court took the Fourth Circuit to task for not publishing a significant opinion.  The ear-boxing came last month in the form of a denial of a Petition for Certiorari from which Justice Thomas and Justice Scalia dissented, taking the position that the Supreme Court should accept the case for review.

Let's set the stage: The Fourth Circuit's unpublished opinion, forty pages long, came in the case of Austin v. Plumley.  The case is as far as can be from the usual business law case that I usually write about on this blog.  It concerns the sentencing of criminal defendants.  The Fourth Circuit opinion construes a presumption that the Supreme Court set down nearly fifty years ago in North Carolina v. Pearce, 395 U.S. 711, 725-26 (1969): that when a trial judge imposes a harsher sentence on a defendant who was previously sentenced by that judge for the same crime, "judicial vindictiveness" should be presumed..

There is a split among the Circuit courts about under what circumstances judicial vindictiveness should be presumed.  The Fifth and Ninth Circuits construe the presumption narrowly, holding that it applies only when there is a "triggering event" like a reversal by a higher court that "prods the sentencing court into a posture of self-vindication."  Kindred v. Spears, 894 F.2d 1477, 1480 (5th Cir. 1990); accord Fenner v. United States Parole Comm'n, 251 F.3d 782, 788 (9th Cir. 2001).

The Fourth Circuit, in its unpublished opinion, lined up with the Seventh Circuit (United States v. Paul, 783 F.2d 84, 88 (7th Cir. 1986) and took a more expansive view, ruling that the presumption applies when the trial court applies a more severe sentence after it grants a motion for a corrected sentence.

So, should the Fourth Circuit have published this opinion?  The Court's own Local Rules seem to call for that.  Local Rule 36(a) says that the Court's opinions will be published if they meet "one or more" of five criteria.  Justice Thomas felt that at least three were met because the opinion:

'establishe[d] . . . a rule of law within th[at] Circuit,' 'involve[d] a legal issue of continuing public interest,' and 'create[d] a conflict with a decision in another circuit.'

Denial at 7.

Does it make any difference that the opinion is unpublished?  The Fourth Circuit formerly "disfavored" the citation of its unpublished decisions, in the previous version of its Local Rule 36(c).  Now, there is a line of cleavage in the Fourth Circuit Rules -- citing unpublished decisions from before January 1, 2007 is still "disfavored," but unpublished decisions after that date are fair game for citation.  That is due to a change of that date in the Federal Rules of Civil Procedure, which states that:

[a] court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments or other written dispositions that have been:

(i) designated as 'unpublished,' 'not for publication,' 'non-precedential,' 'not precedent,' or the like; and

(ii) issued on or after January 1, 2007.

FRAP 32.1.t

So, lawyers can cite all they want to the Austin v. Plumley decision. The real concern about the Fourth Circuit's unpublished ruling is that is not binding on the Court, as Justice Thomas pointed out, relying on Minor v. Bostwick Labs, Inc., 669 F.3d 428, 433 n.6 (4th Cir. 2012).  He said:

It is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the Circuit.

Denial at 7.

It will be interesting to see if Justice Thomas' and Scalia's beef with the Fourth Circuit results in any visible reaction from the lower appellate court.  It would probably be more likely if Chief Justice John Roberts had joined his two colleagues in the dissent to the denial of the Petition for Certiorari, as the Chief Justice is the Justice on the Supreme Court assigned to the Fourth Circuit.  Justice Scalia has the Fifth Circuit, and Justice Thomas the Eleventh.