When should you cite an unpublished opinion? This frequent question has a different answer in every circuit, and can be extremely important because most decisions are unpublished. The percentage rate of unpublished decisions varies widely, from 60% in the Seventh, 84% in Sixth, to 93% in the Fourth. Appellate Rule 32.1 now allows parties to cite any written disposition issued after January 1, 2007 regardless of its status as unpublished or nonprecedential. While the circuits have broad disagreements about what cases should (and can) be cited, the Sixth Circuit is among the circuits most receptive to unpublished opinions.
Prior to the 2006 adoption of Rule 32.1, the Sixth Circuit’s local rules said the citation of unpublished opinions was “disfavored, except for the purpose of establishing res judicata, estoppel, or the law of the case.” They now state only that citation of unpublished opinions is “permitted.” But unpublished opinions are not precedential: “Unpublished decisions in the Sixth Circuit are, of course, not binding precedent on subsequent panels, but their reasoning may be ‘instructive’ or helpful.”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); see also Music v. Arrowood Indem. Co., 632 F.3d 284, 288 (6th Cir. 2011) (choosing not to follow unpublished decision). While Crump is not a ringing endorsement, unpublished decisions are frequently cited in current Sixth Circuit decisions.
The Sixth Circuit also has a long history of using unpublished opinions. The Sixth Circuit was the first to officially allow its unpublished decisions to be included in electronic databases. Many other circuits did not take this step until ten or even twenty years later. Unpublished opinions in the Sixth Circuit are more likely to be longer, with more discussion and reasoning, and to give the author’s name than the opinions of other circuits. Tim Reagan of the Federal Judicial Center has found that Sixth Circuit judges are far more likely than those of other circuits to believe that unpublished opinions are helpful to decide cases. Perhaps as a consequence of their more frequent use, they are also the most likely to be concerned that unpublished opinions are inconsistent with published authority.
As noted above, unpublished opinions receive a different reception in each circuit. The Second, Seventh, and Ninth circuits forbid citing any unpublished decisions issued before 2007, and the Fourth, Eighth, and Federal circuits discourage their citation. See 4th Cir. R. 32.1 (“If a party believes, nevertheless, that an unpublished disposition of this Court issued prior to January 1, 2007, has precedential 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.”). As judges on the Third Circuit almost always avoid citing unpublished opinions, litigants should think twice before relying exclusively on such precedent to that court.
As in every circuit, individual judges in the Sixth Circuit choose whether to make an opinion published on unpublished. Usually this is based on whether the question of law is novel, the case particularly interesting, the opinion analyzes a particularly difficult question. It is also influenced by the possibility of encouraging a dissent with the choice to publish (writing a dissent can also encourage publication as well). Some judges are also much more likely to designate their opinions as published than others.
Relevant unpublished decisions can and should be cited in appellate briefs in the Sixth Circuit with a few caveats: Unpublished decisions are not binding on subsequent panels, and so should not be favored over older published decisison. Such decisions may not be as well-reasoned or persuasive as a published decision from another circuit. Because the factual discussion is generally shorter, judges may also be more inclined to distinguish unpublished decisions in cases involving complex facts. But unpublished decisions also show that an argument has been accepted before, and a panel may hesitate before completely rejecting a priopr unpublished decision.
This is part of a series of posts on the procedures and practices of the Sixth Circuit. Earlier posts in this series have discussed oral argument, the court’s backlog, staff attorneys (two posts), and visiting judges.