Second Circuit Adopts Local Rule Regarding Non-Precedential ("Unpublished") Opinions

On December 1, 2006, the Federal Rules of Appellate Procedure were amended to add Rule 32.1, which adopted a uniform standard permitting the citation of all judicial dispositions on or after January 1, 2007. The rule had the effect of requiring some courts of appeal to revise their rules to eliminate prohibitions against citing so-called “unpublished” opinions.

In a recent example of meeting the new requirement, on June 26, 2007, the Second Circuit adopted a final version of amended Local Rule 32.1, setting specific requirements for the issuance and citation of such opinions, which the court termed “summary orders.” The court commentary explained its purposes in issuing summary orders, and noted that although such orders are not precedential it “does not mean that the court considers itself free to rule differently in similar cases.”

U.S. Supreme Court Allows Citation To Unpublished Opinions

One of the procedural issues that has been debated in the federal courts for many years involves the citation of so-called “unpublished” opinions.

The federal courts of appeal have disposed of many appeals with abbreviated opinions that are not published in the official reports (i.e., West’s Federal Reporter), and have in varying degrees prohibited the citation of such opinions. However, those opinions have long been available through Lexis and Westlaw, and in recent years through the courts’ own Web sites.

On April 12, 2006, the U.S. Supreme Court approved new Fed. R. App. P. 32.1 to allow citation of unpublished opinions. The new rule, which becomes effective on December 1, 2006 unless Congress intervenes, prohibits federal courts from restricting the citation of federal unpublished opinions released beginning on January 1, 2007. If a party cites an unpublished opinion, it must furnish copies along with its brief. The new rule only speaks to citation rules, and does not prohibit courts from assigning such opinions different precedential weight.