In a previous post, we looked at how often various circuits issue unpublished opinions, and the differences between their rules on published decisions.  The Sixth Circuit’s most recent directive is that “[u]npublished decisions in the Sixth Circuit are, of course, not binding precedent on subsequent panels, but their reasoning may be ‘instructive’ or helpful.” Crump v. Lafler, 2011 U.S. App. LEXIS 19253 (6th Cir. Sept. 20, 2011).  The judges have taken differing views of unpublished cases only a few times in recent years, the most notable being Judge Gibbons’ objection to the majority’s reliance on an unpublished decision to “craft a blanket rule” in an immigration case.  See Venclaviciute v. Holder, 542 F. App’x 505, 509 (6th Cir. 2013) (Gibbons, J., concurring).

For this post, we analyzed the Sixth Circuit’s use of unpublished opinions in its own decisions.  The result was surprising:  fully 85% of the circuit’s opinions in the last six years cite an unpublished opinion.   While this includes some cases that use unpublished decisions for historical or res judicata purposes, the vast majority of those cases rely on unpublished opinions for substantive propositions of law.  Interestingly, the rate of citation to unpublished decisions increased dramatically following the amendment to Appellate Rule 32.1, which allowed the citation of unpublished opinion.  In the five years prior to the adoption of that rule, the Sixth Circuit cited to unpublished case in about 40% of opinions.  Go back a few more years, to 1990 to 1995, and unpublished cases were cited in less than 10% of the court’s opinions.

These numbers reflect the impact of Appellate Rule 32.1 and the growing acknowledgement in the Sixth Circuit that, like it or not, unpublished opinions have precedential value.   That’s not to say that lawyers should be content with unpublished cases, since published cases areintended to have, and written to have, precedential value that binds subsequent panels.  But if an unpublished decision has persuasive reasoning, or the closest facts, we should freely discuss it in our briefs.  The Sixth Circuit certainly won’t hesitate to use such a case in its decision.

Danelle Gagliardi