Stare Decisis and Unpublished Opinions
October 13, 2016
The common law doctrine of stare decisis is one of the most prominent legal doctrines in American jurisprudence. We learn during our first year of law school that stare decisis requires courts and litigants to follow legal precedent. The doctrine has been the topic of previous articles in this column. See Eric Magnuson & Nicole Frank, Because Someone Said So, That’s Why, Minn. Lawyer (July 16, 2015).
However, stare decisis is not always easy to discern. Are federal district court opinions precedential? Are unpublished federal opinions precedential? If federal district court opinions are not precedential, why do some litigants seek to de-publish federal district court opinions? Those are questions we address in this article.
Stare decisis and federal district court opinions
Although there are varying approaches toward stare decisis at the district court level, the general rule is that federal district court opinions do not have the precedential impact of stare decisis. See, e.g., Reid v. BCBSM, Inc., 787 F.3d 892, 895 n.2 (8th Cir. 2015) (noting that district court rulings “cannot be used as stare decisis”); McGinley v. Houston, 361 F.3d 1328, 1331 (11th Cir. 2004) (“The general rule is that a district judge’s decision neither binds another district judge nor binds him, although a judge ought to give great weight to his own prior decisions.”). However, even though district court judges are not bound by district court opinions, district court judges will often treat opinions of other judges in their district as persuasive authority to ensure greater consistency across their district. See, e.g., Broaddrick v. Exec. Office of the President, 139 F. Supp. 2d 55, 59 (D.D.C. 2001) (considering district precedent for its “persuasive value”); United States v. Firman, 98 F. Supp. 944, 946 (W.D. Pa. 1951) (“Judges of coordinate jurisdiction should not ordinarily overrule decisions of their associates based on the same set of facts, unless required by higher authority.”).
Unpublished district court opinions
Unpublished opinions are those that are not included in an official reporter, such as the Federal Supplement (for district court opinions) or the Federal Reporter (for circuit court opinions). Although judges typically control whether their opinions will be designated as unpublished, this does not mean that they are not published anywhere. Even opinions designated as unpublished are often available through Westlaw and Lexis, official court websites, media sites, and other public databases. Therefore, the term “unpublished opinions” is somewhat misleading.
The precedential treatment of unpublished district court opinions varies between the circuit level and the district level. Circuit courts, unlike district courts, place an enormous weight on the difference between published and unpublished opinions. Prior to 2006, there was a vigorous debate among circuits regarding whether litigants should be allowed to cite unpublished opinions. Compare 8th Cir. R. 28A(i) (repealed 2007) (“Unpublished opinions . . . are not precedent and parties generally should not cite them.”), with 3d Cir. R. 28.3(a)(“Citations to federal decisions that have not been formally reported shall identify the court, docket number and date, and refer to the electronically transmitted decision.”); see also Patrick J. Schiltz, The Citation of Unpublished Opinions in the Federal Courts of Appeals, 74 Fordham L. Rev. 23 (2005) (discussing Judge Richard Arnold’s highly publicized Anastasoff decision, which held that the U.S. Constitution requires federal courts to treat all of its opinions, whether published or not, as precedent); Thomas R. Lee & Lance S. Lehnhof, The Anastasoff Case and the Judicial Power to “Unpublish” Opinions, 77 Notre Dame L. Rev. 135 (2001) (same); Howard J. Bashman, The Unconstitutionality of Non-Precedential Appellate Rulings, The Legal Intelligencer (Dec. 11, 2000) (same).
In 2006, the U.S. Supreme Court adopted Federal Rule of Appellate Procedure 32.1, which requires that all circuits permit litigants to cite unpublished opinions that are issued after January 1, 2007. Although the passage of Rule 32.1 ended the debate about whether litigants should be allowed to cite unpublished opinions, Rule 32.1 did not address whether stare decisis must be extended to all opinions, whether published or not. The current practice of the circuit courts is to treat unpublished opinions as non-binding precedent. See, e.g., 8th Cir. R. 32.1A (“Unpublished opinions . . . are not precedent.”); 10th Cir. R. 32.1(A) (“Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority.”).
By contrast, the approach among district courts is not to distinguish between published and unpublished decisions. District courts typically do not assign greater stare decisis weight to published opinions over unpublished decisions. See, e.g., Arakaki v. Cayetano, 299 F. Supp. 2d 1090, 1094 n.3 (D. Haw. 2002) (“[A]n unpublished federal district court decision has no more and no less force and effect than a published federal district court decision.”); Shannon v. Pleasant Valley Cmty. Living Arrangements, Inc., 82 F. Supp. 2d 426, 429 n.8 (W.D. Pa. 2000) (“It is well-settled that a district court opinion, even when published, has no precedential value … .”). Thus, unlike circuit courts, federal district courts do not define stare decisis as strongly among published or unpublished decisions.
De-publishing non-precedential district court opinions
Although federal district court opinions are not binding precedent, litigants occasionally request that district courts de-publish their opinions. How do you de‑publish federal court opinions, you might ask? You might file a motion to vacate the opinion. See Eric Magnuson, Now You See It . . . Vacating Precedent, Minn. Lawyer (July 15, 2013). Federal Rule of Civil Procedure 60(b)(5) and (b)(6) allows a district court to vacate its own opinion where “the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable” or “any other reason that justifies relief.” The U.S. Supreme Court and federal circuit courts also have the power to vacate decisions of federal district courts. The decision of whether to grant vacatur is an equitable determination that “will depend heavily on the circumstances involved in each case.” Reid, 787 F.3d at 895.
If federal district court opinions are not binding precedent, why do litigants seek to de-publish the opinions in the first place? Part of this effort might stem from a misunderstanding of stare decisis and precedent. Because district court opinions are not given stare decisis treatment, the publication status of the opinion has no impact on its precedential value. In a number of cases, district courts have denied requests to publish or not publish for this reason. See, e.g., Vertext Surgical, Inc. v. Paradigm Biodevices, Inc., 648 F. Supp. 2d 226, 234 (D. Mass. 2009) (denying motion to vacate). Nonetheless, in some circumstances, de-publication might be appropriate to “prevent an unreviewable decision from spawning any legal consequences.” Camreta v. Greene, 563 U.S. 692, 695 (2011) (internal citation omitted). District court judges are qualified to determine whether their decisions should be published or unpublished, and if litigants have concerns about the publication status of a particular opinion, they should bring the issue to the court’s attention by filing a motion for vacatur.
Who cares? Your client might, and so might you
At the end of the day, this may seem like a fairly esoteric discussion. However, some clients are sensitive about seeing their name in print, and sometimes it is not so much about the precedent as it is the binding legal effect of a particular decision. Even after a case is settled, a particular holding in a specific case might have collateral estoppel effect in other litigation, for example. Your client may have some real incentive to not only get out of the spotlight, but also off the judgment roll in a more formal way.
Because it is not possible to unring every bell, sometimes the best course of action is to silence the bell before it chimes by trying to prevent publication of a particular decision. Failing that, de-publication or vacatur may be in the best interests not only of your client, but the body of law itself. It is worth considering depending on the nature and impact of the decision and the interests and goals of your client
Reprinted with permission of Minnesota Lawyer ©2016
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